Law Library Cornell Law School THE GIFT OF Date .§.yfe^^<^(4l^ /ij.Jf.t> , m Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018847065 CASES ON THE LAW OF SALES OF GOODS SELECTED FROM DECISIONS OF ENGLISH AND AMERICAN COURTS BY FREDERIC CAMPBELL WOODWARD PROFESSOR OF LAW IN LELAND STANFORD JR. UNIVERSITY AMERICAN CASEBOOK SERIES JAMES BROWN SCOTT GENERAL EDITOR ST. PAUL WEST PUBLISHING COMPANY 1913 COPTEIGHT, 1913 BT WEST PUBLISHING COMPANY (WooDW. Sales) THE AMERICAN CASEBOOK SERIES For years past the science of law has been taught by lectures, the use of text-books and more recently by the detailed study, in the class-room, of selected cases. Each method has its advocates, but it is generally agreed that the lecture system should be discarded because in it the lecturer does the work and the student is either a willing receptacle or offers a passive resistance. It is not too much to say that the lecture system is doomed. Instruction by the means of text-books as a supplement or sub- stitute for the formal lecture has made its formal entry into the educa- tional world and obtains widely ; but the system is faulty and must pass away as the exclusive means of studying and teaching law. It is an improvement on the forma] lecture in that the student works, but if it ■cannot be said that he works to no purpose, it is a fact that he works from the wrong end. The rule is learned without the reason, or both rule and reason are stated in the abstract as the resultant rather than as the process. If we forget the rule we cannot solve the problem ; if we have learned to solve the problem it is a simple matter to formulate a rule of our own. The text-book method may strengthen the mem- ory; it may not train the mind, nor does it necessarily strengthen it. A text, if it be short, is at best a summary, and a summary presup- poses previous knowledge. If, however, law be considered as a science rather than a collection of arbitrary rules and regulations, it follows that it should be studied as a science. Thus to state the problem is to solve it; the laboratory method has displaced the lecture, and the text yields to the actual experiment. The law reports are in more senses than one books of experiments, and, by studying the actual case, the student co-operates with the judge and works out the conclusion however complicated the facts or the principles involved. A study of cases arranged his- torically develops the knowledge of the law, and each case is seen to be not an isolated fact but a necessary link in the chain of develop- ment. The study of the case is clearly the most practical method, for the student already does in his undergraduate days what he must do all his life; it is curiously the most theoretical and the most prac- tical. For a discussion of the case in all its parts develops analysis, the comparison of many cases establishes a general principle, and (iii) IV PREFACE the arrangement and classification of principles dealing with a sub- ject make the law on that subject. In this way training and knowledge, the means and the end of legal study, go hand and hand. The obvious advantages of the study of law by means of selected cases make its universal adoption a mere question of time. The only serious objections made to the case method are that it takes too much time to give a student the requisite knowledge of the sub- ject in this way and that the system loses sight of the difference be- tween the preparation of the student and the lifelong training of the lawyer. Many collections of cases seem open to these objections, for they are so bulky that it is impossible to cover a particular sub- ject with them in the time ordinarily allotted to it in the class. In this way the student discusses only a part of a subject. His knowl- edge is thorough as far as it goes, but it is incomplete and frag- mentary. The knowledge of the subject as a whole is deliberately sacrificed to training in a part of the subject. It would seem axiomatic that the size of the casebook should cor- respond in general to the amount of time at the disposal of instructor and student. As the time element is, in most cases, a nonexpansive quantity, it necessarily follows that, if only a half to two-thirds of the cases in the present collections can be discussed in class, the pres- ent casebooks are a third to a half too long. From a purely practical and economic standpoint it is a mistake to ask students to pay for 1,200 pages when they can only use GOO, and it must be remembered that in many schools, and with many students in all schools, the mat- ter of the cost of casebooks is important. Therefore, for purely practical reasons, it is believed that there is a demand for casebooks physically adapted and intended for use as a whole in the class-room. But aside from this, as has been said, the existing plan sacrifices knowledge to training. It is not denied that training is important, nor that for a law student, considering the small amount of actual knowledge the school can hope to give him in comparison with the vast and daily growing body of the law, it is more important than mere knowledge. It is, however, confidently asserted that knowledge is, after all, not unimportant, and that, in the inevitable compromise between training and knowledge, the present casebooks not only de- vote too little attention relatively to the inculcation of knowledge, but that they sacrifice unnecessarily knowledge to training. It is be- lieved that a greater effort should be made to cover the general prin- ciples of a given subject in the time allotted, even at the expense of a considerable sacrifice of detail. But in this proposed readjustment of the means to the end, the fundamental fact cannot be overlooked that law is a developing science and that its present can only be un- derstood through the medium of its past. It is recognized as im- perative that a sufficient number of cases be given under each topic PREFACE V treated to afford a basis for comparison and discrimination; to show the development of the law of the particular topic under discussion; and to afford the mental training for which the case system neces- sarily stands. To take a familiar illustration: If it is proposed to include in a casebook on Criminal Law one case on abortion, one on libel, two on perjury, one on larceny from an office, and if in order to do this it is necessary to limit the number of cases on specific intent to such a degree as to leave too few on this topic to develop it fully and to furnish the student with training, then the subjects of abor- tion, libel, perjury, and larceny from an office should be wholly omit- ted. The student must needs acquire an adequate knowledge of these subjects, but. the training already had in the underlying principles of criminal law will render the acquisition of this knowledge compara- tively easy. The exercise of a wise discretion would treat fundamen- tals thoroughly; principle should not yield to detail. Impressed by the excellence of the case system as a means of legal education, but convinced that no satisfactory adjustment of the con- flict between training and knowledge under existing time restrictions has yet been found, the General Editor takes pleasure in announcing a series of scholarly casebooks, prepared with special reference to the needs and limitations of the class-room, on the fundamental sub- jects of legal education, which, through a judicious rearrangement of emphasis, shall provide adequate training combined with a thor- ough knowledge of the general principles of the subject. The collec- tion will develop the law historically and scientifically; English cases will give the origin and development of the law in England ; Ameri- can cases will trace its expansion and modification in America; notes and annotations will suggest phases omitted in the printed case. Cumulative references will be avoided, for the footnote may not hope to rival the digest. The law will thus be presented as an organic growth, and the neces- sary connection between the past and the present will be obvious. The importance and difficulty of the subject as well as the time that can properly be devoted to it will be carefully considered so that each book may be completed within the time allotted to the particular sub- ject. It is equally obvious that some subjects are treated at too great length, and that a less important subject demands briefer treatment. A small book for a small subject. In this way it will be alike possible for teacher and class to com- plete each book instead of skimming it or neglecting whole sections ; and more subjects may be elected by the student if presented in short- er form based upon the relative importance of the subject and the time allotted to its mastery. Training and knowledge go hand in hand, and Training and Knowl- edge are the keynotes of the series. VI PEEFACE If it be granted that all, or nearly all, the studies required for ad- mission to the bar should be studied in course by every student — and the soundness of this contention can hardly be seriously doubted — it follows necessarily that the preparation and publication of collections of cases exactly adapted to the purpose would be a genuine and by no means unimportant service to the cause of legal education. And this result can best be obtained by the preparation of a systematic series of casebooks constructed upon a uniform plan under the super- vision of an editor in chief. For the basis of calculation the hour has been taken as the unit. The General Editor's personal experience, supplemented by the experience of others in the class-room, leads to the belief that approximately a book of 400 pages may be covered by the average student in half a year of two hours a week ; that a book of 600 pages may be discussed in class in three hours for half a year ; that a book of 800 pages may be completed by the student in two hours a week throughout the year ; and a class may. reasonably hope to master a volume of 1,000 pages in a year of three hours a week. The general rule will be subject to some modifications in connection with particular topics on due con- sideration of their relative importance and difficulty, and the time ordinarily allotted to them in the law school curriculum. The following subjects are deemed essential in that a knowledge of them (with the exception of International Law and General Juris- prudence) is universally required for admission to the bar: Administrative Law. Insurance. Agency. International Law, Bills and Notes. Jurisprudence. Carriers. Mortgages. Contracts. Partnership. Corporations. Personal Property, including Constitutional Law. the Law of Bailment. Criminal Law. -n i -n , ( is* Year. Criminal Procedure. Real Property. ] m ;; Common-Law Pleading. Public Corporations. Conflict of Laws. Quasi Contracts. Code Pleading. Sales. Damages. Suretyship. Domestic Relations. Torts. Equity. Trusts. Equity Pleading. Wills and Administration. Evidence. International Law is included in the list of essentials from its in- trinsic importance in our system of law. As its principles are simple in comparison with municipal law, as their application is less technical, PREFACE V and as the cases are generally interesting, it is thought that the book may be larger than otherwise would be the case. As an introduction to the series a book of Selections on General Jurisprudence of about 500 pages is deemed essential to completeness. The preparation of the casebooks has been intrusted to experienced and well-known teachers of the various subjects included, so that the experience of the class-room and the needs of the students will fur- nish a sound basis of selection. While a further list is contemplated of usual but relatively less im- portant subjects as tested by the requirements for admission to the bar, no announcement of them is made at present. The following gentlemen of standing and repute in the profession have written or are at present actively engaged in the preparation of the various casebooks on the indicated subjects: George W. Kirchwey, Dean of the Columbia University, School of Law. Subject, Real Property. Nathan Abbott, Professor of Law, Columbia University. (Formerly Dean of the Stanford University Law School.) Subject, Per- sonal Property. Frank Irvine, Dean of the Cornell University School of Law. Sub- ject, Evidence. Harry S. Richards, Dean of the University of Wisconsin School of Law. Subject, Corporations. James Parker Hall, Dean of the University of Chicago School of Law. Subject, Constitutional Law. WiUiam R. Vance, Dean of the George Washington University Law School. Subject, Insurance. Charles M. Hepburn, Professor of Law, University of Indiana. Sub- ject, Torts. William E. Mikell, Professor of Law, University of Pennsylvania. Subjects, Criminal Law and Criminal Procedure. George P. Costigan, Jr., Professor of Law, Northwestern University Law School. Subject, Wills and Administration. Floyd R. Mechem, Professor of Law, Chicago University. Subject, Damages. (Co-author with Barry Gilbert.) Barry Gilbert, Professor of Law, University of Illinois. Subject, Damages. (Co-author with Floyd R. Mechem.) Thaddeus D. Kenneson, Professor of Law, University of New York. Subject, Trusts. Charles Thaddeus Terry, Professor of Law, Columbia University. Subject, Contracts. viil PEEFACE Albert M. Kales, Professor of Law, Northwestern University. Sub- ject, Persons. Edwin C. Goddard, Professor of Law, University of Michigan. Sub- ject, Agency. Howard L. Sniith, Professor of Law, University of Wisconsin. Sub- ject, Bills and Notes. (Co-author with Wm. Underhill Moore.) Wm. Underhill Moore, Professor of Law, University of Wisconsin. Subject, Bills and Notes. (Co-author with Howard L. Smith.) Edward S. Thurston, Professor of Law, George Washington Univer- sity. Subject, Quasi Contracts. Crawford D. Hening, Professor of Law, University of Pennsylvania. Subject, Suretyship. Clarke B. Whittier, Professor of Law, University of Chicago. Sub- ject, Pleading. Eugene A. Gilmore, Professor of Law, University of Wisconsin. Subject, Partnership. Ernst Freund, Professor of Law, University of Chicago. Subject, Administrative Law. Frederick Green, Professor of Law, University of Illinois. Subject, Carriers. Ernest G. Lorenzen, Professor of Law, George Washington Univer- sity. Subject, Conflict of Lazvs. Frederic C. Woodward, Dean of the Stanford University Law School. Subject, Sales. James Brown Scott, Professor of Law, George Washington Univer- sity; formerly Professor of Law, Columbia University, New York City. Subjects, International Laiv; General Jurisprudence; Equity. James Brown Scott, Wasuington, D. C, July, 1913. General Editor. Following are the books of the Series now published, or in press; Administrative Law Partnersliip Bills and Notes Persona Carriers Pleading Conflict of Laws Sales Corporations Suretyship Criminal Law Trusts Criminal Procedure Wills and Administration Damages PREFACE Inasmuch as there are a number of comprehensive and reliable trea- tises on the law of Sales, I have deemed it unnecessary to attempt, by the elaborate citation of authorities, to show the precise state of the law, either upon questions considered in the selected cases or upon subordinate or related points. In the main, therefore, the notes consist of references to cases which, though for one reason or an- other not selected for reprinting, seem to me to be of particular im- portance or interest. My' task has been incalculably diminished, of course, by the stand- ard treatises on the subject and by previous casebooks, and I desire to acknowledge in particular my indebtedness to the works of Ben- jamin, Mechem and Williston. F. C. W. Stanford University, California, May 2, 1913. (ix)* TABLE OF CONTENTS CHAPTER I^ Page Subject-Mattek of the Conteact 1 CHAPTER II Transfer of Property and Title Section 1. Unconditional Contract to Sell Specific Goods — In General 18 2. Contract to Sell Specific Goods to Whicli Something Remains to be Done 21 3. "Sale or Return" and "Sale on Approval" 38 4. "Cash Sale" 44 5. Contract to Sell Unascertained Goods of a Fungible Nature 56 6. Contract to Sell Unascertained Goods — Appropriation 78 7. Delivery to Carrier as Appropriation 116 8. Effect of Issue of Document of Title and of Negotiation or Transfer Thereof 129 9. Effect of Sale by Bailee or Factor 201 10. Effect of Retention of Property by Seller After Delivery to Buyer — "Conditional Sale" 224 11. Effect of Retention of Possession by Seller after Transfer of Proper- ty to Buyer 243 12. Effect of Fraud on the Seller 275 CHAPTER III Destrtjction op the Goods — Risk of Loss 808 CHAPTER IV Obligations of Seller and Buyer 1. Express Warranties 331 2. Implied Warranty of Title 352 3. Implied Warranty of Quality 357 4. Delivery and Payment 394 5. Inspection 416 6. Acceptance 430 CHAPTER V Rights of Unpaid Seller Against the Goods 1. Lien 446 2. Stoppage in Transitu 464 3. Resale and Rescission 524 Woodw.Saleb (xi) XIX TABLE OF CONTENTS CHAPTER VI _ ,, Remedies of the Seller on the Contract p.„o Section i^age 1. In General 5^3 2. In "Conditional Sales" 5.j7 CHAPTER VII Remedies of the Buyer on the Contract 578 CHAPTER VIII Statute of Frauds 1. "Contract for the Sale of Goods" 594 2. "For the Price of £10 or Upwards" 616 3. "Shall be Allowed to be Good" 621 4. Acceptance and Receipt of Part of Goods 639 5. Earnest or Part Payment 683 6. The Note or Memorandum 699 APPENDIX Sales Act 753 Sale of Goods Act 772 TABLE OF CASES [cases cited in footnotes are indicated by italics, wiiehe small capitals abe used, the case is befekbed to in tue text] Page Aceta V. Levy 676 Ackerman v. Rubens 530 A. D. Puffer & Sons Mfg. Co. v. Lucas 574 Aldrldge v. Johnson 103 Allen V. Elmore 36 Ames V. Moir 461 Amslnck v. American Ins. Co 624 Amsinck v. Boylston Mut. Ins. Co. 624 Amsinck v. New England Mut. Ins. Co 624 Anchor Mill Co. v. Burlington, C. R. & N. R. Co 179 Anderson v. Crisp 75 Anderson v. May 314 Andrews v. Cheney 95 Andrews v. Durant 84 Arnold v. Delano 461 Arques v. Wasson 7 Atherton v. Kewhall 678 Atkinson v. Bell 89, 543 Aultman & Co. v. Olson 565 Austen v. Craven 73 Austin V. Craven 59 Bailey v. Hervey 559 Bailey v. Sweeting 70S Barber v. Meyerstein 169 Barnard v. Campbell 297 Barnard v. Kellogg 364 Barton v. Kane 118 Bass, Heard & Hoicle v. Interna- tional Harvester Go 243 Bates V. Smith 13 Beckwith v. Talbot 732 Bement v. Smith 543 Benedict v. Schaettle 518 Benedict v. Schaettle 522 Berman v. Henry N. Clark Co. . . 581 Berndtson v. Strang 484 Bethell & Co. v. Clark & Co 497 Bibb y. Allen 719 Bigelow v. Maine Cent. R. Co.. .. 394 BiGGE V. Pabkinson 389 Bill V. Bament 643 Bird V. Munroe 633 Blackman v. Pierce 483 Bloxam & Warrington v. Sanders 446 Page BOHTLINGK V. InQLIS 4S9 Boswell V. Green 34 Bowes v. Shand 407 Brewer v. Horst & Lachmund Co. 730 Bridgf ord v. Crocker 542 Briggs v. United States 623 Bristol v. Mente 643 Brooks V. Beirnstein 566 Brown v. Whipple 735 Bryans v. Nix 99 Bryant v. Isburgh , 585 Burljanh v. Crocker 243 Burghall v. Howard 465 Burnley v. Tufts 327 Burt V. Dewey 355 Butters V. Haughwout 301 Buttericorth v. McKinhj 25 Cadogan v. Kennet 246 Cahen v. Piatt 411 Calcutta & Burmah Steam Xav. Co. V. De Mattes 314 Calvert v. Schultz 681 Campion v. Marston 370 Campion v. Marston 441 Carpenter v. Scott 237 Catlin v. Jones 395 Chandelor v. Lopus 332 Chaplin v. Rogers 639 Clark v. Greeley 46 Cochrane v. Moore 18 Cock, In re 491 Cole v. Berry 233 Colonial Ins. Co. v. Adelaide Ma- rine Ins. Co 108 Commercial Bank v. J. K. Arms- by Co 194 Continental Jewelry Co. v. Pugh Bros 589 Cooke V. Millard 594 Coon V. Rigden 700 Cream City Glass Co. v. Fried- lander 426 Cross v. Gardner 332 Crummey v. Raudenbush 458 Cuff v. Penn 744, 749 Cuff V. Penn 744 Cummings v. Arnold 746 WooDW. Sales (xiii) IIT TABLE OF CASES Page Cundy v. Lindsay ." 275 Currie v. Anderson 654 Cusack V. Robinson 657 Davis V. Page 222 Davis V. Shields 700 Davis Calyx Drill Co. v. Mallory 378 Daive V. Morris 286 Day V. Pool 433 Dederick v. Wolfe 566 De JIattos v. Calcutta & Burmah Steam Nav. Go 814 Descalzi Fruit Co. v. William S. Sweet & Son 442 Dexter v. Norton 308 Diem v. Koblitz 517 Dierson v. Petersmeyer 677 Dorsey v. Pike 643 Dovglas v. Hh umivay 461 Drexel v. Pease 166 Driggs V. Bush 688 Drury v. Young 705 Duke V. Shackleford 571 Dustan v. McAndrew 526 Eaton v. Blackburn 418 Edan v. Dudfield 641 Edgerton v. Plodge 684 Edwards v. Harben 243 Edwards, Hudmon & Co. v. Mead- ows 400 EiCHHOLZ V. Bannistee 853 Elphick V. Barnes 38 Ely V. Ormshy 623 Emmeraon v. Heclis 621 Enterprise Mfg. Co. v. Oppenheim 413 Evans v. JIartlett 129 Evans V. Roberts .W7 Eyers v. Haddem 590 Farina v. Home 645 Farmers' & Mechanics' Bank v. Logan 328 Farmers' & Mechanics' Nat. Bank of Buffalo V. Logan 156 Farrell v. Manhattan Market Co. (three cases) 388 Flint Wagon Works v. Moloney. . 243 Foley V. Felrath 41 Frank v. Eltringham 710 Freeh v. Lewis 52 French v. Schoonmakcr 616 Gaf.dnee v. Dutch 64 Gardner v. Grout 653 Gaylord Mfg. Co. v. Allen 430 Oeorge Lawkty £ Son Corp. v. Park 585 George W. Merrill Furniture Co. V. Hill 50 Giffen v. Selma Fruit Co 416 Pag6 GiUett V. Hill 59 Ginn v. W. C. Clark Coal Co 441 GonDABD V. BiNNET 595 GOLDEE v. OODEN 66 Goodwin v. Mass. Loan, etc., Co.. . 307 Gordon v. Norris 546 Goss V. Lord Nugent 747 Gould V. Bourgeois 352 Goulds v. Beopht 383 Grant v. Fletcher 72.3 Grantham v. Hawley 6 Green v. Armstrong 604 Green v. Edgar 442 Green v. Lewis 631 Greenwood v. Law 615 Greenwood Grocery Co. v. Cana- dian County Mill & Elevator Co. 151 Gunther v. Atnell 388 Hammett v. Litnifman 55 Hand v. Matthcics 48 Hanson v. Marsh 711 Hanson v. Meyer 2.5 Hanson v. Mayer 34 H. A. Prentice Co. v. Page 222 Harkness v. Russell 224 Harman v. Reeve 616 Hastie V. Couturier 1 Hawkins v. Pemberton 340 Hayden v. IJcmets 546 Ilaynes v. Temple 561 Hays V. Jordan 572 Hervey v. Dimond 239 Heevey v. Rhode Island Locoiio- TIVE WOEKS 235 Higgins V. Kusterer 613 Pliggins V. Senior 72:i F/ilmcr v. Hills 156 HOAEE V. REN^'IE 406 Hobart v. Young 343 Hoe v. Saiiborn 376 Hollcnbcrg Music Co. v. Barron. . 32N Holmes V. Tyson 340 Hull v. Hull 10 Hunt V. Jones 633 Hunter Bros. Mill. Co. v. Kramer Bros 125 Hutchinson v. Huntee 65 Idaho, The 143 Ingalls V. Herrick 253 Ireland v. Johnson 694 Jackson v. Andeeson 64, 72 Jackson v. Staiifield 625 Jackson v. Tupper 698 James Drummond & Sons v. E. H. Van Ingen & Co 384 Januey v. Sleeper 394 Jendwine v. Slade 333 Jendwine v. Slade 336 TABLE OF CASES IV Faga Jenner v. Smith 92 Jenneas v. Wendell 621- Jennings & Silvey v. Dunham 6S3 J. M. Arthur & Go. v. Blaclcman 328 Johnson v. Eveleth 512 Johnson v. Hunt 81 Johnson V. lankovetz 55 Johnson & Miller v. Buck T24 Johnston v. Trask 679 Jones t. Bright 373 Jones V. Just 357 Jones Bros. v. Joyner 727 J. W. Ellison, Son d Co. v. Flat Top Orocery Co 413 Kellogg Bkidge Co. v. Hamilton 381 Kemp V. Falk 477 Klmberly v. Patchln 67 Knights V. Wlffen 59 Kranert v. Simon 307 Kreuiier, In re 241 Kriete v. Thomas J. Myer & Co. 713 Krohn v. Bantz 692 Lamprey v. Sargent 77 Lanfear v. Sumner 249 Lanfffear v. Sumner 253 Langton v. Higgins 105 Langton v. Higgins 8 La very v. Pursell 608 Leaslc v. Scott 304 Lee V. Gaskell 612 Lee v. Griffin 595 Lerned v. Wannemacher 738 Leven v. Smith 44 Levi V. Booth 203 Libby v. Haley 589 Lickbarrow v. JIason 465 Lincoln v. Gallagher 429 Lingham v. Eggleston 34 Logan v. Carroll 694 Long V. White 612 Lothrop V. Wightman 267 Louisville Lithographic Co. v. Schedler 424 Lovell V. Isidore Newman & Son. . 141 Low V. Pew 15 Lyon V. Bertram 585 McArthtir Co. v. Old Second Nat. Bank 200 McConihe v. New York & E. R. Co. 328 McElwee V. Metropolitan Lumber Co 450 McFarland v. Newman 336 McKibbin v. Kline 256 McKibbln v. Martin 256 Maclean v. Dunn 526 McNeal v. Braun 320, 416 Mescal V. Braun 129 Mahan v. United States 621 PaKd Marshall v. Green 601 Marshall v. Lyon 744 Martindale v. Booth 247 Martindale v. Smith 524 Martineau v. Kitching 323 Meade v. Smith 253 Memphis & L. R. R. Co. v. Freed 500 Meredith v. Meigh 676 Merritt & Merritt v. Clason 699 Mebset Co. V. Naylor 409 Miller v. Baker 608 Miller v. Steen 568 Milllken v. Skillings 586 Milos v. Covacevich 696 Minneapolis Harvester Works v. Hally 564 Minneapolis Harvester Works v. Hally 565 Mirabita v. Imperial Ottoman Bank 134 Mitchell V. Le Clair 96 Moakes v. Nicholson 147 Mondel v. Steel 578 Moody V. Aiken 612 Moor V. Russell -.331 Moore v. Louisiana Nat. Bank.. 198 Moore v. Potter 530 Moors V. Kidder 166 Morin v. Martz 70.'! Morse v. Moore 4.17 Morton v. Tibbett 647 MucKLOw V. Mangles 83 Myers v. Harvey 267 Newell V. Radford 709 New England Dressed Meat & Wool Co. V. Standard Worsted Co 722 Newhall v. Central Pac. R. Co. . . 47-5 NicnoL V. GoDTS 374 Nicholson v. Taylor ,'52 Nixon V. Brown 209 Noble V. Ward 745 Norrington v. Wright 401 Norris v. Parker 347 North Alaska Salmon Co. v. Hobbs Wall £ Go 436 North & Co. V. Mendel & Bro 716 Nutting v. Watson, Woods Bros. & Kelly Co 593 O'Connor v. Clark 212 Ogle V. Atkinson 166 O'Neal V. Day 509 O'Keil V. Grain 712 Ontario Deciduous Fruit Growers' Ass'n V. Cutting Fruit Packing Co 311 OXENDALE V. WETHERELL 112 Page V. Morgan 662 XVI TABLE OF CASES Page Paine & Gekler v. Young 23 Parsons v. Loucks 596 Parton v. Crofts 720 Pasley v. Freeman 352 Pecke V. Redman 19 People v. Shriver 121 J'feifer v. Norman 577 Philadelphia Whiting Co. v. Detroit White Lead Works. . . 428 Pickering v. Busk 201 Pierce v. Chipman 272 PiERSON V. Crooks 420 Pleasants v. Pendleton 63, 72 Pollard V. Reardon 189 Power V. Barham 335 Powers V. Briggs 351 Pratt V. S. Freeman & Sons Mfg. Co 533 Priest V. Last 377 Purncr v. Picrct/ 60S Putnam v. Glidden 554 Randall v. Newson 372 Ray field v. \an Meter 574 Reardon v. Pollard 189 Reybold v. Yoorhees 41.'! Reynolds v. Boston & M. R. R 507 Ridgley v. Mooneij 542 Robinson v. Pogue 149 Rochester & Oleopolis Oil Co. v. Hughey 113 Rodgers v. Phillips 670 Rodliff v. Dallinger 278 Rogers v. Thomas 518 Romeo v. Martucci 21S Rosevear China Clay Co., Ex parte 491 Rugg y. Minett 21 ,S The statement of facts is omitted. Ch. 1) SUBJECT-MATTER OF THE CONTRACT H Capron v. Porter, 43 Conn. 389 ; Spring v. Chipman, 6 Vt. 662. In Bellows V. Wells, 36 Vt. 599, it was held that a lessee might convey to his lessor all the crops which might be grown on the leased land during the term, and no delivery of the crops after they were har- vested was necessary even as against attaching creditors, and that the doctrine as to retention of possession after the sale did not apply to property which at the time of the sale was not subject to attachment and had no real existence as property at all. The case at bar is within the principle of the above authorities, for it is very clear that the title to the property in question when it first came into existence was in the plaintiff. In reaching this conclusion it is not necessary to hold that the mares became the absolute property of the plaintiff under Massachusetts law without a more substantial and visible change of possession, or that under our law, the title to the mares being in the plaintiff clearly as between the parties, the rule imported from the civil law, partus sequitur ventrem, applies. We waive the consideration of these ques- tions. It will suffice that, by the express terms of the contract, the plaintiff was to have as her own all the colts that might be born from these mares. That the law will sanction such a contract is very clear. It is true, as remarked in Perkins, Conv. tit. "Grant," § 65, that "it is a common learning in the law that a man cannot grant or charge that which he has not";^yet it is equally well settled that a future pos- sibility arising out of, w dependent upon, some present right, prop- erty or interest, may be the subject of a valid present sale.^,^/ The distinction is illustrated in Hobart, 132, as follows : "The grant of all the tithe wool of a certain year is good in its creation, though it may happen that there be no tithe wool in that year; but the grant of the wool which shall grow upon such sheep as the grantor may afterwards purchase, is void." It is well settled that a valid sale may be made of the wine a vine- yard is expected to produce, the grain that a field is expected to grow, the milk that 'a cow may yield, or the future young born of an animal. 1 Pars. Cont. (5th Ed.) p. 523, note k, and cases there cited ; Hill. Sales, § 18 ; Story, Sales, § 186. In Fonville v. Casey, 5 N. C. 389, 4 Am. Dec. 559, it was held that an agreement for a valuable consideration to deliver to the plaintiff the first female colt which a certain mare owned by the defendant might produce, vests a property in the colt in the plaintiff, upon the principle that there may be a valid sale where the title is not actually in the grantor, if it is in him potentially, as being a thing accessory to something which he actually has. And in McCarty v. Blevins, 5 Yerg. (Tenn.) 195, 26 Am. Dec. 262, it was held that where A. agrees with B. that the foal of A.'s mare shall be- long to C, a good title vests in the latter when parturition from the mother takes place, though A. immediately after the colt was born sold and delivered it to D. 12 SUBJECT-MATTER OF THE CONTRACT (Ch. 1 Before resting the discussion as to the plaintiff's title, we ought perhaps briefly to allude to a claim made by the defendant, both in the court below and in this court, to the effect that if the plaintiff's title be conceded she is estopped from asserting her claim. This doc- trine of estoppel, as all triers must have observed, is often strangely misapplied. And it is surely so in this instance. The case fails to show any act or omission on the part of the plaintiff inconsistent with the claims she now makes, or that the creditors of Murray or the de- fendant as representing them were ever misled to their injury by any act or negligence on her part. On the contrary the estoppel is as- serted in the face of the explicit finding, that "as soon as the plaintiff became aware of the attachment of her horses she forbade the officer taking the same, and demanded their immediate return to her." The only fact which is suggested as furnishing the basis for the alleged estoppel is that from the 1st of August, 1879, to the 12th of January next following, "no attempt was made by the plaintiff to main- tain her title by suit, although she was living during the time at Guil- ford, where said colts were." But who ever heard of an estoppel in an action at law predicated solely on neglect to bring a suit for the period of five months ? To recognize such a thing for any period short of the statute of limitations would practically modify the statute and create a new limitation. Furthermore, in what respect have the de- fendant and those he represents been misled to their injury by this fact ? The plaintiff never induced the taking or withholding of her property. And can a tort feasor or the wrongful possessor of an- other's property object to the delay in suing him for his wrong, and claim, as in this case, an estoppel on the ground that his wrongful possession proved a very expensive one to him, amounting even to more than the value of the property? He might have stopped the ex- pense at any time by simply giving to the plaintiff what belonged to her. The single question of evidence which the record presents we do not deem it necessary particularly to discuss. It will suffice to remark that if the defendant's testimony was admissible to show, that Murray, after the sale to the plaintiff (and, so far as appears, in her absence), claimed to own the mares and colts, it was a complete and satisfactory reply for the plaintiff in rebuttal to show that Murray's own entries (presumably a part of the res gest^) in the appropriate books kept by him, showed the fact to be otherwise, and in accordance with the plain- tiff's claims. At any rate it is very clear that no injustice was done by this ruling to furnish any ground for a new trial. There was no error in the judgment complained of, and a new trial is not advised. In this opinion the other Judges concurred. Ch. 1) SUBJECT-MATTER OP THE CONTRACT 13 BATES V. SMITH. (Supreme Court of Michigan, 1890. 83 Mich, 347, 47 N. W. 249.) Long, J. This is an action of trover to recover the value of one- half interest in a colt. The claim of the plaintiff is that he bred the mare of one James Fraser upon shares. The contract as stated by the plaintiff is that Fraser came to his farm, and said he wanted to breed his mare to the stallion American Boy, then kept by plaintiff, and that he had no money ; that plaintiff then told him he would breed the mare on shares, and, if Mr. Fraser would come to him at any time within two weeks and give him $50 for the services of the horse, Fraser could have his (the plaintiff's) half-interest in the colt; that the mare was then and there bred under that arrangement, but no written contract was made. James Fraser was called as a witness for the defendant upon the trial, and testified: "My bargain with plaintiff that, if I did not pay plaintiff fifty dollars within three months, for the service of the stallion, he (plaintiff,) was to own a half-interest in the colt." On cross-examination he states the arrangement sub- stantially as claimed by plaintiff, except that he was to have three months in which to pay the money. It appears that the mare was bred July 27, 1888, and that the defendant purchased her from Fraser on February 21, 1889, paying therefor the sum of $300. Defendant upon the trial stated that at the time he purchased the mare he had no knowledge that the plaintiff made any claim to her progeny, and that plaintiff never made any claim until the colt was four or five months old. It appeared, however, that before defend- ant bought the mare he was informed that Fraser had bred to the stallion American Boy then kept by plaintiff, but was not advised that any contract was made by which the plaintiff was to have a half-in- terest in the colt. Demand was made before suit was brought, and the defendant refused to recognize the plaintiff's interest. Under these facts, the plaintiff's counsel requested the court to instruct the jury that Fraser could not sell the interest of plaintiff in the colt, and that the colt when foaled was the property in common of the plaintiff and defendant, and that the value of the one-half interest could be recovered in this action. This the court refused, and instructed the juryjthat if at the time the defendant purchased the mare from Fraser he had no knowledge of the arrangement made between plaintiff and Fraser, the title to the colt would pass to the defendant, but that if he did have knowledge of it, the title would not pass. The jury found a verdict in favor of defendant. Plaintiff brings error. It is contended by plaintiff's counsel that the defendant was not in any sense a bona fide purchaser of the colt, but that, if he were, he could acquire from Fraser only' his half-interest therein. It is a gen- eral rule that owners in common of property have a right to dispose of their own undivided shares, but such owner cannot sell the whole 14 SUBJECT-MATTER OF THE CONTRACT (Ch. 1 property, nor any portion thereof except his own ; and, if he under- takes to dispose of any larger interest his co-owners are not bound thereby. Russell v. Allen, 13 N. Y. 173. The principle is well set- tled that a seller of personal property can convey no greater title than he has, and it makes no difference that the purchaser has no notice and is ignorant of the existence of the other parties in interest. Couse V. Tregent, 11 Mich. 65; Dunlap v. Gleason, 16 Mich. 158, 93 Am. Dec. 231; Tuttle v. Campbell, 74 Mich. 660, 42 N. W. 384, 16 Am. St. Rep. 652. Did the contract, however, which plaintiff claims he made with Fra- ser convey to him one half-interest? The property upon which the contract was to operate had no potential existence. The mare at that time had not been bred, and it was uncertain that, when bred, she would be put in foal// There was nothing in existence which could be the subject of sal^/ It is essential to the validity of every executed contract of sale that there should be a thing or subject-matter to be contracted for. And if it appears that the subject-matter of the con- tract was not, and could not have been, in existence at the time of such contract, the contract itself is of no effect, and may be disre- garded by either party. Strickland v. Turner, 7 Exch. 208; Hastie v. Couturier, 9 Exch. 102, 5 H. L. Cas. 673 ; Franklin v. Long, 7 Gill & J. (Md.) 407. A mere possibility or contingency, not founded upon a right, or coupled with an interest, cannot be the subject of a present sale, though it may be of an executory agreement to sell. Purcell v. Mather, 35 Ala. 570, 76 Am. Dec. 307 ; Low v. Pew, 108 Mass. 347, 11 Am. Rep. 357. Though the subject-matter of the agreement has neither an actual nor potential existence, such an agreement is usually denominated an executory contract, and for its violation the remedy of the party injured is by an action to recover the damages. Hutchin- son V. Ford, 9 Bush (Ky.) 318, 15 Am. Rep. 711; Pierce v. Emery, 32 N. H. 484. Again, it may be said that, where one of two innocent parties must suffer by the fraud of another, he shall bear the loss who by his con- duct has enabled such third party to perpetrate the fraud. If the con- tract was made as claimed by the plaintiff, and there does not seem to be much controversy on this point, yet, the plaintiff had it in his power to protect himself, under the provisions of Act No. 280, Pub. Acts, 1887. This act provides that the owner or keeper of a stallion shall, after demand upon the owner of the mare for the price agreed upon for service, have a lien upon the get of such stalliqn for the period of six months after the birth of the foal, for the payment of the services of such stallion. In order, however, to perfect such lien, he must file with the township clerk in the town where such dam is owned the agreement or a true copy of such agreement entered into by the owner of the dam for such services, together with the descrip- tion of such dam as to age, color, or other marks as the person filing Ch. 1) SUBJECT-MATTER OF THE CONTRACT 15 such agreement is able to give. This fiHng is to operate, under the provisions of this act, as a chattel mortgage, and may be enforced in the same way. No such steps were taken. The mare remained in the possession of the owner, Mr. Fraser, from the time she was bred until in February following, when the defendant purchased her with- out any notice, so far as this record discloses, of the agreement made between plaintiff and Fraser. It is shown that defendant was advised at the time he purchased that the mare had been bred to American Boy, but no notice was given him that plaintiff had any claim on the foal, and there was noth- ing upon the record in the town-clerk's office to give him any notice that plaintiff claimed a lien upon or had any interest in the foal. It cannot be said that the mere fact of notice of the breeding of the mare to American Boy was sufficient to put him upon inquiry as to any rights the owner of the stallion might have. The defendant must be regarded as a bona fide purchaser and owner of the mare; and, the title and ownership of the foal following the dam, he was the rightful owner of the foal. We see no error in the case, and the judgment must be' affirmed, with costs. The other justices concurred. LOW et al. V. PEW et al. (Supreme Judicial Court of Massacliusetts, 1871. 108 Mass. 347, 11 Am. Rep. 357.) Replevin by the firm of Alfred L,ow & Co. of a lot of flitched halibut from the assignees in bankruptcy of the firm of John Low & Son, all of Gloucester. Writ dated August 24, 1869. The parties stated the following case for the judgment of the court: On April 17, 1869, as the schooner Florence Reed, owned by John Low & Son, was about to sail from Gloucester on a fishing voyage, that firm received $1,500 from the plaintiffs, and signed and gave the plaintiffs the following writing: "We, John Low & Son, hereby sell, assign, and set over unto Alfred Low & Company all the halibut that may be caught by the master and crew of the schooner Florence Reed on the voyage upon which she is about to proceed from the port of Gloucester to the Grand Banks, at the rate of five cents and a quarter per pound for flitched halibut, to be delivered to said Alfred Low & Company as soon as said schooner arrives at said port of Gloucester, at their wharf. And we, the said John Low & Son, hereby acknowledge the receipt of $1,- 500 in part payment for the halibut that may be caught by the master and crew of said schooner on said voyage." In July, 1869, proceedings in bankruptcy were begun against John Low & Son in the district court of the United States for this district, in which they were adjudged bankrupts on August 6th, and on Au- 16 SUBJECT-MATTER OF THE CONTRACT (Ch. 1 gust 20th these defendants were appointed the assignees in bankruptcy, and the deed of assignment was executed to them. On Saturday, August 14th, the Florence Reed arrived at the port of Gloucester on her home voyage, and was hauled to the plaintiffs' wharf ; and on the morning of Monday, August 16, the United States marshal took pos- session of the vessel and cargo under a warrant issued to him on Au- gust 6th in the proceedings in bankruptcy, and transferred his pos- session to the defendants upon their appointment. The catch of the schooner consisted of about 40,000 pounds of hali- but, and of some codfish. The plaintiffs demanded the halibut of the defendants, and offered at the same time to pay the price of it at the rate of five and a quarter cents per pound, less the $1,500 already paid. The defendants refused the demand; and the plaintiffs then replevied such a quantity of the halibut as represented the amount of $1,500 at that rate per pound, and offered to receive the rest of the halibut and pay for it at the same rate, but the defendants refused to acknowledge any right whatever of the plaintiffs in or to the fish. If on these facts the plaintiffs were entitled to recover, they were to have judgment for nominal damages ; but, if otherwise, the defend- ants were to have judgment for a return, with damages equal to in- terest at the annual rate of six per cent, on the appraised value of the fish replevied. Morton, J. By the decree adjudging John Low & Son bankrupts, all their property, except such as is exempted by the bankrupt law, was brought within the custody of the law, and by the subsequent as- signment passed to their assignees. Williams v. Merritt, 103 Mass. 184, 4 Am. Rep. 521. The firm could not, by a subsequent sale and delivery, transfer any of such property to the plaintiffs. The schooner which contained the halibut in suit arrived in Gloucester August 14, 1869, which was after the decree of bankruptcy. If there had been then a sale and delivery to the plaintiff's of the property replevied, it would have been invalid. The plaintiffs therefore show no title to the halibut replevied, unless the effect of the contract of April 17, 1869, was to vest in them the property in the halibut before the bank- ruptcy. It seems to us clear, as claimed by both parties, that this was a contract of sale, and not a mere executory agreement to sell at some future day. The plaintiffs cannot maintain their suit upon any other construction, because, if it is an executory agreement to sell, the prop- erty in the halibut remained in the bankrupts, and, there being no de- livery before the bankruptcy, passed to the assignees. The question in the case therefore is whether a sale of hahbut afterwards to be caught is valid, so as to pass to the purchaser the property in them wh^ caught. /it is an elementary principle of the law of sales that a man cannot /p-ant personal property in which he has no interest or title. To be able to sell property, he must have a vested right in it at the time of the sale. Thus it has been held that a mortgage of goods which the Ch. 1) SUBJECT-MATTER OF THE CONTRACT 17 mortgagor does not own at the time the mortgage is made, though he afterwards acquires them, is void. Jones v. Richardson, 10 Mete. 481. The same principle is applicable to all sales of personal property. Rice V. Stone, 1 Allen, 566, and cases cited; Head v. Goodwin, 37 Me/lSl. //It is equally well settled that it is sufficient if the seller has a poten- /tial interest in the thing sold. But a mere possibility or expectancy of acquiring property, not coupled with any interest, does not constitute a potential interest in it, within the meaning of this rule. The seller must have a present interest in the property of which the thing sold is the product, growth, or increase. Having such interest, the right to the thing sold, when it shall coni/into existence, is a present vested right, and the sale of it is valid^T'hus a man may sell the wool to grow upon his own sheep, but rrot upon the sheep of another ; or the crops to grew upon his own land, but not upon land in which he has no interest. 2 Kent, Comm. (10th Ed.) 468 (641) note a; Jones v. Richardson, 10 Mete. 481 ; Bellows v. Wells, 36 Vt. 599 ; Van Hoozer V. Cory, 34 Barb. (N. Y.) 9; Grantham v. Hawley, Hob. 132. The same principles have been applied by this court to the assign- ment of future wages or earnings. In Mulhall v. Quinn, 1 Grav. 105, 61 Am. Dec. 414, an assignment of future wages, there being no con- tract of service, was held invalid. In Hartley v. Tapley, 2 Gray, 565, it was held that, if a person is under a contract of service, he may as- sign his future earnings growing out of such contract. The distinc- tion between the cases is that in the former the future earnings are a mere possibility, coupled with no interest, while in the latter the possibility of future earnings is coupled with an interest, and the right though contingent, and liable to be defeated, is a vested right, the case at bar, the sellers, at the time of the sale, had no interest thing sold. There was a possibility that they might catch halibut ; was a mere possibility and expectancy, coupled with no interest. We are of opinion that they had no actual or potential possession of or interest in the fish, and that the sale to the plaintiffs was Yo'iA/y The plaintiffs rely upon Gardner v. Hoeg, 18 Pick. 168, aii^Tripp v. Brownell, 12 Cush. 376. In both of these cases it was held that the lay or share in the profits, which a seaman in a whaling voyage agreed to receive in lieu of wages, was assignable. The assignment in each case was, not of any part of the oil to be made, but of the debt which, under the shipping articles, would beconie due to the seaman from the owners at the end of the voyage. The court treated them as cases of assignments of choses in action. The question upon which the case at bar turns did not arise, and was not considered. Judgment for the defendants." 8 As to the equitable rights of a purchaser or mortgagee of future goods, see Williston, Sales, §§ 138-145 ; also an article by the same author, "Trans- fer of After-Acquired Personal Property," 19 Harv. Law Rev. 557. WooDW. Sales — 2 18 CONTRACT TO SELL SPECIFIC GOODS — IN GENEKAL (Ch. 2 CHAPTER II TRANSFER OF PROPERTY AND TITLE SECTION 1.— UNCONDITIONAL CONTRACT TO SELL SPECIFIC GOODS— IN GENERAL WILLISTON ON SALES. § 260. * * * It may be assumed safely that when the law was first much developed in England, the rule of the Roman law re- quiring delivery in order to eiJect a transfer of the property was ac- cepted.^ But it was not long before payment of the price was also regarded as sufficient to effect the transfer of the property. Professor Ames has traced this development : ^ "Detinue would also lie against a seller upon a bargain and sale. Here it was the payment of the purchase money that as a rule con- stituted the quid pro quo for the seller's duty to suffer the buyer to take possession of the chattel sold. If the bargain was for the recip- rocal exchange of chattels, the delivery of the chattel by the one party would be as effective a quid pro quo as payment of purchase money to support an action of detinue against the other party. It was hardly an extension of principle to treat the delivery of the buyer's sealed obligation for the amount of the purchase money as equivalent to ac- tual payment of money, or delivery of a chattel, and accordingly we find in Y. B. 21 Edw. Ill, 12-2, the following statement by Thorpe, Chief Justice of Common Bench in 30 Edw. Ill : 'If I make you an obligation for £40. for certain merchandise bought of you, and you will not deliver the merchandise, I cannot justify the detainer of the money; but you shall recover by a writ of debt against me, and I shall be put to my action against you for the thing bought by a writ of detinue of chattels.' "But it was a radical departure from established traditions to per- mit a buyer to sue in detinue when there was merely a parol bargain of sale without the delivery of a physical res of any sort to the seller. But this striking change had been accomplished by the time of Henry VI. The new doctrine may be even older, but there seems to be no earlier expression of it in the books than the following statement by Fortescue, C. J. : 'If I buy a horse of you, the property is straight- way in me, and for this you shall have a writ of debt for the money, 1 See an article by Prof. Richard Brown, 1.5 Juridical Review, .391, 395. This rule has persisted In regard to gifts for the validity of which delivery is still essential. Cochrane v. Moore, 25 Q. B. D. 57. 2 8 Ilarv. Law Rev. 2.j2, 258. Sec. 1) CONTRACT TO SELL SPECIFIO GOODS — IN GENEKAL 19 and I shall have detinue for the horse on this bargain.' ' i From the mutuality of the obligations growing out of the parol bargain, without more, one might be tempted to believe that the English law had de- veloped the consensual contract more than a century before the earliest reported cases of assumpsit upon mutual promises.* But this would be a misconception. The right of the buyer to maintain detinue, and the corresponding right of the seller to sue in debt, were not conceived of by the medieval lawyers as arising from mutual promises, but as resulting from reciprocal grants — each party's grant of a right form- ing the quid pro quo for the corresponding duty of the other." The law of so remote a period, however, need not affect a discus- sion of existing law. It is clear that before the seventeenth century it was possible for the seller to transfer the property, not only without delivery, but without payment of the price or earnest money. This could probably only be done, however, if credit was expressly given by the seller.^ TARLING V. BAXTER. (Court of King's Bench, 1827. 6 Barn. & C. 360.) Assumpsit to recover back £145 paid by the plaintiff to the defen,d^ ant's use. The declaration contained counts for money had and re- ceived, and the other common counts. Plea, general issue, with a no- tice of set-off for goods sold and delivered and bargained, and sold. At the trial before Abbott, C. J., at the Eondon sittings after Hilary term, 1826, a verdict was found for the plaintiff for £145, subject to the opinion of this court on the following case. On the 4th of January, 1825, the plaintiff bought of the defendant a stack of hay belonging to the defendant, and then standing in a field belonging to the defendant's brother. The note signed by the defend- ant, and delivered to the plaintiff, was in these words : "I have this day agreed to sell James Tarling a stack of hay, standing in Canon- bury Field, Islington, at the sum of one hundred and forty-five pounds, the same to be paid on the 4th day of February next, and to be al- lowed to stand on the premises until the first day of May next." And the following note was signed by the plaintiff, and delivered to the defendant. "I have this day agreed to buy of Mr. John Baxter, a stack of hay, standing in Canonbury Field, Islington, at the .sum of £145, the same to be paid on the 4th day of February next, and to ' Y. B. 20 Hen. VI, 35-4 ; Y. B. 21 Hen. VI, 55-12. See, to tlie same ef- fect, 37 Hen. VI, 8-18, per Prisot, C. J. ; Y. B. 49 Hen. VI, 18-23, per Choke, J., and Brian, J. ; Y. B. 17 Edw. VI. 1-2. See, also, Blackburn, Contract of Sale, 190-190. * Pecke V. Redman, Dy. 113 (1555), appears to be the earliest case of mutual promises. B See Noy's Maxims, c. XLII (1641). See, further, infra, § 341. 20 CONTRACT TO SELL SPECIFIC GOODS — IN GENEEAL (Ch. 2 be allowed to stand on the premises until the first day of Alay next, the same hay not to be cut until paid for. January 4th, 1825." At the meeting at which the notes were signed, but after the signa- ture thereof, the defendant said to the plaintiff, "You will particu- larly oblige me by giving me a bill for the amount of the hay." The plaintiff rather objected. The defendant's brother, S. Baxter, on the 8th of the same month of January, took a bill of exchange for il45 to the plaintiff, drawn upon him by the defendant, dated the 4th of January 1825, payable one month after date, which the plaintiff accepted. The defendant afterwards indorsed it to George Baxter, and the plaintiff paid it to one Taylor, the holder, when it became due. The stack of hay remained on the same field entire until the 20th of January, 1825, when it was accidentally wholly consumed by fire, without any fault or neglect of either party. A few days after the fire, the plaintiff applied to the defendant to know what he meant to do when the bill became due ; the defend- ant said, "I have paid it away, and you must take it up to be sure: I have nothing to do with it, why did you not remove the hay ?" The plaintiff said, "he could not, because there was a memorandum 'that it should not be removed until the bill was paid ;' would you have suffered it to be removed?" and the defendant said, "certainly not." The defendant's set-off was for the price of the hay agreed to be sold as aforesaid. The question for the opinion of the court was, whether the plaintiff under the circumstances was entitled to recover the sum of £145 or any part thereof. BayIvEy, J. It is quite clear that the loss must fall upon him in whom the property was vested at the time when it was destroyed by fire. And the question is, in whom the property in this hay was vested at that time? By the note of the contract delivered to the plaintiff, the defendant agreed to sell the plaintiff a stack of hay stand- mg in Canonbury Field at the sum of il45, the same to be paid for on the 4th day of February next, and to be allowed to stand on the premises until the first day of May next. Now this was a contract for an immediate, not a prospective sale. Then the question is, in whom did the property vest by virtue of this contract? The right of property and the right of possession are distinct from each other; the right of possession may be in one person, the right of property in another. A vendor may have a qualified right to retain the goods unless payment is duly made, and yet the property in these goods may be in the vendee. The fact in this case, that the hay was not to be paid for until a future period, and that it was not to be cut until it was paid for, makes no difference, provided it was the intention of the parties that the vendee should, by the contract, immediately acquire a right of property in the goods, and the vendor a right of property in the price. The rule of law is, that where there is an immediate sale, and nothing Sec. 2) GOODS TO WHICH SOMETHING EBMAINS TO BE DONE 21 remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the conse- quences resulting from the vesting of the property follow, one of which is, that if it be destroyed, the loss falls upon the vendee. The note of the buyer imports also an immediate, perfect, absolute agree- ment of sale. It seems to me that the true construction of the con- tract is, that the parties intended an immediate sale, and if that be so, the property vested in the vendee, and the loss must fall upon hina/ The rule for entering a nonsuit, must therefore be made absolute. Rule absolute.^ SECTION 2.— CONTRACT TO SELL SPECIFIC GOODS TO WHICH SOMETHING REMAINS TO BE DONE RUGG V. MINETT. (Court of King's Bench, 1809. 11 East, 210.) In an action for money had and received by the defendants to the use of the plaintiffs, a verdict was found for the plaintiffs for £1415, subject to the opinion of the Court upon the following case. On the 28th of April, 1808, the defendants, as prize agents to the commissioners for the care and disposal of Danish property, put up to public sale by auction, at Dover, the cargo of a Danish ship in lots, and the lots No. 28 to 54 inclusive consisted of turpentine in casks. The quantity contained in each lot being marked on the catalogue thus — 10 cwt. 3 qrs. 26 lbs., the mode of bidding was this : Each lot (except the two last, which were sold at uncertain quantities) was to be taken at the weight at which it was marked, and the bidding was to be at so much per hundred weight on that quantity. The plaintiffs employed one Acres, the warehouseman of the defendants, to bid for them, and all the lots of turpentine, (with the exception of 3 lots, which were sold to other bidders,) were knocked down to Acres so acting for the plaintiffs. No conditions of sale were distributed prior to the sale; but the auctioneer, before the bidding commenced, read aloud the followings conditions : 1st, the highest bidder to be the buyer; but if any dispute should arise, the lot to be put up again. 2d, i25 per cent, is to be paid to the auctioneer as a deposit immedi- ately after the sale, and the remainder in 30 days. The remainder of the purchase-money is to be paid on the goods being delivered. Should the goods remain after the limited time, the warehouse rent from that time to be paid at the rate of 2s. per ton per month, by the pur- 8 Concurring opinions were delivered by Holroyd and JLlttledale, JJ. 22 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 chaser. 3d, the goods to be taken at the neat weight printed in the catalogue. 4th, the goods to be taken away in 12 months, or resold to pay the warehouse rent. Upon failure of complying with these conditions, the deposit-money is to be forfeited, and the commissioners to be at liberty to resell any lots belonging to defaulters, by whom all charges attending the same shall be made good. Is. per lot under f 10, Is. 6d. from ilO to £25, and 2s. above £25 lot-money to be paid by the buyer to the auctioneer. Tare allowed for turpentine Is. 5d. Upon the turpentine being put up to sale, the auctioneer, by the direction of one of the defendants present, announced to the bidders that the casks of turpentine were to be filled up before they were delivered to the purchasers ; and that in order to effect this, the two last lots would be sold at uncertain quantities, and the preceding lots would be filled f lOm them. The whole of the turpentine, with the ex- ception of the 3 lots before mentioned, were sold to the plaintiffs ; and they also were the purchasers of the two last lots, from which all the lots without exception were to be filled up: and those two last lots were accordingly marked by the auctioneer in his catalogue with the words ''more or less." Immediately after the sale £200 was paid by the plaintiffs to the auctioneer, as their deposit ; and on the 9th of May, 1808, the plaintiffs paid to the defendants £1715 upon account of the turpentine, and the duties payable thereon. The turpentine remained in the warehouses of the defendants as before the sale, but was entered at the custom-house at Dover, in the name of the plain- tiffs, on the morning of the 10th of May, 1808, before the fire, by Acres who paid on behalf of the plaintiffs £450 as a deposit for the duties. On the same morning, the cooper, who had been employed by the defendants to make up all the casks previous to the sale of the 28th of April, was sent for by Acres, who was warehouseman to the de- fendants, and who acted as agent for the plaintiffs, to fill up the casks of turpentine, and he had filled all of them except 8 or 10; leaving them with the bungs out to enable the custom-house officer, who was expected every minute, to take his gauge in order to ascertain the du- ties. The two last lots, which were sold at uncertain quantities, and marked "more or less," contained more turpentine than was sufficient to fill up all those bought by the plaintiffs, and also those bought by the buyers of the three lots. In filling the casks sold to the plain- tiffs one of the two last lots was used, and instead of the other of the two last lots, a preceding cask in point of number, which had been found to be an ullage cask, was substituted by the cooper, and from one of the two last lots the lots sold to the other buyers had been pre- viously filled up. All the lots sold to the other buyers had been taken away before the cooper came on the 10th; and while the cooper was employed in filling up the plaintiffs' lots, and placing them ready, with the bungs of the casks out for the custom-house officer to gauge, but Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 23 before he had filled up all the casks, or bunged any of them, a fire took place in the defendants' warehouse, which consumed the whole of the turpentine knocked down to the plaintiffs ; the casks not having been weighed again by the plaintiffs, or gauged by the custom-house officer. While the money paid by the plaintiffs to the defendants on account of the turpentine remained in their hands, they received no- tice from the plaintiffs not to pay it over; and the present verdict is composed of that sum, deducting the £450 paid on account of the duty, which has been restored to the plaintiffs by the commissioners of cus- toms. The question for the opinion of the Court was, Whether the plain- tiffs were entitled to recover back the money so paid to the defend- ants? If they were, the verdict was to stand: if not, a nonsuit was to be entered. Lord Ei-LENBOROUGH, C. J. The Court have already intimated their opinion, as to those casks in the first lots which were filled up, and on which nothing remained to be done on the part of the sellers, but only the casks were left to remain for 30 days at the option of the pur- chasers in the warehouse at the charge of the sellers : the payment of the warehouse rent, however, is not material in this case ; and when the casks were filled up, every thing was done which remained to be done by the sellers. It was necessary, however, that they should be gauged before they were removed, and the bungs were left out for the purpose of the gauger's doing his office, which it was the buyer's business to have performed; and therefore, according to the case of Hanson v. Meyer, and the other cases, every thing having been done by the sellers, which lay upon them to perform, in order to put the goods in a deliverable state in the place from whence they were to be taken by the buyers, the goods remained there at the risk of the latter. But with respect to the other ten casks, as the filling them up according to the contract remained to be done by the sellers, the prop- erty did not pass to the buyers, and therefore they are not bound to pay for them.^ Upon this, it was agreed that the proportion to be allowed to the plaintiffs on the ten casks should be settled out of court; and that the verdict should be entered accordingly. PAINE & GEKLER v. YOUNG. (Court of Appeals of Maryland, 1881. 56 Md. 314.) Robinson, J. James Young, Jr., conveyed to the appellee the stock of carriages and wagons, finished and unfinished, and also the mate- rials then being in his carriage factory. ? Concurring opinions were delivered by Le Blanc and Bayley, JJ. 24 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 The property was left in the possession of Young, the bargainor, and the unfinished carriages were subsequently finished by him. Whether all the materials used in completing the carriages were the materials included in the bill of sale, or were in part bought by Young, the bargainor, after the date of the bill of sale, the evidence in the record is somewhat conflicting. But this question in the view we take of the case is quite immaterial. Afterwards the appellants recovered a judgment against the bar- gainor, and sold under execution the carriages mentioned in the bill of sale. This suit is brought by the appellee, to recover damages for the unlawful seizure and sale of the carriages by the appellants. And it is insisted on the part of the defence, that if the carriages were fin- ished in part with the materials included in the bill of sale, and in part with materials furnished by the bargainor in the bill of sale, with the acquiescence of the appellee, and that there was such a com- mingling of property as to make it impossible to identify or separate the materials used, that under such circumstances the plaintiff was not entitled to recover. And the decision in Hamilton v. Rogers, 8 Md. 321, is relied on in support of this contention. But that case differs widely from the one now before us. There Rogers mortgaged not only his stock and materials then on hand, but also all the stock and materials which he might subsequently purchase in the prosecution of his business. And the Court held : 1st. That the mortgagee could not maintain an action at law against a judgment creditor of Rogers for selling under execution, goods pur- chased by Rogers after the date of the mortgage, upon the ground that one cannot sell that which has not either actual or potential ex- istence at the time of the sale. 2nd. That the burden of proof was upon the mortgagee, to show that the goods sold under the execution, were on the premises at the date of the mortgage. 3rd. Where property mortgaged is commingled with that subse- quently acquired by the mortgagor, it is presumed to be done with the mortgagee's permission, and if it be so intermixed as to prevent separa- tion or identification, the rights of third parties are not to be affected thereby. But here the sale was of a subject-matter existing in specie, and in the possession of the bargainor. The contract of sale was an ex- ecuted contract, and the title to the carriages, whether finished or un- finished, passed to the appellee upon the execution and delivery of the bill of sale. The mere fact that parts of the materials used in finishing the carriages were furnished by the bargainor, would not in itself operate to defeat the title of the appellee as purchaser under the bill of sale. How far he might be liable to the bargainor, if such materials were furnished with his acquiescence is another question. Be that as it may, it did not justify the appellants in selling the car- Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONB 25 riages under an execution against Young, the bargainor. There was no error therefore in refusing the several prayers offered by the ap- pellants. By the prayer offered by the appellee and granted by the Court, his right to recover was based upon the finding by the jury, that all the materials used in finishing the carriages were furnished by the ap- pellee. This he was not obliged to prove. The appellants, however, have no right to object to an instruction which was prejudicial to the appellee and not to themselves. For these reasons the judgment will be affirmed. Judgment affirmed.* ' HANSON V. MEYER. (Court of King's Bench, 1805. East, 614.) This was an action of trover, brought to recover the value of 33 cwt. 1 qr. 21 lb. of starch, which was tried before Lord Ellenborough, C. J., at the sittings at Guildhall after Trinity term, 1803, when there was a verdict for the defendant : and a motion being made for a new trial, which was argued in last Michaelmas term, the Court by consent, in Hilary term last, ordered a case to be made of the facts that were proved at the trial, which are as follows : The plaintiffs are assignees of J. Wallace and W. Hawes under a commission of bankrupt issued against them. The defendant is a mer- chant in London. In January, 1801, the bankrupts employed Wright their broker to purchase of the defendant a quantity of starch, about four tons, belonging to the defendant, and which was then lying in the Bull Porters' warehouse in Seething- Lane : and Wright accord- ingly purchased the starch of the defendant at £6 per cwt., and sent to the bankrupts, his principals, the following note : "Dear Sirs, I have bought that small parcel of starch which you saw of Mr. James Meyer for your account, £6 per cwt. by bill at 2 months: 14 days for delivery from the 14th instant. Jan. 15th, 1801. Yours, &c. T. Wright." The starch lay at the Bull Porters'. The broker purchased for the bankrupts all Meyer's starch that lay there, more or less what- ever it was, at £6 per hundred weight: it was in papers: the weight was to be afterwards ascertained at the price aforesaid. The mode of delivery is as follows : the seller gives the buyer a note addressed to the warehouse-keeper, to weigh and deliver the goods to the buyer. This note is taken to the warehouse-keeper, and is his authority to weigh and deliver the goods to the vendee. The following note was given by the defendant : "To the Bull Porters, Seething- Lane. Please to weigh and deliver to Messrs. Wallace and Hawes all my starch. Jan. 17th, 180L Per James Meyer, William Elliott." This order was 8 See, also, Young v. Matthews, L. R. 2 C. P. 127 (1866); Butter worth v. McKlnly, 11 Humph. (Tenn.) 206 (1850). 26 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 lodged by the bankrupts at the Bull Porters' warehouse on the 21st of January, 1801, on which day the bankrupts required the Bull Por- ters to weigh and deliver to them 540 papers of the starch, which weighed Cwt. qr. lb. 21 1 6 And on the 31st Jan. 250 9 1 20 And on the 2d Feb. 400 15 1 4 1190 46 12 At which respective times the Bull Porters, in consequence of their order, weighed and delivered the same to the bankrupts, who immedi- ately removed the same : the residue thereof, being 33 cwt. 1 qr. 21 lb. remained at the Bull Porters' warehouse till the failure of Wallace and Hawes. The above quantities of starch continued at the Bull Porters' warehouse in the name and at the expence of the defendant till they were weighed and delivered : and the residue also afterwards continued there in like manner unweighed, in his name, and charged to his expence. On the 8th of Feb., 1801, Wallace and Hawes became bankrupts. It was admitted that the defendant, after the bankruptcy, took away the remainder of the starch that had not been so weighed. The question for the opinion of the Court was, whether the defend- ant were entitled to the above verdict? If the Court should be of opinion that he was, then the verdict was to stand : if not, then a new trial was to be granted upon such terms as the Court should direct. Lord Ellenborough, C. J., now delivered judgment. By the terms of the bargain formed by the broker of the bankrupts on their behalf, two things, in the nature of conditions or preliminary acts on their part, necessarily preceded the absolute vesting in them of the property contracted for; the first of them is one which does so according to the generally received rule of law in contracts of sale, viz. the payment of the agreed price or consideration for the sale. The second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. The weight, therefore, must be ascertained in order that the price may be known and paid : and unless the weigh- ing precede the delivery it can never, for these purposes, effectually take place at all. In this case a partial weighing and delivery of sev- eral quantities of the starch contracted for had taken place; the re- mainder of it was unweighed and undelivered : and of course no such bill of two months for the price so depending on the weight could yet be given. The question is. What is the legal effect of such part-de- livery:_of_the starch_on,J:h.e_right of property in the undelivered residue thereof ? DiTThe part of the plaintiffs it is contended, that a delivery of part of an entire quantity of goods contracted for is a virtual delivery of the whole, so as to vest in the vendee the entire property in the whole; Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 27 although the price for the same should not have been paid. This proposition was denied on the part of the defendant: and many au- thorities have been cited on both sides. But without deciding at present what might be the legal eflfect of such part-delivery in a case where the payment of price was the only act necessary to be performed in order to vest the property ; in this case another act, it will be re- membered, was necessary to precede both payment of price and deliv- ery of the goods bargained for, viz. weighing. This prelimin ary act of weighing it certainly never w as in the contemplation of the sellers to waivg"in"re spect of a ny part of the cnmm ndity contracted f on The ' order~stat ed in the case from the defendant to jthe Bull Porters, his agents,'Ts to weigh and deliver all his starch. Till it was weighed, they as his__ag£nta-Jsc£]:£_naLauthQrized._io^deliver it :" still less were ^THebuyers the msel ves, or the presen t plai ntiffs, their _assigneeSj^ aU;: thorizedTTcTtake it by their own act from th e Bull Po rters' warehouse : ~3ird It they could not so take it, neither can they maintain this action of trover founded on such a supposed right to take, or, in other words, founded on such a supposed right of property in the subject-matter of this action. If any thing remain to be done on the part of the •6 elle r, as between him and the buyer, before th"e~c om modity ^pu rchased IS to b e delivered, a complete present right ofprgperty has not at- t achedin the buyer ; and of course this action, which is accommodated "To^nd depends upon such supposed perfect right of property, is not maintainable. The action failing, therefore, on this ground, it is unnecessary to consider what would have been the effect of non-payment of price on the right to the undelivered residue of the starch, if the case had stood merely on that ground, as it did in the case of Hammond and Others against Anderson, 1 New Rep. 69 ; where the bacon sold in that case was sold for a certain fixed price, and where the weighing, mentioned in that case, was merely for the buyer's own satisfaction, and formed no ingredient in the contract between him and the seller; though it formed a very important circumstance in the case, being an unequivocal act of possession and ownership as to the whole quantity sold on the part of the buyer ; in like manner as the takfng 800 bushels of wheat out of the whole quantity sold, and then on board the ship, was holden to be in the case of Slubey v. Heywood, 2 H. Bl. 504. Without, therefore, touching the question which has been the main subject of argument in this case, and upon which my opinion at nisi prius principally turned, and without in any degree questioning the authority of the above mentioned two cases from the Common Pleas, this verdict may be sustained, on the ground that the weighing, which was indispensably necessary to precede the delivery of the goods, inas- much as it was necessary to ascertain the price to be paid for them, i had not been performed at the time when the action was brought. ' The verdict, therefore, must stand, and judgment be entered for the defendant. 28 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 TURLEY V. BATES. (Court of Exchequer, 1863. 2 Hurl. & C. 200.) The declaration contained a special count, alleging that the plain- tiff bargained and sold, and the defendant bought from the plaintiff, a quantity of fire-clay then deposited on certain land of the plaintiff, at the price of two shillings per ton, upon the terms that the defend- ant should take away the goods and pay for the same within a reason- able time. It then, after averring that all conditions had been fulfilled to entitle the plaintiff to have the goods taken away and accepted by the defendant, and that the defendant took away and accepted a part of the goods under the contract, alleged as a breach that the defendant would not take away and accept the residue of the said goods, or pay for the same, whereby the plaintiff lost the price and profit he would have made. The declaration also contained counts for goods bargained and sold, goods sold and delivered, and on an account stated. The defendant, as to the first count, pleaded a denial of the buying and selling, and of the plaintiff's readiness to deliver and suffer the defendant to take away the residue. To the rest of the declaration he pleaded, never indebted, and a set-off. The cause was tried, before Channel!, B., at the Middlesex Sittings after last Easter Term, when the following facts appeared (as stated in the judgment, post, p. 207). The plaintiff was an Iron and Coal Master at Coseley in Staffordshire. In the year 1854, and between that and the year 1857, he excavated and raised from his colliery, the Coseley Moore Colliery, a quantity of fire-clay. This clay was stacked in a heap on land of the plaintiff near to the bank of his colliery. Before December, 1860, a portion of this heap had been sold and removed. In that month a quantity, estimated by the plaintiff at about 1500 tons, still remained stacked in the heap. The defendant had be- fore this time bought of the plaintiff, and carted and carried away, portions of the heap. On several occasions, in December, 1860, the plaintiff and defendant met, and a bargain was come to with respect to the clay. This bargain was on some points differently represented by the evidence for the plaintiff and by that of the defendant. According to the case for the plaintiff the bargain concluded was for the sale and purchase of the entire heap as then stacked, at the price of two shillings per ton ; the plaintiff being willing to take that price, instead of a higher one which he had demanded, provided the whole heap was taken away, so that the ground might be cleared: that the defendant was at his own expense to load and cart it away ; and that the clay, when on its way to the defendant's premises, was to be weighed at a weighing machine belonging to one Johnson, which machine the defendant's carts would pass on their way; and that the defendant was to pay for the weighing. isec. 2) GOODS TO WHICH SOMETHING REMAINS TO ?E DONE 29 It was not denied, on the part of the defendant, that a bargain was made to pay for such clay as he might take away at the rate of two shillings per ton, nor that such clay was to be carted and weighed at his own expense ; but it was contended by the defendant that the bar- gain was not for the whole heap as it stood, but only for such portion of the clay as the defendant choose to send for and cart away, and after having it weighed at Johnson's machine, to pay for it at the rate aforesaid. No point was made, on the Statute of Frauds, that the contract was not in writing — whether the verbal bargain was for the whole or for only a portion of the stack was the principal question in the cause. It was, however, further contended by the defendant that whatever the quantity contracted to be bought, it was bought on a warranty by the plaintiff that the clay would stand a red heat. After the bargain the defendant at different times, as he thought fit, carted away portions of the clay, in the whole about 270 tons. On the three or four first occasions of carting away, the clay was weighed, at Johnson's machine. On one occasion, the last, and without any notice to the plaintiff, clay was loaded by the defendant's servants and carted away in an opposite direction to the weighing machine, and such clay was taken to a canal where it was loaded into a boat and taken by water carriage to Liverpool. The plaintiff, whilst the defendant's men were carting this last clay, saw them and followed them, and the clay was guaged on the barge in the plaintiff's presence at twenty-two tons. Evidence was given, on the part of the defendant, that the clay which had been taken away by him had been used in his business, and did not answer the warranty alleged to have been given. On this ground also he denied his liability to take or pay for more than had been removed. This evidence became immaterial, as the learned Judge ruled there was no evidence of a warranty. All the clay so taken away by the defendant had either been paid for before action brought or was covered by a set-off. The learned Judge left to the jury the question what was the bar- gain ; and they found, for the plaintiff, that the bargain was a bargain for the whole. It was then further objected by the defendant, that, assuming that the verbal bargain was for the sale of the whole of the stack of clay, and further that there was no defence on the ground of warranty, yet, as the clay sought to be recovered for had never been weighed at Johnson's machine, the count for goods bargained and sold could not be maintained ; and that, in the absence of any evidence of any fall in the value of clay or other loss by reason of not taking it away, the plaintiff could at most, recover only nominal damages. No evidence of any actual loss or damage was given and a verdict was then entered for the plaintiff, by consent, for the sum of £ll2 10s. 6d., as the estimated value of the clay not removed, at the contract price of two shillings per ton: leave being reserved to the defendant to limit the verdict to the first count, and to nominal damages on that 30 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 count in case this Court should be of opinion that the plaintiff wab only entitled to recover on that count. Channell, B. This was an action tried before me at the Middlesex Sittings, in last Easter Term. (His Lordship then stated the pleadings, and proceeded.) At the trial a verdict was found for the plaintiff, damages £112 10s. 6d., with leave reserved to the defendant to move to reduce the verdict to nominal damages on the ground hereafter men- tioned. (His Lordship then stated the facts as above set forth, p. 201.) This rule was argued before the Lord Chief Baron, my Brother Bram- well, and myself. For the plaintiff it was contended, that where full authority was given to the buyer to remove the clay sold, and all that the seller had to do according to the contract was complete, and where everything that remained to be done was to be done by the buyer at his own ex- pense, viz., as in this case, to cart away and have the clay weighed at his own expense, it must be taken as if there had been such a bargain and sale as to pass the property though the clay had not been removed and weighed, and that the contract price might be recoverable on the count for goods bargained and sold. For the defendant it was contended, that taking the case on the plaintiff's evidence, and as found by the jury, that there had been a removal and weighing of part of the clay, yet no property passed in any clay until the clay had been weighed at Johnson's machine and the quantity and price thus ascertained, so as to entitle the plaintiff to recover on the count for goods bargained and sold. In the course of the argument for the defendant we were referred to several cases decided in our Courts which were said to govern the question, and to a passage from my Brother Blackburn's Treatise on Contract of Sale, part 2, chap. 2, p. 152. It was argued that the rule deducible from these authorities was, that so long as a price had been agreed upon according to quantity, to be ascertained by weighing, that until the goods had been weighed and the price so ascertained the contract was incomplete ; which rule it was said was in accordance with the rule given in Pothier, Contr. de Vente, with Kent's Commen- taries, vol. 2, p. 405, § 309, New York Edition, 1849, the Code Civil, liv. iii., tit. vi., chap. 1, arts. 1585, 1586, 1587. The rule as stated in Blackburn on Contract of Sale, p. 152, is, "That where anything remains to be done to the goods for the pur- pose of ascertaining the price, as by weighing, measuring, or testing the goods where the price is to depend on the quantity or quality of the goods, the performance of these things, also, shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ought to be ac- cepted." After adverting to the rule as one wholly adopted from the civil law, the learned author (at page 153) says: "In general, the weigh- Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 31 ing, etc., must from the nature of things be intended to be done before the buyer takes possession of the goods, but that is quite a different thing from intending it to be done before the vesting of the property ; and as it must in general be intended that both the parties shall con- cur in the act of weighing when the price is to depend on the weight, there seems little reason why, in cases where the specific goods are agreed upon, it should be supposed to be the intention of the parties to render the delay of that act, in which the buyer is to concur, bene- ficial to him. Whilst the price remains unascertained, the sale is clearly not for a sum of money, and therefore does not come within the civilian's definition of a perfect sale, transferring the risk and gain of the thing sold ; but the English law does not require that the con- sideration for a bargain and sale should be in moneys numbered pro- vided it be of value." The learned author, however, considered the rule he mentions to prevail here, and to rest upon the authority of the English decided cases. Several case are then cited in the Treatise : Hanson v. Meyer, 6 East, 614; Hinde v. Whitehouse, 7 East, 558; Rugg v. Minett, 11 East, 210 ; Zagury v. Furnall, 2 Camp. 240 ; Simmons v. Swift, 5 B. & C. 857 (E. C. L. R. vol. 11); Laidler v. Buriison, 2 M. & W. 602; Tripp V. Armitage, 4 M. & W. 687. The author -further observes, "That if it appear from the agreement that the intention of the parties is that the property shall pass presently, the property does pass though there remain acts to be done by the vendor before the goods are de- liverable ;" citing Wood v. Russell, 5 B. & A. 942 (E. C. L. R. vol. 27) ; Clarke v. Spence, 4 A. & E. 448 (E. C. L. R. vol. 31). It is very doubtful whether in stating the rule to be that where any- thing remains to be done to the goods for ascertaining the price, as weighing, etc., the performance was a condition precedent to the transfer of the property, it was meant by the learned author to in- clude a case where all that remained to be done was to be done by the buyer with full authority from the seller to do the act. In Hanson v. Meyer the weighing was to precede the delivery, and was a condition precedent to the purchaser's right to take possession and to a complete present right of property. In Hinde v. Whitehouse, which was a case of a sale by auction, it was held that though the duties to the Crown remained to be paid by the seller before posses- sion could be had by the buyer, the property passed from the time of sale; the words of the conditions showing that intention. In Rugge V. Minett a duty remained to be performed by the sellers ; and Lord Ellenborough stated the test be "whether everything had been done by the selbrs which lay upon them to perform in order to put the goods in a deliverable state ;" and Mr. Justice Bayley, in effect, adopted the same test. Zagury v. Furnall is an authority to the same effect. There it was the duty of the seller to count the skins in each bale, and the price was for a certain sum per dozen skins. In Simmons v. Swift, 32 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 the authority most in point for the defendant, it was a part of the contract there for the sale of a stack of bark at £9 per ton, that the bark should be weighed, and the concurrence of the seller in the act of weighing was necessary. Bayley, J., after stating the general prin- ciple, says : "If anything remains to be done on the part of the seller, until that is done the property is not changed." From a consideration of these cases, it appears that the principle in\olved in the rule above quoted is, that something remains to be done by the seller. It is, therefore, very doubtful, as before stated ^ wheth er the present case comes within the principle of the rule. But, however that may be, it is clear that this rule does not"ap"ply if the parties have made it sufficiently clear whether or not they intend that the property i shall pass at once, and that their intention must be looked at in every case. This is clearly laid down in the case of Logan v. Le Mesurier, Ul Moo. P. C. C. 116, and in Hinde v. Whitehouse, 7 East, 558, cited 'supra, and in Blackburn on Contract of Sale, p. 151. In the present case the jury have, in effect adopted the plaintiff's version of the bargain, by their finding that it was for the whole heap. And taking that view of the case, it seems to us clear that the inten- tion of the parties was that the property in the whole heap should pass, notwithstanding the clay was to be weighed at Johnson's machine; and we, therefore, think that the rule to reduce the damages must be discharged. Rule discharged. NICHOLSON V. TAYLOR. (Supreme Court of Pennsylvania, 1858. 31 Pa. 128, 72 Am. Dec. 728.) Thompson, J." "When the lawful form of contracting is pur- sued," said Mr. Justice Lowrie in Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, 62 Am. Dec. 354, "the vesting of the title always depends upon the intention of the parties, to be drawn from the contract and its circumstances," and "it is perfectly legitimate to point to the want of measuring and setting apart as evidence, in the very nature of the transaction, that it was not intended as a perfect sale :" Id. Going further in this direction than mere evidence, C. J. Gibson, in Hazard V. Hamlin, 5 Watts (Pa.), 201, declared that "where nothing is paid or delivered, it is agreed on all hands that the contract is merely ex- ecutory.'' This is true of such a contract standing alone; whether taken as an axiom or as evidence merely, the difference is in terms only. No intention is to be drawn from a contract but what it expresses, when there is nothing else to manifest it; so that the difference of terms in stating the proposition leaves the rule the same, namely, that so long » The statement of facts is omitted. Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 33 as anything remains to be done as between the vendor and vendee, fori the purpose of ascertaining the amount and price of the article, thqf property and risk remains in the vendor ; it is not changed : Addison on Contracts, 222, 223 ; Hanson v. Meyer, 6 East, 614 ; Ward v. Shaw, 7 Wend. (N. Y.) 404 ; Lester, Sennett & Co. v. McDowell, 18 Pa. 92 ; Hutchinson v. Hunter, 7 Pa. 140 ; Smyth v. Craig, 3 Watts & S. (Pa.) 20; Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, 62 Am. Dec. 354; Nesbit V. Burry, 25 Pa. 208. This rule is predicable of cases where no actual delivery of the property has taken place, and it is sought to give the contract the effect of changing the possession. If parties choose to deliver property without the price being fixed, the property/ will pass, because it is the contract and intention to pass it. But we have to do with a case not of this last kind. The contract is as follows : "Sold Messrs. R. L. & C. L. Nicholson, load of Pine creek lumber, within the neighborhood of 5000 feet of plank, at $15.50 and expenses, take a note at 6 months, with interest. T. B. Taylor & Co. 8th Mo. 11th." A Pine creek load of lumber, it would appear contains about 50,000 feet board measure, a portion of which in this case was plank. The oral testimony left the case just as it found it, giving nothing in regard to the intention of the parties but what was contained in it. The de- fendants below refused to deliver the lumber, alleging that they were mistaken in the amount of the plank contained in it — that in place of 5000 there were 10,000 feet, and which they charged that plaintiffs knew ; but they offered to deliver the load, or the amount of it, with 5000 feet of plank in it. The plaintiffs refused to take it. This be- ing the situation of things between the parties, and the plaintiffs claim- ing that the property passed to them, brought a special action on the case against the defendants in which they had a count in trover. On the trial in the district court, the point was reserved as to whether the property passed by the contract ; and a verdict was rendered in favor of plaintiffs for $1050.50, its entire value. Afterwards the court en- tered judgment for the defendants non obstante veredicto, on the point reserved. The case stands now simply upon the rights of the parties as created by the written contract. Applying the rule already laid down, "that when something remains to be done between the vendor and vendee for the purpose of ascertaining the amount and price of the article, the property and risk remains in the vendor," to this case, we will have but little difficulty in coming to a conclusion. The lumber was to be measured before the price could be ascertained, so as to give the six months' note for the payment. This was in point of labor, as well as in other particulars, an important item of the transaction. No time was set for the measurement, or for giving the note, the latter being consequent only on the former ; all showing that the contract was but WooDw. Sales — 3 34 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 executory in fact and intention. The property therefore remained in the vendor, and the plaintiffs had no legal right to recover its value in trover; property in the plaintiffs being necessary to enable them to do so. They were at no time debarred from suing for damages for a breach of the contract, if any such had occurred. We think the court below were right in their decision, and this judgment must be affirmed. Judgment affirmed.^" BOSWELL V. GREEN. (Supreme Court of New Jersey, 1856. 25 X. J. Law, .390.) Potts, J.^^ This was an action of replevin, brought by Edward M. Green against William Boswell, sheriff of the county of Mercer. Boswell, by virtue of executions in his hands, seized a lot of coal, lying at the coal yard of Fish & Co., as the property of Dewar, Mein & Kay, the defendants in execution. Green thereupon issued his writ of replevin, claiming to have purchased the coal from Dewar, Mein & Kay. The sheriff gave the usual bond ; the coal was left in his possession, and subsequently sold for the benefit of the execution cred- itors. On the trial, the verdict was for Green, the plaintiff, and the jury assessed his damages at $2866.43 and costs. The several matters assigned as errors will be noticed in the order in which they were dis- cussed on the argument. * * * V. Another ground of error assigned is, that the court charged the jury, "that it was not necessary to pass the title to the coal, that the whole quantity should be ascertained ; and that the title to the coal, if the jury believed the witnesses, did vest in the plaintiff before the ag- gregate price was known ; and that the coal was not till then at the risk of the seller, but at the risk of the said Green, after the delivery by J. S. Fish & Co. ;" whereas the judge ought to have charged, that it was necessary to pass the title, that the whole quantity of coal should be ascertained, and that the title did not vest in the plaintiff before the aggregate price was known, and that there was no delivery by Fish & Co. The quantity of coal was not ascertained at the time of the making and delivery of the bill of sale of the 6th September.^- It lay on the 10 Perhaps the leading American case in support of the rule of Ilan.sou v. Meyer is Llu.ijhaiu v. EiiKleston, 27 Mich. :',2i (1ST:'.). 11 The statement of facts and part of the opinion are omitted. i=Tlie bill of sale was as follows: "Tills is to certify, that Kdward M. Oreen has this day purchased of us all the coal, our property, now on the wharf of Jona S. Fish & Co. at .$1.70 per ton for the egg and stove coal, and $4 for chestnut; and we hereby di- rect the said Jona S. Fish & Co. to deliver possession of said coal to said (ireeu. Dewar, Mein & Kay. -Dated Sept. 6, 1854." Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 35 wharf of Fish & Co. All that Kay, in the name of the firm, did was to deliver the paper, at the time it was signed, to Green. Fish says: "On the morning of the 6th September, Green called on me with the order of that date. I told him I had no objection to giving the coal to him, subject to the claim of Fish & Co. for $108.18 for wharfage. I gave him possession, subject to our claim, by signing at the foot of the order this note : 'Possession delivered of the above mentioned coal in compliance of the above order, subject to a payment of $108.18 for unloading and wharfage on this coal. September 6, 1854. J. S. Fish & Co.' " The coal remained where it lay, and on the morning of the 7th was levied on by the defendant under the executions in his hands, and ."Subsequently sold by him, to wit, 464 tons of egg coal, 133 tons of chestnut, and 25l^ tons of stove coal. The sheriff paid Fish & Co. the $108.18 the morning after the sale. These are substantially the facts proved. The question is, was the sale and delivery to Green complete, so as to vest the title in him on the 6th September? The defendant's counsel insists it was not, and the title did not vest, because the quantity of coal had not been ascer- tained. There is abundant authority for the doctrine that the property does not pass absolutely unless the sale be completed ; that it is not com- pleted until the happening of any event expressly provided for, or so long as anything remains to be done to the thing sold to put it into a condition for sale, or to identify it, or discriminate it from other things, or to determine its quantity, if the price depends on this, un- less this is to be done by the buyer alone. 1 Parsons on Cont. 441 ; Simmons v. Swift, 5 Barn. & Cress. 857; Alexander v. Gardner, 1 Bingham's N. C. 671, per Justice Park; Swanwick v. Sothem, 9 Adol. & Ellis, 895, per Lord Dennian; Hanson v. Meyer, 6 East, 614; Rapelye v. Mackie, 6 Cow. (N. Y.) 250 ; Cutwater v. Dodge, 7 Cow. (N. Y.) 85 ; Ward v. Shaw, 7 Wend. (N. Y.) 404 ; and see cases col- lected in Ross on Contracts, p. 1, etc. But these are all cases upon the construction of contracts, where the intention of the parties was the real question in controversy. Where it is clear, by the terms of the contract, that the parties intended that the sale should be complete before the article sold is weighed or meas- ured, the property will pass before this is done. Tarling v. Baxter, 6 Barn. & Cress. 360, per Bayley, J. ; Logan v. Mesurier, 6 Moore's P. C. Cases, 131, per Lord Brougham; Riddle v. Varnum, 20 Pick. (Mass.) 280. It must be so. There is nothing illegal in such a con- tract; and where contracts are legal, made in good faith, and not contrary to public policy, courts are bound to give them effect accord- ing to the clearly expressed intention of the parties who make them. In this case the bill of sale, the order for delivery, and the mem- orandum of delivery were in writing. The intention to sell and pass 36 GOODS TO WHICH SOMETHING REMAINS TO BE DONE (Ch. 2 the title and possession at the time was clear upon the face of the papers, and was supported by the evidence. The legal inference, from the facts and documents before the court, undoubtedly was that the title passed, and so the court told the jury. There is no error in this. * * * The judgment should be affirmed. The Chief Justice, and Elmer and Haines, Justices, concurred.^' SANGER et al. v. WATERBURY et al. (Court of Appeals of New York, 1889. 116 N. Y. 371, I'li X. E. 404.) Appeal from judgment of the general term of the supreme court, in the second judicial department, entered upon an order made De- cember 14, 1886, which affirmed a judgment in favor of the defend- ants, entered upon a verdict directed by the court. This was an action of replevin brought to recover the possession of 238 bags of coffee identified and described in the complaint as fol- lows: "89 bags, marked No, 6, H. L. B. & Co., D. B. & Co.; 32 bags, marked No. 8, H. L. B. & Co., D. B. & Co. ; 14 bags, marked No. 10, H. L. B. & Co., D; B. & Co. ; 29 bags, marked No. 12, H. h. B. & Co., D. B. & Co. ; 68 bags, marked No. 14, H. L. B. & Co., D. B. & Co. ; 6 bags, marked No. 16, H. L. B. & Co., D. B. & Co." The complaint alleged, and the answer admitted, "that on or about the 22d day of July, 1885, the said goods * '' * were sold by the plaintiffs to the defendants John K. Huston and James E. Huston, * * * on the credit of sixty days for one-half thereof, and of ninety days for the balance thereof." It appeared that the plaintiffs, on the 6th day of July, 1885, purchased of Boulton, Bliss & Dallett 605 bags of coffee, then stored with E. B. Bartlett & Co. On the 22d day of July the plaintiffs sold the 238 bags of coffee hereinbefore referred to to J. K. Huston & Co., of Philadelphia. That firm, on the 24th day of July, upon the security of the coffee thus purchased, borrowed from the defendants Waterbury & Force $2,300, and then transferred the coffee to them. On July 27th following, said firm failed, making a general assignment. On the next day, the plaintiffs commenced this action, by means of which the coffee was taken from the possession of Waterbury & Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually de- posited in the warehouse of E. B. Bartlett & Co., and had not as yet- been weighed. Parker, J. (after stating the facts as above). The appellants con- tend that the title to the coffee in- controversy did not pass to J. K. Huston & Co., and that therefore the transfer to Waterbury & Force 13 See, also, Allen v. Elmore, 121 Iowa, 241, 96 N. W. 769 (1903). Sec. 2) GOODS TO WHICH SOMETHING REMAINS TO BE DONE 37 did not vest in them the title or the possession. The sale is admitted ; but as the coffee had to be weighed, in order to ascertain the amount to be paid to plaintiffs, it is insisted that the title remained in the plaintiffs. In aid of this contention is invoked the rule that where something remains to be done by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the contract requires, the title remains in the vendor until the condition be complied with. The appellants cite a number of authorities which, they urge, so apply this rule as to make it applicable to the case here presented. It is said in Groat v. Gile, 51 N. Y. 431, that this "rule has reference to a sale, not of specific property clearly ascertained, but of such as is to be separated from a larger quantity, and is necessary to be identified before it is susceptible of delivery. The rule or principle does not apply where the number of the particular articles sold is to be ascer- tained for the sole purpose of determining the total value thereof at certain specified rates, or a designated fixed price." This distinction is recognized and enforced in Crofoot v. Bennett, 2 N. Y. 258; Kim- berly v. Patchin, 19 N. Y. 330, 75 Am. Dec. 334 ; Bradley v. Wheeler, 44 N. Y. 495. In Crofoot v. Bennett, supra, the court say: "If the goods sold are clearly identified, then, although it may be necessary to number, weigh, or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass." This expression of the court is cited with approv- al in Burrows v. Whitaker, 71 N. Y. 291, 27 Am. Rep. 42, in which case, after a full discussion of the authorities, the court approved the rule as laid down in Groat v. Gile, supra. Now applying that rule to the facts in this case, nothing remained to be done in order to identify the goods sold; because while, out of a larger lot, 238 bags of coffee were disposed of, nevertheless, as ap- pears from the complaint and the testimony adduced, the bags were_ so marked that there was no difficulty about identifying the particular bags sold. There remained, therefore, nothing to be done except to weigh the coffee for the purpose of ascertaining the purchase price: for whether the 238 bags of coffee should prove to weigh more or less than the parties anticipated was not of any consequence. Whatever it should prove to be, for that number of pounds J. K. Huston & Co. had agreed to pay. This case, therefore, does not come within the rule contended for by the appellant, but, instead, is governed by the principle enunciated in Groat v. Gile. Having reached the conclusion that the title and the possession passed to J. K. Huston & Co., it becomes unnecessary to consider any of the other questions discussed, for the plaintiff is without title upon which to found the right to maintain an action. The judgment appealed from should be affirmed. All concur. Judgment affirmed. 38 "sale or rbtuen" and "sale on approval" (Ch. 2 SECTION 3.— "SALE OR RETURN" AND "SALE ON APPROVAL" ELPHICK V. BARNES. (Common Pleas Division, 1880. 5 C. P. Div. 321.) Dbnman, J." The plaintiff in this case sued the defendant for £65., the price of a horse and a cow sold and delivered. The defendant admitted that he agreed to purchase a horse and a cow, but alleged that they were not sold or purchased together at £65., but under two separate and distinct contracts. There was con- flicting evidence as to this part of the defence ; but, upon the argument before me (there having been no finding of the jury upon the point), it was agreed that I should decide the question.; and I found for the defendant, that there were two separate and distinct contracts, the horse being to be sold for £40., and the cow for £25. The latter amount was paid into court ; and no question remains for decision ex- cept that arising upon the defendant's answer to the plaintiff's demand so far as the price of the horse was concerned. T)iis answer as set out in the statement of defense was as follows:/ ''^The price of the said horse was £40., and the plaintiff warranted it sound and well, and it was sold to the defendant on the terms that, if it did not an- swer the said warranty or suit the defendant, the defendant should be at liberty to reject the ssme. The said horse was neither sound nor well at the time of the sale to the defendant, but was suffering from internal inflammation, and in consequence of such unsoundness and illness, it died before a reasonable time in which to return the same had elapsed. The defendant, on discovery of the unsoundness, re- pudiated the contract, and gave notice thereof to the plaintiff/f The jury found that there was no warranty of soundness; and that the horse was in fact sound at the time when the bargain was made. But the defendant's counsel at the trial relied not only on a warranty, but upon evidence that the plaintiff, at the time of the bargain being made, had agreed that the defendant might take the horse away and work him, and, if he did not suit the defendant by working in every kind of vehicle for which the defendant required him, the defendant might return him within eight days, and that, if the horse was satis- factory, the defendant should pay for him at that time, viz. at the end of the eight days. The bargain having taken place on Thursday, the 31st of July, the horse died on Sunday, the 3d of August, in the 'defendant's stable, to which he had been removed on the 31st of July. Under these circumstances, the defendant's counsel contended that 1* The statement of facts is omitted. Sec. 3) "sale or return" and "sale on approval" 39 the defendant was not liable, because the bargain was a conditional one, and, the sale not having become absolute before the death of the horse, an action for goods sold and delivered would not lie. It was objected, for the plaintiff, that no such case ought to be left to the jury, because it was not raised by the statement of defence. But I was of opinion that this defence was one included in the state- ment of defence; that the pleadings might properly be amended if necessary, but that it was not necessary to amend them; and that no injustice would be done by leaving the question to the jury. I there- fore left it to the jury as follows: "Was the bargain on the 31st of July one for a sale out and out, or only' for a sale conditional on the defendant finding the horse all right at the end of the eight days?" The jury found, in answer to that question, "that the bargain was con- ditional on the horse being right and with a trial for eight days." Being doubtful what the jury meant by "right," I asked them the question ; to which they replied, "Suitable for the defendant's pur- poses, not contemplating the case of death." They afterwards added, in answer to a further question, "But for the complaint which came on after the bargain, we see no reason to suppose that the horse would not have been suitable for the defendant's purposes ; by trial, we mean a trial as regards suitability, not as regards health." Taking all these findings together, I think they amount to a finding that the plaintiff sold the horse to the defendant upon a condition that the horse should be taken away by the defendant and tried by him for eight days, and returned at the end of eight days if the defendant did not think it suitable for his purposes. The horse having died without fault of^^her p arty, the q uestion is, wheth er the plaintitt can mamtain hT s action for goods sold and deliver ed. I am of opinion that he cannot. The case of Ellis v. Mortimer, 1 N. R. 257, shews that the defend- ant had the whole time allowed for the trial in which to decide wheth- er he would return the horse or not. I think it clear that no action for goods sold and delivered would have lain at any time before the eight days had expired, in case the horse had lived. But before the eight days had expired the horse died. If the defendant were to be fixed with the price of the horse, he would be compelled to pay for something different from what he had bargained for, viz. a horse of which he should have had eight days' trial. The finding that the horse might or probably would have suited the defendant's purposes does not appear to me to be sufficient reason for fixing the defendant as the absolute owner of the horse. The option was his at the mo- ment of the horse's death, and down to a later period if the horse had lived. The case of Rugg v. Minett, 11 East, 210, which was relied upon for the plaintiff, does not appear to me to apply, because that was not a case in which the buyer of the goods which were destroyed had any option as to whether he should become the purchaser or not, but, at 40 "sale or return" and "sale on approval" (Ch. 2 the time of the destruction of the goods, he had by virtue of the bar- gain and of what had passed become the absolute owner of the goods in respect of which he was held liable. Nor, in my opinion, does the dictum of Coleridge, J., in Moss v. Sweet, 16 Q. B. 495, which was relied upon for the plaintiff, help the plaintiff's contention in this case. That was a case in which, the defendant having taken delivery of goods "on sale or return," and having kept the goods, it was held that the sale was complete if the goods had not been returned within a reasonable time, and that the common count for goods sold and de- livered would suffice. Coleridge, J., in that case says: "The goods in question passed on condition that, unless returned, that is, at the option of the buyer, within a reasonable time, they were to be taken as sold to him. That condition was at an end after the lapse of a reasonable time without a return of the goods ; and the sale was then complete." He does not say that it was complete before that time. He does go on to say : "The same consequence would follow where goods are destroyed or injured, so that a return within the meaning of the contract becomes impossible." This was relied upon as referring to an accidental destruction, such as by death or fire. I think it clear that this was not the meaning, but that the learned judge referred to destruction of or injury to the goods being the act of the defend- ant, in which case of course the defendant would have been liable as much as if he had kept them an unreasonable time. The case of Head v. Tattersall, Law Rep. 7 Ex. 7, is nearer to the present case. That was an action for money received, to recover back the price of a horse which had been sold at Tattersall's with a warranty and a condition that the plaintiff was to be at liberty to re- turn the horse, if it did not answer the description, up to the fol- lowing Wednesday. The horse was injured on its way home, and depreciated in value, but without any fault of the plaintiff's servant, who was taking it home. The horse, being found not to correspond with the warranty, was returned within the time; and it was held that the plaintiff had a right to return it and recover back the price, notwithstanding that he was unable to return it in the same condition. It was attempted to distinguish that case from the present, on the ground that there was a right to return the horse on a specific ground, on which it was in fact returned. But I can see no difference in prin- ciple between such a case and the case in which the purchaser has an option to return the horse on any ground still remaining to him at the time at which the event occurs which renders it impossible for him to exercise that option, and so to have the whole benefit of his bar- gain. In such a case, I think the sale to him cannot be considered to be absolute at the time of the accident occurring. The maxim of "ne perit domino" applies, I think, in such a case much more reasonably as against the unpaid contingent vendor than as against the possible vendee still having an option to return at the end of a period not yet expired. I think the law relating to such a case is accurately stated Sec. 3) "sale ok return" and "sale on approval" 41 by Mr. Benjamin in p. 483 of the 2nd edition of his work on Sales, where he lays it down as follows, speaking of "sales on trial," or "sales on approval," in which cases, he saysV^There is no sale until the ap- proval is given either expressly or by implication, resulting from keeping the goods beyond the time allowed for trial." Here, I think, there was no sale at the time of the horse's death, which happened without the fault of either party, and therefore that the action for goods sold and delivered must fail^nd I give judgment for the de- fendant, except so far as relates tc/the costs of and occasioned by the allegations of warranty and unsoundness, which costs I order to be paid by the defendant, — such costs to be set off against the' defend- ant's costs, on taxation. Judgment for the defendant. FOLEY V. FELRATH. (Supreme Court of Alabama, 1892. 98 Ala. 176, 13 South. 485, 39 Am. St. Kep. 39.) Haralson, J. Joley sued Felrath for $502.56 for merchandise, goods, and chattels sold ByTiim tcrsaid Felrath on the 1st of August, 1892, and on open account and on account stated for like amounts. It was claimed by the plaintiff , anHJiip_gr> testified^. that he was a manufacturer of gold pens in New York citv : that on the_8th_March, 1 892, he was in Mobile, Ala., and while there was in the store of de- fendant, and sold to himZa ZEiTrof^oods in his line for ^502. 56j that ~the~go ods were accordingly shipped to the de fendant by j)laintiff by: the Adams Express Company, for which said co mpany gave him a receipt; that at th e time of the sale its term s and details were jwrit- _ ten "down by plaintiff, one-half to be secured by defendant's note at four mo"nths ^_an d one-half at s ix .m^aiths.; the last note, if all the go ods were not sold in that time, mi ght be paid in goods not sold^ at defendant's option ; that th e sale was absolute, and not conditional ; " that dete ndanfTafter he received the goods, notified him that he had returned thenT'byTEe'express company, "and afterwards the company -tsrought the box of goods to plaintiff, and he would not receive them, because they were defendant's. The defendant contradicted this evidence of the plaintiff, and testi- fied that plaintiff came into his store, and, representing himself as a large manufacturer of gold pens and novelties in that line, asked him to take the agency for him for the sale of his goods in Mobile, and, as the result of their interview, defendant agreed to accept the agency, and that plaintiff should ship him, as such agent, $500 worth of his goods for sale ; that plaintiff represented that such goods should be "good sellers," and told defendant that he would not be required to pay out any of his own money for the goods, and plaintiff was to send 42 "sale or return" and "sale on approval" (Ch. 2 out, at his own expense, private letters and cards, the printing to be paid for by defendant; that he agreed to take the agency, provided the goods shipped were as represented, and he was to pay no money ; that plaintiff said that he could not let his goods go on four months' time unless defendant would give him a note which he could use as collateral to borrow money, and, on the assurance that defendant would not have to pay the note, for the reason that before it matured he would have sold goods enough to meet it, he gave him a note for $250, not as purchase money, but as accommodation, and plaintiff was to send the goods for examination before he would accept them ; that they were to be such as would be salable in the Mobile market; that the goods afterwards came by express, according to invoice sent with them, but were immediately returned to plaintiff, because not such as were promised to be sent, and were old style and unsalable. A correspondence immediately sprang up between them, in which the one contended there was an absolute sale, and he would not re- ceive the goods back, but would hold the other responsible for their value, and the other that the transaction was not a sale, but an agency, and he would have nothing more to do with the goods, and would not pay for them. Finally, however, as the result of this correspondence, the defend- ant wrote to the plaintiff, under date of April 21, 1892, to the follow- ing effect : '^have reconsidered the matter, and will accept the goods on condition that you exchange some high-priced goods, which I will return, for cheaper articles, Indre suitable for this market. Please Tavor me with the retail selling price of said line of goods in the north. I do not understand the invoice you sent me, and therefore would like for you to send me another, more explicit, giving the net retail price, and then allow me the discount; also, send the show case, as promised. Let goods come along." I To this letter the plaintiff, on April 25th, after it was received, re- plied : "Thanks. Had much trouble, but all right now. Have sent you show case, and have told express company to deliver your goods. Most are marked, and you will find retail prices in this green circu- lar, as sold by dealers here. You can exchange goods at any time. I was careful to send only good sellers, and, if not, will make all to your satisfaction. I will go on mailing private letters as soon as I get answer to this. Open up goods at once, and put out big pen, and push sales, and send me this note, and let us be good friends." The evidencejtends to show_thatJ:he_gQods_were_shipped back to defendant by the express company, as requested by.hinT,_and injransit were jost or destroyed in a wreck. The defendant contends that the loss is the plaintifTs.^that theie^-tvas no delivery of the goods, for the Teason that before accepting them tie'had theriglTF to s^ct from the lot such as he would return, according to the condition annexed to his agreement for them to be returned to him, and the sale, till this (Sec. 3) "sale or return" and "sale on approval" 43 was done, was incomplete. On the other hand, the plaintiff maintains that the sale and delivery were complete, and the defendant is liable for the price of the goods, and must himself look to the express com- pany for damages, if it has incurred liability for the nondelivery of the package. The evidence tends to show, and it is without conflict as to the point_th at the same package, of goods, and the same goods that had jnjhefirstplace been shipjje^ to the defendant at Mobile by the plain- ^tiff, whicET he recejved^^nd examined, the invoice and prices for which Jiad been furnishecTto him byj)laintiff, and which he returned to plain- tiff as not _CQming^pTo" representations, were the identical package ^and goods w hich defendant, upon reco nsideration, instructed the plain- tiff to have r eturned to him by the express company. There was no mistake as to TdentityTquality, ¥nd"pnce of goods. There had been, as we have seen, a spirited dispute between the parties as to the char- acter of the transaction between them; the plaintiff maintaining all the while that defendant had purchased the goods, and that they were his property. The d ef enda nt finally yielded to plaintiff's contention, and w rote : "I have reconsider e3"f he Inaitter, andTwill accept the goods on condition that you exchatige some high-priced goods, which I will return, for cheaper articles, more suitable for this market." What was it defendant had reconsidered? It_ could have been nothing but the very ^ing the plaintiff had been so pertinaciously pressing on him, — that thej^oods were sold and delivered to him, that the transaction was no agency, and he was liable, and must pay for what he had bought. He yielded the contention, and said, "I will accept the goods. — * >(! * i^g). goods come along." A sale has been defined to be "a transfer of the absolute or general property in a thing for a price in money." Benj. Sales, § 1. If any- thing remains to be done by either party to the transaction before de- livery, as, for example, to determine the price, quantity, or identity of the thing sold, the title does not vest in the purchaser, and the con- tract is merely executory. If the sale is complete, and the goods per- ish without the fault of the seller, the_purchaser_,is^ bound to pa y the agreed_2ri£e^_ Magee v. Billingsley, 3 Ala. 679 ; Mobile Sav. Bank ~vr^iyr69Ala. 348; s. c, 75 Ala. 473; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 17; Wailes v. Howison, 93 Ala. 375, 9 South. 594; Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274; 2 Kent, Comm. 496. In Allen, Bethune & Co. v. Maury & Co., supra, we said : "Where, however, goods are sold and delivered, the terms of sale being speci- fied, and the vendee reserves the right to reject or return, the title passes, liable to be divested by the exercise of this option to rescind, expressed within a reasonable time." In Greene v. Lewis, 85 Ala. 221, 4 South. 740, 7 Am. St. Rep. 42, it was held that where a horse was sold and delivered to a purchaser 44 "cash sale" (Ch.2 for a reasonable price, to be afterwards agreed on, the title at once passed, and the fact that the parties could not afterwards agree on a reasonable price made no difference in the character of the transaction. The court, in passing upon the question, stated : "The rule is settled that the title to personal property may pass to a vendee without fixing an ab'jolute price, if the circumstances attending the transaction satis- factorily show such to be the clear intention of the contracting par- ties." Shealy v. Edwards, 73 Ala. 175, 49 Am. Rep. 43 ; Wilkinson V. Williamson, 76 Ala. 163. An option to purchase, if the party to _ whom the goods are transferred shouTd" like, is very different from ~an optiorfto return the goods if he should not like, -them. In the fi rst case^ the title will not pass until the transferee determines the option, 7f seasonably exercised; in thejDther, the title passes subject to the right to rescind and return, which is, in effect, a right to resell to his venH^or. 2 Benj. Sales, p. 796, § 915, note 30; Buswell v. Bicknell, T7 Me. 344, 35 Am. Dec. 262; Hunt v. Wyman, 100 Mass. 198. JThe case in hand was clearly one of a sale with right to rescind and re- turn as to the high-priced goods. The contract of sale between the parties, as we have seen, rested at first in parol, about the terms of which they disputed. They eventu- ally agreed upon its terms, and that agreement is in writing. There could no longer remain any dispute about it, and no parol evidence was needed to construe it. Its construction became a question of law for the court, and not for the jury, to determine. Jones v. PuUen, 66 Ala. 306; Claghorn v. Lingo, 62 Ala. 230; Bernstein v. Humes, 60 Ala. 582, 31 Am. Rep. 52; Guilmartin v. Wood, 76 Ala. 209. It is unnecessary for us, in the view we take of the case, to consider any of the charges given to which exceptions were reserved, or any of the assignments of error, except the one based on the request for the general charge in favor of the plaintiff. The evidence is undis- puted and in writing as to what the contract was, and, as its proper construction makes it one of sale and delivery of goods, the court should have given the general charge for the plaintiff, as requested. Reversed and remanded. SECTION 4.— "CASH SALE" LEVEN V. SMITH. (Supreme Court of New York, 1845. 1 Denio, 571.) Error to the Kings common pleas, where Smith & Hartshorne brought replevin in the detinet against Leven for a quantity of boots and shoes. Plea, non detinet. On the trial, the plaintiffs proved that on the 18th day of Janu- ary, 1845, the defendant, who kept a store in Brooklyn, called at their Sec. 4,) "cash sale" 45 store in the same, city and agreed to purchase of them a bill of boots and shoes, which he selected, amounting to $184.25, to be paid for in cash on the delivery at the defendant's store. Lattimer, a person in the employ of the plaintiffs, and instructed by them to deliver the goods on payment of the money, and not otherwise, packed them in boxes and took them to the defendant's store, where they were com- pared with the bill and found to be correct, and then the defendant offered Lattimer eight dollars in money and a note of the plaintiffs payable to the order of Young & Shultz, and by them endorsed in blank for $176.23, on which some interest had accrued, in payment of the goods. Lattimer refused to receive the money and note as payment, but proposed to go back and see Mr. Smith, one of the plaintiffs, on the subject, and receive his directions. He accordingly immediately went and consulted Smith, who declined to receive pay- ment in that way, and directed him to go and bring back the goods. He then went directly to the defendant's store, not having been absent from it more than four or five minutes, and required the goods to be returned or the money paid; but the defendant refused to pay or to give up the goods. Lattimer left the note on the defendant's desk on the same day, but not until after the service of the replevin, and he left the money there two days afterwards. The defendant moved for a nonsuit, which was denied, and he ex- cepted. Some evidence tending to vary in unimportant particulars the case made by the plaintiffs was given by the defendant ; and upon his resting the plaintiffs gave evidence tending to prove that the de- fendant obtained the note referred to, of Young & Shultz, under an understanding that he was to pay the amount if he obtained the goods upon it, otherwise he was to return it. Several objections were made to the admission and rejection of testimony, and the defendant excepted to the ruling of the court upon these objections in several instances, which, however, present no ques- tions of general interest. The court charged the jury, that if the goods were sold for cash, to be paid for on delivery, the sale was conditional and the property did not pass until the condition was complied with; and also, that if the note was in fact obtained from Young & Shultz under such agree- ment as is above mentioned, the plaintiffs would for that reason be entitled to recover. The defendant's counsel excepted to the charge, and likewise presented several propositions according to which he de- sired that it might be modified; but the court declined to charge as requested, and the defendant excepted. The jury found a verdict for the plaintiffs, upon which the court rendered judgment. A bill of ex- ceptions was duly signed. JUwETT, J. The goods in question were sold by the plaintiffs to th e defendant for c^ash^jo ^e paid on delivery. _P avmeht and deUverv w fiT-fL. ~"to have beerTsimultaneous. J^credit wasgiven, and there is no evi- 46 "cash sale" (Ch.2 dence that the delivery to the defendant was intended to be absolute, or that the condition of payment was waived; and the mere handing over the goods under the expectation of immediate payment, did not constitute an absolute delivery. The defendant, after such delivery, held the goods in trust for the plaintiffs until payment was made or waived. Haggerty v. Palmer, 6 John. Ch. (N. Y.) 437 ; 2 Kent's Com. Lect. 39; Whitwell v. Vincent, 4 Pick. (Mass.) 449, 16 Am. Dec. 355 ; Furniss v. Hone, 8 Wend. (N. Y.) 247 ; Russell v. Minor, 22 Wend. (N. Y.) 659; Acker v. Campbell, 23 Wend. (N. Y.) 372. The defendant having got the goods into his possession, refused to pay cash for them as he had agreed to do. The plaintiffs demanded them of him and he refused to deliver them up, upon which this action was brought. I think it is well sustained. The questions arising on the trial respecting the admission and re- jection of evidence were correctly determined by the court. The charge, so far as it lays down the principles of law applicable to such a sale as that which was proved, was substantially correct. In regard to the effect of obtaining the note in the manner men- tioned, the charge was not strictly correct, but it embraced a subject not in the case. It was quite immaterial whether the defendant was the owner of the note, or was the agent of Young & Shultz in making an experiment to obtain payment for them. The charge in that par- ticular was entirely harmless, and forms no ground for a writ of error. Hayden v. Palmer, 2 Hill (N. Y.) 205; People v. Wiley, 3 Hill (N. Y.) 214. The request for further instructions to the jury was properly denied. The propositions submitted were either merely speculative or obviously incorrect. Judgment affirmed. CLARK V. GREELEY. (Supreme Court of New Ilainpshlre, IsSl'. 62 X. H. .394.) Assumpsit, to recover for goods sold. Facts found by a referee. The plaintiff made an auction in .Vpril, 1880, at which the defendant bid off the property named in the specification at the prices therein designated. He has never paid for the same, nor taken the property away. The defendant claimed that the plaintiff was owing him about $50 for some wood. This claim the plaintiff denies. At a previous auction of the plaintiff, in the fall of 1879, the defendant bid off some property of less amount and value than the amount of his claim against the plaintiff, for which he has never paid, claiming that he had the right to set it off as a payment by her pro tanto of his claim against her. The plaintiff was and is a person in good credit, and able to pay her debts. The defendant went to the auction in April, for the purpose of buying property to satisfy his claim against the Sec.1) "cash sale" 47 plaintiff. The auctioneer set up the property at auction, previously stating, in the defendant's presence, that the property was to be sold for cash down, as the plaintiff was about to leave town. The stove was sold with the reservation that it was to remain in the house a lew days for the use of the plaintiff's family. The defendant, having his account book with him, went into the house immediately after the sale and told the plaintiff he was ready to settle his account. She said the terms of the auction were cash down, and she was going to have the money for the articles he had bought. The defendant refused to pay for them, but claimed the right to take away the prop- erty. He then went out, intending to take away the carriage and sleighs, but could not find them. The defendant is a person in good credit, and able to pay his bills. The next morning the defendant learned that the property which he had bid off had since been attached on two writs against the plaintiff. He then brought a suit upon his previous claim against the plaintiff, and attached the property which he had bid off at the auction, his attachment being made and returned subject to the two prior attachments. The three writs against the plaintiff are still pending. The court ordered judgment on the report for the defendant, and the plaintiff excepted. Ci,ARK, J. To maintain an action for goods bargained and sold, the contract of sale must be so far completed as to vest the title in the buyer. As between the parties, delivery is not essential to a completed sale, except when required by the statute of frauds. As a general rule,! under a contract of sale of specific chattels at a stipulated price, vjhen nothing remains to be done to designate the property sold or the price to be paid, the title, independently of the statute of frauds, immedi- 1 ately vests in the buyer, and a right to the price in the seller, unless | it can be shown that such was not the intention of the parties. Clark V. Draper, 19 N. H. 419, 421; Bailey v. Smith, 43 N. H. 141, 143; Townsend v. Hargraves, 118 Mass. 325, 332; Phillips v. Moor, 71 Me. 78; Dixon v. Yates, 5 B. & Ad. 313, 340. Although the title passes so as to subject the buyer to the risk of future injury to the , property, the right of possession does not pass but is dependent upon the payment of the price. In the absence of any agreement, payment and delivery are to be concurrent acts, and the seller has the right to retain the possession until the price is paid. Upon proof of a readiness to deliver the goods the seller may maintain an action for the price, and upon a tender of the price the buyer may maintain an action for the goods. A sale of chattels may be conditional. The payment of the price may be made a condition precedent to the transfer of the title, and in such a case the property will not pass although the goods are de- livered. A sale for cash is not necessarily a conditional sale. Scud- der V. Bradbury, 106 Mass. 422. The phrases "terms cash" and "cash down" may or may not import that payment of the price is made 48 "CASH sale" *(Ch. 2 a condition precedent to the transfer of the title, according to the in- tent of the parties. If by the use of these terms the parties understand merely that no credit is to be given, and tha't the seller will insist on his right to retain the possession of the goods until the payment of the price, the sale is still so far completed and absolute that the property passes ; but if it is understood that the goods are to remain the property of the seller until the price is paid, the sale is condi- tional and the title does not pass. In the present case the sale was by auction and the terms were "cash down.'y^When the auctioneer's hammer fell nothing remained to be done to designate the property sold or to put it in condition for delivery, and the title passed immediately to the defendant unless the parties intended otherwise. The question of intention is one of fact, which the referee has determined by his general finding in favor of the plaintiff. If a formal offer to deliver the goods would ordinarily be required before an action for the price could be maintained, the absolute refusal of the defendant to pay rendered an offer unnecessary in this case (Haines v. Tucker, 50 N. H. 307) ; and if no other facts appeared, the plaintiff would be entitled to judgment. It must appear not only that the plaintiff was ready to deliver the property upon payment of the price when her suit was commenced, but that she is still ready to deliver it, or is in nd fault for not being able to do so. She is warrantor of the title, and if the title fails she cannot recover J the price. The case finds that the goods bid off by the defendant were attached by the creditors of the plaintiff. If the attachment put it , out of her power to deliver the goods, she cannot recover in this ac-) tion ; if she could, the defendant could immediately recover it back of the plaintiff as warrantor. It is suggested that this question does not arise in respect to the stove. If the case is amended to show that fact, the exceptions must be sustained as to the stove and overruled as to the other articles. Case discharged. Stanley, ]., did not sit; the others concurred.^' STONE V. PERRY. (Supreme Juclicial Court of JIaine, lfST2. 60 Me. 48.) Replevin for one hundred barrels of flour, which the defendant as sheriff of this county had attached as the property of Alonzo But- ler, of Portland. It appeared, on the part of plaintiffs, that on July 5, 1871, a broker called at plaintiffs' place of business in Boston, and inquired the price per barrel of one hundred barrels of flour of a certain brand; plain- is But see Hand v. Matthews, 208 Pa. 149, 57 Atl. 351 (1904). Sec. 4) "cash sale" 49 tiffs asked whom it was for, and the broker replied, Butler, of Port- land; plaintiff said he did not know him, but would sell the flour at $8.75 for cash; that he went away, and soon returned, and said he would take the flour ; that the flour was shipped to A. Butler & Co., on Friday, July 7th ; that on the next day plaintiffs forwarded to A. Butler & Co., a bill of the flour, with the words "terms cash" printed on the margin thereof; that on the following Monday, one of the plaintiffs went to Portland, and ascertaining that A. Butler & Co. had failed, and that the flour had been attached by one of the previous debtors of Butler, replevied it from the officer. It also appeared that under the custom and usage of trade in Bos- ton, when flour is sold for cash, it means that the seller has the right to call for the pay at any time he pleases, but the custom is not to call until ten days; that there is no credit in the flour business un- less the time is specified; that ten days is a courtesy and not a right, and is so defined in the rules of exchange. On the part ^f the defense it appeared that the broker offered plaintiffs for Butler $8.75, and if he did not remit in ten days to, draw at sight, and not on demand; and that plaintiffs said they would ship the first one hundred barrels they received. The full court, to render sUch judgment as the legal rights of the parties required. ApplETOn, C. J. The plaintiffs, merchants in Boston, through the intervention of a broker, on July 5, 1871, sold to A. Butler & Co., one hundred barrels of flour, which they shipped on Friday, the 7th July. The sale was for cash. The bill of goods, which was forward- ed on 8th July, had on the margin the words, "terms cash." On Monday, one of the plaintiffs went to Portland, and, finding the firm of Butler & Co. had failed, and that the flour had been attached, com- menced an action of replevin. The sale to Butler & Co. was conditional. The condition has not been complied with. The attaching creditor can only acquire the right of his debtor. As between vendor and vendee,' the vendor isy^ to be deemed the owner. In Deshon v. Bigelow, 8 Gray (Mass.) 159, the sale was for cash, and being conditional, it was held that the title did not pass to the vendee until payment, although the goods sold were delivered to the vendee. So when goods are sold on time, and delivered the vendee, it being part of the contract that they are to be paid for by the negotiable note of the vendee, such payment is a con- dition precedent to the sale, and the title to the goods will not vest without such payment or a waiver of it. Whitney v. Eaton, 15 Gray (Mass.) 225; Farlow v. Ellis, 15 Gray (Mass.) 229; in Hirschorn v. Canney, 98 Mass. 149, a merchant in New York sold goods to a mer- chant in Boston, on condition that he should send his notes in payment therefor, and shipped the goods to Boston, mailing a bill of lading to the vendee, and requesting him to send his notes in payment, which WooDW. Sales — i 50 "cash sale" (Ch. 2 was never done. It was held, that no title passed to the conditional vendee. "The sale to the defendants," observes Gray, J., in Adams V. O'Connor, 100 Mass. 515, 1 Am. Rep. 137, "having been found by the jury to have been for cash, was a conditional sale, and vested no title in the purchasers, until the terms of sale had been complied with." If goods are sold conditionally, and delivery made according to the custom of the trade, before the conditions are complied with, in expectation of compliance, the delivery is also conditional, and no title vests in the purchaser until performance of the condition ; and if he steadily refuse compliance, the seller may recover the goods by action of replevin. Bauendahl v. Horr, 7 Blatchf. 548, Fed. Cas. No. 1,113. The contract was made in Massachusetts, and the law of that place must govern. By that law, the sale being upon the condition of pay- ment in cash upon delivery, no payment being made, the title of the vendor remains as between him and his vendee, or as between him and the attaching creditors of the vendee, in the former. The plaintiffs never parted with their title in Massachusetts, and their vendee has not acquired any. There has been no waiver, nor is there any proof tending to show a waiver on the part of the plaintiffs, of any of their legal rights. On the contrary, they have been vigilant in their enforcement. The fact that the goods were actually forwarded to the purchaser before a compliance with the terms of sale is not necessarily a waiver of the conditions of sale. Farlow v. Ellis. Whether a delivery under an agreement for the sale of chattels is absolute or conditional, depends upon the intent of the parties ; to establish that the delivery was con- ditional, it is not necessary that the vendor should declare the condi- tions in express terms, at the time of delivery. It is sufficient, if the intent of the parties can be inferred from their acts or the circum- stances of the case. Hammett v. Linneman, 48 N. Y. 399. The defendant having wrongfully interfered with the property of the plaintiffs, is liable in tort for such interference without demand. Judgment for plaintiffs, and one cent damage. Kent, WaIvTon, Dickerson, and Danforth, JJ., concurred. GEORGE W. MERRILL FURNITURE CO. v. HILL. (Supreme Judicial Court of Maine, 1894. 87 Me. 17, 32 Atl. 712.) WiswEEL, J." On about March 20, 189L one Coburn, then the proprietor of an hotel in Bangor, ordered of the plaintiffs two settees, the property replevied, the same to be manufactured by the plaintiffs. On the 25th of April following, the settees, having been completed, 16 The ^^tateulent of facts is omitted. Sec. 4;) "cash sale" 51 were delivered at the hotel occupied by Coburn. Between that time and the 19th of the following June the plaintiffs called upon Coburn at various times for the purpose of collecting the pay for these arti- cles, and on the latter date, nothing having been paid up to that time, and Coburn being still unable to pay, one of the plaintiffs proposed that Coburn should sign the written instrument, called by the wit- nesses a "lease," but in fact a contract providing that Coburn should pay the plaintiffs $10 per month for the use of the articles until the sum of $51 was paid, when the sums so paid should be treated as purchase money, and the property pass to Coburn. This instrument was never recorded. In the month of September following, the defendant bought these settees, with other hotel furnishings, of Coburn, without notice of any claim upon them of the plaintiffs. The plaintiffs brought this action of replevin to recover possession of these settees. The presiding justice instructed the jury that the question was prin- cipally, if not altogether, of law, and at the close of the charge said : "If you believe the testimony, I do not see any other way but to give a verdict for the plaintiffs." An examination of the evidence will show that this was in effect a direction to return a verdict for the plaintiffs. At the time the goods were ordered, nothing was said about the time of payment, and no agreement was made by the plaintiffs to give credit. Under these circumstances, the law presumes that the par- ties intended to make the payment of the price and the delivery of the possession concurrent conditions. The plaintiffs would have had the right to retain possession until the purchaser had been ready to perform his part of the contract, or, if the goods had been delivered with the expectation of immediate payment, and this had not been done, the plaintiffs had the right to retake possession of the goods. But although a sale of this character is conditional, and a vendor has the right to retain possession, or to retake possession under cer-j tain circumstances, the vendor may waive the conditions and these rights, in which case the sale becomes absolute, and the title vests in] the purchaser. Peabody v. Maguire, 79 Me. 572, 12 Atl. 630. ' The mere fact of delivery without a performance of the condition of payment is some evidence of a waiver of the condition. The rule that prevails in this state is thus stated in Peabody v. Maguire, supra : "But the doctrine which has the support of our own court upon this question, and which seems to be the correct and rational one, is that, even in a conditional sale, the mere fact of delivery, without a per- formance by the. purchaser of the terms and conditions of sale, and without anything being said about the condition, although it may af- ford presumptive evidence of an absolute delivery and of a waiver of the condition, yet it may be controlled and explained, and is not nec- essarily an absolute delivery or waiver of the condition ; but whether so or not is a question of fact to be ascertained from the testimony." 52 "cash sale" (Ch. 2 In this case there was a delivery of the goods "without a perform- ance by the purchaser of the terms and conditions of sale, and with- out anything being said about the condition." This was some evi- dence of a waiver by the plaintiffs of their rights. It might be con- trolled or explained by other circumstances, but we think that it was a question for the jury, and that it was error to direct, in effect, a ver- dict for the plaintiffs. If the evidence was such that a verdict for the defendant would have been so clearly erroneous as to require it to be set aside, then the defendant could not complain of the instruction ; but we do not think that such is the case. There are undoubtedly circumstances which have some bearing in favor of the contention on each side. For instance, one of the plaintiffs, and the one who had most to do with the transaction, testified upon cross-examination that when the goods were delivered he considered Mr. Coburn good, and "expected the cash in thirty days." From this evidence, taken in connection with the unrestricted delivery, the jury would have been authorized in find- ing a waiver. If the property passed by delivery, then the unrecorded instrument executed upon June 19th, but bearing date of April 25th, was ineffec- tual to give the plaintiffs any claim upon these goods as against the defendant. Upon the other hand, if the title did not pass, the par- ties merely substituted one conditional contract for another, as they might with propriety have done. So the case depends entirely upon "the question of fact as to whether or not the property passed at the time of delivery. This issue, we think, should have been submitted to the jury. Exceptions sustained. FRECH V. LEWIS. (Supreme Court of Pennsylvania, 1907. 218 Pa. 141, 67 Atl. 45, 11 D. E. A. [N. S.] i>48, 120 Am. St. Eep. S(J4, 11 Ann. Cas. .545.) Stewart, J. The settled doctrine of our cases is to the effect that where the contract of sale provides for payment of the purchase price on delivery of the articles sold, and the seller delivers the goods, but tlie buyer fails to pay, the right of property does not pass to the buyer with the possession, but remains with the seller, who may at his op- tion reclaim the goods. In some jurisdictions the right of property is held to pass with the delivery, unless at the time the right to re- take is expressly declared by the seller. We have not gone so far. Our cases proceed on the theory that until payment has been made, or waived, the contract remains executory, and that delivery in such case is not a completion of the contract, except as an intention to so regard it is expressly declared or can fairly be inferred from the cir- cumstances attending. Possession, however, having passed, and the Sec. 4) "cash sale" 53 buyer by the act of the seller having been invested with the indicia of ownership, the policy of our law requires that this situation — the possession in one and the right of property in another — shall continue no longer than is necessary to enable the seller to recover the goods with which he has' parted. The law gives the seller the right in such case to reclaim his goods, but he must do so promptly. Other- wise he will be held to have waived his right, and can only thereafter look to the buyer for the price. The question the present case suggests is: When does this infer- ence of waiver arise? Our authorities admit of but one answer: Except when delayed by trick or artifice, the assertion of the right to reclaim the property must follow immediately upon the buyer's de- fault. This does not mean that the^ller must eo instanti begin legal proceedings to recover the goods^^ut it does mean that the seller, when he discovers that his deliVery is not followed by payment, as he had the right to expect, is at once put to his election whether he will waive the condition as to payment and allow the delivery to be- come absolute, or retake propertv, and that he is to allow no unneces- sary delay in making his choice^The object of the law is not to mul- tiply his remedies because of his disappointment. He may not con- tinue to hold his right to the goods, and at the same time hold the buj^er as his creditor. One or the other he must relinquish, and do it promptly, or the law will forfeit his right to elect. Continued ac- quiescence in the buyer's possession of the goods will be taken as a choice on his part to regard the delivery as absolute, notwithstanding the buyer's default. The policy of the law, in requiring promptitude in the assertion of continued ownership of the goods, could easily be vindicated were it necessary. It answers every purpose here to show that the law requires it. In Leedom v. Philips, 1 Yeates (Pa.) 527, it is said: "When the parties specially agree, it is obvious that the vendor may, by his con- tract, renounce the benefit of the conditions stipulated, and trust to the good faith of the vendee for a future performance on his part. If one sells goods for cash, and the vendee takes them away without pay- ment of the money, the vendor should immediately reclaim them by pursuing the party, and he may justify the retaking of them by force." This was quoted approvingly iivJBowen et al. v. Burk, 13 Pa. 146; and it was there added that >y^'Where he [the seller] lies by, and makes no complaint in a reasonable time, he consents to the absolute transfer of the property, and the contract is consequently complete against all the worlcL^ In Backentoss v. ^eicher, 31 Pa. 324, reference is made to the case last above cited. What we have quoted from it was there approved, and the necessity for an immediate reclamation of the goods was em- phasized. It is there said: "This is the principle that is decisive against the present plaintiff. A sale of goods for cash is, strictly speaking, a sale on condition. The contract is do ut des. The con- 54 "cash sale" (Ch.2 dition is more imperative than such as was in this case, but for that reason less easily waived ; and yet, if the vendor acquiesced in a pos- session obtained in disregard of the condition, he waives it, and, though he may recover the price by action, he cannot recover the goods in specie. * * * When the plaintiff found his condition disregarded, he should have promptly reclaimed the goods." Mackaness v. Long, 85 Pa. 158, is another recognition of the same doctrine that unless reclamation of the property be made immediately the title passes to the buyer. These cases and others that might be cited, following the lead of Leedom v. Philips, 1 Yeates (Pa.) 527, all hold that the duty is upon the seller if he would retain his right to the property to proceed promptly, and we know of no case in which a contrary doctrine is asserted. In some cases, the expression "with- in a reasonable time" is used where the right to reclaim is referred to ; but this expression suggests no departure from the rule as declared in Leedom v. Philips, supra. By "reasonable time" is to be under- stood such promptitude as the situation of the parties and the circum- stances of the case will allow. It never means an indulgence in unnecessary delay, or in a delay occasioned by the vain hope and fruit- less effort to obtain the money from the defaulting buyer. When the delay is to be accounted for by the latter consideration, it is accepted as an acquiescence in the delivery and the acceptance of the buyer as a debtor. Now for the facts of this case : The contract was that plaintiff was to furnish defendant with two carriages to be paid for on delivery. The first carriage was delivered September 4, 1903, through plain- tiff's son, who immediately demanded of the defendant payment for the same. . Defendant's response was : "I will be over in a day or two to see your father, and, if I do not, I will send him a check in the course of a day or two." He failed to keep his promise. He neither went to see plaintiff, nor did he send the check. Nevertheless, three days after this the other wagon was delivered to him at the same place, while he was absent from home. A week or ten days thereafter the plaintiff demanded payment, and repeated the demand both personally and by letter time and time again, with no better result than to get a note from the defendant, which he accepted con- ditionally, but which he returned because he was unable to get it dis- counted. Meanwhile defendant was using the carriages, as plaintiff must have known, since he repaired one of them which had been injured in the using. While plaintiff was diligent and persistent in demanding payment, at no time did he demand a return of the car- riages, or in any way assert his right to property in them. His eft'ort was, as he himself testified, to coax the defendant into paying the price. Two months and a half elapsed before he began this action of replevin, which was his first assertion of continued ownership of the property. It was not only too late, but his conduct shows that during all this time he was dealing with the defendant as though the Sec. 4) "cash sale" 55 latter was his debtor. His own explanation is that he delayed trust- ing to the promises of the defendant from time to time to pay the price of the carriages. The title to a chattel passes as fully after a conditional delivery, where possession is allowed to be retained, in consideration of a new promise to pay, as where delivery is preceded by actual payment. The plaintiff was not tricked into delivering the carriages to the defend- ant, nor was his delay in asserting claim to the property in conse- quence of any fraud practiced. He reposed confidence in the promise of the defendant, and was disappwinted. His disappointment does not restore to him the right of property with which he parted. The court below submitted it to the jury to determine whether plaintiff by his conduct had waived his right to retake the carriages. The jury found he had not, and gave the plaintiff a verdict for the property. On appeal to the superior court the judgment of the lower court was af- firmed. The ground on which the affirmance rested is thus stated by the learned judge who delivered the opinion : "It cannot be said as matter of law that the plaintiff's conduct amounted to a waiver of his right. In view of the repeated promises of the defendant, the plaintiff might well have been misled and induced to postpone proceed- ings for the recovery of his property. His delay is evidence of a waiver, but it is not conclusive in view of the conduct of the defend- ant." In this we cannot concur. The reasoag. for our dissent fully ap- pear in what we have already said,^j;:^eliance upon a subsequent promise to pay, that leads the seller to refrain from asserting his right to retake the property, is in itself a waiver of the right, and makes absolute a delivery which in the first instance was conditional. The right of plaintiff to recover back his property after he had deliv- ered it resulted from the buyer's failure to keep his first promise. His failure to keep subsequent promises to pay could neither prolong nor revive that right. What defendant did or did not do is a matter that has no place in the inquiry; what the plaintiff did or failed to do is the determining consideration. ^'' Fraud and artifice practiced by de- fendant may excuse delay in attempting a recovery of property after delivery, but not mistaken confidence reposed in defendant's promises. Judgment is reversed.^^ IT Compare Hammett v. Linneman, 48 N. T. 399 (1872). And see, further, on the subject of waiver, Johnson v. lankovetz, 57 Or. 28, 110 Pac. 398, 29 L. R. A. (N. S.) 709 (1910), with a criticism in 9 Mich. Law Rev. 239. 56 UNASCERTAINED GOODS OF A FUNGIBLE NATURE (Ch. 2 SECTION 5.— CONTRACT TO SELL UNASCERTAINED GOODS OF A FUNGIBLE NATURE WHITEHOUSE et al. v. FROST. (Court of King's Bench, 1810. 12 East, 614.) In trover to recover the value of some oil, the property of the bank- rupt, which was tried at Lancaster, in March last, a verdict was found for the plaintiffs for i390, subject to the opinion of the court on the following case : The plaintiffs are assignees of John Townsend, late a merchant at Liverpool ; the two Frosts are merchants and partners in Liverpool ; and the other defendants, Dutton & Bancroft, are also merchants and partners in the same town. On the 7th of February, 1809, Townsend purchased from the defendants, J. & L. Frost, ten tons of oil, at i39 per ton, amounting to £390, for which Townsend was to give his acceptance payable four months after date ; and a bill of parcels was rendered to Townsend by the Frosts, a copy of which is as fol- lows: "Liverpool, 7th February, 1809. Mr. John Townsend, Bought of J. & L. Frost, Ten tons Greenland whale oil In Jir. Stauiforth's cisterns, at your risk, at £.39 f.S90 Cr. 1809. February 14. By acceptance £390 "For J. & L. F., Wm. Pemberton." The said ten tons of oil at the time of this purchase were part of forty tons of oil lying in one of the cisterns in the oil-house at Liver- pool, the key of which cistern was in the custody of the other de- fendants, Dutton & Bancroft, who had before that time purchased from J. R. & J. Freme, of Liverpool, merchants, the said forty tons of oil in the same cistern ; and upon such purchase received from the Fremes the key of the cistern. Afterwards Dutton & Brancroft sold ten of the forty tons they had so bought (being the ten tons in ques- tion) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the ten tons of oil, he received from the defendants. Frosts, an order on Dutton & Bancroft, who held the key of such cistern, they having other interests therein as aforesaid, to deliver to him, Townsend, the said ten tons of oil ; a copy of which is as follows : "Messrs. Dutton & Bancroft, Please to deliver the bearer, Mr. John Townsend, ten tons Greenland whale oil, we purchased from you 8th November last." (Signed) "J. & L. Frost." Sec. 5) UNASCERTAINED GOODS OF A FUNGIBLE NATURE 57 The order was taken to Button & Bancroft by Townsend, and ac- cepted by them upon the face of the order as follows: "1809. Ac- cepted, 14th February. Button & Bancroft." Townsend according to the terms of the bill of parcels, namely, on the 14th of February, 1809, gave to the defendants. Frosts, his acceptance for the amount of the oil, payable four months after date; but which acceptance has not been paid. Townsend never demanded the oil from Button & Ban- croft, who had the custody of it. The oil was not subject to any rent; the original importer having paid the rent for twelve months, and sold it rent free for that time, which was not expired at Townsend's bankruptcy. On the 23d of May, 1809, about three months after the purchase of the ten tons of oil, a commission of bankrupt issued against Town- send, under which he was duly declared a bankrupt, and the plaintiffs appointed his assignees. At the time of the purchase, and also at the time of Townsend's being declared a bankrupt, the oil was lying in the cistern mixed with other oil in the same; and some time after- wards the defendants refused to deliver the same to the plaintiffs, notwithstanding a demand was made for the same by the assignees, and a tender of any charges due in respect thereof. When the whole of the oil lying in any of the cisterns in the oil-house is sold to one person, the purchaser receives the key of the cistern ; but when a small parcel is sold, the key remains with the original owner; and the pur- chaser is charged in proportion to the quantity of oil sold, with rent for the same, until delivered out of the oil-house, unless such rent be paid by the original importer, as was the fact in the present case. If the plaintiffs were entitled to recover the verdict was to stand ; if not, a nonsuit was to be entered. There was a similar action by the same plaintiffs against J. R. Freme and J. Freme, Button, and Bancroft, the circumstances of which were in substance the same. lyord Ellenborough, C. J. This case presents a difference from the ordinary cases which have occurred where the sale has been of chattels in their nature several, and where the transfer of the prop- erty from the vendor by means of an order for delivery addressed to the wharfinger or other person in whose keeping they were, and ac- cepted by him, has been held to be equivalent to an actual delivery; the goods being at the time capable of being delivered. Here, how-<| ever, there is this distinguishing circumstance, that the ten tons of oil till measured off from the rest was not capable of a separate deliv- ery; and the question is, whether that be a distinction in substance or in semblance only. The -whole forty tons were at one time the property of Button & Bancroft, who had the key of the cistern which contained them; and they sold ten tons to the Frosts, who sold the same to Townsend, the bankrupt, and gave him at the same time an order on Button & Bancroft for the delivery to him of the ten tons. 58 UNASCERTAINED GOODS OF A FUNGIBLE NATURE (Ch. 2 To that order Button & Bancroft attorn, as I may say ; for they ac- cept the order, by writing upon it "Accepted 14th of February, 1809," and signing their names to it. From that moment they became the bailees of Townsend, the vendee; the goods had arrived at their journey's end, and were not in transitu; all the right then of the sellers was gone by the transfer, and they could no longer control that delivery to which they had virtually acceded by means of their order on Button & Bancroft accepted by the latter. The question of stopping in transitu does not arise, taking the Frosts to be the original sellers, as between them and the bankrupt; the oil had never been in the hands of the Frosts; they only assigned a right to it in the hands of the common bailees, which before had been assigned to them. Gross, J. There can be no doubt that at the time of Townsend's bankruptcy the ten tons of oil in the cistern were at the risk of the bankrupt. All the delivery which could take place between these par- ties had taken place. Button & Bancroft, who had the custody of the whole in their cistern, had accepted the order of the sellers for the delivery to the bankrupt, and it only remained for Townsend, together with Button & Bancroft, to draw off the ten tons from the rest. Ls Blanc, J. B'utton & Bancroft had sold the ten tons of oil in question (which was part of a larger quantity, the whole of which was under their lock and key) to the Frosts, who sold the same to Townsend ; and there is no claim on the part of the defendants. But- ton & Bancroft, to detain the oil for warehouse rent. The Frosts never had any other possession of the oil than through Button & Ban- croft; but they gave to Townsend an order on these latter to deliver it to him ; and after the acceptance of that order Button & Bancroft held it for his use. But something, it is said, still remained to be done, namely, the measuring off of the ten tons from the rest of the oil. Nothing, however, remained to be done in order to complete the sale. The objection only applies where something remains to be done as between the buyer and seller, or for the purpose of ascertaining either the quantity or the price, neither of which remained to be done in this case ; for it was admitted by the persons who were to make the delivery to Townsend, that the quantity mentioned in the order was in the cistern in their custody, for they had before sold that quantity to the Ei'osts, of whom Townsend purchased it, and had received the pricervTherefore, though something remained to be done as between the vendee and the persons who retained the custody of the oil, be- fore the vendee could be put into separate possession of the part sold, yet as between him and his vendors nothing remained to perfect the sale. BaylBy, J. There is no question of transitus here ; the goods were at their journey's end. When, therefore. Button & Bancroft, who were then the owners of the whole, sold ten tons of the oil to the Frosts, those ten tons became the property of the Frosts; and when Sec. 5) UNASCERTAINED GOODS OF A FUNGIBLE NATUEB 59 they sold the same to Townsend, and gave him an order upon Button & Bancroft for the deUvery of the ten tons purchased of them, the effect of that order was to direct Button & Bancroft to consider as the property of Townsend the ten tons in their possession, which before was considered as the property of the Frosts; and by the acceptance of that order Button & Bancroft admitted that they held the ten tons for Townsend, as his property; and he had a right to go and take it, without the interference of the Frosts. Postea to the plaintiffs." KNIGHTS V. WIFFEN. (Court of Queen's Bench, 18T0. L. E. 5 Q. B. 660.) Beclaration for conversion of sixty quarters of barley of the plain- tiff. Pleas : 1. Not guilty. 2. That the barley was not the property of the plaintiff. Issue thereon. At the trial before Keating, J., at the Surrey Spring Assizes, it ap- peared that the defendant, a corn-merchant, had a large quantity of barley, in sacks, lying in his granary, which adjoined the Stanstead Station of the Great Eastern Railway. He sold eighty quarters of this barley to one Maris, but no particular sacks were appropriated to the purchaser. While the barley remained in the defendant's granary, subject to the orders of Maris, the latter sold sixty quarters of it to the plaintiff, who paid him for them, and received from him the following delivery order addressed, as was usual in similar trans- actions, to the "Station-Master, Stanstead — Sir : Beliver Mr. T Knights sixty quarters of barley to my order, R. W. Maris, Jun. June 27th, 1868." Underneath was written: "Thomas Knights, Jun. Hemingford Gray, near St. Ives, Huntingdonshire." The plaintiff sent this document to the station-master, and wrote with it: "Sir 18 In Austin v. Craven, 4 Taunt. 614 (1812), where the sale was of 50 hogs heads of sugar, double loaves, no particular hogsheads being specified, Mans- field, C. J., said: "Trover cannot be maintained but for specific goods. Any sugars of required quality would have satisfied this contract. It is a con- tract for a certain quantity of a specified quality of sugars. I say nothing on the case of the oil; there it is held that trover will lie for a specific quantity of a liquid, mixed with a certain other quantity of the same liquid, without Its ever having been separated ; how it is to be distinguished from the mass, I know not; but that case stands quite on its own bottom; it is unlilse other cases." In Gillett v. Hill, 2 Cr. & Mee. 530 (1834), Bayley, B., said: "If I agree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver until a selection is made. There Is no individuality until it has been divided." In the fifth English edition of Benjamin on Sales, p. 338, note 4, the editors, referring to Whitehouse v. Frost, say: "As it has been frequently disapproved, though followed in America, it may be treated as of no authority here." 60 UNASCERTAINED GOODS OF A FUNGIBLE NATURE (Ch. 2 I enclose Mr. R. W. Maris, Jun.'s, transfer of sixty quarters of barley to my account. Please confirm this transfer, and send me a sample, and say what weight is in due course." On receipt of this letter and the delivery order, the station-master shewed them both to the de- fendant, who said, "All right, when you get the forwarding note I will put the barley on the line." Samples were afterwards given to the station-master, which were sent by him to the plaintiff. Three sacks were weighed. The plaintiff ultimately gave an order, or for- warding note, to the station-master, for the sixty quarters of barley to be sent to Cambridge, which he presented to the defendant, but Maris had then become bankrupt, and the defendant, as unpaid ven- dor, refused to part with the barley. The learned judge directed a verdict for the defendant, giving the plaintiff leave to move to enter a verdict for i53. 18s. 7d., the amount claimed. A rule was obtained pursuant to the leave reserved, on the ground that there was evidence which ought to have been submitted to the jury to prove that the defendant had accepted, and agreed to act upon the delivery order of the vendee (Maris), and thus passed the property in the sixty sacks of barley; or for a new trial on the ground that the judge ought to have directed a verdict for the plaintiff for three sacks at least. Blackburn, J. I think that the plaintiff is entitled to the verdict, and the rule should be made absolute to enter a verdict for him. I will state shortly what I consider to be the facts upon which the case seems to turn. The defendant A\^iffen had in his own warehouse a large quantity of barley, and he sold to Maris eighty quarters which, on the contract between him and Maris, remained in his possession as unpaid vendor. No particular sacks of the barley were appro- priated as between Maris and Wiffen; but at the time the contract was made ^Maris had a right to have eighty quarters out of that barley appropriated to him ; and at the same time Wiffen, as the unpaid vendor, had a right to insist on the payment of the price before any part of the grain was given up. Maris afterwards entered into a con- tract with the plaintiff Knights by which he sold him sixty sacks of the barley, and Knights paid him for them. A document was given by Maris to Knights, in the shape of a delivery order addressed to a station-master of the Great Eastern Railway, instructing him to de- liver to Knights' order sixty quarters of barley on his. Maris', ac- count. Knights forwarded it to the station-master, enclosed in a letter authorizing the station-master to hold for him. The station- master went to Wiffen and shewed him the delivery order and letter, and Wiffen said: "All right, when you receive the forwarding note, I will place the barley on the line." What does that mean? It amounts to this, that Maris having given the order to enable Knights- to obtain the barley, Wiffen recognized Knights as the person en- Sec. 5) UNASCERTAINED GOODS OP A FUNGIBLE NATURE) 61 titled to the possession of it. Knights had handed the deHvery-order to the station-master, and Wiffen, when the document was shewn to him, said, in effect : "It is quite right ; I have ^ixty quarters of bar- ley to Maris' order. I will hold it for you ; and when the forwarding note comes I will put it on the railway for you." Upon that statement Knights rested assured, and Wiffen, by accepting the transfer which had been informally addressed to the station-master, bound himself to Knights. The latter accordingly, when he did not get the goods, brought an action of trover against Wiffen, saying, as it were : "You said that you had the sixty quarters of barley, and that you would hold the goods for me. You cannot refuse to deliver to me; if you do refuse it will be a conversion." And Wiffen now says : "It is all true, but I do refuse to deliver the barley. Granted that I previously said I would hold sixty quarters of barley for you, yet I had none to hold for you. I had no quarters belonging to Maris, for I never severed them from the bulk, and I am entitled to hold the whole quantity as against Maris, until I am paid the full price." No doubt the law is that until an appropriation from a bulk is made, so that the vendor has said what portion belongs to him and what portion belongs to the buyer, the goods remain in solido, and no property passes. But can Wiffen here be permitted to say : "I ' never set aside any quarters?" As to that, Woodley v. Coventry, 2 H. & C. 164, 32 ly. J. (Ex.) 185, is very much in point; with this difference only, that there the plaintiff acted on the statement of the warehouseman, and altered his position by paying the vendee a part of the price, and so the doctrine of estoppel applied; which doctrine is^that where one states a thing to another, with a view to the other altering his position, or knowing that, as a reasonable man, he will alter his position, then the person to whom the statement is made is entitled to hold the other bound, and the matter is regulated by the state of facts imported by the statement. Woodley had altered his position by paying part of the price, but Coventry did not know of it. In Stonard v. Dunkin, 2 Camp. 344, it is patent that the defend- ant knew the money was paid. In Hawes v. Watson, 2 B. & C. 540, it appears that payment had been made, but the defendant did not know of it, although, as a reasonable man, he might have known it was likely. But in neither of those cases did the defendants know that money was going to be paid. //In the present case the money had been paid before the presentation of the delivery order ; but I think, nevertheless, that the position of the plaintiff was altered through the defendant's conduct. The defendant knew that, when he assented to the delivery order, the plaintiff, as a reasonable man, would rest satisfiedy^^f the plaintiff had been met by a refusal on the part of the defenaant, he could have gone to Maris and have de- manded back his money, very likely he might not have derived much benefit if he had done so; but he had a right to do it. The plain- 62 UNASCERTAINED GOODS OF A FUNGIBLE NATURE (Ch. 2 tiff did rest satisfied in the belief, as a reasonable man, that the prop- erty had been passed to him. If once the fact is established, that the plaintiff's position is altered by relying on the statement and taking no steps further, the case becomes identical with Woodley v. Coventry, 2 H. & C. 164, 32 L. J. (Ex.) 185, and Hawes v. Watson, 2 B. & C. 540. It is to be observed, moreover, that the judgment of the Court in Woodley v. Coventry, 2 H. & C. 164, 32 L. J. (Ex.) 185, did not rest on the fact of the payment of the price. It virill be noticed there that although the fact did exist of payment of ' price, Martin, B., seems to found his decision on the assenting to hold, and the fact that when that assent was communicated to the plaintiffs they altered their position. In Gillett v. Hill, 2 C. & M. 530, there was no pay- ment of the price, and the Court of Exchequer gave judgment against the wharfingers, on the ground that they were estopped from denying the facts, after the other party had altered his position^ relying on their conduct when the delivery order was presente4;;^at, until the appropriation and separa- tion of a particular quantity^ or signification of assent to the particular quantity, the property is not transferred. Therefore, except as to what DUt into the 155 sacks, there must be judgment for the defendanj^ is equally clear that, as to what was put into those sacks, there iust be judgment for the plaintiff. Looking to all that was done, when the bankrupt put the barley into the sacks eo instanti the property in each sackful vested in the plaintiff. I consider that here was a priorian assent by the plaintiff. He had inspected and approved of the barley 2 7 This condensed statement of facts is taken from Benjamin, Sales (.jth Iflng. Ed.) p. 347. 104 UNASCERTAINED GOODS APPROPRIATION (Ch. 2 in bulk. He sent his sacks to be filled out of that bulk. There can be no doubt of his assent to the appropriation of such bulk as should have been put into the sacks. There was also evidence of his subsequent ap- propriation, by his order tl;«t it should be sent on. There remained nothing to be done by the vendor, vk^ho had appropriated a part by the direction of the vended/It is the same as if boxes had been filled and sent on by the bankrupt, in which case it cannot be disputed that the property would pass: and it can make no difference that the plaintiff ordered the sacks to be forwarded by the vendor. As to the question of conversion, the property being in the plaintiff, he has done nothing to divest himself of it. It is not like the case of confusion of goods, where the owner of such articles as oil or wine mixes them with sim- ilar articles belonging to another. That is a wrongful act by the owner, for which he is punished by losing his property. Here the plaintiff has done nothing wrong. It was wrong of the bankrupt to mix what had been put into the sacks with the rest of the barley; but no wrong has been done by the plaintiff. That being so, the plaintiff's property comes into the hands of the defendant as the bankrupt's assignee. If the defendant had a lien, he does not detain the barley on that ground. He denies the plaintiff's property altogether, and cannot therefore claim a lien. He claims all the barley,, and claims all of it as being the prop- erty of the bankrupt. He therefore has converted the plaintiff's prop- erty. ErlB, J. I also am clearly of opinion that the property in what was put into the sacks passed to the plaintiff. It is clear that, where there is an agreement for the/S^ and purchase of a particular chattel, the chattel passes at once./ If the thing sold is not ascertained, and some- thing is to be done before it is ascertained, it does not pass till it is as- certained. Sometimes the right of ascertainment rests with the vendee, sometimes solely with the vendor. Here it is vested in the vendor only, the bankrupt. When he had done the outward act which showed which part was to be the vendee's property, his election was made and the property passed. That might be shown by sending the goods by the railway: and in such case the property would not pass tillihe goods were despatched. But it might also be shown by other acty^Here was an ascertained bulk, of which the plaintiff agreed to buy arout half. It was left to the bankrupt to decide what portion should be delivered under that contract. As soon as he does that, his election has been indicated; the decisive act was putting the portion into the sacks. If it were necessary to rest the decision on the assent of the vendee in addition to this, I am of opinion that there is abundant evidence of such assent ; for the vendee demanded, over and over again, the portion which had been put into the sacks. I think Mr. Blackburn has ex- pressed the law with great clearness and accuracy. He first takes the case where one party appropriates and the other assents ; and then the case where, by virtue of the original agreement, the authority to Sec. 6) UNASCERTAINED GOODS APPROPKIATION 105 appropriate is in one party only. As to the question of conversion, I am of opinion, on the grounds which have already been stated, that the assignee has converted the plaintiff's property. Judgment for plaintiff, as to the part put into the sacks; as tojbe- residue, judgment for defendant.^ ^ ^-^ LANGTON V. HIGGINS. (Court of Exchequer, 1859. 4 Hurl. & N. 402, 28 L. J. Exch. 252.) The first count of the declaration was in detinue for cases and bottles of oil of peppermint. The second count was in trover for the same goods. Pleas : First, not guilty. Secondly, that the goods were not, nor were any or either of them, the plaintiff's as alleged. At the trial, before Martin, B., at the London sittings after last Hilary term, the following facts appeared : — The plaintiff was a whole- sale druggist in London, and the defendant was a wholesale druggist at Liverpool. For many years past the plaintiff had been in the habit of contracting with one Carter, a farmer at Leverington in Cambridge- shire, for the purchase of all the oil of peppermint to be distilled from the crop of peppermint which might be grown on his farm in that year. The contracts were made in the early part of the year, and Car- ter obtained from the plaintiff advances in respect of them. On the 27th January, 1858, the plaintiff and Carter entered into the following agreement : "London, Jan. 27th, 1858. "The undersigned, Frederick Carter, of Leverington, agrees to sell to Messrs. William Langton & Co., of London, the whole of his crop of oil of peppermint grown in the year 1858, at the rate of 21s. per lb. "But should the said crop amount to 250 bottles of oil, he agreed to deduct 6d. per lb. from the said 21s. and above that quantity Is. per lb., provided the Messrs. Langton find the said 21s. per lb. is more than they can reasonably afford. "This agreement is made upon the condition that Messrs. Langton & Co. advance the said Frederick Carter 1000/. on account of the above- named crop, and pay the amount due at the time of delivery by two, four, and six months bills. Fred. Carter." Previously to this agreement advances had been made by the plain- tiff to Carter to the extent of i310., and on the day the agreement was signed Carter gave to the plaintiff a bill of sale of his live and dead stock, crop of oil of peppermint, crops of corn, furniture, &c., as a security for the £310. and further advances to the extent of £1000. It was usual for the plaintiff to send to Carter bottles to be filled with the oil of peppermint, and, in September, Carter applied for the bottles 2 8 Concurring opinions were delivered by Coleridge and Crompton, J J. 106 UNASCERTAINED GOODS — APPEOPEIATION (Ch. 2 and some gut-skin to cover them. The plaintiff accordingly sent him two gross of bottles with gut-skin. On the 8th of October, Carter wrote to the plaintiff, "We shall lose no time in getting the oil off." It was the business of Mrs. Carter to put the oil of peppermint in the bottles, which, as on previous occasions, she did in the following man- ner. She first weighed the empty bottles and then filled them with the oil. She then weighed them again, having previously marked the tare and weight of each bottle on a piece of paper pasted on it. She then marked the gross weight of the oil and the bottle, and added them together on the same paper. She then subtracted the tare and placed the net weight and the number of the bottle upon the paper and laid the bottle aside. After the bottles were filled, by Carter's direction, she made out invoices and address cards, which she placed in Carter's desk. She was engaged in these operations about nine days, and fin- ished on the 29th of September. On all previous occasions, the bottles, when filled, were placed in cases and delivered to a carrier to take to the railway station, to be forwarded to the plaintiff in London. Carter left his home on the 15th of October, and has not since been heard of. The defendant purchased of Carter fifteen cases of the oil of pepper- mint, nine of which were delivered to him at Liverpool on the 16th of September, and the others on the 23d. It was submitted on behalf of the defendant that under these cir- cumstances the property in the oil of peppermint did not vest in the plaintiff. The learned Judge directed a verdict for the plaintiff for £626. 15s., reserving leave to the defendant to move to enter a nonsuit, or to reduce the amount to the value of the bottles. Eramwell, B. I am also of opinion that the rule ought to be dis- charged. The contract is to sell the whole of the vendor's crop of oil of peppermint grown in a certain year. I do not think that when the oil was made the property passed, — possibly there may have been an obligatio certi corporis ; but it appears to me that when the oil was put into the plaintiff's bottles the property in it vested in her. I do not dissent from what was said by my brother Martin with respect to the delivery to a carrier. It may be that the vendor would be bound to show some act of d^ivery before he could sue for the price ; but how- ever that' may he/1 am of opinion that the property vested in the plain- tiff" when the oil was put into her bottles. Looking at the principle, there ought to be no doubt. A person agrees to buy a certain article, and sends his bottles to the seller to put the article into. The seller puts the article into the buyer's bottles, then is there any rule to say that the property does not pass ? !rhe buyer in effect says, "I will trust >()u to deliver into my bottleSyMld by that means to appropriate to me, the article which I have bought of you." On the other hand the seller must be taken to say, "You have sent your bottles and I will put the article in them for you." In all reason, when a vendee sends his ship, or cart, or cask, or bottle to the vendor, and he puts the article sold Sec. 6) UNASCERTAINED GOODS APPEOPRIATION 107 into it, that is a delivery to the vendee. If we could suppose the case of a metal vessel filled with a commodity which rendered the vessel useless for subsequent purposes, it would be monstrous if the vendor could say, "I have destroyed your vessel by putting into it the article you purchased, but still the property in the article never passed to you." Or suppose a vendor was to deliver a ton of coals into the vendee's cel- lar, could he say, "I have put the coals in your cellar, but I have a! right to take them away again ?" But, independently of reason, there is an authority on the subject. In Blackburn on Contracts, it is said that the property does not pass unless there is an intention to pass it, and various cases are cited in support of that position. It is then said, page 151, that two rules have been laid down on the subject. The first is, "that where by the agree- ment the vendor is to do anything to the goods, for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or as it is sometimes worded, into a deliverable state, the performance of those things shall (in the absence of circumstances in- dicating a contrary intention) be taken to be a condition precedent to tl-ie vesting of the property." The second rule is, "that where any- thing remains to be done to the goods for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where the price is to depend on the quantity or quality of the goods,, the perform- ance of those things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in which they ousjftOio be accepted." That is not only good law but good sense, fhtjayczn there be more complete evidence of intention to pass the property than when the vendee sends her bot- tles to be filled with the article purchased, and the vendor puts it into the bottles ? Therefore, both upon principle and authority, I think that the proper^ in the oil passed to the plaintiff when it was put into the bottles./^e case of Aldridge v. Johnson, 7 E. & B. 885 (E. C. L. R. vol. 90^s precisely in point. Lord Campbell, C. J., there said : "Look- ing to all that was done when the bankrupt (the vendor) put the barley in the sacks, eo instanti the property in each sack full passed to the plaintiff." It is true that in the Law Journal, Erie, J., is reported to have said that the outward act indicating the vendor's intention, was by filling the sacks "and directing them to be sent to the railway." But Crompton, J., who doubted upon another point, said, that "when the barley was put into the sacks, it was just as if it had been sent by a carrier." Therefore there is not only reason and general authority, but also the case of Aldridge v. Johnson, to warrant our judgment. The only difficulty I had was this : Suppose the oil of peppermint had been badly manufactured, I am not prepared to assent to the ar- gument that the plaintiff would not have had a power of rejection. Again, suppose only a portion of the oil had been put into the bottles, inasmuch as the plaintiff was not bound to take a part only, would the 108 UNASCERTAINED GOODS APPROPRIATION (Ch. 2 property vest? Aldridge v. Johnson is an authority on that point. It may be that the plaintitf would have the option of refusing to take a part only of the oil or of accepting it, but that right is not inconsistent with the property vesting at his election. It might vest in him conclu- sively, but at all events it would vest when he exercised his option. For these reasons, I think that the rule ought to be discharged. Rule discharged.^" COLONIAL INS. CO. v. ADELAIDE MARINE INS. CO. (Privy Council, 1886. 12 A. C. 128.) Sir Barnes Peacock.^" This is an appeal from a judgment of the Supreme Court of South Australia in a suit in which the Adelaide Marine and Fire Assurance Company, now the respondents, were plaintiffs, and the Colonial Insurance Company of New Zealand, and certain other persons to whom it is not now necessary to refer, were defendants. In stating their reasons for the recommendation which their Lordships are about to make to Her Majesty in Council, they will, for the sake of clearness, speak of the parties to this appeal re- spectively as the plaintiffs and the defendants. The suit was brought upon a contract of insurance alleged to have been entered into by the defendants with the plaintiffs. It appeared that, on the 29th of September, 188L Messrs. Morgan, Connor & Clyde chartered a vessel called the Duke of Sutherland to proceed from Algoa Bay to a good and safe port in New Zealand, and there to load from the charterers a full and complete cargo of wheat in bags, and being so loaded to proceed direct to Queenstown, Fal- mouth or Plymouth, at captain's option, for orders to be given within forty-eight hours, to any safe port in the United Kingdom, or on the Continent, &c. By the terms of the charterparty, all expenses of stowing were to be paid by the ship, freight to be payable at rates specified by charter- party, the cargo to be brought to and taken from alongside at mer- chants' risk and expense, thirty working days to be allowed for load- ing, the captain to sign bills of lading for the cargo, according to the custom of the port, at the current or any rate of freight, without prej- udice to the charterparty, for which purpose he was to attend daily at the charter's or agent's office during business hours if so required, and should the freight list according to bills of lading show a less sum on aggregate than chartered freight, the difference was to be paid in cash prior to the signing of bills of lading. The vessel to have a lien on cargo for freight and demurrage. 2 9 Concurring opinions were delivered by Pollock, 0. B., and Martin, B. 30 Ttie statement of facts and part of tlie opinion are omitted. Sec. 6) UNASCERTAINED GOODS APPROPRIATION 109 Subsequently Messrs. Morgan, Connor & Glyde received a proposal in a letter, dated the 10th of March, 1882, from the New Zealand Grain Agency, to supply a cargo of wheat for the said vessel at Tim- aru, at 4s. 7d., free on board, provided she had sailed from Algoa Bay for that port, sacks 9d. Messrs. Morgan, Connor & Glyde ver- bally accepted the proposal. The Duke of Sutherland had sailed from Algoa Bay at the date of the proposal, and she arrived at Timaru before the 30th of March, 1882. The plaintiffs having agreed with Messrs. Morgan, Connor & Glyde to insure the cargo of wheat for a sum not exceeding £14,000, applied to the defendants, by a letter dated the 30th of March, 1882, to hold them covered for not exceeding £2000, being two-fourteenths interest in cargo of wheat per Duke of Sutherland, at and from Tim- aru to United Kingdom, or Continent. F. P. A. rate charged to be th^t ruling in New Zealand for similar risks. On the same day the defendants by their local managers sent the following answer: [Here follows a letter which was held to be an acceptance of the plaintiff's proposal.] The delivery of the wheat by the New Zealand Grain Agency on board of the Duke of Sutherland at Timaru commenced shortly after the 30th of March, 1882. Before the completion of the cargo, viz., on the 3d of May, 1882, the vessel and the wheat on board were lost by the stranding of the vessel during a gale at Timaru. It was ad- mitted by the defendants that the vessel was seaworthy, and that she was lost by perils of the seas. At the time of the loss 2500 bags of wheat out of a total cargo of 13,000 remained to be delivered in order to complete the cargo. Messrs. Morgan, Connor & Glyde paid the New Zealand Grain Agency for the wheat which they had put on board, and the plaintiffs having paid Messrs. Morgan, Connor & Glyde for the loss of wheat, in accordance with their contract for insurance, called upon the de- fendants to indemnify them, in accordance with their contract of cover. The defendants denied their liability, and the plaintiffs commenced an action against them in the Supreme Court of South Australia. The cause was tried before the Honourable Samuel James Way, the learned Chief Justice of the Court, who gave judgment in favour of the plain- tiffs and on motion by way of appeal to the Full Court the appeal was dismissed. The present appeal is from the judgment of the Full Court. .* * * Upon the argument before their Lordships, the learned counsel for the defendants contended, 1st, that there was no contract of insurance; 2d, that at the time of the loss the risk had not commenced; 3d, that the plaintiffs had no insurable interest. * * * The last objection, viz., that the plaintiffs had not an insurable in- 110 UNASCERTAINED GOODS APPROPRIATION (Ch.^ terest, was the most important one. It depends upon the question whether Messrs. Morgan, Connor & Glyde had an insurable interest, for if they had not an insurable interest the plaintiffs had not an in- surable interest, and the payment by the plaintiffs to them under their policy was a mere voluntary payment. * * * In Anderson v. Morice, 1 App. Cas. 713, it was held by the Ex- chequer Chamber, reversing a unanimous judgment of the Court of Common Pleas, that the property in the rice which was put on board the seller's vessel in the course of completing the cargo, and which was lost by perils of the sea before the cargo was complete, did not vest in Anderson under his agreement for purchase ; that there was noth- ing to shew that it was to be at his risk, and consequently that he had no insurable interest. The decision of the Exchequer Chamber, from which one of the judges, Mr. Justice Quain, dissented, was appealed to the House of Lords, and affirmed, the noble Lords who heard the appeal being equally divided in opinion. Their Lordships, notwithstanding the great diversity of opinions expressed in that case, are not prepared to throw any doubt as to the correctness of the decision. But admitting it as an authority to the fullest extent, they consider that it is not applicable to the circum- stances of the present case. In each of the cases the insurance was on a "cargo," a word which, as already pointed out, is susceptible of different meanings in different contracts, and which must be interpreted with reference to the con- text. In Anderson v. Morice, Law Rep. 10 C. P. 58, 1 App. Cas. 713, An- derson agreed with Messrs. Borradaile, Schiller & Co. to purchase the cargo of new crop Rangoon rice per Sunbeam at 9s. l%d. per cwt. cost and freight, expected to be March shipment. Payment by seller's draft on purchaser at six months' sight with documents attached. The cargo to be purchased in that case was an entire thing, and was not in existence at the time when the contract was entered into, and would not be in existence until the whole cargo should be put on board. In the present case the vendors did not sell a particular cargo on board a ship chartered by them, but merely offered to supply a cargo of wheat for the Duke of Sutherland at 4s. 7d., free on board at Tim- aru. No time or mode was fixed for payment, and nothing was said as to the place to which the cargo, when supplied and put on board, was to be carried, or to the effect that the sellers were to have any- thing to do with bills of lading or other shipping documents. The purchasers accepted the offer, they themselves being the charterers of the Duke of Sutherland, whereas in Anderson v. Morice, Law Rep. 10 C. P. 58, 1 App. Cas. 713, the firm who agreed to sell the cargo of rice by the Sunbeam were themselves the charterers of that vessel, and were to receive freight for the carriage of the rice, such freight being included in the purchase-money. In putting the rice on board Sec. 6) UNASCERTAINED GOODS — APPROPRIATION HI the Sunbeam the sellers were not delivering it to Anderson, but were putting it on board a vessel, of which they were the charterers, for the purpose of completing the cargo which they had agreed to sell. The master of the Sunbeam received it on their account, and not on account of the purchasers. The purchasers' right was to depend on the shipping documents which were to be under the direction of the sellers. In the present case, in putting the wheat on board the Duke of Suth- erland, the contractors were delivering it to the purchasers in pursu- ance of their contract to put it free on board, the master of the ves- sel which had been chartered by them being their agent to receive it on their account. The shipowners received it under the charterparty by which they bound themselves to load from the charterers a full and complete cargo, and to proceed with it, &c., as ordered by the charter- ers or their agents. The sellers had nothing to do with the wheat or the destination thereof after it was on board, and by putting it on board they did not render themselves liable to the owners of the ship for freight, demurrage, commission, or any other charges provided for by the charterparty. The master would not have been justified in re- turning to the sellers any portion of the wheat without the authority of the purchasers, who were entitled under the charterparty to have bills of lading signed for it as directed by them according to the terms stipulated by the charterparty. From the very nature of the contract to supply a cargo of wheat for a ship of 1047 tons register, and which it is admitted would consist of 13,000 bags of wheat, it could not have been intended that the whole supply should be completed at the same moment or even in a single day. By the charter thirty days were ta be allowed for the loading, and upon a proper construction of the con- tract of sale, in which nothing was stipulated as to the time of deliv- ery or payment, the sellers would have a reasonable time to deliver it on board. By the charterparty the cargo was to be brought to and taken from alongside at merchant's risk and expense. By the vendors' contract they were to put it free on board for the charterer, and when put on board the master would receive it for the purchasers and hold it for them. In many cases of contract to supply a quantity of goods to be de- livered within a fixed period, the whole quantity cannot, from the very nature of the case, be delivered at one time, and it must frequently happen, as in contracts for supplies of provision for the army or navy, or any large establishments, that the quantities first delivered are ap- propriated and actually consumed by the persons to whom they are delivered before the expiration of the period within which the whole contract is to be performed. As no time was fixed by the contract for the payment of the purchase-money the purchasers might not have been bound, if no loss had occurred, to pay for the wheat put on board from time to time until the whole cargo had been supplied ; but it does 112 UNASCERTAINED GOODS APPROPRIATION (Ch. 2 not follow that they had not an insurable interest before the price was paid or payable. It appears from what follows that a man may have an insurable interest in goods for which he has neither paid nor be- come liable to pay. In the present case, if no loss had happened, and the sellers, with- out lawful excuse, had neglected to supply a complete cargo, the pur- chasers must have paid for the wheat which had been put on board, unless they returned it. If the sellers had completed the cargo the purchasers must have paid for the whole. In either case they had, at the time of the loss, an interest in the part which had been put on board. In the one case, that they might be able to return it to excuse them from payment for it in the event of their electing to put an end to the contract in case of the non-completion of the supply ; in the other, that they might have the goods for which they would be obliged to pay. In Oxendale v. Wetherell, 9 B. & C. 387, it was correctly stated by Mr. Justice Parke, that "Where there is an entire contract to deliver a large quantity of goods, consisting of distinct parcels, within a spec- ified time, and the seller delivers part, he cannot before the expiration of the time bring an action to recover the price of the part delivered, because the purchaser may, if the vendor fail to complete his contract, return the part delivered. But if he retain the part delivered after the seller has failed to perform his contract, the latter may recover the value of the goods which he has so delivered." In the case cited it was decided accordingly. Applying the law as laid down in that case to the present, the purchasers, if no loss had occurred, might, subject to the rights of the shipowners to their lien for freight under the char- terparty, have returned the wheat which had been put on board if the contractors had, without any lawful excuse, refused to supply a full cargo within a reasonable time, but they would not have been obliged to do so; they might have retained and paid for the part delivered, and sued the contractors for damages for not completing their con- tract ; on the other hand it is clear that the sellers could not without the consent of the purchasers in the case supposed have taken out of the ship the whole of the wheat which they had put on board, and have compelled the ship to go empty away, because they themselves had failed to complete their contract. * * * Their Lordships are of opinion that the delivery of the wheat from time to time was a delivery to the purchasers, that it vested in them the right of possession as well as the right of property, and that at the time of the loss it was at their risk. The right which they had to return the wheat which had been delivered, in the event of the sellers neglecting, without lawful excuse, to complete the supply, did not pre- vent them from having an insurable interest. The interest in this case was defeasible, not by the vendors, but at the option of the vendees in the event of the vendors not completing the contract. * * * Sec. 6) UNASCERTAINED GOODS APPROPRIATION 113 They will, therefore, humbly recommend Her Majesty to affirm the judgment of the full bench, and to dismiss the appeal. The appellants must pay the costs of the appeal. ROCHESTER & OLEOPOLIS OIL CO. v. HUGHEY. (Supreme Court of Pennsylvania, 1867. 56 Pa. 322.) Before Thompson, Strong, Read and Agnew, JJ. Woodward, C. J., absent. Error to the Court of Common Pleas of Alleghany county : No. 92, to October and November Term, 1867. In the court below the Rochester & Oleopolis Oil Company brought an action of assumpsit to September 1866, against J. M. Hughey, to recover the price of a quantity of oil alleged to have been sold and de- livered by the plaintiffs to the defendant. The oil having been burned, the question was whether the delivery was complete before the burning. The plaintiffs gave evidence, by the deposition of A. L. Burnett, their agent, that he sold to Owsten, the agent of the defendant, four barge-loads of oil, about 2200 barrels, at $4.50 per barrel, deliverable at Oleopolis, to be measured in the iron tanks of the Pennsylvania Tube Company. The tube company receives the oil at the oil regions in their tubes; it is transported through the tubes and received into the tanks of the company at the several shipping points on the Alleghany river. The oil of the respective owners is not kept separate, but is measured when received by the tube company, and is delivered to the order of the owner by measurement at the tanks. The evidence of plaintiffs further was, that 495 gallons had been run on the afternoon of June 19th, 1866, into a barge furnished by Owsten; another barge was placed under the tanks, and about 450 barrels had passed into it, when the oil took fire, and both barges and the oil were burned. The plaintiffs then offered to prove that by the custom of the trade at Oleopolis the barges to receive the oil were, during the delivery, in the custody and control of the purchaser. This was objected to by the defendant, rejected by the court, and a bill of exceptions sealed. Owsten, the defendant's agent, testified for him, that he made the contract for four boat-loads of oil, about 2000 barrels; he sent two boats to receive it; he received word that his boat was drawing 25 inches of water, and the river was falling ; he went to Oleopolis, and found the river rising, and that another boat was loading outside of his ; he told the agent of the company that he would load his boat five Wood w. Sales — 8 114 UNASCERTAINED GOODS APPROPRIATION (Cfl. 2 inches more, and therefore did not move her from the wharf. After the boat that had been loading near his was filled and moved away, he placed an empty boat by his first boat, and the tube company's hands let the oil into the second boat ; before this boat was full, draw- ing but about 17 inches, it took fire, and both boats with oil were burned. He testified, also : "the boats were not in a condition to run to Pittsburg ; he intended to put more in them, to fill them to 30 in- ches of water." In rebuttal, the plaintiff proposed to ask the superintendent of the tube company, "whether, at any time whilst you were superintending, or since, within your knowledge, the tubing company, or the owners of oil in the tanks, kept persons at the works for the purpose of tak- ing charge of the boats whilst the oil was being delivered." The offer was rejected by the court, and a bill of exceptions sealed for the plaintiff. The plaintiff requested the court to charge the jury: 1. That if the oil sold by plaintiff to Hughey was to be measured in the tanks of the Pennsylvania Tubing Transportation Company, and delivered in barges furnished by Hughey, and the barges were, during the course of delivery, in possession and control of Hughey, or his agents, the oil was delivered as soon as it entered the barges, so far as to change the property as between seller and buyer, and the plaintiff would be entitled to recover the value of the oil so delivered in the barges. 2. That if the jury find that the barges were, during the time of de- livery of the oil, in the custody of the plaintiff, nevertheless, as soon as any portion of the oil was separated from the common bulk, by measurement from the tanks, it became the property of the defendant, and was at his risk, and the plaintiffs would be responsible only for loss occasioned by their negligence. 3. If the jury find that it was the duty of the Pennsylvania Tubing Transportation Company to take charge of and control the barges while the oil was in course of delivery, that the company would be the common agent of plaintiff and defendant, and any portion of the oil, as soon as separated from the common bulk, would be the property of the defendant, and at his risk, and the plaintiff would be entitled to recover for the value of the oil so delivered. The points were all refused. The defendant, in his 2d point, requested the court to charge that under the contract the defendant was not bound to accept a delivery of oil from the plaintiff in any less quantity than that of one full boat, the question of whether the boat was full or not to be decided by the defendant or his agent, Mr. Owsten, only. To which the court answered : "Affirmed if you believe the contract to be for the sale of oil by the boat-loads." Sec. 6) UNASCERTAINED GOODS APPKOPEIATION 115 The court (Stowe, A. J.) charged : "The first point is as to what the contract was: "If it was to be delivered in boat-loads, and the purchaser had the right to say when the boat was loaded, and you should find that this boat was not accepted by defendant's agent, and that he was not bound to accept it because it was not a boat-load, that is, not filled so that he was bound to take it from the vendor, then there was no delivery in law, and plaintifif cannot recover. "If you should find, however, that the first boat was reasonably load- ed, so that purchaser was bound to accept, or that the boat was ac- tually taken into his charge so as to waive the right to have more oil put into it, then plaintiff can recover for that. "As to the oil running into the boats at the time, there was no de- livery of that in law, because if the contract was for delivery in boat- loads, about 2000 gallons as stated by the witnesses on both sides, the boat was not filled so that plaintiff was bound to take it from the vendor. "As to this latter it is clear under all the evidence that if the plain- tiff had shut off the oil and requested defendant to pay for what was in the boat, he could not have compelled defendant to receive it, nor to pay for it. "In reference to the first boat, was there anything further to be done before the plaintiff had a right to require the defendant to take and pay for it? "That depends upon whether the barge was sufficiently full, or not being full, whether Owsten, defendant's agent, had already taken pos- session of it, under such circumstances as to indicate he was satisfied to take it as it was. "As to the latter the plaintiff cannot recover in this action, because it is not pretended that the boat was in a condition to deliver." The verdict was for the defendant. The plaintiffs took a writ of error, and assigned for error the re- jection of their offers of evidence; the answers of the court to their points, and to the defendants' second point, and that "the court erred in the whole charge and in each part thereof, and especially in the as- sumption that the plaintiff was not entitled to recover unless the boats were so loaded that the defendants were bound to accept them." Thompson, C. J. The question was submitted to the jury on the trial below, and they found that the contract between the plaintiff and defendant was for the sale and delivery of four barge-loads of oil, and not a sale of oil by the barrel. Of course until delivery no specific oil passed to the defendant. Until this took place, he had only a right of action to recover for a breach of contract. It is unnecessary to say whether the defendant was bound to take, and pay for the number of barrels in each completely laden barge ; if there be a question about that, it is not here — but whether the contents 116 DELIVERY TO CAEEIER AS APPROPRIATION (Ch. 2 of partially laden barges in progress of being filled passed as fast as it entered the barge. The court thought not, and so decidedly think we/ /The defendant could not be compelled to take a partly filled barge \yimn he had contracted for full ones, any more than if he had con- tracted for a barrel of oil could he have been compelled to accept one half or quarter full. This would hardly be contended for, yet the prin- ciple is the same. Winslow, Lanier & Co. v. Leonard, 24 Pa. 14, 62 Am. Dec. 354; Story on Sales, §§ 296, 299. Under the finding of the jury there is little room for argument against the ruling complained of. Nor do we see any error in rejecting the offers of testimony. Not one of the assignments of error were according to the rule and we might have dismissed them all without notice, but did not, hoping for more accuracy in the future. Judgment affirmed. SECTION 7.— DELIVERY TO CARRIER AS APPROPRIATION SMITH et al. v. EDWARDS et al. (Supreme .Tudieal Court of ila.ssacliusetts, 1S92. 156 Mass. 221, 30 N. E. 1017.) Holmes, J. This case comes before us on the exception of the Old Colony Railroad Company to a ruling of the court below that it should be charged as trustee of the defendants. The defendants have been defaulted. The bill of exceptions purports to state the evidence intro- duced on the motion to charge the trustee, but does not disclose the findings of the judge. We assume them to have been the^ost favor- able for the ruling which the bill of exceptions warrants: The defend- ants in Ohio ordered of the plaintiffs, who are manufacturers of boots and shoes in Massachusetts, through the plaintiffs' traveling salesman, certain calf and buff shoes, to be made according to a sample shown to the defendants. It was assumed at the argument, and we assume, that the contract bound the defendants, that there is no question un- der the statute of frauds, and that the shoes were made according to sample. They were forwarded over the Old Colony Railroad, we must assume, if it be material, at the defendants' expense, and were deliv- ered to the defendants. This mode of forwarding undoubtedly was authorized by the contract. The defendants accepted the buff shoes, but refused to accept the calf shoes, and shipped the latter back to the plaintiffs by the same railroad. The plaintiffs refused to accept them, sued the defendants for the price of the shoes, and trusteed the rail- road company. The calf shoes mentioned are the goods for which the railroad company was chargedy^ Sec. 7) DELIVERY TO CARRIER AS APPROPRIATION 117 It is argued for the trustees that, although the defendants were guilty of a breach of contract -in refusing to accept the calf shoes, yet, as the shoes were not in existence at the date of the contract, they did not become the defendants' property until tendered to and accepted by the defendants, after they were made. Of course, the title to the shoes could not be vested in the defend- ants without their consent. Jytit, in the present state of the law, it does not need argument to showi;hat a contract can be made in such a way as subsequently to pass the title, as between the parties, to goods un- ascertained at the time when the contract is made, without a subse- quent acceptance by the buyer, if the contract commits the buyer in advance to the acceptance of goods determined by other marks./' Blanchard v. Cooke, 144 Mass. 207, 227, 11 N. E. 83; Goddard V/ Binney, 115 Mass. 450, 15 Am. Rep. 112; Rodman v. Guilford, 112 Mass. 405, 407 ; Brewer v. Railroad Co., 104 Mass. 593, 595 ; Nichols V. Morse, 100 Mass. 523 ; Middlesex Co. v. Osgood, 4 Gray, 447, 449 ; Al^^ge V. Johnson, 7 EL & Bl. 885, 899. /^In the case of goods to be manufactured, the seller, as he has to ten- der them generally, has the right to appropriate goods to the contract, so far that, if he tenders goods conformable to it, the buyer's refusa! to accept them is a breach. The buyer cannot say that he would have accepted some other goods had they been tendered. When goods are' to be manufactured and forwarded by a carrier to a buyer at a dis- tance, the seller's delivery of such goods to the carrier, as bailee for the purchaser, passes the title. The seller cannot forward them until they are specified. The delivery is an overt dealing with the goods as those to which the cpntract applies, and puts them into a possession ad- verse to the sellec^ Although not strictly a delivery, it is an act having the legal effect/of a true delivery, which, in common legal language, it is said to be. Hallgarten v. Oldham, 135 Mass. 1, 9, 46 Am. Rep. 433 ; Orcutt v. Nelson, 1 Gray, 536, 543 ; Merchant vvphapman, 4 Allen, 362, 364; Kline v. Baker, 99 Mass. 253, l^AV^^ act is re- quired of the seller by the terms of the contract, and thus is assented to in advance by the buyer, on the condition that^^ as supposed, the goods answer the requirements of the contract/^herefore it is a binding appropriation of the goods to the contract, and passes the ti- tle, as we have said. Putnam v. Tillotson, 13 Mete. 517, 520; Mer- chant V. Chapman, 4 Allen, 362, 364; Odell v. Railroad Co., 109 Mass. 50; Wigton v. Bowley, 130 Mass. 252, 254; Fragano v. Long, 4 Barn. & C. 219; Wait v. Baker, 2 Exch. 1, 7. The present case could be disposed of upon a narrower ground. It would be enough to say that, so far as we can see, the judge who heard the motion to charge the trustee was warranted in finding as a fact that the defendants authorized the plaintiffs to appropriate the shoes to the contract, even if the inference was not necessary as matter of law. The rmpstinn always is_ what inteatjhe parties-have^expregs ed, eitheP ia ; 118 DELIVERY TO CARRIER AS APPROPRIATION (Ch. 2 terms or by reasonable implication. Anderson v. Morice, L. R. 1 App. Cas. 713; Navigation Co. v. De Mattos, 32 Law J. Q. B. 322, 328, 33 Law J. Q. B. 214. jExceptions overruled. BARTON V. KANE. (Supreme Court of Wisconsin, 1863. 17 Wis. 37, 84 Am. Dec. 728.) Action to recover the contract price of cigars and tobacco alleged to have been sold and delivered to the defendant by the plaintiff. * * * Verdict for the plaintiff, motion for a new trial overruled, and judg- ment upon the verdict, from- which the defendant appealed. ''' Dixon, C. J. * * * The motion for judgment of nonsuit should have been granted. Th^ cigars forwarded exceeded the quantity or- dered. The order was for 5,000, but the plaintiff sent 5,625. This was no compliance with the order, and imposed no obligation on the defendant, without showing an acceptance in fact by him after the cigars were received, the burden of which was upon the plaintiff. To constitute a delivery to the carrier a delivery to the consignee, so as to pass the title and make the consignee liable for goods sold and de- livered, the goods must cor^spond in quantity as well as quality, with those named in the order- ' Bruce v. Pearson, 3 Johns. (N. Y.) 534, and Downer v. Thompspn, 2 Hill (N. Y.) 137, are clear upon this ques- tion ; and though the la:tter was reversed in the court of errors (6 Hill [N. Y.] 208j the main point of reversal cannot arise here. There can be no pretense that the 625 extra cigars were sent out of an abundance of caution, and to insure a scriptural compliance with the order. They were sent to fill up the case, and the defendant was charged with their price^yTo entitle himself to recover under these circumstances, the plaintiff should have shown that the defendant actually received and accepted the cigars sent, upon the terms indicated in the plaintiff's let- ter notifying him of the consignment/^ When goods ordered prove defectrve in quality, it is, in general, in- cumbent on the purchaser to notify the seller of his nonacceptance on that ground; else he is deemed to waive the objection, and to consent to keep and pay for them according to the terms specified. In such case it is considered sufficient evidence of acceptance, that the pur- chaser has not returned or offered to return the goods, or notified the seller of his non-acceptance. But whether the same rule of evidence should be applied where the quantity, known to the seller, is greater or less than that ordered, may well admit of doubt. Defects in qual- ity may exist without the seller's knowledge. There is nothing in such circumstance which necessarily implies bad faith or a disposition on 31 Part of the statement of facts and part of the opinion are omitted. Sec. 7) DELIVERY TO CARRIER AS APPROPRIATION 119 his part not to fulfill the contract./^ut where he knowingly sends more or less goods than are ordered, he is guilty of an intentional vio- lation of the contract which he undertakes to perform, and his con- duct savors of bad faith ; and it would seem that he has no right to presume that the purchaser will accept, or to rely on notice of refusal. He must show an actual acceptance, by proving either that the pur-^ chaser retained and used the goods or that he did some other act from which his assent may be presumed. The nonsuit, therefore, at the time it was moved, was proper and should have been granted. * * * Judgment reversed and a new trial awarded. STATE V. O'NEIL. STATE V. FOUR JUGS OF INTOXICATING LIQUOR. STATE V. SIXTY-EIGHT JUGS OF INTOXICATING LIQUOR. (Supreme Court of Vermont, 1885. 58 Vt. 140, 2 Atl. 586, 56 Am. Rep. 557.) RoYCE, C. J."^ The first and most important question presented by these cases is whether or not the intoxicating liquors in question were, (in the first two cases,) in contemplation of law, sold or furnished by the respondent in the county of Rutland and state of Vermont ; or (in the last two cases) held and kept for the purpose of sale, furnishing, or distribution, contrary to the statute, within said county and state. The answer depends upon whether the National Express Company, by which some of said liquors were delivered to the consignees there- of, and in whose possession the remainder were found and seized be- fore delivery, was in law the agent of the vendors or of the vendees. If the purchase and sale of the liquors was fully completed in the state of New York, so that upon delivery of them to the express company for transportation the title vested in the consignees, as in the case of a completed and unconditional sale, then no offense against the laws of this state has been committed. If, on the other hand, the sale, by its terms, could only become complete so as to pass the title in the liquors to the consignees upon the doing of some act or the fulfilling of some condition precedent after they had reached Rutland, then the rulings of the county court upon the question of the offense -were COTTgCt. /'^Tfie liquors were ordered by residents of Vermont from dealers doing business in the state of New York, who selected from their stock such quantities and kinds of goods as they thought proper, in compliance with the terms of the orders, put them up in packages, di- rected them to the consignees, and delivered them to the express com- pany as a common carrier of goods for transportation, accompanied s2 The statement of facts and part of the opinion are omitted. 120 DELIVERY TO CARRIEE AS APPROPRIATION (Ch. 2 with a bill or invoice, for collection. The shipment was in each in- stance, which it is necessary here to consider, C. O. D., and the cases show that the effect of the transaction was a direction by the shipper to the express company not to deliver the goods to the consignees ex- cept upon the payment of the amounts specified in the C. O. D. bills, together with the charges for the transportation of the packages and for the return of the money paid. This direction was understood by the exM-ess company, which received the shipments coupled there- with// Whether or not, and when, the legal title in property sold passes from the vendor to the vendee is always a question of the intention of the parties, which is to be gathered from their acts, and all the facts and circumstances of the case taken together^yln order that the title may pass, as was said by Morton, J., in Mason v. Thompson, 18 Pick. (Mass.) 305, "the owner must intend to part with his property, and the purchaser to become the immediate owner. Their two minds must meet on this point, and if anything remains to be done before either assents, it ma/ be an inchoate contract, but it is not a perfect sale." The authorities seem to be uniform upon this point; and the acts of the parties are regarded as evidence by which the court or jury may ascertain and determine their intent. Benj. Sales, §§ 311, 319, note c. /AVhen there is a condition precedent attached to the contract, the/title in the property does not pass to the vendee until performance or waiver of the condition, even though there be an ac- tual delivery of possession.y'Tlenj. Sales, § 320, note d. The Ver- mont cases to the above pomts are referred to in Robert's Digest, 610 et seq., and need not be specially reviewed here. In the cases under consideration the vendors of the liquors shipped them in accordance with the terms of the orders received, and the mode of shipment was as above stated. They delivered the packages of liquors, properly addressed to the several persons ordering the same, to the express company to be transported by that company, and delivered by it to the consignees upon fulfillment by them of a speci- fied condition precedent, namely, payment »Lthe purchase price and transportation charges, and not otherwiscy^^ttached to the very body of the contract, and to the act of delivery to the carrier, was the con- dition of payment before delivery of possession to the consignee. With this condition unfulfilled and not waived, it would be impossible to say that a delivery to the carrier was intended by the consignor as a delivery to the consignee, or as a surrender of the legal title^^The goods were intrusted to- the carrier to transport to the place or desti- nation named, there to present them for acceptance to the consignee, and if he accepted them, and paid the accompanying invoice and the transportation charges, to deliver them to him ; otherwise to notify the consignor, and hold them subject to his order. It is difficult to see how a seller could more positively and unequivocally express his intention not to relinquish his right of property or possession in goods Sec. 7) DBLIVEKY TO CARRIER AS APPROPRIATION 121 until payment of the purchase price than by this method of shipment. We do not think the case is distinguishable in principle from that of a vendor who sends his clerk or agent to deliver the goods, or for- wards them to, or makes them deliverable upon the order of, his agent, with instructions not to deliver them except on payment of the price or performance of some other specified condition precedent by the vendee. The vendors made the express company their agent in the matter of the delivery of the goods, with instructions not to part with the possession of them except upon prior or contemporaneous receipt of the price. The contract of sale therefore remained inchoate or executory while the goods were in transit, or in the hands of the express company, and could only become executed and complete by their delivery to the consignee. There was a completed executory contract of sale in New York ; but the completed sale was, or was to be, in this state. The authorities upon the above points and principles are so numer- ous, and are so fully collated in the brief of the learned counsel for the state, and in the text and notes of 2 Benj. Sales, (4th Amer. Ed.,) that we refrain from specific references in support of the conclusions at which we have arrived. These are fully supported by the decision of the United States district court in Illinois, (People v. Shriver, 31 Alb. Law J. 163, s. c. 23 Fed. 134,) a case involving precisely the same question. Treat, J., says in the opinion : "In the case of liquor shipped by the defendant to Fairfield by express, C. O. D., the liquor is received by the express company at Shawneetown as the agent of the seller, and not as the agent of the buyer, and on its reaching Fairfield it is there held by the company as the agent of the seller un- til the consignee comes and pays the money, and then the company, as the agent of the seller, delivers the liquor to the purchaser. Inl such case the possession of the express company is the possession ofj the seller, and generally the right of property remains in the sellei] until the payment of the price. An order from a person in Fair- field to the defendant at Shawneetown for two gallons of liquor to be shipped to Fairfield, C. O. D., is a mere offer by the person sending such order to purchase two gallons of liquor from the defendant, and pay him for it when he delivers it to him at Fairfield, and a shipment by the defendant according to such order is practically the same as if the defendant had himself taken two gallons of liquor from his store in Shawneetown, carried it in person to Fairfield, and there de- livered it to the purchaser, and received the price of it. It would be different if the order from Fairfield to defendant was a simple order to ship two gallons of liquor by express to the person ordering, wheth- er such order was accompanied by the money or not. The moment the liquor, under such an order, was delivered to the express com- pany at Shawneetown, it would become the property of the person ordering, and the possession of the express company at Shawnee- town would be the possession of the purchaser, — the sale would be 122 DELIVERY TO CARRIER AS APPROPRIATION (Ch. 2 a sale at Shawneetown — and if it were lost or destroyed in transit the loss would fall upon the purchaser. But in the case at bar, the shipping of the liquor to Fairfield, C. O. D., the defendant made no sale at Shawneetown ; the right of property remained in himself, and the right of possession, as well as the actual possession, remained in him through his agent. Had it been lost or destroyed in transit, the loss would have fallen on himself. He simply acted upon the re- quest of the purchaser, and sent the liquor to Fairfield by his own agent, and there effected a sale by receiving the money and delivering the liquor." * * * as STATE V. PETERS. (Supreme Judicial Court of Maine, 1S97. 91 Me. ?,1. 39 Atl. 342.) Exceptions from Superior Court, Kennebec County. Henry B. Peters was indicted for selling butterine contrary to sec- tion 3, c. 128, Rev. St., prohibiting the sale and manufacture of adul- terated butter. When the case was closed for the state, the respondent submitted his cause without evidence, and seasonably asked the court to instruct the jury that, upon all the facts of the case, the sale alleged in the indictment did not take place in the county of Kennebec, and that it was therefore the duty of the jury to render a verdict of not guilty. The presiding justice declined to so rule, and a verdict of guilty was thereupon rendered, and respondent brings exceptions. Sustained. Savage, J. The only question presented by the exceptions in this case is whether, upon all the facts in the case, the sale of butterine alleged in the indictment did or did not take place in the county of Kennebec. From the undisputed facts it appears that on December 14, 1896, one McLaughlin, then residing in Augusta, wrote to the Portland Beef Company, of which concern the respondent was manager, the following letter: "Old Orchard, Me., Dec. 14th, 1896. Portland Beef Co.— Gentle- men: Quote me price of butterine, the same I have used the past two seasons (Lincoln flats, colored). Upon receipt of order, how soon can you ship me three (3) tubs, C. O. D. American express ? An early reply will oblige. Resp'y, yours, C. E. McLaughlin." asA writ of error in this case was dismissed by the Supreme Court of tie United States (144 TJ. S. 323, 12 Sup. Ct. 693, 36 L. Rd. 450 [1892]), a ma- jority of the court being of the opinion that no federal question was in- volved. In State v. American Express Co., 118 Iowa, 44T, 92 N. W. 66 (190L'), cer- tain considerations of public policy which give support to the doctrine of State V. O'Neil were emphasized. Sec. 7) DELIVERY TO CARRIER AS APPROPRIATION 123 The resf>ondent on the same day answered as follows : "Portland, Me., Dec. 14th, 1896. Mr. C. E. McLaughlin, Old Or- chard — Dear Sir: Replying to your letter of Dec. 14th, quote you 3 40-lb. tubs butterine, 14c. If we receive your order at once, same will be shipped in car from Chicago, Thursday, arriving here a week from Monday. Yours, respectfully, H. B. Peters." On the following day, McLaughlin wrote this letter to the Port- land Beef Company: "Old Orchard, Me., Dec. 15th, 1896. Portland Beef Co.— Gentle- men: You may ship me via American Express, C. O. D., as soon as possible, 3 40-pound tubs butterine (Lincoln flats, colored), same as I have been using, at 14c. Very resp'y, C. E. McLaughlin, Old Or- chard." Although McLaughlin's letters were dated "Old Orchard" for rea- sons of his own, they were in fact written and mailed at Augusta. To the last letter the respondent made no reply, but on December 24, 1896, he delivered the three tubs of butterine ordered to the Ameri- can Express Company, at Portland, to be sent C. O. D. to McLaugh- lin, at Old Orchard. Subsequently, by direction of McLaughlin, with the consent of the respondent, the butterine in question was reship- ped from Old Orchard to Augusta by the express company, and there delivered to McLaughlin upon payment of the price and the transpor- tation charges, i It is contended on the part of the state that these transactions con- stituted a sale of the butterine at Augusta. It is strenuously claimed that the respondent's letter of December 14th was an offer or proposal to sell McLaughlin three 40-pbund tubs of butterine at 14 cents a pound, and that McLaughlin's letter of December ISth, written and mailed at Augusta, was an acceptance of that offer. Hence it is ar- gued that the sale was made at Augusta. If the state is right in its premises, it is also right in its conclusion. If we regard the respondent's letter as an offer, the acceptance of that offer completed the trade, accomplished the sale, struck the bargain ; and, in accordance with well-settled principles of law, such a sale would be deemed to have been made at Augusta, the place where the offer was accepted. But the trouble with the position of the state is that the respond- ent's letter of December 14th cannot be considered as an offer or pro- posal. It was simply an answer to McLaughlin's letter of inquiry of the same date. McLaughlin asked for a quotation of prices, and how soon the butterine could be shipped on receipt of an order. The respondent gave the desired information, — nothing more. The most that can be said is that it contemplated a possible offer by McLaugh- lin to buy if the price and time of delivery were satisfactory. If, after this, the respondent had refused to fill McLaughlin's order of December 15th, he could not have been held liable for a breach of con- tract to sell. The letter of the respondent contained no undertaking 124 DELIVERY TO CARRIER AS APPROPRIATION (Ch. 2 whatever to sell. Howard v. Industrial School, 78 Me. 230, 3 AtL. 657; Smith v. Gowdy, 8 Allen (Mass.) 566. In McLaughlin's letter of December 15th we find the first offer. It was an order, — an offer to buy. His proposition to buy was accepted by the respondent, by delivering the butterine ordered to the carrier designated by the consignee. This constituted the sale. The delivery was at Portland, and not at Augusta. But the state contends that, taking the transaction as a whole, it is evident that the vendor did not intend to part with the title to the butterine until it was paid for by the consignee to the carrier; that from the fact that the butterine was shipped C. O. D., which means to "deliver upon payment of the charges due the seller for the price, and the carrier for the carriage of the goods" (State v. Intoxicating Liquors, 73 Me. 278), the jury would be authorized to find that the vendor reserved the jus disponendi until payment. And authorities to this effect are cited. But such is not the law in this state, in the absence of controlling circumstances ; and there was nothing in the order, or in the acceptance and the shipment of the butterine in this case, to take it out of the general rule touching the shipment of goods on order C. O. D. The delivery to the carrier designated by the con-j signee was a delivery to the consignee, subject to the vendor's lien.l The language of Mr. Chief Justice Peters in State v. Intoxicating Liquors, supra, is full and expressive upon this point: "The con- tract stands upon the simple rule of the common law. The seller was entitled to his price, and the buyer to his property, as concurrent acts. The title passed to the vendee when the bargain was struck, i Any loss of the property by accident would have been his loss. The] vendor had a lien on the goods for his price. The vendor could sue| for the price, and the vendee, upon a tender of the price, could sue for the property." We adhere to this rule. It further appears that, after the butterine was shipped, the Port- land Beef Company, represented by the respondent, attempted to at- tach it at Old Orchard, and did attach it at Augusta, after McLaugh- lin had paid the C. O. D. bill, to secure an old debt due from Mc- Laughlin. From the evidence it is claimed that an inference may be legitimately drawn, and that the jury were authorized to find, that it was not the intention of the respondent to part with the title until the butterine was paid for; that the respondent shadowed the goods so that they could be attached as soon as they became the property of McLaughlin by payment. We think otherwise. The acts of the re- spondent in the attempt to secure the old bill show rather an intention to attach as soon as the vendor's lien was removed by payment. It would have been fruitless to attach before. There is no evidence in the case which would warrant the jury in finding that the sale of the butterine took place at Augusta. The jury should have been so instructed, as requested by the respondent, in substance. The presiding judge declined to so instruct, and the Sec. 7) DELIVERY TO CARRIER AS APPROPRIATION 125 jury were permitted to find that the sale did in fact take place in Augusta, — a finding which had no evidence to support it. Exceptions sustained. HUNTER BROS. MILLING CO. v. KRAMER BROS. (Supreme Court of Kansas, 1905. 71 Kan. 468, 80 Pac. 963.) Error from District Court, Sumner County; C. L. Swarts, Judge. Action by the Hunter Bros. Milling Company against Kramer Bros. Judgment for defendants, and plaintiff brings error. Re- versed. I Action brought by Hunter Bros. Milling Company to recover from Kramer Bros. $900 as damages for failure to deliver bran purchased from the defendants and paid for by the plaintiff. Hunter Bros. Milling Company w^s engaged in business in St. Louis, and on May 13, 1903, Kramer Bros., who were in the milling business at Welling- ton, Kan., sent the following telegraphic mgssage in cypher, and when translated it read : "Wellington, Kan., May 13, 1903. To Hunter Bros., St. Louis, Mo. We offer to sell you 1,200 sacks of bran for 74 cents per sack, delivered in St. Louis, and to be shipped in the month of May. Kramer Bros." In response to this telegram Hunter Bros, sent the following mes- sage: "St. Louis, Mo., May 13, 1903. To Kramer Bros., WelHngton, , Kansas. We offer to pay you 73 cents per hundred-pound sack of bran and 80 cents per hundred-pound sack of your best white mid- dlings, delivered in East St. Louis in May. Answer by telegram im- mediately and send samples. Hunter Bros." To this offer Kramer Bros, replied by wire : "Wellington, Kan., May 13, 1903. To Hunter Bros., St. Louis, Mo. We accept your offer of 73 cents per hundred-pounds sacked bran, delivered in East St. Louis, May delivery, and will send you 1,- 600 sacks. Send instructions immediately. Kramer Bros." In confirmation of their first telegram. Hunter Bros, sent the fol- lowing letter : "St. Louis, Mo., U. S. A., May 13, 1903. Messrs. Kramer Bros., Wellington, Kan. — Gentlemen: We have your telegram, 'Offer 1,200 sacks bran 74, East St. Louis, May shipment.' We wired you offer- ing 73c. for bran 100s and 80c. for your white middlings, 100s, East St. Louis, for May shipment, and stated to send samples. We now await your reply. Yours truly, Hunter Bros." Kramer Bros, also wrote a letter confirming their second telegram, stating: "Wellington, Kan., 5-13-1903. Hunter Bros., St. Louis, Mo.— •Gentlemen: By exchange of telegrams we confirm sale to you of 126 DELIVERY TO CAERIKR AS APPROPRIATION (Ch. 2: 1,600 sacks of bran, May shipment, 73c. f. o. b. St. Louis. Please send shipping instructions as early as possible, and oblige, Yours truly, Kramer Bros." Following the telegram of acceptance. Hunter Bros, wrote the fol- lowing letter : "St. I^uis, Mo., U. S. A., May 13, 1903. Messrs. Kramer Bros., Wellington, Kan. — Dear Sirs: We have your telegram, 'Accept 73 sacked bran, 1,600 sacks. Send instructions immediately.' We mail you our stencil, mark each and every sack with same, load the cars 20 tons to each and bill care C. & A., East St. Louis. The sacks must be new. Do not forget to use the stencil. For your middlings, like your former make we can pay you 80c, East St. Louis. Yours truly, Hunter Bros." Then followed this postal card : "Office of Kramer Brothers, ^tna Mills. Wellington, Kan., May 16, 1903. Hunter Bros., St. Louis, Mo. We are in receipt of your valued order of 5-14—03 for 1600 sacks bran for St. Louis, Mo. We will enter order at once for shipment as directed. Please accept thanks. Very respectfully yours, Kramer Bros.'" This was followed by a letter from Hunter Bros. : "St. Louis, Mo., U. S. A., May 18, 1903. Messrs. Kramer Bros., Wellington, Kan. — Dear Sir: We have your postal of 16th. All our purchases are made, 'dehvered East St. Louis.' Kindly bear this in mind. Yours truly. Hunter Bros. Milling Company." Within a few days Kramer Bros, loaded and shipped to the Hun- ter Bros. Milling Company four cars of bran. When the bills of lading were received by the Hunter Bros. Milling Company, it re- mitted to Kramer Bros, the entire amount due on the four car loads. Only two car loads were received, and the remaining two appear to have been caught in the flood and the bran destroyed. In the mean- time bran had greatly advanced in price, and this action was brought to recover the damages sustained by the failure to deliver the two cars of bran. After hearing the testimony offered on behalf of the plain- tiff, the court sustained a demurrer thereto and gave judgment in fa- vor of the defendants. The plaintiff alleges error. Johnston, C. J. (after stating the facts). The plaintiff bought and paid for four car loads of bran, only two of which it received. The defendants acknowledge that payment was made for the whole of the bran, and concede that one-half of it never reached the plaintiff. It was all sacked and shipped under the contract in accordance with plaintiff's directions, and the question in dispute is, who was the own- er of the bran while it was in transit. If the plaintiff acquired the bran, and was the owner from the time the shipment was made at Wellington, it must bear the loss ; but, on the other hand, if the bran was to be delivered at East St. Louis and title was not to pass until delivery there, the loss must be borne by the defendants, and the plain- Sec. 7) DELIVERY TO CARRIER AS APPROPRIATION 127" tiff was entitled to recover. The contract of the parties is contained in the telegrams and letters included in the statement. The inten- tiqji of the parties necessarily governs in determining when the title passed. We must look to their correspondence to ascertain their in- tention with respect to the place of the delivery and the time of the passing of the title to the property. In the absence of a stipulation or of restrictions respecting the transfer of title, a sale of the prop- erty designed for shipment, and the delivery of the same to a carrier, consigned to the purchaser, will ordinarily constitute a delivery to the purchaser, and operate to transfer the title to him. If, under the contract, the seller is to deliver the things sold at a designated place, and receive payment on the delivery, the general rule is that the title will not pass until delivery is there made. In this transaction the correspondence indicates with reasonable clearness that the defendants were to put the bran in sacks and lay it down in East St. Louis for a specified price. The telegraphic of- fer of plaintiff was, in effect, that if defendants would deliver bran in 100-pound sacks, without limiting the quantity, in East St. Louis, in May, the plaintiff would pay them at the rate of 7Z cents per hun- dred. The offer was accepted in a telegram, which, as the witness translated it, specified a delivery in East St. Louis, and fixed the quan- tity sold at 1,600 sacks. In connection with the telegrams, the let- ters confirming them plainly contemplated a delivery by the defend- ants at East St. Louis. In the one written by defendants confirming the sale, after specifying the quantity sold, the time of shipment, and the price, there followed the expression "f . o. b. St. Louis." Some complaint is made that the plaintiff was not permitted to show the meaning of the characters "f. o. b." Some of the courts have accepted proof as to the meaning of the letters when used by parties in a business contract, while others have deemed them to be in such general use in contracts of sale, and so well understood, that their meaning is a matter of common knowledge, and of which the courts must take notice. We are inclined to the view that in con- tracts of this character judicial knowledge may be taken of these char- acters, and that parol evidence is ordinarily not needed in their in- terpretation. If outside proof, however, was necessary, it appears that the court in one instance overruled an objection to this class of testimony, and allowed the interpretation given by the witness to stand. That interpretation conforms to the one which is generally understood in the business world, and that is "free on board," and as used in this contract would signify free on board the cars at St. Louis. The contract for the sale of the bran then determined the quantity, the quality, the price, and the place of delivery, and showed that the delivery was to be made free on board the cars at St. Louis, and not at the place of shipment. If the contract, by its terms, had not ex- pressly provided for a delivery of the bran by defendants at St. Louis, the fact that the defendants were to pay the freight and fur- 128 DELIVERY TO CARRIER AS APPROPRIATION (Ch. 2 nish the bran at St. Louis for a specified price, without cost to the plaintiff, would be some evidence tending to prove an agreement to deliver the bran at St. Louis, and that the sale was not complete un- til the delivery was made. In such case the railroad company would be deemed to be the agent of the defendants and not of the plaintiff. Suit V. Woodhall, 113 Mass. 391, involved a contract for the sale of liquors, and there was testimony that the plaintiff, who was the sell- er, was to pay the freight to the place of destination and the trial court refused an instruction to the jury that, if they found the plain- tiff was to pay the freight and deliver the property to defendants at their place of business, the sales were made there. The refusal to so instruct was held to be error, and the court remarked that : "Delivery to the carrier was a delivery to the defendants, if there was no agree- ment to the contrary. * * * But if the parties agreed that the goods were to be delivered in Lawrence, it would not be a completed sale until the delivery, and the laws of this state would apply to it." In another case the same court held that one who makes and sells an article to another, agreeing to deliver it at the place of business of the buyer, is liable for any injury or loss occurring in the transporta- tion of it, although at the time of making the contract for the making of the article nothing was said about delivery. Taylor v. Cole, 111 Mass. 363. In Brewing Association v. Nipp, 6 Kan. App. 730, 50 Pac. 956, it was held that "ordinarily a delivery of merchandise to the carrier is a delivery to the purchaser, but when the seller pays the freight the carrier is his agent, and the delivery is made at the place of its desti- nation." In this case the defendants were to pay the freight to St. Louis, where the bran was to be delivered at a fixed price, without charge, cost, or expense to the plaintiff. The rule, as stated in 24 A. & E. Ency. of L. (2d Ed.) 1050, is as follows: "If, by the terms of the contract, the seller is required to send, or forward, or deliver the goods to the buyer the title and risk remain in the seller until the transportation is at an end or the goods are delivered in accord- ance with the contract, after which time the title is vested in the buyer." See, also, Bloyd v. Pollock, 27 W. Va. 75 ; Miller v. Seaman, 176 Pa. 291, 35 Atl. 134; Sheffield Furnace Co. v. Hull, 101 Ala. 446, 14 South. 672 ; Capehart v. Improvement Co., 103 Ala. 671, 16 South. 627, 49 Am. St. Rep. 60; Murray v. Manufacturing Co. (City Ct. N. Y.) 1 1 N. Y. Supp. 734 ; Knapp Electrical W^orks v. New York In- sulated Wire Co., 157 111. 456, 42 N. E. 147; Brewing Co. v. De France, 91 Iowa, 108, 58 N. W. 1087, 28 L. R. A. 386, 51 Am. St. Rep. 329; Weil v. Golden, 141 Mass. 364, 6 N. E. 229; Havens v. Grand Island Light & Fuel Co., 41 Neb. 153, 59 N. W. 681; A. Westman Mercantile Co. v. Park, 2 Colo. App. 545, 31 Pac. 945; 2 Benjamin on Sales, § 1040; Newmark on Sales, § 166. There is some confusion in the testimony as to whether delivery was to be made in St. Louis or East St. Louis, but the statements Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 129 made by the parties in the later communications, and the shipment of the bran to East St. L,ouis by defendants, show that the latter place was understood by both parties to be the place of delivery. Taking the correspondence and the circumstances developed by the testimony, it is manifest that defendants had not carried out their part of the contract of sale until delivery was made in East St. Louis, and that the title to the bran did not pass until it reached that place. There was certainly evidence to take the case to the jury, and there- fore the judgment sustaining the demurrer to plaintii?'s evidence must be reversed, and the cause remanded for further proceedings. All the Justices concurring.^* SECTION 8.— EFFECT OF ISSUE OF DOCUMENT OF TITLE ANp OF NEGOTIATION OR TRANSFER THEREOF EVANS V. MARTLETT. (Court of King's Bench, 3697. 1 Ld. Raym. 271.) If goods by bill of lading are consigned to A., A. is the owner, and must bring the action against the master of the ship if they are lost. But if the bill be special, to be delivered to A. to the use of B., B. ought to bring the action. But if the bill be general to A. and the invoice only shews, that they are upon the account of B., A. ought always to bring the action, for the property is in him, and B. has only a trust, per totam curiam. And per HoLT, Chief Justice, the con- signee of a bill of lading has such a property as that he may assign it over. And Shower said, that it had been adjudged so in the Ex- chequer. WAIT V. BAKER. ^ (Court of Exchequer, 1848. 2 Exch. 1.) Trover for 500 quarters of barley. Pleas, not guilty, and not pos- sessed; upon which issue was joined. At the trial, before Williams, J., at the last Spring Assizes for Somersetshire, the following facts appeared: The defendant, a corn- factor at Bristoly had occasional dealings with a person of the name 31 See, also, United States v. Andrews, 207 U. S. 229, 28 Sup. Ct. 100, 52 L. Ed. 185 (1907) ; McNeal v. Braun, 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. Rep. 441 (1891), reported herein, post p. 320. Wood w. Sales — 9 130 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 of Lethbridge, who was also a corn-factor at Plymouth, and on the 5th of December, 1846, wrote to him the following letter: "I hear that the crop of barley in the south of Hampshire is good this year, and that at Kingsbridge the price is low, compared with the markets further eastward. If you are doing anything in the article this season, and can make me an offer of a cargo, I have no doubt but we may have a transaction. Let me hear from you in due course. Send me sample in letter, describing weight," &c. To which Lethbridge wrote the following answer on the 9th of that month : "I beg to inform you that I have not yet commenced buying barley in Kingsbridge market, farmers there standing out for 10s. a bag. .\fter Saturday's market I will send you a sample and an offer, if possible." On the 14th Lethbridge wrote the following letter to the defendant: "I herewith hand 3'ou samples of common and chevalier barley of the neighbourhood of Kingsbridge. and will engage to sell you from 400 to 500 quarters f. o. b. barley at Kingsbridge, or neighbouring port, at 40s. per quarter common, and 42s. per quarter chevalier, in equal quantities for cash, on handing bills of lading, or acceptance at two months' date, adding interest at the rate of £5. per cent, per an- num, subject to your reply by course of post." On the 16th, the defendant returned the following reply : "I beg to accept your offer of 250 quarters of chevalier barley, at 42s. per quarter, and 250 quarters common, at 40s. per quarter f. o. b., for cash payments, on receipt of bill of lading and invoice, or ac- ceptance at two months' date, adding interest at the rate of £5. per cent, per annum, subject to your reply by course of post." On the 18th Lethbridge wrote the defendant as follows: "Your favour of the 16th came duly to hand, and note by it your acceptance of my offer of barley. I suppose I am to take up a vessel at the best possible freight I can get her for. Please instruct me in this, and say if for Bristol or any other port." On the 19th, the defendant wrote in answer : "I took it for granted that you would get a vessel for the barley I have bought of you f. o. b., and therefore did not instruct you to seek one. I trust that you will be particular to select a good ship, and at the lowest possible freight, for this port ; and, above all, take care that the quality of the barley is fullv equal to sample. A party who will take part of it, is extremely particular in these matters ; and the samples are sealed and held in the custody of a third party. Please to advise when you have taken up a vessel, with particulars of the port she loads in, so that I may get insurance done correctly." After some further correspondence respecting the amount of the freight, Lethbridge wrote on the 23d to the defendant : "I now send you copy of charter-party of the Emerald, which Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 131 vessel will sail for the port of loading to-day or to-morrow, and I will lose no time in getting her loaded." The defendant, by letter dated the 24th, acknowledged the receipt of the charter-party (not under seal), which was dated on the 22d, and was in the name of L,ethbridge, to load at Dartmouth, a portion to be filled up at Salcombe, to proceed to Bristol, or any other port. On the 28th, Lethbridge wrote to the defendant: "The Emerald will commence loading to-day. I hope to hand you bill of lading in the course of the week." And again on the 1st of January, 1847: "I hope to be able to send you invoice and bill of lading of Emer- ald on Tuesday or Wednesday." And on the 6th of January he wrote to the defendant as follows : "The Emerald is nearly loaded ; expect the bill of lading to-day or to-morrow. I expect to be in Exeter on Friday, when it is very like- ly I shall run down and see you." The vessel was loaded with common and chevalier barley ; and on the 7th of January, Lethbridge received from the master the bill of lading of the cargo, which was therein expressed to be deliverable at Bristol to the order of Lethbridge or assigns, paying the freight as per charter. On the 8th, Lethbridge called upon the defendant at Bristol early in the morning, and left at his counting-house the invoice and an unindorsed bill of lading. At a subsequent part of the day, Lethbridge called again upon the defendant, when the de- fendant raised some objections to the quality of the cargo, and as- serted that it was inferior to the samples : he also threatened he would take the cargo, but sue Lethbridge for eight shillings a quar- ter difference. After some further dispute upon the matter, the de- fendant offered Lethbridge the amount of the cargo in money, and said that he accepted the cargo. Lethbridge, however, refused to accept the money and to indorse the bill of lading to the defendant; but took the bill of lading from the counter and immediately pro- ceeded to the plaintiffs', who were corn-factors, and had a house of business in the neighbourhood, and indorsed the bill of lading to them, and received an advance upon it. The market at that time had risen considerably. The Emerald arrived on the 16th, and on the 18th the defendant proceeded on board and claimed the cargo as the owner, and unshipped 1240 bushels of the barley, worth £422. 14s. ; but the plaintiffs coming on board during the time the cargo was being unshipped, presented the bill of lading and obtained the rest of the cargo, and paid the captain the freight. The jury found that the defendant did not refuse to accept the barley from Lethbridge; that the tender was unconditional; and that Lethbridge was not an agent intrusted with the bill of lading by the defendant. His Lordship thereupon directed a verdict to be entered for the plaintiffs for £422. 14s., reserving leave to the defendant to enter a verdict for him. 132 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 A rule to show cause having been obtained, PaukE, B. I am of opinion that the rule in the present case ought to be discharged. It is perfectly clear that the original contract be- tween the parties was not for a specific chattel. That contract would be satisfied by the delivery of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be deliver- ed. By the original contract, therefore, no property passed; and that matter admits of no doubt whatever. In order, therefore, to deprive the original owner of the property, it must be shown in this form of action — the action being for the recovery ofXhe property — that, at some subsequent time, the property passed. //tt may be ad- mitted, that if goods are ordered by a person, altjlough they are to be selected by the vendor, and to be delivered to a common carrier to be sent to the person by whom they have been ordered, the moment the goods, which have been selected in pursuance of the contract, are delivered to the carrier, the carrier becomes the agent of the ven- dee, and such a delivery amounts to a delivery to the vendee ; and if there is a binding contract between the vendor and vendee, either by note in writing, or by part payment, or subsequently by part accept- ance, then there is no doubt that the property passes by such delivery to the carrier. It is/necessary, of course, that the goods should agree with the contract./ / In this case, it is said that the delivery of the goods on ship-board is equivalent to the delivery I have mentioned, because the ship was engaged on the part of Lethbridge as agent for the defendant. But assuming that it was so, the delivery of the goods on board the ship was not a delivery of them to the defendant, but a delivery to the cap- tain of the vessel, to be carried under a bill of lading, and that bill of lading indicated the person for whom they were to be carried. By that bill of lading the goods were to be carried by the master of the vessel for and on account of Lethbridge, to be delivered to him in case the bill of lading should not be assigned, and if it should, then to the assignee. The goods, therefore, still continued in the possession of the master of the vessel, not as in the case of a common carrier, but as a person carrying them on behalf of Lethbridge. There is no breach of duty on the part of Lethbridge, as he stipu- lates under the original contraA that the price is to be paid on the delivery of the bill of ladingVylt is clearly contemplated by the origi- nal contract, that, by the bill -of lading, Lethbridge should retain con- trol over the property. It seems to me to follow that the delivery of the 500 quarters to the captain, to be delivered to Lethbridge, is not the same as a delivery of 50Q quarters to a common carrier by order of the consignee. The act of delivery, therefore, in the present case, did not pass the property. Then, what subsequent act do we find which had that effect? It is admitted by the learned counsel for the defendant, that the property does not pass, unless there is a subsequent appropriation of Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 133 the goods. The word appropriation may be understood in diiferent senses. It may mean a selection on the part of the vendor, where he has the right to choose the article which he has to supply in per- formance of his contract ; and the contract will show when the word is used in that sense. Or the word may mean, that both parties have agreed that a certain article shall be delivered in pursuance of the contract, and yet the property may not pass in either case. For the purpose of illustrating this position, suppose a carriage is ordered to be built at a coachmaker's, he may make any one he pleases, and, if it agree with the order, the party is bound to accept it. Now sup- pose that, at some period subsequent to the order, a further bargain is entered into between this party and the coachbuilder, by which it is agreed that a particular carriage shall be delivered. It would depend upon circumstances whether the property passes, or whether merely the original contract is altered from one which would have been satisfied by the delivery of any carriage answering the terms of the contract, into another contract to supply the particular car- riage, — which, in the Roman law, was called obligatio certi corporis, where a person is bound to deliver a particular chattel, but where the property does not pass, as it never did by the Roman law, until actual delivery; although the property, after the contract, remained at the risk of the vendee, and if lost without any fault in the vendor, the vendee, and not the vendor, was the sufferer. The law of England is different: here, property does not pass until there is a bargain with respect to a specific article, and everything is done which, according to the intention of the parties to the bargain, was necessary to trans- fer the property in it. "Appropriation" may also be used in another sense, and is the one in which Mr. Butt uses it on the present occa- sion ; viz. : where both parties agree upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it. It is contended in this case that something of that sort subsequently took place. I must own that I think the delivery on board the ves- sel could not be an appropriation in that sense of the word. It is an appropriation in the first sense of the word only; the vendor has made his election to deliver those 500 quarters of corn. The next question is, whether the circumstances which occurred at Bristol aft- erwards amount to an agreement bv both parties that the property in those 500 quarters should pass//! think it is perfectly clear that there is no pretence for saying'^at Lethbridge agreed that the prop- erty in that corn should pass. It is clear that his object was to have the contract repudiated, and thereby to free himself from all obli- gation to deliver the cargo. On the other hand, as has been observed, the defendant wished to obtain the cargo, and also to have the power of bringing an action if the corn did not agree with the sample. It seems evident to me that, at the time when the unindorsed bill of lad- ing was left, there was no agreement between the two parties that that 134; ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 specific cargo should become the property of the defendant. If that is so, the case remains, as to the question of property, exactly as it did after the original contract. There is a contract to deliver a cargo on board, and probably for an assignment of that cargo by indorsing the bill of lading to the defendant ; but there was nothing which amounted to an appropriation, in the sense of that term which alone would pass the property. The result is, that, in this action of trover, the plaintiffs, claiming under Lethbridge by the indorsement of the bill of lading, are entitled to the property ; and then Mr. Baker has his remedy against him for the non-fulfilment of his contract, which he certainly has not ful- filled. Rule discharged.^' MIRABITA V. IMPERIAL OTTOMAN BANK. (Court of Appeals, 1878. L. R. 3 Exeh. Div. 164.) Appeal from the judgment of the Exchequer Division, in favour of the plaintiff on a special case stated by an arbitrator. The plaintiff is a merchant carrying on business at Malta and Con- stantinople. The defendants are a banking company incorporated by a firman of the Sultan, and carrying on business at Constantinople with agencies at London and Larnaca. On the 26th of June, 1873, a contract was made between the plain- tiff and Phatsea & Pappa, a firm at Larnaca, for certain umber to be sold to and shipped for the plaintiff by Phatsea & Pappa at Larnaca. On the 7th of July, 1873, the plaintiff wrote to Phatsea & Pappa stating that he would send ships on receiving advice of the quantity of umber ready for shipment, and also that the bills of lading must state that Phatsea & Pappa shipped the umber "by order and on ac- count of the plaintiff." On the 26th of August, 1873, Phatsea & Pappa had 600 tons of um- ber ready for delivery and shipment under the contract, and they char- tered by order of the plaintiff and for his account a British ship, the Princess of Wales, then lying at Alexandria, to carry a cargo of such 35 A concurring opinion was delivered by Alderson, B. In Turner v. Trustees, 6 Ex. 54.'j (1S51), Patteson, J., said: "There is no doubt that a delivery of goods on board of the purchaser's own ship Is a delivery to him, unless the vendor protects himself by special terms restrain- ing the elfect of such delivery. In the present ease the vendors by the terms of the bill of lading made the cotton deliverable at Liverpool to their order or assigns ; and there was not, therefore, a delivery of the cotton to tbe purchasers as owners, though there was a delivery on board their ship. The vendors still reserved to themselves, at the time of delivery to the captain, the jus disponendi of the goods, which he by signing the bill of lading ac- knowledged, and without which it may be assumed that the vendors would not have delivered them at all." Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 135 umber from Larnaca to London. The plaintiff approved of the charter- party. The Princess of Wales proceeded to Larnaca, where she took on board a cargo of 600 tons of umber. About the 9th of October the plaintiff sent £150. to Phatsea & Pappa for ship's advances, of which sum £70. was paid to the master. On the 9th of October the master signed four bills of lading for the cargo, which stated the goods to be shipped by Phatsea & Pappa, and to be delivered "to order or assigns." The bills of lading were given to Phatsea & Pappa. On the 10th of October the Princess of Wales sailed from Larnaca, and on the 14th of October Phatsea & Pappa informed the plaintiff by telegram that the vessel had left with 600 tons on the 10th instant ; that they would shortly receive bills of lading and draft at sixty days, and requesting them to insure the cargo. The plaintiff communicated with his son, F. Mirabita, trading in London as Mirabita Brothers, and through him effected an insurance on the cargo. Phatsea & Pappa drew a bill of exchange for 280 Turkish liras on the plaintiff, and indorsed and handed it with the bill's of lading to Corkji, from whom they had bought the umber which formed the cargo. Phatsea & Pappa had paid Corkji for the umber, and they handed them the bill of exchange by way of accommodation, to enable him to ob- tain an advance from the defendants and in anticipation of future sup- plies of umber. Corkji discounted the bill of exchange at the Larnaca agency of the defendants' bank, and with the bill of exchange handed them the bills of lading, saying that they were to be sent to Constantinople, and given up to the plaintiff on payment by him of the bill of exchange at ma- turity. The Larnaca agency forwarded the bill of exchange and bills of lading to their bank at Constantinople, Pappa having come to Con- stantinople and handed to the plaintiff the charterparty and invoice of the cargo, which stated that the same was "shipped by order and on account of the plaintiff." The defendants' bank at Constantinople presented the bill of exchange to the plaintiff for acceptance, but he declined to accept without receiving the bills of lading. The bill of exchange and the bills of lading were then returned to the Larnaca agency. The plaintiff afterwards offered to the defendants' bank at Constantinople to pay the bill of exchange before maturity on receipt of the bills of lading, but in consequence of the documents having been returned to Larnaca this offer could not be accepted. It was then arranged between the plaintiff and Pappa that a new bill of exchange for £254. lis. should be drawn by Phatsea & Pappa to the order of Corkji on Mirabita Brothers in London at two months' date, which should be substituted for the former bill for 280 Turkish liras, and notice of the agreement was given to the defendants' bank at Constantinople. 136 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 A new bill of exchange, dated the 9th of October, 1873, was, in ac- cordance with the terms so agreed, drawn by Phatsea & Pappa and sent by them to Corkji, who handed it to the Larnaca agency, saying that it was to be sent with the bills of lading to London, where Mira- bita Brothers would be ready to accept and pay the bill of exchange at maturity against delivery of bills of lading. The Larnaca agency ac- cordingly gave up the first bill of exchange, and on the 20th of No- vember, 1873, forwarded the bill for £254. Us. to their agency in London, and directed them "to give up the bills of lading on payment of the inclosed bill of exchange." At the time of making the agreement with the plaintiff for the draw- ing of the bill of exchange for £254. lis., as already mentioned, it was doubtful whether the bills of lading would reach England before the arrival of the ship. Pappa thereupon gave the plaintiff a letter, addressed to the master of the Princess of Wales, to be used in case the ship should arrive in England before the bills of lading, which let- ter purported to authorize the master, if the, bills of lading had not come to hand, to deliver the cargo to the plaintiiif. On the 3d of December the Princess of Wales reaches Gravesend, and was ordered to the Millwall Docks by F. Mirabita. On the same day the bill of exchange for £254. lis., together with the bills of lading, was delivered by post, and in the course of the day was left at the office of Mirabita Brothers, with the following note at- tached: "Bill of lading for Terra umber, weighing 600 tons, per Prin- cess of Wales, to be given up against the payment of attached draft, £254. lis., on Mirabita Brothers." F. Mirabita returned the bill of exchange to the defendants' Lon- don agency, stating that he was ready to pay the bill at maturity, but he did not then accept it. On the 8th of December the defendants' London agency gave or- ders to the ship's brokers to enter cargo in the name of the bank, and on the 12th the cargo was entered at the Custom House in the de- fendants' name ; but the defendants took no other steps towards tak- ing possession of the cargo till after the 20th of December. On the 12th of December F. Mirabita called on the defendants, and offered to pay the bill and receive the bills of lading. The defendants' manager refused to accept payment, alleging that they had taken pos- session of the cargo and thereby had made themselves liable for freight. They had done nothing to take possession of the cargo or to make them liable for freight. On the 18th of December F. Mirabita again offered to pay the bill of exchange and to give a guarantee for the freight. After some fur- ther negotiation the defendants landed the cargo, and after heavy charges for demurrage, landing, and other expenses had been incurred, sold the cargo in bulk, without any authority from the plaintiff or F. Mirabita, for a sum which was not sufficient to pay the amount of the Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFEE THEREOF 137 bill of exchange, freight, and expenses. The cargo was worth more than the amount of the bill of exchange, freight, and expenses, and if the plaintiff had obtained possession of it he would have made a profit therefrom. So far as it was a question for the jury, the arbitrator found as a fact that it was the intention of Phatsea & Pappa and of the plaintiff that the property in the cargo of umber should pass to the plaintiff upon its shipment on board the Princess of Wales, subject to a lien on the same for payment of the price ; and their intention that the prop- erty in the cargo should be vested in the plaintiff continued from the time of shipment until the arrival of the ship in England. The court is to be at liberty to draw inferences of fact, and to dis- regard the above finding, if a jury would not have been justified in coming to such a conclusion from the facts above stated. The question was whether the plaintiff is entitled to recover damages from the de- fendants for their dealing with the cargo as above mentioned. BramwEli,, L. J. This case has been argued on the footing that the law of England or a like law is applicable, and we must so deal with it. We must treat as the governing bargain between the plaintiff and Phatsea & Co., the one made at the time it was arranged that the pay- ment should be made by a bill at two months, and that the vendees should not be entitled to the 600 tons of umber, or bills of lading of them, until payment of the bill of exchange. No question arises as to the defendants' rights ; for it was admitted, and properly admitted, that the defendants did wrong in refusing the amount of the bill, and selling the umber. On the other hand, there is no contract between the plaintiff and the defendants. So that in the result the case is re- duced to this : When the defendants tortiously disposed of the umber, ^ had the plaintiff such a property therein, or right thereto, as to entitle! him to maintain this action ? It is argued that he had not, and the rea-' son given is, that as the umber was not specific and ascertained, and as on shipment the shippers took a bill of lading to order, and gave • an interest in it to Corkji, who transferred it to the defendants, no property passed; and for this a long series of authorities, beginning with Wait v. Baker, 2 Ex. 1, and ending with Ogg v. Shuter, 1 C. P. D. 47, is cited. It is almost superfluous to say that by these authorities I am bound, that I pay them unlimited respect, and I may add I do so the more readily as I think the rule they establish is a beneficial one. But what is that rule? It is somewhat variously expressed as being either that the property remains in the shipper, or that he has a jus disponendi. Undoubtedly he has a property or power which en- ables him to confer a title on a pledgee or vendee, though in breach of his contract with the vendor. This appears from Wait v. Baker, 2 Ex. 1, Gabarron v. Kreeft, Law Rep. 10 Ex. 274, and to some extent from EHershaw v. Magniac, 6 Ex. 570. In the first case, Parke, B., expressly says that the vendee Baker 138 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 could under the circumstances maintain an action against Lethbridge for having sold the barley to Wait. This property or power exists then; and therefore if the vendors of the umber had sold it to the defendants this action would not be maintainable. But in that case the defendants would have acquired a right, while, as I have said, it is admitted that no right in them can be relied on. I think it is not necessary to inquire whether what the shipper possesses is a property, strictly so called, in the goods, or a jus disponendi, because I think, whichever it is, the result must be the same, for the following reasons : /That the vendee has an interest in the specific goods as soon as they /are shipped is plain. By the contract they are at his risk. If lost or damaged, he must bear the loss. If specially good, and above the aver- age quality which the seller was bound to deliver, the benefit is the vendee's. If he pays the price, and the vendor receives it, not having transferred the property, nor created any right over it in another, the property vests. It is found in this case that as far as intention went the property was to be in the plaintiff on shipment. If the plaintiff had paid, and the defendants had accepted the amount of the bill of ex- change, it cannot be doubted that the property would have vested in the plaintiff. Why? Not by any delivery. None might have been made ; the defendants might have wrongfully withheld the bills of lad- ing. The property would have vested by virtue of the original con- tract of sale. It follows that it vested on tender of the price, and that whether the vendor's right was a right of property or a jus disponendi; for whichever it was it was their intention that it should cease on the plaintiff's paying the price, and therefore it would cease unless mean- while some title had been conferred on a third person to something more than the price. This, though wrongful as regards the plaintiff, would have been valid. But no such title exists htrt./v' There is nothing in the authorities inconsistent wim this. The only case that may be thought to seem so is Wait v. Baker, 2 Ex. 1, where, though the vendee tendered the price, he was held to have acquired no property. But it is manifest that in that case the vendor originally took the bill of lading to order, and kept it in his possession, to deal with as he thought fit, and never intended that the property should pass until he handed the bill of lading to the vendee on such terms as he chose to exact. Parke, B., says: "There is no pretense for saying that Lethbridge agreed that the property should pass." "There was nothing that amounted to an appropriation, in the sense of that term, which alone would pass the property." "There was no agreement be- tween the two parties that that specific cargo should become the prop- erty of the defendant," the vendee. Here all the evidence shews that there was such an agreement. The arbitrator says it existed in fact at the time of shipment, but the subsequent conduct of both parties shews it. What seems decisive is this : the plaintiff must have a right against some one; has he any against Phatsea? Now Phatsea has done noth- Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 339 ing that he had no right to do, and he has done everything he was bound to do, treating the altered agreement as governing. No action therefore would lie against him. It must then be the defendants who are in the wrong. I think they are, that the property was to pass on payment, and consequently on tender of payment, of the bill of ex- change ; that the bill of lading was handed the Larnaca Bank to be de- livered to the plaintiff on payment of the bill of exchange ; that there- fore the plaintiff can maintain this action, and the judgment should be affirmed. I would add that I agree with the reasoning of my Brother Cleasby in the Court below ; and I would further remark that I believe this is a question which would not have been open to the slightest doubt if the action had been brought after the coming into operation of the Judicature Acts. Cotton, L. J., has favoured me with a perusal of his judgment, and I entirely agree with it. Cotton, L. J. In this case the vendors on shipping the goods, the subject of the contract, took a bill of lading, requiring the delivery of the goods to be to their order, and dealt with that bill of lading in this way in order to secure payment of the bill of exchange which they then drew on the plaintiff. The bill of exchange was discounted with the defendants, and the bill of lading was transferred to them as security for the payment of the bill of exchange ; this bill of ex- change having been refused acceptance, a second bill of exchange was drawn and given in lieu of the first bill, upon the terms of the delivery of the bill of lading to the plaintiff upon payment of the second bill of exchange, and in so dealing with the bill of exchange the vendors in- tended that upon payment, the plaintiff, the purchaser, should obtain the goods, and they agreed, and, as far as they could, transferred to the purchaser their right to insist that on payment of the bill of ex- change the bill of lading should be handed, over. I mention those facts for the purpose of adding this : that the action was instituted before the passing of the Judicature Acts, and therefore it is simply to be dealt with as a legal question ; and we cannot in- quire here how far the plaintiff has the right in equity to insist that he occupies the same position as the vendors, and to insist that as against the pledgee of the bill of lading the plaintiff, as transferee of the right, has a good equitable title, even if he has not a legal title. In fact in the present case it simply turns on this question, whether the property in the goods in question has, under the circumstances, passed to the plaintiff. Now I quite agree with the judgment of BramwEi^L, L. J., but as several cases were cited in the argument which it was contended were adverse to the ground of our decision, I think it better to state what I consider to be the principle of those decisions, and to point out how far that principle is applicable to such cases as this : Under a contract for sale of chattels not specific the property does not pass to the pur- 140 ISSUE OP DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 / chaser unless there is afterwards an appropriation of the specific chat- tels to pass under the contract, that is, unless both parties agree as to the specific chattels in which the property is to pass, and nothing le- mains to be done in order to pass it. In the case of such a coiitract the delivery by the vendor to a common carrier, or (unless the eft'ect of the shipment is restricted by the terms of the bill of lading) shipment on board a ship of, or chartered for, the purchaser, is an appropriation sufficient to pass the property. If, however, the vendor, when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser, but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchasers. When the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevetu the purchaser from ever asserting any right of property therein j/^nd accordingly in Wait v. Baker, 2 Ex. 1, Ellershaw v. Magniac, 60Ex. 570, and Gabarron v. Kreeft, Law Rep. 10 Ex. 274, (in each of which cases the vendors had dealt with the bills of lading for their own benefit), the decisions were that the purchaser had no property in the goods, though he had offered to accept bills for or had paid the price. Sp^ if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till ac- ceptance or payment of the bill of exchange, the appropriation is not absolute, but, until acceptance of the draft, or payment, or ten- der of the price, is conditional only, and until such acceptance, or payment, oi^^nder, the property in the goods does not pass to the purchaser//lnd so it was decided in Turner v. Trustees of Liv- erpool D^ks, 6 Ex. 543, 20 L. J. (Ex.) 393; Shepherd v. Har- rison, Law Rep. 4 Q. B. 196; Ogg v. Shuter, 1 C. P. D. 47. But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authority for holding that in such a case the goods shipped for the purpose of completing the contract do not on payment or tender by the purchaser of the contract price vest in him. When this occurs there is a performance of the condition sub- ject to which the appropriation was made, and everything which, ac- cording to the intention of the parties, is necessary to transfer the prop- erty is done ; and in my opinion, under such circumstances, the prop- erty does on payment or tender of the price pass to the purchaser. Apply these principles to the present case. Pappa did not attempt to make use of the power of disposition which he had under the bill of lading for the purpose of entirely withdrawing the cargo from the contract. He dealt with it only for the purpose of securing payment of Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 141 the price. It is expressly stated in the special case that Mr. Corkji, who acted for Pappa, discounted the said bill of exchange at the agency of the defendants' bank, and with the bill of exchange handed them the bills of lading, saying that they were to be sent to Constantinople and given up to the plaintiff on payment of the bill of exchange at maturity. Under these circumstances there was an appropriation by the vendors of the cargo subject only to payment of the price. This was tendered, and as it is conceded that the defendants were wrong in claiming any- ' thing more, the plaintiff, the purchaser, had done or offered to do all that was incumbent on him to make the appropriation absolute, and the property vested in him. Brett, L. J., concurred that the judgment of the Exchequer divi- sion must be affirmed. Judgment affirmed. LOVELLv. ISIDORE NEWMAN & SON. (Circuit Court of Appeals of tlie United States, 1912. 192 Fed. 753, 113 C. C. A. 39.) Action by William S. Lovell, as trustee in bankruptcy of Knight, Yancey & Co., against Isidore Newman & Son and others, on a bond conditioned to pay the cash value of a certain cargo of cotton to the receivers or trustee of Knight, Yancey & Co., if it should be adjudged that they had title to the same. Certain Italian spinners, who claimed the cargo as purchasers from Knight, Yancey & Co., were permitted to intervene. '' Maxey, District Judge. * * * Thg transactions eventuating in the present litigation originated in contracts made December, 1909, and January, 1910, by the bankrupts, through their broker, Gavirati, with the spinners for the purchase and delivery of certain cotton. The validity of the contracts is not questioned. They called for the ship- ment by the bankrupts of specified quantities of cotton of specified grades under through bills of lading to Genoa. The cotton was to be shipped in January and February, 1910. Insurance and freight were to be paid by the bankrupts, and the spinners were to make payment of the cotton by means of drafts to be drawn on certain designated bankers. No cotton was shipped by the bankrupts dur- ing the months . of January and February. They, however, drew drafts on the bankers designated in the contracts for the price of the cotton and attached certificates of insurance, invoices, and forged bills of lading purporting to have been issued by the railroad com- pany. By referring to the statement of the case, it will be seen that these bills of lading, concocted by John W. Knight as the managing part- 3 6 The statement of facts is abridged and part of the opinion is omitted. 142 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 ner of the firm, were issued pursuant to the directions of the con- tract, and that the bills, the drafts, the certificates of insurance, and the invoices identified the cotton purporting to have been shipped by certain marks composed of four letters. For example, one set of documents, including the draft, referred to cotton marked "TSST," and so with the others, each set denoting a like combination, but with different letters. It will be further noticed that there was a sub- stantial correspondence in all of these documents, thus clearly show- ing that it was the deliberate purpose of the bankrupts to obtain mon- ey from the spinners by the fraudulent artifice thus devised. And this purpose was fully accomplished. The drafts were duly paid by the bankers of the spinners and the forged bills of lading were sur- rendered to the latter. The result was that the bankrupts obtained the money, and the spinners got the spurious bills of lading. In so far as the spinners and their bankers were concerned in the transac- tion, their conduct was perfectly honest and straightforward. Rely- ing upon the good faith of the bankrupts, they acted upon the pre- sumption that the bills of lading were genuine. They were ignorant of the fraud perpetrated upon them, and paid the drafts in the as- surance that the cotton had been shipped in compliance with the terms of their contracts and as indicated in the bills of lading. What then occurred? After the bankrupts had received pay for the cotton supposed by the shippers to be en route to its destination, the bankrupts in March and April — from March 16th to April 11th — a few weeks only after it should have been shipped under their con- tracts, made shipment of 1,400 bales via the Cotoniera Steamship Line to Genoa. For these shipments genuine through bills of lading were obtained from the railroad company at Decatur and Selma, Ala., and the cotton was transported to New Orleans, and there de- livered to and put aboard the steamship Ingelfingen of the Cotoniera Line. The cotton was delivered to the steamship and taken aboard prior to the date of the restraining order, to wit, May 3, 1910. In this connection a comparison of the forged with the genuine bills of lading will prove instructive. In both the cotton was to be shipped by the Cotoniera Line to Genoa. In both the marks of the cotton were identical. In both Gavirati, the broker, was to be notified. In both the same weights precisely were inserted. In both the forms used by the railroad company were similar, and the genuine bills were issued by the same agent whose name was used in the forged bills. It is evident there was a purpose to conform the genuine bills to those that were forged. What were the purpose and intent actu- ating the bankrupts? They knew that the forged bills had gone for- ward and were presumbably in the possession of the spinners, since the drafts had been paid and they had received the money. They knew that the genuine bills, so carefully designed to correspond with those that were spurious, would not be necessary to insure the de- Sec. 8) ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF 143 livery of the cotton to the spinners. And with this knowledge their plain purpose was to suppress the genuine bills and permit the cotton to proceed to its destination under the forged bills, and thus prevent exposure of the fraud with consequences disastrous to themselves. In view of these facts who were the real owners of the cotton? It is insisted by the trustee that, since the genuine bills of lading were made to the order of the bankrupts, they retained the title to and the jus disponendi of the cottpn. It is true that the bills were executed as claimed, and that they were indorsed in blank and deliv- ered to the trustee on May 26th. But on April 16th the bills were all in possession of the bankrupts and unindorsed. The cotton had then, at the date last mentioned, been delivered to the railroad com- pany under through bills of lading for transportation to Genoa. At that date in whom did the title reside? The trustee answers in the , bankrupts by virtue of the bills of lading executed to their order and remaining in their possession. But we have seen that, while a bill of lading is strong evidence of an intention to reserve to the shipper the jus disponendi of the property, yet such intention is always open to explanation, although the bill may have passed into the hands of an innocent purchaser for value. In the present case there are no intervening rights of third parties ; the contest being between the bankrupts and their trustee on the one hand and the spinners on the other. In the absence of the bankruptcy of the parties, what would have been the attitude of the bankrupts? Could they have recovered the cotton or its value from the spinners? They had once been paid full value, and it would be shocking to the sense of justice to suppose that they could have enforced a second payment. If parties by their own fraudulent conduct may be estopped, the application of the doc- trine would effectually cut them off from asserting that they had not delivered the cotton in pursuance of their solemn contracts. But we may go further. We are clearly of the opinion that, under the facts of this case, the delivery of the cotton to the carrier vested the ownership in the spinners, upon the theory that it- was the inten- tion of the bankrupts to appropriate it to the contracts. The court below properly so held in the following finding: "That by marking and shipping the cotton, as above set out, Knight, Yancey & Co. intended to appropriate and did appropriate it to the fulfillment of the eight contracts of sale, and that by delivering it to the carrier they perfected delivery to the buyers under the terms of the con- tracts." The case of The Idaho, 93 U. S. 575, 23 L. Ed. 978, upon this question, is pertinent and material. To a proper understanding of the case it becomes necessary to insert the following lengthy excerpt from the opinion. At pages 581-583 of 93 U. S. (23 L. Ed. 978), it is said by the court : "Recurring, then, to the inquiry whether Por- ter & Co., to whose order the steamer delivered the 165 bales of cot- 144 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 ton, were the true owners of the cotton, a brief statement of the evi- dence on which their title rests is necessary. It originated as follows : On the 1st of April, 1869, one J. C. Forbes obtained from the mas- ter of the brig Colson, then lying at New Orleans, a bill of lading for 139 bales of cotton, described by specified marks. The bill was indorsed, and forwarded by Forbes to Porter & Co., and drafts against it to a large amount were drawn upon them, which they ac- cepted, credited, and paid on or before the 7th of the month. In fact, however, when the bill of lading was given, no such cotton had been received by thqbrig; but on the Sth of April the agent of Forbes bought 140 bales, then at the shipper's press, and directed thein to be sent to the Colson, marked substantially as described in the bill of lading. These bales were accordingly delivered from the press to the brig on the Sth of April, and the first and second mate receipted for them. They were not actually taken on board, but they were deposited on the pier, at the usual and ordinary place for the receipt of freight by the Colson, and an additional bill of lading for one bale only was taken by Forbes, and by him indorsed and transmitted to Porter & Co., together with an invoice of the 140 bales corresponding with the bills of lading. The marks and numbers on the bales were the same as those mentioned in the bills of lading, excepting only that 35 were marked 'L' instead of 36, and 16 marked 'S' instead of 15. There was also a small difference in the aggregate weight. That the cotton thus delivered to the Colson was intended to fill the bills of lading, one of which had been previously given, is incontrovertible. They were so intended by the shipper. If not, why were they thus marked ? And why was a bill of lading taken for 1 bale only, instead of 140; and why was the invoice of the whole number sent? Such, also, was plainly the understanding of the ship. The receipts of the mates, and the fact that the master gave a bill of lading for 1 bale marked 'S,' where there were 16 bales thus marked, leave this beyond a reasonable doubt. What then? Why, the 140 bales thus shipped became from the moment of shipment the property of Por- ter & Co., to whom the bills of lading were indorsed. It is not only the utterance of common honesty, but the declaration of judicial tribunals, that a delivery of goods to a ship corresponding in sub- stance with a bill of lading given previously, if intended and received to meet the bill of lading, makes the bill operative from the time of such delivery. At that instant it becomes evidence of the ownership of the goods. Thus in Rowley v. Bigelow, 12 Pick. [Mass.] 307 [23 Am. Dec. 607], it is said a bill of lading operates by way of estop- pel against the master, and also against the shipper and indorser. 'The bill acknowledges the goods to be on board before the bill of lading is signed. But if, through inadvertence or otherwise, the bill of lading is signed before the goods are on board, upon the faith and assurance that they are at hand, as if they are received on the Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 145 wharf ready to be shipped, or in the shipper's own warehouse, * * * and afterwards they are placed on board, as and for the goods embraced in the bill of lading, as against the shipper and mas- ter the bill will operate on those goods by way of relation and estop- pel.' Such is also the doctrine asserted in Halliday v. Hamilton, 11 Wall. 565 [20 L,. Ed. 214], and it i^ in harmony with the general rules that regulate the transfer of personal property. We do not say that a title to personal property may not be created between the is- sue of a bill of lading therefor and its delivery to the ship, which will prevail, over the master's bill, but, in the absence of any such intervening right, a bill of lading does cover goods subsequently de- livered and received to fill it, and will represent the ownership of the goods. The cotton delivered on the 8th of April on the pier for the Colson, and received by the mates of the brig, became, therefore, at the instant of its delivery, the property of Porter & Co., who were then the indorsees of the bills of lading. Its subsequent removal by Forbes to the Ladonia, either with or without the consent of the brig's officers, could not divert that ownership." As in the Idaho Case, the delivery of the cotton to the Colson was intended to fill the bills of lading, although the delivery was made several days subsequent to the execution of the bills, so in the pres- ent case, where all the facts and circumstances are considered, the conclusion is evident that the bankrupts intended by the delivery of the cotton to the carrier to appropriate it to the contracts of the spin- ners. Indeed, any other conclusion would not only be inconsistent with the facts, but repugnant to the principles of common honesty and fair dealing as between merchant and merchant. But it is contended by the trustee that the delivery was ineffective to pass title for the reason, among others, that there was no proof of assent on the part of the spinners. The contention is answered by the court in the case of Grove v. Brien, 8 How. 439 (12 L. Ed. 1142), where it is said: "In the absence of all evidence to the con- trary in case of an absolute assignment of property by a debtor to his creditors for the purpose of securing a pre-existing debt, an as- sent will be presumed on account of the benefit that he is to derive from it. This principle was recognized and applied by this court in the case of Tompkins v. Wheeler, 16 Pet. 106, 10 L. Ed. 903, and had been before in Brooks v. Marbury, 11 Wheat. 96, 6 L. Ed. 423. No expression of assent, the court say, of the person for whose benefit the assignment is made, is necessary to the vesting the title, as the creditor is rarely unwilling to receive his debt from any hand that will pay him." There is nothing in the present record rebutting or tending to re- but such presumption in favor of the spinners. On the contrary, it appears that, when the temporary injunction was issued at the instance of the receivers, the steamship line promptly gave bond, by Woodw.Sales — 10 146 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 virtue of which the cotton was immediately transported under the bills of lading to Genoa for delivery to the spinners. In addition, upon the institution of the present suit by the trustee, the spinners filed their petition of intervention, in which it is insisted that they are the owners of the cotton, and were such owners prior to the date of the restraining order. In view of the circumstances of the case, the presumption must obtain that the spinners assented to the delivery of the cotton. If in such case assent of the spinners to the delivery of the cotton would be presumed, they would be equally presumed to have waived the time of the delivery as well as the fail- ure of the bankrupts to have it insured. Certainly the bankrupts would not be in a position to deny there was a waiver, and in that respect the trustee can claim no right superior to that of the bank- rupts themselves. While creditors are entitled to the protecting shield of the law, the rights of innocent purchasers are guarded and pro- tected with equal jealousy. Under some circumstances, the bankruptcy statutes clothe the trus- tee with power to set aside conveyances, good as between the bank- rupt and a purchaser. But ordinarily, in the absence of fraud, or of a state statute declaring the conveyance void, or unless it con- travenes some provision of the bankruptcy acts, a conveyance, based upon a valuable consideration and good as between the parties, will be permitted to stand. As to such a conveyance, and the spinners here stand in a similar category, the trustee occupies no better posi- tion than the bankrupt. He stands simply in the bankrupt's shoes. The principle has been clearly announced by the Supreme Court in the following cases: Thompson v. Fairbanks, 196 U. S. 516, 25 Sup. Ct. 306, 49 L. Ed. 577 ; Hewit v. Berlin Machine Works, 194 U. S. 296, 24 Sup. Ct. 690, 48 L. Ed. 986 ; Zartman v. First National Bank, 216 U. S. 134, 30 Sup. Ct. 368, 54 E. Ed. 418; York Manufacturing Co. v. Cassell, 201 U. S. 344, 26 Sup. Ct. 481, 50 L. Ed. 782. * * * The cotton in question prior to the date that Knight, Yancey & Co. were adjudged bankrupts was the property of the spinners, and hence it could not have been lawfully transferred by the bankrupts, nor was it subject to levy and sale under judicial process against them. Without special reference to the assignments of error, we have considered all material questions arising in the case, and for the rea- sons stated we are of the opinion that the judgment should be af- firmed. So ordered. Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THERfeQF li7 MOAKES V. NICHOLSON. (Court of Common Pleas, 1865. 19 C. B. [N. S.] 290, 34 U J. C. P. 273.) ^ In this case the plaintiff sought to recover damages for the con- version of a cargo of coal; and the following facts were proved at the trial: On the 9th of December, 1864, at Hull, a person named Pope bought of a person named Josse a quantity of coal, and a great deal of evi- dence, oral and written, was given at the trial in order to shew the terms of the sale, the defendant contending that by the terms of this sale there was to be "payment in cash against bill of lading in the hands of Josse's agent in London," and that it was not the intention of the parties that the property in the goods should pass till payment. The coal at the time of the contract was lying undistinguished in a heap at Josse's yard, containing a much larger quantity than that contracted for, and it was to be shipped on board a vessel, which was chartered by Pope in his own name and on his own behalf, to carry it to London. On the 13th of December, whilst the whole or all but a very small portion of the coal was still undistinguished, Pope sold the coal he had contracted for to the plaintiff on the Coal Ex- change in London. The plaintiff resold on the same day at a higher price, and before action had paid Pope. By the 19th of December the coal was shipped and the captain signed three bills of lading, stating the coal was to be delivered to "Pope or order" on being paid freight and demurrage as by charter-party. One only of these bills was stamped, and this Josse retained ; the second, together with an invoice and a letter announcing the loading, was sent on the 19th of December to Pope who received them next day. Josse not being able to get his money from Pope, sent the stamped bill of lading to the defendant, his agent, with directions to stop the delivery of the coal, and the captain, under the defendant's directions, refused to deliver to those claiming through Pope, and the defendant himself took the cargo. The jury found that the sale was for cash, and the learned Jydge directed a verdict for the plaintiff, and gave the defendant leave to move to set this verdict aside and enter one for himself, on the grounds that on the facts admitted and proved the defendant was en- title to the verdict, that the defendant had a right to stop the coals in transitu, and that neither Pope nor the plaintiff had any right to the property and possession of the coals. A rule nisi having been obtained pursuant to such leave, * * * EarlB, C. J. I am of opinion that this rule should be made abso- lute. The action is brought on the ground that the cargo had vested in Pope. The coals were sold by Josse to Pope, by Pope to Moakes (the plaintiff), and he again passes them on. One material point is, whether Moakes has a better title than his vendor Pope, and 148 ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF (Ch. 2 I think he has no better title. The rule that a man shall not have a better title than his vendor is not universal because, for instance, there are cases where, if the goods be in possession of a man as os- tensible owner, together with the document of title, he may be able to confer on a purchaser a better title than he has himself. No such point, however, arises here, because at the time of the treaty between Josse and Pope the goods were unascertained; the treaty was that the property should not pass till the cash was paid, and, whilst the goods are so unascertained, Pope makes the contract with Moakes, who therefore is only in Pope's shoes. Then what, as between Josse and Pope, was the intention of the parties ? The prop- erty in Josse cannot pass out of him unless there be a sale which passes it. Now Josse intended to retain the property till the cash was paid, and if so, the property did not pass ; that was clearly the contract. The delivery on board ship had no effect. Even if the de- livery had been to Pope, yet it might be only as a warehouseman. As to the difficulty which has been raised about the bills of lad- ing, and as to their allowing Pope to pass, as owner, under certain circumstances, such a question might have arisen; but it does not arise here, because when the plaintiff bought the goods they were neither ascertained nor loaded, and therefore there could have been no such bills ; and besides, the only stamped bill of lading was re- tained by Josse, and the effect of an unstamped bill of lading is well known. BylBS, J. I am of the same opinion. I had doubts at one time, because I thought that the goods were sold after they were on ship- board, and after the bills of lading were in Pope's hands ; but it ap- pears that at the time of the sale not only were the goods not on board, but they had not been distinguished; therefore no property passed then, and it is now clear from the decided cases that none passed at the time of shipment, because the shipment was not intended to be a delivery. The captain was a sort of supercargo, and (as the jury find) the property was not to pass till all the conditions were satisfied. As to any representations by means of the documents, the plaintiff could not have been misled, for he bought before Pope had them. Keating, J. I am of the same opinion. No doubt the means used by Josse to retain his property in and control over the goods were very slovenly, but it clearly was the intention that the property should not pass without the cash. The jury have found this, and their finding seems in accordance with the evidence. The means adopted were slovenly, for circumstances might have arisen which might have placed Josse in a precarious position. Because there was a stamp only on one of the bills of lading, he thought himself amply secured. Yet, if unstamped bills of lading had been produced to a subsequent pur- chaser in the market, the effect might have been to raise questions Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 149 which might have jeopardized Jesse's rights. It turns out, however, that the plaintiff contracted with Pope on the 13th of December, and it was not until the 19th of December that the goods were ascertained and shipped. Rule absolute. / ROBINSON V. POGUE. (Supreme Court of Alabama, 1889. 86 Ala. 257, 5 South. 685.) Appeal from Circuit Court, Montgomery County; John P. Hub- bard, Judge. Detinue by Pogue & Son against Robinson & Ledyard for tobacco sold by plaintiffs to Rushton & Co., and by Rushton & Co. to defend- ants. The defendants requested the court to charge : "(4) If the jury believe from the evidence that the tobacco was delivered to the railroad company, and the bill of lading was made consigning the goods to Rushton & Co., then the title to the goods passed by this delivery to Rushton & Co., although the bill of lading was sent to Simon & Bro., in the absence of proof that the contract of sale re- quired the performance of something on the part of Rushton & Co. before the goods were delivered." The request was refused. De- fendants appeal. SoMERViLLE, J. The bill of sale from Rushton & Co. to Robinson & Ledyard, the appellants, bearing date December 16, 1885, and trans- ferring to them the stock of merchandise of the vendors in absolute payment of a pre-existing debt, is the same instrument constn d by us in the case of Robinson v. Fairbanks, 81 Ala. 132, 1 South. 552, and again in Robinson v. Levi, 81 Ala. 134, 1 South. 554. Upon a state of facts substantially the same as that appearing in the present record we then observed that there could be no question about the fact that the defendants, if the evidence was to be believed, "were bona fide purchasers of the goods for value, and without notice of any alleged defect in the title of Rushton & Co., just as fully as if they had paid the cash for them." No controversy was made upon the trial raising any question as to the correctness of this ruling. There are many assignments of error in the present record. We do not propose to notice any of these except such as are insisted on in the brief of appellants' counsel, the others appearing to be without merit. The main contention here insisted on, and raised by the rulings of the circuit court, relates to the title acquired to the goods in contro- versy by Rushton & Co., the consignees of the plaintiffs. If the sale of the tobacco to them was completed by an actual or constructive de- livery, and the intention of the vendors was that the title should un- conditionally pass, then the appellants, Robinson & Ledyard, acquired 150 ISSUE OF DOCUMENT OF TITLE TEANSFBR THEREOF (Ch. 2 a good title; otherwise not. The contract for the sale of the goods was made by Simon & Bro., of Montgomery, Ala., as agents of the plaintiffs. The shipment was made by railroad, and a bill of lading was taken, in which Rushton & Co. were named as the consignees. This bill of lading was mailed to Simon Bros., with a bill for the goods on which were written the words "Shipped to Rushton & Co,, Montgomery, Ala." It was agreed between Rushton & Co. and Simon & Bro. that the latter were to "retain the bill of lading" until the goods were paid for, but there is no evidence that the goods themselves were to be retained until the price was paid. The evidence, on the contrary, tends to prove that the sale was made on credit, after closely inquiring into the financial status of the consignees. The tobacco was delivered by the railroad to the consignees, without the presentation of the bill of lading. Where goods have been sold and are delivered by the vendor to a common carrier, consigned without reservation to the vendee, the question as to whether the title eo instanti passes to such consignee, depends upon the intention of the vendor, to be gathered from all the circumstances of the case. ' There is no doubt as to the correctness of the general rule that where the bill of lading shows a consignment by the vendor to the vendee, in ordinary form, and no other circum- stance appears as to the intention, the prima facie legal presumption is that an unconditional delivery to the consignee is contemplated. But this presumption of fact may be rebutted by evidence showing a contrary intention. Jones v. Sims, 6 Port. 138, (1837;) Ezell v. English, 6 Port. 317; Emery v. Bank, 25 Ohio St. 360, 18 Am. Rep. 299 ; 2 Amer. & Eng. Cyclop. Law. 242 ; People v. Haynes, 14 Wend. (N. Y.) 546, 28 Am. Dec. 530;, Everett v. Coffin, 6 Wend. (N. Y.) 603, 22 Am. Dec. 551; Ostrander v. Brown, 15 Johns. (N. Y.) 39, 8 Am. Dec. 218, note; Express Co. v. Greenhalgh, 80 111. 68. The title of the goods is commonly retained in the consignor, by taking the bill of lading to his own order, or in blank, or by drawing on the consignees with the bill of lading attached to the draft, or other like procedure, indicating an intention to retain in himself a jus disponendi over the goods until the price is paid, or until the happening of some other contingency. McCormick v. Joseph, 77 Ala. 236; Chandler v. Sprague, 38 Am. Dec. 417-421, note; Bank v. Jones, 55 Am. Dec. 299, note; Dows v. Bank, 91 U. S. 618, 23 L. Ed. 214. The delivery to the common carrier, in cases of the former class, is deemed prima facie a delivery to the consignee, not only when the consignment is made to a carrier named by the consignee, but also when made to some carrier in the usual course of trade, who thus be- comes impliedly the agent of the consignee to receive and transport the goods at his risk, the sale thus becoming presumptively complete at the point of shipment, although the price is not to be paid until the goods reach their destination. Garbracht v. Com., 96 Pa. 449, 42 Am. Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 151 Rep. 550; Pilgreen v. State, 71 Ala. 368; Sarbecker v. State, 65 Wis. 171, 26 N. W. 541, 56 Am. Rep. 624; Hausman v. Nye, 62 Ind. 485, 30 Am. Rep. 199. Hence it is commonly held that the consignee in a bill of lading, where there is no reservation of title by the consignor, has vested in him such a property in the goods as to authorize him to sue the carrier, in his own name, for their injury, loss, or recovery in trover, detinue, or other appropriate action. Chandler v. Sprague, 38 Am. Dec. 423, note; Potter v. Lansing, 3 Am. Dec. 310, 318, note; Ang. Carr. § 497; Griffith v. Ingledew, 6 Serg. & R. (Pa.) 429, 9 Am. Dec. 444; Express Co. v. Armstead, 50 Ala. 351; Rail- road Co. V. WiUiams, 54 Ala. 168. Under these principles of law, the refusal of the fourth charge re- quested by the appellants was error. If the facts hypothesized in this charge were believed by the jury, the consignees could have recovered the goods from the railroad company. Hence their delivery without presentation of the bill of lading did not presumptively prejudice the rights of the consignees. The case presents no question whatever in- volving the rights of a transferee of the consignor, claiming an interest by purchase in the property as holder of the bill of lading. If the sale was on credit, and the goods were not to be retained until the price was paid, the mere retention of the bill of lading by the agent of the consignor would not prevent the sale from becoming complete. We cannot perceive that the case is affected by Rushton & Co.'s declaration, made to Simon; before delivery of the goods by the rail- road, that they did not want the goods, inasmuch as there was no evi- dence tending to show the assent of Simon & Bro., or their principals, the consignors, to release the consignees from the purchase, or to re- scind the trade. It required the concurring assent of both contracting parties to rescind the trade, just as fully as it did originally to make it. Neither alone could do so. The evidence on this point was irrele- vant, and should have been excluded. The judgment is reversed, and the cause remanded.^' GREENWOOD GROCERY CO. v. CANADIAN COUNTY MILL & ELEVATOR CO. {Supreme Court of South Carolina, 1905. 72 S. C. 450, 52 S. E. 191, 2 L. E. A. [N. S.] 79, 110 Am. St. Rep. 627, 5 Ann. Gas. 261.) Woods, J. The complaint in this cause is to recover damages for breach of a contract to deliver a car load of flour to the plaintiff. The defendant being a foreign corporation, an attachment was issued to obtain jurisdiction and under the warrant the flour was seized in the hands of the railroad company at Greenwood, S. C. The defendant 37 See, also, Wigton v. Bowley, 130 Mass. 252 (1881). 152 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 moved to dissolve the attachment, on the ground that it appeared from the complaint and the affidavit the flour was the property of the plain- tiff and not of the defendant, and hence the court was without juris- diction. The motion was refused and defendant appeals. The essential facts stated in the complaint and the affidavit are as follows : The defendant, Canadian County Mill & Elevator Company, a corporation resident in El Reno, Okl, contracted to sell and deliver to plaintiff, Greenwood Grocery Company, at Greenwood, in this state, 250 barrels of flour at $4.50 per barrel. The defendant consigned to the plaintiff the flour, and sent draft on plaintiff, with bill of lading attached, to the Bank of Greenwood, but the draft required payment for the flour at $5.50 per barrel, instead of $4.50, the contract price. Plaintiff tendered to the bank the contract price and demanded the bill of lading, but the bank refused to accept less than the full amount of defendant's draft, and, upon plaintiff's refusal to pay more than the contract price, withheld the bill of lading. Thereupon the plaintifi brought this action for damages, attaching the flour in the hands of the railroad. The defendant's position is that when the flour was de- livered to the carrier consigned to the plaintiff, it ceased to be the prop- , erty of the defendant, and became the property of the plaintiff, sub- ject only to the right of stoppage in transitu, and that therefore the attachment must fall. 1. The general rule is that an attachment will not be dissolved, on the ground that the defendant has no title to the property, or that it is the property of the plaintiff. The defendant's lack of interest in the property would affect the title of the purchaser under the attachment, but not the validity of the process. Drake on Attachments, § 417. As said in Aletts v. Insurance Company, 17 S. C. 120, 123 : "The attach- ment is based on facts disconnected with the property, and it must stand or fall upon these facts." But it is manifest this reasoning does not apply where the court obtains jurisdiction of a nonresident by virtue of the attachment of his or its property in the state. In such case, the jurisdiction and the validity of the attachment depend upon the defendant having property in the state, and if this fact does not appear, it is fatal. 4 Cyc. 775. In this case the flour is the property in this state alleged to belong to defendant, and if the title to that has passed from the defendant to the plaintiff, the attachment should be dissolved. 2. The sole question, therefore, is whether by drawing on the plain- tiff with the bill of lading attached to the draft and refusing to deliver the bill of lading without payment of the draft, the defendant retained title and right of possession of the property. The effect of a bill of lading issued by the carrier who is a third party, on the title to the property as between the consignor and consignee is a question of fact depending not only on the terms of the paper itself, but on the inten- tion of the parties as expressed by their dealings with each other. 1 Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 153 Benjamin on Sales, §§ 568, 579, 580; Emery v. Irving National Bank, 25 Ohio St. 360, 18 Am. Rep. 299 ; 24 A. & E. Enc. Law, 1066 ; Ho- bart V. Littlefield, 13 R. I. 341 ; Merchants' National Bank v. Bangs, 102 Mass. 291 ; Kentucky Refining Co. v. Globe Refining Co., 104 Ky. 559, 47 S. W. 602, 42 L. R. A. 353, 84 Am. St. Rep. 468; Chandler vy^prague, 38 Am. Dec. 418, note; 23 Eng. Rul. Cases, 383, note. y/rhe fact that the bill of lading is taken, making the goods deliver- able to the order of the vendor, who is himself the consignor, is very strong prima facie evidence that the vendor in delivering the goods to the carrier intended to reserve the title until payment of the purchase money ; and when a draft for the price is drawn on the purchaser with such bill of lading attached, the title does not ordinarily pass to him until the draft is paid//Bank v. Rowan, 23 S. C. 339, 55 Am. Rep. 26; 1 Benjamin on Sales, § 567; Porter on Bills of Lading, § 482; Dows V. National Exchange Bank, 91 U. S. 618, 23 L. Ed. 214; Ken- tucky Refining Co. v. Globe Refining Co., 104 Ky. 559, 47 S. W. 602, 42 L. R. A. 353, 84 Am. St. Rep. 468 ; Hopkins v. Cowen, 90 Md. 152, 44 Atl. 1062, 47 L. R. A. 124; Emery v. Irving National Bank, 25 Ohio St. 360, 18 Am. Rep. 299; National Bank v. Crocker, 111 Mass. 167; Bank v. Cummings, 89 Tenn. 609, 18 S. W. 115, 24 Am. St. Rep. 618; Farmers' & Merchants' National Bank v. Logan, 74 N. Y. 568; Lanfear v. Blossman, 1 La. Ann. 148, 45 Am. Dec. 76; Stollenwerck vrXhacher, 115 Mass. 224; Erwin v. Harris, 87 Ga. 333, 13 S. E. 513- tSut this presumption may be rebutted by other circum- stances and previous dealing of the parties evidencing a different in- tention. L'orter on Bills of Lading, § 485. ^4n this case, however, it seems by the terms of the bill of lading the goods were deliverable to the consignee. The presumption therefore was that the consignor intended the title to pass. Emery v. Irving Na- tional Bank, 25 Ohio St. 360, 18 Am. Rep. 299; 1 Benjamin on Sales, § 586. If, therefore, the railroad company had delivered the goods to the consignee without the surrender of the bill of lading and with- out notice of any reservation of title and possession, it would not be liable -to the consignor, though he actually intended to reserve the title and possession until payment of his draft for the price/^Bank v. Rail- way Co., 25 S. C. 224. '^ As between the vendor and purchaser, the authorities leave no room to doubt, however, that even if the bill of lading provides for deliv- ery to the consignee, yet if the consignor draws for the price attach- ing the bill of lading to the draft, this is sufficient evidence of his in- tention to reserve the title and right of possession until the draft is paid, and the consignee is not entitled to the goods until payment. Emery v. Irving National Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Chandler v. Sprague, 38 Am. Dec. 419, note; Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290 ; Cayuga County National Bank v. Daniels, 47 N. Y. 631 ; Marine Bank v. Wright, 48 N. Y. 1 ; Halsey 154 ISSUE OF DOCUMENT OP TITLE — TEANSFEE THEREOF (Ch. 2 V. Warden, 25 Kan. 128; First National Bank of Green Bay v. Dear- born, 115 Mass. 219, 15 Am. Rep. 92. That the intention of the shipper as evidenced by his action in re- spect to the bill of lading is controlling, is supported by the elaborate opinions in Shepherd v. Harrison, 23 E. Rul. Cases, 349, especially the opinions of Kelly, C. B., and lyord Chelmsford. Here, according to the statement of the complaint and the affidavit, not only did the de- fendant, the consignor, express its intention to reserve the jus dis- ponendi by presenting through a bank the draft with the bill of lading attached, but the plaintiff expressed this to be also its understanding of the contract by offering to pay the price, as it claimed it to be, as a condition precedent to acquiring possession of the bill of lading, and through it of the flour. It is argued, however, that according to the complaint, which must be taken as true, the plaintiff tendered the real price agreed upon, and that by such tender he became entitled to the flour without respect to the amount of the draft. This argument is not without force, but it is not convincing nor is it sustained by authority. Even the important case of Mirabita v. Imperial Ottoman Bank, 3 Ex. Div. 164, cannot fairly be said to go to the extent of holding the buyer entitled to re- cover possession upon tender of any amount less than the draft. The question whether the right to possession would pass to the vendee upon tender of less than the amount called for by the draft if the less amount tendered be the true amount of the purchase money, did not arise and was not decided. There the draft for the purchase money with the bill of lading attached had been sent to the defendant bank, with instructions to deliver the bill of lading upon payment of the draft. The plaintiff tendered the full amount of the draft, and de- manded the bill of lading. The bank refused to deliver it, claiming it had incurred freight charges which must also be paid, whereas it had done nothing to make itself liable for freight. The case was, therefore, one in which it appeared the defendant bank, on its own responsibility, had refused to accept the full amount claimed by the vendor as expressed in the draft, upon payment of which the bill of lading was to be delivered to the vendee. Under these facts, the bank was held liable td'the vendee. Lord Justice Cot- ton uses the following language: "So, if the vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be delivered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but until acceptance of the draft, or payment, or tender of the price, is conditional only, and until such ac- ceptance, or payment, or tender, the property in the goods does not pass to the purchaser /^nd so it was decided in Turner v. Trustees of Liverpool Docks, 6 Ex. 543 ; 20 L. J. (Ex.) 393 ; Shepherd v. Harri- Sec. 8) ISSUE OF DOCUMENT OP TITLE — TRANSFER THEREOF 155 son, Law Rep. 4 Q. B. 196; Ogg v. Shuter, 1 C. P. D. 47. But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authority for holding that in such case the goods shipped for the purpose of completing the contract do not on payment or tender by the purchaser of the contract price vest in him. When this occurs, there is a performance of the condition sub- ject to which the appropriation was made, and everything which, ac- cording to the intention of the parties, is necessary to transfer the property is done; and, in my opinion, under such circumstances, the property does on payment or tender of the price, pass to the pur- chaser." From the context and the facts of the case, as hereinbefore stated, it is, we think, manifest that the court is referring to payment or ten- der of the price as expressed in the draft accompanying the bill of lading, and not some price which the vendee contends to be the true one, different from that expressed in the draft, upon payment of which the bill of lading was to be delivered. The defendant's argument on this point leaves out of view the principle that as between plaintiff and defendant in the circumstances here appearing, the flour was shipped on condition that the draft — not the amount claimed by the plaintiff as the true price — should be paid by the plaintiff before it should have the flour. Until the draft is paid or there is tender of the amount it calls for, the contract is executory, and while in some exceptional cases an executory contract for the sale of chattels may be enforced by an action for specific performance, the rule is that a buyer's action of claim and delivery to recover possession can be founded only on an ex- ecuted contract of sale. 2 Benjamin on Sales, § 1305. Even if the draft and bill of lading had been sent to the plaintiff itself under such conditions as exist here, it could not have retained the bill of lading, which was the symbol of the goods, without pay- ment, or at least acceptance, of the draft. 1 Benjamin on Sales, § 570; 1 Daniel on Neg. Instruments, §§ 1734, 1734a-1734c; Tiede- mann on Commercial Paper, § 494; Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290 ; Cayuga County National Ban]< v. Dan- iels, 47 N. Y. 631; Marine Bank v. Wright, 48 N. Y. 1./^ requires no argument to show that it is of the utmost importancg/jd commerce that a bill of lading should have full effect as an instrunlent by which a vendor or shipper may retain his right of possession — jus disponendi — using it as a symbol of the property to express his intention as to the conditions upon which the property should be delivered. The courts of this country and of Engjk^d have with practical unanimity given the bill of lading this forceo' But even if the defendant's view were correct, that the tender of t^^ true price as stated by the plaintiff, without respect to the amount required by the draft accompanying the bill of lading, passed to the plaintiff the title and right to possession, the plaintiff would still have his election to sue for the property itself, 156 ISSUE OP DOCUMENT OP TITLE TEANSPER THEREOF (Ch.2 or for damages for breach of the contract in refusing to deliver the goods. 24 A. & E. Ency. Law, 1149, 1150. On the facts as presented in the complaint and the affidavit, the de- fendant is prima facie the owner of the flour. The judgment of this, court is that the judgment of the circuit court be affirmed."* FARMERS' & MECHANICS' NAT. BANK OF BUFFALO v. LOGAN. (Court of Appeals of New York, 1878. 74 N. Y. 568.) FoLGBR, J. /This is an action brought by the plaintiff to recover of the defendants the value of a canal-boat load of wheat, alleged to be the property of the plaintiff, and to have been taken by the defend- ants and converted to their own use. /^ The plaintiff recovered judgment /against all of the defendants. The defendants, Logan and Preston, have appealed, and they con- test the recovery. They did in fact take the wheat and ship it abroad for their own purposes and benefit. They bought it from the defend- ant Brown, at the Produce Exchange in New York city, and paid for it, all in the usual course of business of that mart. They did not see nor seek for any evidence of the title of Brown, or of his right to sell ; nor was there any ; save that the wheat was in his actual custody, by virtue of a special deposit of it with him in trust, and that he had and exhibited samples of it on 'change. The wheat was first owned by one Perot, at Buffalo, N. Y. It was in an elevator there. Sears & Daw were commission mer- chants at that place. They acted, in the purchase of wheat for him, as correspondents and agents there of the defendant Brown, who resided and did business in New York city. At this time they had an order from him to buy two boat-loads of wheat. To fill that or- der they negotiated with Perot for the wheat in the elevator, and bought it for Brown. But they bought of Perot on their own credit, and they paid him for it with money obtained by them, as will ap- pear further on. They took a bill of sale from Perot, which ran in their own name, to themselves. Perot knew not Brown in the trans- action. The money with which the wheat was paid for to Perot was got by them in this way : After the wheat was spouted from the elevator into a canal-boat, owned and navigated by persons not connected with the defendant Brown, the master of it made a bill of lading, stating the shipment of the wheat to be by them, as agents and forwarders, to New York, on account and order of the plaintiff, with a direction appended to notify Brown at that place. They then drew their own draft on Brown, to the official order of the plaintiff's cashier. That draft 8 8 See, also, Hilmer v. Hills, 138 Cal. 134, 70 Pac. 1080 (1902), Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 157 and the bill of lading, with a certificate of insurance of the wheat, were given to the plaintiff, which with notice of all the facts at that time existing, on the strength and security of those papers discounted the draft for Sears & Daw, and gave the avails thereof to them. They deposited the money thus obtained to their own credit, in the White's Bank, and paid Perot for the wheat by their own check to him thereon. The bill of lading and other papers were retained by the plaintiff. The draft was indorsed by it to its correspondent bank in New York city. The bill of lading and certificate of insur- ance were pinned to the draft. There was stamped upon the draft a direction to the correspondent bank to deliver the bill of lading and certificate to Brown, on his acceptance of the draft. There was stamped on the bill of lading a statement addressed to Brown, in purport that the wheat and the insurance of it were pledged to the plaintiff, as security for the payment of the draft ; and that the wheat was put into his custody in trust for that purpose, not to be diverted to any other use until the draft was paid ; and that upon his accepting and paying the draft the claim of the plaintiff would cease. The papers were sent to the correspondent bank in New York city, with instructions in conformity with the matter stamped upon the papers. The draft was presented to Brown and was accepted by him. The bill of lading was delivered to and kept by him. After that the wheat reached New York city ; but before the maturity of the draft Brown procured samples of it, made the sale of it, and with money got from Logan & Preston by an advance on the price, paid the freight and other charges of the carrier. Logan & Preston received the wheat from the carrier and sent it abroad. These facts are sufficient to make application of what we conceive to be the law controlling the case. There lies at the base of the matter an elementary principle of the common law well known and often stated, but which may be profitably repeated here, from a high source, as the foundation of our discussion. A purchaser of chattels takes them, as a general rule, subject to whatever may turn out to be infirmities in the title. A purchaser in market overt is an exception. But if not bought there, though the purchase be bona fide, the title got may not pre- vail against the owner. Again, where the owner has parted with the chattel to another, on a de facto contract, a purchaser from that other bona fide will obtain an indefeasible title. By a de facto con- tract is meant one which has purported to pass the property from the owner to another. See Cundy v. Lindsay, L. R., 3 App. Cas. 459. In the case in hand there was not a purchase by the appellants in market overt, for such place and effect of sale is not recognized in this State. Wheelwright v. Depeyster, 1 Johns. 471-480, 3 Am. Dec. 345 ; Mowrey v. Walsh, 8 Cow. 238. The title set up by the appellants cannot prevail then, unless they purchased in good faith 158 ISSUE OF DOCDMENT OF TITLE TRANSFEE THEREOF (Ch. 2 from the real owner, or from one to whom the real owner had parted with the goods on a de facto contract. The difference between the parties arises when the question is put, to whom did Perot, the ac- knowledged real owner at first, part with it thereby; to Brown, or to Spars & Daw? The appellants claim that the contract of sale from Perot was to Brown; that he became the owner; that the wheat was indeed pledged to the plaintiff, but that Brown was the general owner and the pledgor ; that when the plaintiff, being but a pledgee, put the pos- session of it in Brown, it lost its lien, as against a bona fide pur- chaser from him. So that the important inquiry is, who did, upon all the facts of the case,/^ecome the owner of the wheat, by the transaction with Perot ?/^t is conceded to be the vital point in the case of the appellants ^at Brown, from whom they purchased, had a title of his own in the goods, which, subject to the lien of the plain- tiff, he could transfer, and that the voluntary surrender of the pos- session to him by the plaintiff enabled him to make an effectual transfer of it, free from that Uery It will not have escaped an OT)servation of our recital of facts that Brown furnished no money nor any credit for the purchase from Perot. It was bought by Sears & Daw of him on their credit on his trust in them that they would pay for it. Nor was the draft discounted by the plaintiff on the credit of Brown. The bill of lad- ing and the insurance upon the wheat were the security upon which the plaintiff rested. Sears & Daw remained liable 'until the draft was paid or they were discharged by some act of the plaintiff. Nor did Brown, when he ordered the purchase of the wheat, expect to furnish the money to pay the seller of it. He expected, and Sears & Daw expected, that the money would be got in the way in which it was got. Nor was there any act of Perot, or of Sears & Daw, in dealing with the wheat, which of itself passed the title to it to Brown. Mechanics' & Traders" Bank of Buffalo v. Farmers' & Me- chanics' Nat. Bank of Buffalo, 60 N. Y. 40. The bill of the sale from Perot was to Sears & Daw. The bill of lading from the carrier was not to Brown, it was to Sears & Daw, to the account and order of the plaintiff. The shipment is stated indeed to be by them as agents and forwarders. That phrase does not of itself point to Brown as the principal or consignee; and when understood, in knowledge of all the facts, does not de- clare or suggest his ownership of the wheat. In sooth, all the paper evidence, up to the time that the bill of lading went into the keeping of the plaintiff, gives no sign of ownership in Brown ; but, on the contrary, does show ownership in Sears & Daw, transferred to no one, save it be the plaintiff. And the facts given by the oral testi- . mony show the purpose to bar Brown from, the right to control or ^ispose of the wheat until he paid the draft. Vl Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 159 The case of Turner v. Trustees of the Liverpool Docks, 6 Exch. Wels., H. & G. 543, is pertinent. Merchants in Liverpool sent or- ders to merchants in Charleston to ship cotton on account of the former in their vessel, for her voyage to Liverpool. They in Charles- ton bought cotton and shipped it in that vessel. They took a bill of lading "to order or to our assigns," and indorsed it "deliver the within to The Bank of Liverpool or order." They drew drafts on the merchants in Liverpool, and delivered the bill of lading to a bank in Charleston, and on security of it sold the drafts to the bank, and used the avails to pay for the cotton, or to re-imburse themselves for advances therefor. They in Liverpool did not pay the bills. When the cotton reached that port the question arose to whom did the cotton belong? It was held that the property in it did not vest absolutely in them in Liverpool, notwithstanding the delivery of it on board their ship to their servant, the master; but that they in Charleston by the terms of the bill of lading had reserved to them- selves a jus disponendi of the cotton, and that they had not divested themselves of their property in or possession of the goods ; and that having bought the cotton with their own funds on their own credit, they retained their property in it until payment was made for it by the men in Liverpool. See in ace. The Frances, 9 Cranch, 183, 3 L. Ed. 698. There are facts in the case cited (6 Exch., supra) not stated by us, which make it a stronger case for the principals in Liverpool than the one in hand is for Brown. It was decided in the Exchequer Chamber after elaborate argument and full considera- tion. It has been since recognized and approved as sound and au- thoritative. See Mirabita v. Imp. Ottoman Bank, L. R., 3 Exch. Div. 164. The conclusion reached in it satisfies our judgment; the principle declared in it is sound, and applicable to and decisive of the/t)oint we are now considering. INhen commercial correspondents on the order of a principal ^ake a purchase of property ultimately for him but on their own credit, or with funds furnished or raised by them, and such course is contemplated when the order is given, th6y may retain the title in themselves until they are re-imbursed.//One of the means by which this may be done is by taking th//bi\\ of sale in their own names, and when the property is shipped, by taking from the car- rier a bill of lading in such terms as to show that they retain the power of control and disposition of it. This results necessarily from the nature of the transaction. It is not at once an irrevocable ap- propriation of the property to the principal. It rests for all of its efficiency and prospect of performance upon the intention to with- hold and the withholding the right to the property, so that the right may be used to procure the money with which to pay. It contem- plates no title in the principal until he has re-imbursed to his cor- respondents the price paid by them, or to the person with whom they 160 ISSUE .OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 have dealt the money obtained from him with which to pay that price. From the start the idea formed and nursed is that the property shall be the means of getting the money with which to pay for it, and that the title shall not pass to him who is to be the ultimate owner until he has repaid the money thus got. Although such correspondents act as agents, and are set in mo- tion by the principal who orders the purchase, yet their rights as against him in the property are more like those of a vendor against a vendee in a sale not wholly performed, where delivery and pay- ment have not been made, and where delivery is dependent upon payment. And so in the case cited from 6 Exch., supra, such cases of vendor and vendee are looked to as authority, and e converse, that case is relied upon in L. T. Rep., 3 Exch. Div., supra, which was such a case of vendor and vendee. The rule laid down is, that the property remains in the shipper ; or that he has a jus disponendi, 3. property or power which enables him to confer a title on a pledgee or vendee, though in breach of his contract with his first vendee; and that whichever it is, the result must be the same. Id. If the vendor when shipping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser but on his own behalf, he thereby reserves to himself a power of disposing of the prop- erty, and consequently there is no final appropriation, and the prop- erty does not on shipment pass to the purchaser. Id. So if the "vendor deals with or claims to retain the bill of lading in order to secure the contract price, as when he sends it forward with a draft attached, and with directions that it is not to be delivered to the purchaser until payment of the draft, the appropriation is not abso- lute, and until payment or tender of the price is conditional only, and until then the property of the goods does not pass to the pur- chaser (Id.) ; and to this Turner v. Trustees, supra, is cited. We see no principle which distinguishes the case of a vendor and a vendee in this respect, from that of a correspondent or agent buy- ing for another, yet paying the price from his own means, or from moneys by agreement raised upon the property, or upon his own credit, and holding the property as security until the principal has made re-imbursement. Such is the purpose of the parties. There is no intent that the property shall be appropriated until payment is made. And unless third parties are unavoidably misled to their harm, they have no cause to complain of a purpose so reasonable and productive of so good results. We think that the adjudications on this side of the water are to the same end. There have been repeated adjudications in this court whereby the legal effect of a bill of lading has been deter- mined, when it contained some special clause or notation, or had upon it an indorsement which pointed out a particular person as the Sec. 8) ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF 161 one on whose account the property named in it was to be carried and deHvered. Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Dows v. Perrin, 16 N. Y. 325; Mechanics' & Traders' Bank v. Farmers' & Mechanics' Bank, 60 N. Y. 40 ; First Nat. Bank of Toledo V. Shaw, 61 N. Y. 283 ; s. c. on second appeal, 69 N. Y. 624; Marine Bank of BufTalo v. Fiske, 71 N. Y. 353; Bank of Com- merce V. Bissell, 72 N. Y. 615. The bill of lading of goods thus af- fected prima facie confers upon the person in whose favor it is is- sued, or to whom it is transferred, the legal title to them. 4 N. Y. 497, 55 Am. Dec. 290, supra. That result is, though the transac- tion is not intended to give the permanent ownership, but to fur- nish a security for advances of money or discount of commercial paper, made upon the faith of it. Third persons dealing with prop- erty thus shipped, though acting in good faith, in the regular course of business, and paying value, are affected by the terms of the bill of lading, are bound to look into it, and/ are chargeable with a con- structive notice of the contents of it.//ln the case in hand had the appellants asked for the bill of ladingf/and looked into it, they would have seen that the property described in it was in the possession of Brown, with a special and restricted right over it, and that they could not deal with it safely, until there had/been a compliance with the condition attached to that possession./^ity Bank v. R., W. & O. R. Co., 44 N. Y. 136. And as they v/^e chargeable with a con- structive notice of the contents of it, there is the same legal result as if they had looked into it. Id. We do not understand that the learned counsel for the appellants takes a position which he will admit is hostile to these adjudica- tions. He seeks to distinguish the case at bar from those cited. He admits, as we understand him, that had this case stood alone upon the biU of lading, the defendants would have been properly cast in judgment. But he insists that Brown was the general owner of the wheat; that the plaintiff voluntarily put it into his posses- sion ; that being in his possession with its consent, he being general owner of it, the appellants were no longer bound to look into the bill of lading, and had not constructive notice of its contents. There is a subsidiary position that the plaintiff, having only a special prop- erty in the wheat as a pledgee, could not commit it to the posses- sion of Brown, as he was the general owner and pledgor of it, with- out losing that special property to a bona fide purchaser from him. It is seen at once that the important thing, in this contention, is that Brown was the general owner of the wheat; for on the ex- istence of that depend both the propositions put forth. We think that we have shown that the idea of a general ownership in him is not consistent with the facts of this case, nor with the rules of law declared in like or analogous cases. To be sure, by his order to Wood w. Sales — 11 162 ISSUE OP DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 Sears & Daw to purchase the wheat for him, he set on foot a course of action, which if carried out to the end, in the manner proposed and intended by all the parties to it, would have vested in him the general and unqualified ownership. But he never had the power over the wheat of a general owner. There was never a time that he had such dominion of it, as that he had the right to enjoy or do with it as he pleased, even to spoiling or destroying it ; or that he had that right in it by which it belonged to him in particular, to the exclusion of all others. To constitute ownership, in the sense of that phrase as here used, there must be at some time a right as ample and unrestricted as that. When that right once exists, he who has it is a general owner. He may then burthen or limit that right, or subject it to rights created by him in others, and cease not to be the general owner. But he has not become the general owner, though he may have an interest in the property, until he has a right as great as that stated above. , We are asked, would not thejmofit have been Brown's had the wheat advanced in value, znAjmt loss his, had it declined, or if it had been destroyed by fire ? /2o which the ready answer is, what- ever had chanced to it, it would not have been his, as between him and Sears & Daw and the plaintifif, until he complied with the con- ditions on which it was bought for him, that is to say, had accepted and paid the draft. As soon as he paid the 0raft, it would have been his, with whatever enhancement of value. Had it lessened in value or been burned up, he would still have/been liable to Sears & Daw for the price of their services and for their expenses, and to the plaintifif, first, on his promise to accept the draft, and after accept- ance on that obligation, to pay it. This position is noticed in Mi- rabita v. Imp. Ottoman Bank, supra ; and while holding that the shipper may retain a power over the goods, it is declared that the vendee has an interest in them, that they are at his risk, and that the loss or benefit to them is his. This particular matter is treated of in Haille v. Smith, 1 B. & P. 563. There property was shipped by the owners of it, and the bill of lading, indorsed in blank, and the invoice, were sent to a mercantile house, under a previous agree- ment that it should receive, and hold and sell the property, and apply the avails for the benefit of a banking-house, to which the owners and consignors of the property were or were likely to be indebted. The point was there made that the risk was upon the consignors, up to the time of a sale, and that they had an insurable interest, and that they had a right to detain. The court held that the bill of lading operated as a change of the property ; that by rea- son of the agreement from the moment that the goods were set apart for the particular purpose of securing the banking-house, there was a change of property ; but as it was a change of property for the pur- pose only of applying the proceeds by way of indemnity, the circum- Sec. 8) ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF 163 Stances of the risk, and of the profit and loss, referred to the trust with which the property was charged, and were accounted for thereby ; and that that trust being that the proceeds should be applicable to the debt of the banking-house the risk must remain with the consignors, not- withstanding the change of property, and the consignors must suf- fer or be benefited by the loss or profit upon the sale. It would seem that the principle thus announced is equally ap- plicable to the facts in the case in hand, though they dififer in some particulars. Here the wheat is bought by Sears & Daw for Brown, but on the instant, the property in it is by the bill of lading vested in the plaintiff, but as an indemnity, and charged with a trust that it be sold, if not paid for by Brown, and the avails applied to repay the advance made upon it. In analogy with the decision in the case cited, why is not the risk upon Brown, and the profit or the loss his, though he have not the property in the wheat? It cannot be successfully contended that until Brown paid the draft, he could have maintained an action for the delivery of the wheat, had the plaintifif retained it. He could not have shown that he ever had right to possession, or right to the dominion over it to the exclusion of all others. "So long as the advances were not paid, there was no the- ory whereby" Brown "could claim title. It had never been in" him. "At the moment his interest, whatever it was, accrued, it came bur- dened with the formal ownership of the plaintifif." Bank of Toledo v. Shaw, supra. Had Sears & Daw advanced the money as factors, in compliance with the order of their principal and giving him credit, the purchase would have been for him at once, and he would, at the instant, have become the owner of the thing bought. But the facts are far otherwise, and must not be lost sight of. At the out- set, as one of the first steps in the process, the legal title was lodged in the plaintifif, not to leave it until the payment by Brown of the drafj- yy\hVi% the case is kept out of the law governing the relations of /pledgor and pledgee. The plaintifif was not a pledgee of the prop- erty of Brown. It had a right to it, not the qualified and special prop- erty of one holding, as a security, a chattel belonging to another. //Tt had the legal title, under an agreement to transfer it on payment bei^g made; it "held the title in trust for" Brown, "after its own claim was satisfied^ 61 N. Y. 283, supra. Nor does this conflict with Wilhams v. lyittlefield, 12 Wend. 362. There the factor or agent bought on terms more favorable than he exacted of the principals ; the variation he made was a departure from instructions and from the course of former dealing. Here, all that was done was in ac- cord with previous understanding. Such, it seems to us, is the result of the adjudications in this coun- try. The basis of the opinion in 61 N. Y. 283, supra, is that the legal title to the property was in the bank, as assignee of the bill of lading. 164 ISSUE OF DOCDMENT OP TITLE TRANSFER THEREOF (Ch. 2 It is well to notice here a distinction, that is attempted to be made, beween the case just cited and the one in hand. It is said that there there was an express agreement that the purchasing agent, or the discounting bank, should hold the property until the draft was paid. Such agreement was but putting into terms the legal effect of the transaction in the case before us. For we have shown, by authority, that the taking of the bill of lading in the name of the plaintiff, for its account, and the discount of the draft by it on the strength thereof, did transfer to it the title to the wheat. And in 61 N. Y. 283, supra, the agreement between the agents and the bank was like that here, that the draft should be drawn on the principal, and that the bill of lading be taken in the name of the bank as security for the payment. Dows V. Nat. Exch. Bank, 91 U. S. 618, 23 L. Ed. 214, stands upon the same footing. The outset of the opinion in that case, states the only question to be, whether the ownership of the property had been divested before the conversion ; and that the court has only to inquire to whom the wheat belonged when it came to the hands of Dows & Co. The opinion declares that the agents at Milwaukee, having purchased and paid for it with their own money, became the owners of it. This is placed upon the fact, that not being furnished with funds by their principals, they raised them in the way used by Sears & Daw. It is said, in argument before us, that the position just stated was conceded by the counsel in that case, and the inference is then made here, that it was assumed by that court as the law of that case, with- out consideration or deliberate judgment, or as necessarily appli- cable to every case of like facts. We think that the position is stated by the court as the law of that case and of every case showing the same facts in that respect ; though, as the proposition was not con- troverted by counsel, a bare statement was thought to be enough without discussion or elaboration. Nor is there meant by the term "ownership" only a special property, like that of a lienor or pledgee; it is put as "the absolute ownership," "the complete power of dis- position." In this view, those cases are not applicable here which hold that a delivery to a vendee, even upon condition expressed at the time, will maintain a right in a bona ffde purchaser from the vendee. Smith v. Lynes, 5 N. Y. 41, is an example of such cases. BaUard v. Burgett, 40 N. Y. 314, and Austin v. Dye, 46 N. Y. 500, show the distinction which exists ; and the same appears in consid- ering Rawls V. Deshler, *42 N. Y. 572, and M. & Traders' Bank v. F. & Mechanics' Bank, 60 N. Y. 40. Hence there was no relation between the plaintiff and Brown of pledgee and pledgor; and hence no giving up by it, as pledgee, of the possession of property, held by it in pledge, to him while the general owner of it. It is not therefore needed that we consider Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 165 whether, if such were the case, the special property or lien in it of the plaintiff was lost thereby. Much stress is put upon the assumed fact that the right of the plaintiff in the wheat was a secret lien, and no more. Whether a lien merely or an ownership the declaration of the bill of lading, even with the modification thereof, made by the matter stamped upon it by the plaintiff, evinced to any one looking at it that Brown had no right or authority to dispose of the wheat until he had paid the draft. As it is conceded that possession merely, without title, in one assuming to sell, does not give title to his vendee, what is required of the vendee in such case, if it be not to examine the bill of lading or other evidence of title ? And here an examination would have shown that Brown could not give good title. It is said that as the carrier could properly make delivery to Brown, the entire functions of the bill of lading were exhausted, when the wheat was transferred from out the canal-boat into the sea-going steamer. But that is not so, for by that transfer there was but a change of posses- sion, and if possession merely did not give title, there was still some- thing further to be looked for and required, and the terms of the bill of lading, even as modified, still stood in the way of a transfer of the absolute ownership of the wheat by Brown. And we now come back to the elementary rule with which we started. It appears that there were infirmities in the title which the appellants got from Brown, or rather they got no title from him ; for there had never been a contract de facto which purported to pass the property from the owner to him. All that the appellants had, upon which they had a right to rely, was the fact of possession of 'the wheat by Brown, and the purchase of it by them, in accord- ance with the usual course of business on the Produce Exchange. We doubt not that the latter makes very easy and rapid the trans- action of an immense trade in the agricultural products of the coun- try; and that it would tend much to the security and confidence with which it could be done if the law of market overt could be ap- plied to it. But such is not the rule of this State in th^l sale of chattel prop- erty, and we may not declare it so to b^^The purchaser buys at his risk of the title, and if he would be safe, must make inquiry. He may not with certainty stop at the fact o^ possession, but must learn how the possession has been acquired// In every such case as this, the muniments of a real title are easy/to be produced. When the property is, in fact, in the carrier's hands, the bill of lading will show to whom alone he has the right to deliver it. And if the direc- tions of that document are relied upon, there cannot be much risk. A reHance upon it, and a prior inspection of it, may delay trans- actions, but they will protect all innocent and well-meaning parties and thwart seriously only those who mean to do wrong or are too 166 ISSUE OF DOCUMENT OF TITLE- — TRANSFER THEREOF (Ch. 2 reckless to try to do right./ The appellants were not protected by the fact of possession in Brown, because possession alone does not give the power to pass a valid titl^ Hence when they bought of him they got no greater right than he had in the wheat. This need not be amplified or enforced, for the appellants concede that possession alone is not such evidence of ownership, or authority to sell, as that third persons have a right, as against the true owner, to rely thereon. The appellants offered to prove on the trial an established course of business in the trade between Buffalo and New York in respect to transactions of the kind involved in this action. The court ex- cluded the evidence, and the appellants excepted. We think that there was no error in that. The manner in which this transaction was to be carried out was determined by the papers which were made between the parties to it. If that manner differed from the established course of business, then that course was overridden by them. If it agreed with them then evidence of it would neither make nor mar. The judgment appealed from should be affirmed. All concur ex- cept RapalIvO, J., not voting. Judgment affirmed.^" OGLE V. ATKINSON et al. (Court of Coiumon Tleas, 1S14. 5 Taunt. 750.) Trover for a quantity of hemp and ffax. The cause was tried be- fore Mansfield, C. J., at the sittings after Michaelmas term, 1813, and a verdict was found for the plaintiff, subject to a case. In 1809, the plaintiff consigned wines to Smidt & Co. at Riga, for sale on his ac- 3 8 See, also. Moors v. Kidden/106 N. Y. 32, 12 N. E. 818 (1887); Drexel v. Pease, l:^..", N. Y. 1211. .30 N. E.''7:!2 (181)2). In the latter case the court said (133 N. Y. 13(3, .30 N. E. 734): itAe stated in those eases, the doctrine is that where a commercial coi'resi)oilfflent advances his own money or credit for a principal for the purchase of property for such principal, and takes the bills i of lading in his own name, lookins to the property as security for reim- • bursement, such correspondent becomes the owner of the property, instead j of the pledgee, up to the moment \^hen the original principal shall pay the j purchase-price, and the correspondent occupies the position of an Fawner under a contract to sell and deliver when the purchase-price is paid. [ This I doctrine is stated in lloors v. Kidder, 106 N. Y. 32 [12 N. E. SlSl. and founded upon the cases cited by Pinch, J., In that case. Nothing therein Ifeivcs color to the idea that the correspondent's ownership is of that char- acter which would permit his exaction, even though agreed to by the prin- cipal, of a general lien upon the property for other and prior indebtedness I of the principal as against one in the situation of .St. Amant. The cor- respondent's position is one of ownership so far only as is necessary to se- cure him for the advances he made upon the merchandise described in the bill of lading, and in such a case as this he is bound to sell upon receipt of the purchase price from tlie principal, or in other words, upon receipt of the amount he advanced upon its credit. In no other sense is the cor- \ respondent the owner of the property." Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 167 count, and next year ordered them to purchase for him the hemp and flax in question. In April 1810, the plaintiff sent his own ship, the Bremen Packet, to receive the goods so ordered. On her arrival at Riga, the captain received from Smidt & Co. the goods in question, with others, on behalf of the plaintiff, and as the plaintiff's own goods, which Smidt & Co. stated to the captain that they were. These goods not fully loading the ship, Smidt & Co. procured other goods to be shipped on freight: the captain, by agreement with the plaintiff, (his owner,) was to have £15. per cent, primage upon the ship's homeward freight, to be estimated as well upon the plaintiff's own goods as upon those which were actually to pay freight, the rate of which last was £10. per ton, but Smidt & Co. required the captain to estimate the freight upon the goods received for the plaintiff at £8. per ton only. The captain objected to this distinction, but Smidt & Co. insisting, that his owner was entitled, that the freight upon the goods belonging to the plaintiff should not be estimated at the same rate which the other goods were to pay, at length the captain consented. Before the ship left Riga, Smidt & Co. wrote a letter, without date, to the plaintiff, apprizing him of having shipped the hemp and flax in question by the Bremen Packet, and stating that they inclosed the bills of lading and invoices of that shipment, for which they debited the plaintiff's ac- count, and requested that, being found right, the plaintiff would have them noted in conformity therewith. In that letter were inclosed for invoices, dated 18/30 June, expressing the flax to be shipped on board the Bremen Packet, for the account and risk of the plaintiff: and Smidt & Co., after enumerating all the charges on the cargo and ship, therein charged to the plaintiff a commission of two and a half per cent, on the amount of the goods and charges. In a letter of 15/27 June, they promised to furnish the plaintiff with the vouchers of the whole shipment; and in another, mentioned having before sent him the bill of lading and invoices of those shipments, performed on the plaintiff's account on board the Bremen Packet, and they annexed the duplicate of the vouchers. After the captain had received the goods, he was requested by Smidt & Co. to sign a bill of lading for them, de- liverable to or his order, for which he was to receive freight at the rates therein specified. The captain objected to sign the bills of lading with a blank for the name of the consignee, until Smidt & Co. assured him, that was of no consequence, as the goods were to be delivered to his owner, upon which he signed it. The first mentioned letter to the plaintiff, which contained the in- voices and bill of lading, was sent by Smidt & Co. to Lehr, their agent in this country, in a letter dated Riga, 4/16 June, wherein they stated, respecting the Bremen Packet, that they should make out Ogle's bills of lading to order, that in case of his not accepting the drafts, Ruckers might become possessors of the bills of lading ; and after stating the amount of the goods loaded for the plaintiff, and charges, and that there would be very little of the proceeds of his wines remaining at his 168 ISSUE OP DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 disposal, they added that they drew on him only i2500., which bills they remitted to Messrs. Ruckers. They conceived that sum to be the babnce due to them, which the plaintiff disputed. In a letter of 2/14 July, Smidt & Co. instructed Lehr to take the necessary measure, that in case Smidt & Co.'s drafts of £1300. and £1200. at three months, drawn on the 4/16 June, were not accepted, he should otherwise dis- pose of the bills of lading he had in hand, and let Messrs. Ruckers re- ceive the goods and dispose of them. Lehr, in pursuance of these instructions, called upon the plaintiff before the ship arrived, and de- livered to him the letter inclosing the four invoices, and stated that Smidt & Co. had drawn two bills upon him the one for £1200., the other for £1300., which were in the hands of Messrs. Ruckers, and re- quested the plaintiff would accept them : the plaintiff refused, and Lehr in consequence indorsed the bill of lading to Messrs. Ruckers. On the ship's arrival in England, before any of the goods had been de- livered to the plaintiff, Messrs. Ruckers claimed the goods as indorsees of the bill of lading, but the captain refused to deliver to them, and de- livered the goods to the plaintiff, who deposited them with the defend- ants as warehousekeepers on his account. He had since demanded them back from the defendants, and tendered them the amount of their charges, but they had refused to deliver them. There was no tender of any freight for the goods. Smidt & Co. were alien enemies at the time of the shipment and trial. The plaintiff had obtained a license from the crown to import these goods, upon which license Smidt & Co. had, before the ship left Riga, indorsed, that the goods were shipped on British account. If the plaintiff were not entitled to recover the value of the goods so deposited with the defendants, a nonsuit was to be entered. GiBBS, C. J. This is an action by Ogle against Atkinsons, into whose hands Ogle had delivered goods, brought for the purpose of re- covering from them the value of the goods, which they refuse to re- deliver, insisting that the property of the goods is in Smidt & Co., from whom they have had notice to detain them. There are two pre- Hminary points made by the plaintiff; first, that the defendants cannot refuse to deliver up the goods to the plaintiff from whom they received them ; but, if the property is in others, I think they may set up this defence. 2dly, it is said. Ogle has a lien for freight ; he might have had such a lien, but if he wrongfully gets the goods into his hands on a claim of property, he cannot afterwards set up a lien for freight. This brings us to the true question, which is, in whom the property is vested. It is true, that the goods might have been delivered aboard the ship on the terms on which the defendant contends they were de- livered: and if they had been, no doubt the plaintiff could not have obtained >the goods, without accepting the bills ; but were they so de- livered? Smidt & Co., in their letter to Ogle, never make mention of any bills ftJD be accepted by Ogle. No doubt, a delivery, on board this ship was^an absolute delivery to Ogle, unless qualified. /I Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 169 Does the case, therefore, state any such qualification ^vThe case states that the captain received them as the plaintiff's own goods, which means his own goods absolutely ; not with any qualification ; and Smidt & Co. represent them to th^ captain to be the goods of Ogle, and as such they are delivered// If Smidt & Co. had said, we deliver the goods to you, to be the goods of Ogle, if he accepts certain bills, the defence would avail ; but no such thing passes. I cannot an- nex to this delivery the qualification, that they are to be the plaintiff's own goods if he does certain things. The captain, then receives them as Ogle's absolutely. Is this state altered? The goods go on board: bills of lading are tendered to the captain to sign in blank : the captain objects. According to the defendant's argument, the answer should have been, I leave the bills in blank, because it is as yet uncertain to whom the bills may be deliverable, for that the cargo is to go to Ruck- er, unless the plaintiff accepts certain bills : but the answer given is, the blank in the bill is immaterial, for the goods are at all events to be delivered to your owner. If the blank was immaterial, it imported no alteration in the terms of the delivery ; if it was material, a fraud was practised on the captain, which cannot avail the consignors. I therefore thinl^;;!that the property of the goods entirely vested in the plaintiff, and Ifnat the subsequent acts of the consignors and their agents, cannot prevent him from recovering agamst the defendants : the judgment therefore must be for the plaintiffj^ Judgment for the plaintiff.*" BARBER v. MEYERSTEIN. (House of Lords, 1S70. L. R. 4 H, L. 317.) This was an, appeal, under the Common Law Procedure Act, 1854, against a decision of the Court of Exchequer Chamber, by which a previous decision of the Court of Common Pleas had been affirmed. Law Rep. 2 C. P. 38, 661. The facts were these : In August, 1864, De Souza & Co., of Ma- dras, shipped on board the Acastus 227 bales of cotton consigned for sale on commission to Azemar & Co., of London. There were three bills of lading making one set. They were in the usual form, except as to the last sentence, which concluded thus: "In witness whereof I, the said master of the said ship, have affirmed to three bills of lad- ing, all of this time and date, one of which being accomplished, the others to stand void." In August, 1864, the vessel sailed for London. De Souza & Co. drew bills of exchange against this cotton upon Aze- mar & Co. for £3000., £1000., £1000., £1000., to fall due between the 12th of January, 1865, and the 22d of March, 1865. These bills were duly accepted by Azemar & Co., and were then, with the three ■to Concurring opinions were delivered by Heath, Chambre, and Dallas, JJ. 170 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 bills of lading, deposited with the London branch of the Chartered Mercantile Bank of India. At the end of 1864, Azemar & Co. trans- ferred their business, including the consignment by the Acastus, to one Abraham, who had formerly been in their employment. The Acastus arrived in London on the 31st of January, 1865, and went into the St. Katherine's Docks. On the 2nd of February Abra- ham made an entry of the cargo at Cotton's Wharf (which is a pub- lic sufferance wharf) in the form given by one of the Customs Acts, the 16 & 17 Vict. c. 107, § 60. The Suft'erance Wharf Act, 11 & 12 Vict. c. xviii, contains (cl. 5) the following enactment, important for the consideration of this case, that "all goods which after the passing of this Act shall be landed at any of the public sufferance wharves aforesaid'' (of which Cotton's Wharf was one), "from, or out of, any ship within the port of Lon- don, and lodged in the custody of the wharfinger for the time being in the occupation of such wharf, either at such wharf or elsewhere, shall, when so landed, continue and be subject to the same lien or claim for freight in favour of the master and owner of the ship from or out of which such goods shall be landed, or of any other per- son interested in the freight of the same goods, as such goods were subject to whilst the same were on board such ship, and before the landing thereof : and the said wharfinger, his servants and agents, are hereby required, on due notice in writing in that behalf given by such master or owner or other person aforesaid to the said wharfinger, &c., to detain such goods in the warehouse of the said wharfinger, &c., until the freight to which the same shall be subject as aforesaid shall be dulyj)aid, together with the wharfage rent and other charges to which the same shall have become subject and liable." There were two "stops" lodged against this cotton from the Acastus, one by the Chartered Mercantile Bank of India, the other by the mas- ter for the freight. On the 9th of February Abraham instructed Bar- ber & Co., as brokers, to sell the cotton, and they obtained from him an order, in virtue of which they were allowed to take samples. On the 4th of March Abraham gave a cheque which covered the sums due to the Chartered Mercantile Bank, and thereupon the bank delivered up to him the three parts of the bill of lading, and so put an end to the "stop" which had been lodged on account of the bank. On the same day he deposited with Meyerstein (with whom he had other transactions) one of the three parts of the bill of lading for the cot- ton by the Acastus, together with the original consignment to Azemar & Co., and thereupon Meyerstein gave to Abraham a cheque for £2500., which was duly paid. Meyerstein asked for the second part of the bill of lading, and received it. He did not, however, ask for the third part, believing that the third part was retained by the cap- tain of the vessel. Barber & Co. were wholly ignorant of these transactions, and on Monday, the 6th of March, Mr. C. Barber advanced to Abraham, by Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THBRBOB' 171 cheque, £1500. on the cotton hy the Acastus, and on the next day, the 7th of March, made by cheque, a farther advance of £500. upon receiving the third of the set of bills of lading (which had been fraud- ulently kept by Abraham), and on being at the same time informed of the fact that the stop order for freight had been removed. On the 11th of March Meyerstein heard for the first time that the Barbers had been employed by Abraham to offer the cotton for sale. On that day they lodged their third copy of the bill of lading at the wharf. On the same day Meyerstein obtained from Abraham a letter ad- dressed to Messrs. Barber, requesting them to pay over to him "the surplus net proceeds of the undermentioned goods, after satisfying the advances you have made us (Abraham & Co.) upon the same." Among the goods thus mentioned was the cotton by the Acastus. Meyerstein, on receiving this note, struck his pen through this item, saying he did not want to have stolen goods transferred to him. He, however, forwarded the note to Messrs. Barber, and stated the fact of his making the advance of £2500., though the evidence left it doubtful whether he stated the exact date at which it had been made. On the same day Messrs. Barber wrote to Meyerstein : "We have this day received a letter from Messrs. Abraham & Co. requesting us to pay over to you the surplus net proceeds of 324 bales of cotton, as per memorandum at foot, which shall receive our attention in due course." This memorandum was a copy of that sent by Abraham, and the Acastus was struck out of it — the total number of bales in each case being only 324, while if those of the Acastus had been retained in the list there must have been 277 added to that number. On the 13th of March the Barbers obtained from the wharfingers at Cotton's Wharf delivery warrants made out in their own names for the 277 bales of cotton, which they sold to different purchasers, who received them under the warrants delivered by the Barbers to them. The Barbers claimed to satisfy themselves in the first instance for their advances out of the proceeds of the sales. Meyerstein, who insisted that his claim took precedence of theirs, thereon brought his action against Barber & Co. The declaration was in the form of money had and received, with a count for wrongful conversion. The Defendants pleaded, never indebted, not guilty, and that the goods never were the Plaintiff's. Issue was taken on all these pleas. At the trial, before Lord Chief Justice Erie, in June, 1866, he di- rected a verdict to be entered for the Plaintiff for the whole sum he claimed, reserving leave for the Defendants to move to enter a ver- dict for them. The rule was obtained, and was on argument, dis- charged. On appeal to the Exchequer Chamber, the judgment of the Court of Common Pleas was affirmed. This appeal was then brought. The Lord Chancellor (Lord HathiIrlEy). In this case the House is called upon to reverse unanimous judgments of the Court of Common Pleas and of the Court of Exchequer Chamber. The ef- fect of these judgments is this — to determine that, as to the Plaintiff, 172 ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF (Ch. 2 the indorsee for value of a bill of lading of goods which, at the time of its being indorsed to him, were landed at a sufferance wharf on the Thames, and were there subject to two stops put upon them (the one by the shipowner for freight, the other by certain mortgagees), the security so indorsed is available in preference to the claim of the Defendants, who, subsequently to such indorsement, obtained pos- session of the goods under the circumstances I am about to mention. A bill of lading was drawn up in a set of three, and after the in- dorsement of the first two of the three to the Plaintiff had taken place, the consignee of the goods fraudulently retained the third, and ob- tained advances from the Defendants on the security, in the first place, of this third, and proceeded after\\'ards to the wharf where the goods had been deposited, and after the production of this third bill of lad- ing obtained the removal of a stop which had been put upon the goods for freight. I should have before mentioned the previous removal on the part of the mortgagees (the directors of the Chartered Bank of India) of their stop in respect of their mortgage. Possession of the goods was, under those circumstances, obtained by the Defendants, the persons who, on receiving this third bill of lading thus fraudulently retained by the consignee, made to him an advance on the goods repre- sented by this bill of lading. The question has really turned upon one point, and I may almost say upon one point alone, namely, whether or not the bills of lading had fully performed their office, and were discharged and spent at the time that the Plaintiff took his security. Whether, in other words, the landing of those goods at the sufferance wharf in the name of the consignee, but subject to the stop which was put upon them by the shipowner, and the stop put upon them by the mortgagees, was, or was not, a delivery which had exhausted the whole effect of the bill of lading. That, I think, is the single point to which the case becomes reduced. It appears to me, my Lords, that there are one or two points of law which must be taken to be clearly established, although very able ef- forts, employed with considerable ingenuity and resource, have been directed to the shaking of those well-established points of law. I refer particularly to the very able argument we have heard from Mr. Grantham in this case with reference to the first step, if I may so call it, in the proceeding, namely, the fact of the first assignment for value of a bill of lading when the goods are not landed, but are still at sea. Now, if anything could be supposed to be settled in mercantile law, I apprehend it would be this, that when goods are at sea the parting with the bill of lading, be it one bill out of a set of three, or be it one bill alone, is parting with the ownership of the goods. Mr. Grantham has raised this argument upon the frame of the bill of lading itself, which I apprehend is in the common form where three bills are given. The form of the bill of lading to which he spe- cially referred, and upon which he .founded the argument I now ad- Sec: 8) issue of document of title — transfer thereof 173 vert to, in this, that the shipper undertakes to deHver these goods, the cotton, to the Souzas or order, or to their assigns, he or they paying the freight for the goods at the rate there mentioned ; and then, at the end of the document we have these words, "In witness whereof I, the master of the ship, have affirmed to three bills of lading, all of this tenor and date, one of which being accomplished the others to stand void." The argument has been this, that the bill of lading has not accom- plished its office until not only the goods are landed, but the freight is paid, and the whole matter which is the subject of the contract of the shipowner has been achieved; and that, accordingly, if that be law, it follows that if one bill of lading be assigned while the ship is at sea, and a second bill of lading be assigned to a second person, fraudulently, of course, and a third bill of lading be assigned to a third person, also fraudulently, of course, it becomes simply a matter of expedition and race between the several parties who have taken those different assignments of the bills of lading; because until the goods have actually been landed and fully delivered, each bill of lad- ing, according to the argument, is to be considered as of equal force until one of the bills has been, according to the argument, accom- plished. Now, I apprehend that it would shake the course of proceeding be- tween merchants, as sanctioned by decided cases (which the learned counsel admitted to have been decided, and never yet to have been altered or reversed), if we were to hold that the assignment of the bill of lading, the goods being at the time at sea, does not pass the whole and complete ownership of the goods, so that any person taking a subsequent bill of lading, be it the second or be it the third, must be content to submit to the loss which would result -from that state of facts. I apprehend that no decision can be found to the effect that any person taking an assignment of a bill of lading, knowing that others existed, is to be held to have been guilty of fraud simply from the fact of his so acting. No authority, at all events, has been cited for that proposition. And no authority has been cited at the Bar to shew that the transaction is not entire and complete when once the bill of lading has been assigned, as respects, at all events, goods in transitu, whether the assignment be by mortgage or by sale. If it were by sale other considerations would intervene which would give still greater efficacy to the assignment of the goods without delivery or possession. But when the vessel is at sea and the cargo has not yet arrived, the parting with the bill of lad- ing is parting with that which is the symbol of property, and which, for the purpose of conveying a right and interest in the property, is the property itself. It appears to me that to shake any conclusion of that kind would be entirely to annihilate the course of mercantile pro- cedure which has existed for a long period of time — far longer, prob- ably, than I can at this moment accurately state. 174 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 That being so, the Judges have reasonably assumed that proposition as a point of undeniable law. Then, if the property so passes when the goods are at sea, the whole question resolves itself into this : What is the effect of the assignment of the bill of lading under the circumstances of this case, when the goods were not at sea at the time when the interest was passed, but were at a sufferance wharf in the name and by the order of the consignee, Abraham, who represented the original consignees, the Souzas, subject to the stop-order in re- spect of freight, and subject to the stop-order given to the chartered bank. Now the circumstances are briefly these as to the dates : On the 4th of March, the goods being in the situation I have described, Abraham, the person who has been guilty of this fraud, not being then in pos- session of the bills of lading himself, inasmuch as all three were at that time in possession of the bankers, applies to the Plaintiff Meyer- stein for a loan ; he obtains money from Meyerstein ; he first draws a cheque to meet the claim at the bank, a cheque provided for by the moneys advanced to him by Meyerstein, and then he obtains the three bills of lading from the bank. And on the same 4th of March, having these three bills of lading for a few minutes or a few hours in his pos- session, he does nothing with them in the way of claiming possession of the goods ; he makes no use of them for that purpose, but he at once pledges two of these bills for value to Meyerstein. And that pledge being so completed, Meyerstein is in possession of these two bills with no other charge or claim whatever upon the goods they rep- resented except the claim for freight, the freight being still unsatisfied. The mortgage had been cleared off, and he had become the owner of the property by this transaction, and he remained the owner subject to the payment of the freight. Then afterwards, fraudulently, Abraham enters into farther deal- ings with his brokers. His brokers are aware that the goods have ar- rived. They obtain a partial order from Abraham, by which they are enabled to obtain a sample of the cotton in question ; but they de- cline in the first instance to make him any advance. He proposes to obtain an advance on the bill of lading simpliciter, which they decline to make. But they were afterwards induced to make the advances when they had seen the goods themselves at the wharf, and when steps had been taken by Abraham for procuring money to enable him to discharge the stop which existed upon the goods for the freight. The stop which existed in respect of the mortgage had been already dis- charged, and the property, therefore, became apparently at his disposal. The Defendants, being ignorant of the transaction with Meyerstein, on the Uth of March obtained possession of the goods, and on the same Uth of March Meyerstein, for the first time, discovers the fraud which has been perpetrated upon himself. When he wishes to obtain possession of the goods he finds that they have been removed. And hence, of course, a contest arises between the two parties. Sec. 8) ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF 175 Then in that state of things the question that arises is this: The goods, it is urged, were at home when Abraham was empowered by the Act of Parhament to give directions that the goods should be placed on the wharf as the goods of him, the consignee. But, how- ever, the question arises whether these goods could in truth be said then to be at home. It is said, at all events when for those few hours the three bills of lading were in possession of Abraham, and the goods were at home, as all the symbols of property were also in the hands of Abraham, therefore the symbol and the thing symbolised had be- come united, and that, in truth, the whole matter might be said to be disposed of. Now is it so? Can it be said that when for those few hours those documents were in the hands of Abraham, he had the control and proprietorship of the goods? Certainly when we first gave directions for their being warehoused in his name he was in no sense proprietor. He had neither the bills of lading, nor had he dis- charged the freight, nor had he in any other way put himself in a situation to entitle him to demand the goods. But now, having the bills of lading, supposing he had been minded to go down to the wharf to demand the goods, what would have hap- pened? He would have found a stop placed upon the goods for the freight. And what would have been his position? By virtue of the 5th clause of the particular local Act (11 & 12 Vict. c. xviii) referring to this subject, he would have found that he could not obtain any obedience to any delivery order which he might think proper to give, and that he could not obtain any warrant of delivery, because there had been placed upon the goods this stop for the freight. The Act expressly enacts that when a stoppage has been put at the right time, namely, before the issue of any warrant for delivery, or the acceptance of any order, then no wharfinger shall be authorized to issue any warrant, or to accept any order, for the delivery of any goods thus subject to a lien for freight. Accordingly, therefore, the goods would not have been delivered to him had he made use of those bills of lad- ing instead of delivering them over to Meyerstein, and in that sense, undoubtedly, the goods were not at home as far as he was concerned. Then, the first proposition of law being clear — that an indorsement of the bill of lading carries with it the property in the goods when the goods are at sea, the next proposition of law that we have to con- sider is this, laid down by all the Judges who have delivered their opinions in this case, and, as it appears to me, correctly laid down by them. It is stated by Mr. Justice Willes in his very elaborate judg- ment, in which he says : "I think the bill of lading remains in force at least so long as complete deHvery of possession of the goods has not been made to some person having a right to claim them under it." Mr. Justice Keating says, in the same way, that he considers that "there can be no complete delivery of goods under a bill of lading until they have come to the hands of some person who has a right to the posses- sion under it." And afterwards, in the Exchequer Chamber, Mr. 176 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 Baron Martin, putting the case on somewhat different grounds, says : "For many years past there have been two symbols of property in iOjOods imported ; the one the bill of lading, the other the wharfinger's certificate or warrant. Until the latter is issued by the wharfinger the former remains the only symbol of property in the goods. When, therefore, Abraham delivered the bill of lading to the Plaintiff on the 4th of March, 1865, as a security for the advance then made to him, such delivery amounted to a valid pledge of the goods, and the Plain- tiff thereby acquired a right to hold them as against Abraham and all persons claiming title thereto under him." The principle seems to be the same, according to the view which Mr. Baron Martin takes, which is this : There has been adopted, for the convenience of mankind, a mode of dealing with property the pos- session of which cannot be immediately delivered, namely, that of dealing with symbols of the property. In the case of goods which are at sea being transmitted from one country to another, you cannot de- liver actual possession of them, therefore the bill of lading is consid- ered to be a symbol of the goods, and its delivery to be a delivery of them. When they have arrived at the dock, until they are delivered to some person who has the right to hold them the bill of lading still remains the only symbol that can be dealt with by way of assignment, or mortgage, or otherwise. As soon as delivery is made, or a warrant for delivery has been issued, or an order for delivery accepted (which in law would be equivalent to delivery), then those symbols replace the symbol which before existed. Until that time bills of lading are effective representations of the ownership of the goods, and their force does not become extinguished until possession, or what is equiv- alent in law to possession, has been taken on the part of the person having a right to demand it. It appears to me that is the legal sense of the transaction. The shipowner contracts that he will deliver the goods on the payment of freight. He discharges his contract when he delivers the goods. But, unless he chooses to waive his rights, he is not bound so to deliver the goods, or to hand them over to the person who is the original con- signee to whom he has contracted to make the delivery, until all the conditions on which he contracted to deliver them are fulfilled. One of those conditions is, that the freight should be paid; and until the freight has been paid he is not bound to make the delivery. Mr. Justice Willes explains what is the effect of these various Acts of Parliament. These Acts of Parliament are not intended to deprive the shipowner of the right which he has to say that he will not part with the possession of the goods until freight is paid. Accordingly, the local Act first enacted that there should be a power on the part of the shipowner to relieve himself from the responsibility, which might be extremely inconvenient to all parties, of keeping the goods on board, when either the consignee was not ascertained, or when, if as- certained, there was some laches on his part in demanding the deliv- Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 177 ery of the goods. In such a case the shipowner, by depositing them in a warehouse, placed them in such a condition that if their owner could not be ascertained the goods should be considered as if they were still at sea, in the absolute possession of the master to all intents and purposes. But if the owner of the goods could be ascertained, and the only question was the question of freight, still the Act of Parlia- ment provided that the shipowner should be protected, that he should not be bound to hand over the goods absolutely, but that he should hand them over sub modo, with the full right of retaining his lien on the goods themselves, and with the right of preventing them being dealt with or removed until that lien should be satisfied. The legal effect of the proceeding is this, that the proprietor or con- signee may require the goods to be landed at a wharf, and to be ware- housed in his name, but subject to this condition, that the shipowner still retains his interest in the cargo until his charge for freight has been defrayed. If he gives notice of that charge prior to any act being done by which the ownership of the goods is changed, prior to the ac- ceptance of an order for delivery, and prior to the issue of a warrant for delivery, then the shipowner's lien holds and attaches itself to those goods, and the goods cannot be removed; the bills of lading cannot be considered as having been fully spent or exhausted, because there remains an important part of the contract unfulfilled on the part of the consignee, namely, payment of the freight in respect of which the contract was entered into. That seems to me to be the whole basis of the judgment at which the learned Judges arrived in the Courts below, and which, as I before stated, was their unanimous conclusion. But against it several objec- tions have been urged. It is said that a frightful amount of fraud may be perpetrated if persons are allowed to deal in this way with bills of lading drawn in sets, if you allow efficacy to be given to the first assignment of one of these bills, to the detriment of persons who may take, for value, subsequent assignments of the others. All that we can say is, that such has been the law hitherto, and that the conse- quences of the supposed evil, whatever they may be, have not been considered to be such as to counter-balance the great advantages and facilities afforded by the transfer of bills of lading. There is no au- thority or reason for holding that the person who first obtains the assignment of a bill of lading, and has given value for it, shall not acquire the legal ownership of the goods it represents. It seems to be required by the exigencies of mankind. It may be a satisfaction to be told by Mr. Justice Willes (though it is a matter upon which I put no reliance), that other nations concur with us in holding that (whatever inconveniences there may be attending it), the person who gets the first assignment for value is the person to be preferred. The reasoning of the learned Judges in this case establishes clearly these two propositions : First, that the holder of the first assignment WooDW. Sales — 12 178 ISSUE OF DOCUMENT OF TITLE TEANSFEE THEEEOF (Ch. 2 for value obtains a priority over those who obtain possession of the other bills. And, secondly (following the reasoning of Mr. Justice Willes), "The wharfinger under these circumstances was, at the low- est, the common agent for the shipowner and for the consignee or holder of the bill of lading — agent for the consignee or holder, upon his producing the bill of lading shewing that he was entitled to the goods, and upon his paying the freight, to transfer the goods into his name, and to deliver them to him, or give him a warrant for them — and agent for the shipowner to retain possession of the goods and to permit no one to exercise any control over them until the claim for freight had been satisfied. During this period, therefore, the bill of lading would not only, according to the usage, and for the satisfac- tion of the wharfinger that he was delivering to the right person, be a symbol of possession, and practically the key of the warehouse, but it would, so far at least as the shipowner was concerned, retain its full and complete operation as a bill of lading, there having been no complete delivery of possession of the goods." The other learned Judges take the same view ; and I apprehend that the correct view in substance is this — ^that this being the possession of the wharfinger, the bill of lading remains in force so long as complete delivery and pos- session has not been given to some person having the right to claim such delivery and possession. As to the argument founded on the possibility of fraud, I agree very much with one of the learned Judges, Mr. Justice Willes, who says, that as to any argument upon that subject, "all arguments founded upon the notion that the Court is to pronounce a judgment in this case which will protect those who deal with fraudulent people, are altogether beside the facts of this case, and foreign from transactions of this nature." I am afraid that the protection of parties against fraud is a matter of difficulty with which the Legislature must cope, as far as it can possibly do so, from time to time, when frauds of a serious character are practised; but the Courts of Law, which have to administer the law as it exists, cannot alter their course of proceed- ing because those who ought to do that which is right and just to their neighbours find means of defrauding them in spite of all the pro- tection which the law may have thrown around the innocent holders of property. Judicature has no power to interfere with the course of proceeding in such cases. It must be left to the Legislature alone. But, on the other hand, we should consider that our mercantile laws, which are founded on long usage, have been found to work well for the general convenience of those engaged in those large adventures which are familiar to the enterprise of this country, and that although occasional inconvenience may have been caused by the fraudulent be- havior of some parties, yet these laws have, upon the whole, been feh to operate beneficially. The principles which, as I have stated, form the foundation of the judgment in the present case are, that the parting with the symbol of Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 179 property the possession of which cannot be delivered is the parting with the property itself; and that persons who have not a complete ownership and possession of the property cannot be said to have such a title to that property as to divest the operation of the symbol to give a title to it, until something occurs which brings the symbol and the property itself into contact — and that for the purpose of so bringing the property and the symbol into contact, there must be a complete concurrence of title in the person who holds the symbol and the per- son who has the right to demand the property ; and until that happens the symbol, as in the present case, has not exhausted its office. I am, therefore, of opinion that the learned Judges have come to the right conclusion, and I have to move your Lordships to affirm the two decisions which are complained of in this appeal.*^ ANCHOR MILL CO. v. BURLINGTON, C. R. & N. RY. CO. (Supreme Court of Iowa, 1897. 102 Iowa, 262, 71 N. W. 255.) Prior to October 6, 1894, the Anchor Mill Company, of Cedar Rapids, Iowa, had contracted with the Lacey Grain Company of Sioux Falls, S. D., for the purchase of 4,000 bushels of wheat, which the latter company began shipping about September 1st, and on that day wrote to the plaintiff: "As cars of wheat are liable to arrive there ahead of draft, we inclose you an order on the agent to deliver you grain billed to us without presentation of bill of lading." The following is the order inclosed: "Sioux Falls, So. Dak., Sept. 1, 1894. Agent B., C. R. & N. Ry., Cedar Rapids, Iowa— Dear Sir: Please deliver all grain billed to us at Cedar Rapids, Iowa, to the Anchor Mill Co., without presentation of bill of lading. Yours, truly. The Lacey Grain Co." This order was filed with the agent of the defendant railroad company at Cedar Rapids, and the wheat, prior to that in controversy, delivered to the plaintiiif in pursuance thereof. The car load involved in this action arrived at Cedar Rapids Oc- tober 5, 1894, at 5:10 p. m., and was placed by the defendant on the side track on Fourth avenue. Hershey, an employe of the defendant, whose duty it was to look after the cars, found this car on such track at about 7 a. m., October 6, and reported it there to Fox, chief clerk of the local freight department of defendant, who notified the plaintiff before 9 a. m. that the car had been placed on the side track for it. All cars of wheat were placed there at the request of plaintiff, as the most convenient place for unloading. On the 10th of October the de- fendant received notice from the Sioux Falls National Bank that it held the bill of lading, and claimed the wheat, and thereupon notified *i Concurring opinions were delivered by Lords Chelmsford, Westbury, and Colonsay. 180 ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF (Ch. 2 the plaintiff not to take it. The plaintiff, however, took a part of the wheat, and defendant then removed the car back to its yards. Plaintiff thereupon began this action, claiming to be the owner thereof. The wheat was shipped from Trosky, Minn., to the Lacey Grain Company, consignee, October 2, 1894. The bill of lading was in the usual form, and on the back was indorsed : "Deliver to Anchor Mill Co. The Lacey Grain Co." During banking hours, October 6, 1894, and about 2 p. m., the Sioux Falls National Bank bought a draft of $325 of the Lacey Grain Company, and the latter transferred to said bank by delivery the bill of lading of this car load of wheat. The bank filed its petition of intervention, claiming the wheat under such bill of lading. After all the evidence was introduced, the court, on motion of intervener, directed the jury to return a verdict finding the Sioux Falls National Bank entitled to the possession of the prop- erty in controversy, and afterwards rendered judgment on such ver- dict. Plaintiff appeals. Reversed. Ladd, J.*^ The main question to be determined in this case is whether the car load of wheat had been delivere-d to the plaintiff_be- lor e tljejjllof_ lading ,was transferred la intervener. There is little or no conflict in the evidence. * * * We think the delivery of the car load of wheat to the Anchor Mill Company was made before 9 a. m., October 6, 1894; and, hav- ing paid therefor, it became the absolute owner of the wheat so de- livered before the purchase of the bill of lading by the intervener. 2. It is insisted by appellee that the wheat could only be delivered by transfer of the bill of lading. Garden Grove Bank v. Humeston & S. Ry. Co., 67 Iowa, 533, 25 N. W. 761, is relied on. That the bill of lading represents the property while being transported, and its assignment operates as a symbolical delivery thereof, cannot be doubted. Weyand v. Railway Co., 75 Iowa, 579, 39 N. W. 899, 1 L. R. A. 650, 9 Am. St. Rep. 504; Ayres, Weatherwax & Reed Co. V. Dorsey Produce Co., 101 Iowa, 141, 70 N. W. Ill, 63 Am. St. Rep. 376. The bill of lading, however, is not a negotiable instrument, and its transfer carries with it only such interest in the property as the assignor might transfer by actual delivery. Certainly, the assign- ment of the bill of lading is not more effective in transferring title than manual change of possession. The intervener obtained no better title to the wheat than the Lacey Grain Company had when it parted with the bill of lading. Haas v. Railroad Co., 81 Ga. 792, 7 S. E. 629; Tison v. Howard, 57 Ga. 410; Shaw v. Railroad Co., 101 U. S. 557, 25 L. Ed. 892. Prior to that time the railroad company had fully performed its duties as common carrier by delivering the wheat to the plaintiff in pursuance of the order of the consignee and the indorsement on the back of such bill. T he title to the wheat had passed to the plaintiff^ who had 42 Part of the opinion is omitted. Sec. 8) ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF 181 .llrea^ paid for it. — 31i£-JHlLof. jading had se rved the _Burposes jof its existence , and was n o longer a thing.xLl value. Such a rule on ly xeamre s tEJt the purchaser of a bill of lading knowl heTitle JOLthe prop erty of the person jromjwho m he b uys. This is the general rule, and we know ot no reason for making an exception in favor of one claiming possession by constructive instead of actual delivery of prop- erty. It follows that the district c3^^ed in directing a verdict in favor of the intervener, and its judgment must be reversed. SHAW V. NORTH PENNSYI.VANIA R. CO. (Supreme Court of the United States, 1879. 101 U. S. 557, 25 L. Ed. 892.) Error to the Circuit Court of the United States for the Eastern District of Pennsylvania. This is an action of replevin brought by the Merchants' National Bank of St. Louis, Missouri, against Shaw & Esrey, of Philadelphia, Pennsylvania, to recover possesion of certain cotton, marked "W D I." One hundred and forty-one bales thereof having been taken posses- sion of by the marshal were returned to the defendants upon their entering into the proper bond//On November 11, 1874, Norvell & Co., of St. Louis, sold to th^ank their draft for $11,947.43 on M. Kuhn & Brother, of Philadelphia, and, as collateral security for the payment . thereof indorsed in blank and delivered to the bank an original bill of lading for one hundred and seventy bales of cotton that day shipped to the last-named city. The duplicate bill of lading was on the same day forwarded to Kuhn & Brother by Norvell & Co. The Merchants' Bank forwarded the draft, with the bill of lading thereto attached, to the Bank of North America. On Novem- ber 14, the last-named bank sent the draft — the original bill .of lading still being attached thereto — to Kuhn & Brother by its messenger for acceptance. The messenger presented the draft and bill to one of the members of that firm, who accepted the former, but, without be- ing detected, substituted the duplicate for the original bill of lading. On the day upon which this transaction occurred, Kuhn & Brother indorsed the original bill of lading to Miller & Brother, and received thereon an advance of $8,500. Within a few days afterwards, the cotton, or rather that portion of it which is in controversy, was, through the agency of a broker, sold by sample with the approval of Kuhn & Brother to the defendants, who were manufacturers at Chester, Pennsylvania. The bill of lading, having been deposited on the same day with the North Pennsylvania Railroad Company, at whose depot the cotton was expected to arrive, it was on its arrival delivered to the defendants. 182 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 The fact that the Bank of North America held the duplicate in- stead of the original bill of lading was discovered for the first time on the 9th of December, by the president of the plaintiff, who had gone to Philadelphia in consequence of the failure of Kuhn & Brother and the protest of the draft. The defendants below contended that the bill of lading was ne- gotiable in the ordinary sense of that word ; that Miller & Brother had purchased it for value in the usual course of business, and that they thereby had acquired a valid title to the cotton, which was not impaired by proof that Kuhn & Brother had fraudulently got posses- sion of the bill; but the court left it to the jury to determine — 1st, Whether there was any negligence of the plaintiff or its agents in parting with possession of the bill of lading. 2d, Whether Miller & Brother knew any fact or facts from which they had reason to believe that the bill of lading was held to secure payment of an outstanding draft. The jury having found the first question in the negative and the second in the affirmative, further found "the value of the goods eloigned" to be $7,015.97, assessed the plaintiff's damages at that sum with costs, for which amount the court entered a judgment. Shaw & Esrey thereupon sued out this writ of error. The remaining facts are stated in the opinion of the court. Mr. JuSTics Strong." The defendants below, now plaintiffs in error, bought the cotton from Miller & Brother by sample, through a cotton broker. No bill of lading or other written evidence of title in their vendors was exhibited to them. Hence, they can have no other or better title than their vendors had. The inquiry, therefore, is, what title had ]\Iiller & Brother as against the bank, which confessedly was the owner, and which is still the owner, unless it has lost its ownership by the fraudulent act of Kuhn & Brother. The cotton was represented by the bill of lading given to Norvell & Co., at St. Louis, and by them indorsed to the bank, to secure the payment of an accompanying discounted time- draft. That indorsement vested in the bank the title to the cotton, as well as to the contract. While it there continued, and during the transit of the cotton from St. Louis to Philadelphia, the indorsed bill of lading was stolen by one of the firm of Kuhn & Brother, and by them indorsed over to Miller & Brother, for an advance of $8,500. The jury has found, however, that there was no negligence of the bank, or of its agents, in parting with possession of the bill of lad- ing, and that Miller & Brother knew facts from which they had rea- son to believe it was held to secure the payment of an outstanding draft ; in order words, that Kuhn & Brother were not the lawful own- ers of it, and had no right to dispose of it. It is therefore to be determined whether Miller & Brother, by *3 Part of the opinion Is omitted. Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 183 taking the bill of lading from Kuhn & Brother under these circum- stances, acquired thereby a good title to the cotton as against the bank. In considering this question, it does not appear to us necessary to inquire whether the effect of the bill of lading in the hands of Miller & Brother is to be determined by the law of Missouri, where the bill was given, or by the law of Pennsylvania, where the cotton was de- livered. The statutes of both states enact that bills of lading shall be negotiable by indorsement and delivery. The statute of Penn- sylvania declares simply, they "shall be negotiable and may be trans- ferred by indorsement and delivery;" while that of Missouri enacts that "they shall be negotiable by written indorsement thereon and de- livery, in the same manner as bills of exchange and promissory notes." There is no material difference between these provisions. Both statutes prescribe the manner of negotiation; i. e., by indorse- ment and delivery. Neither undertakes to define the effect of such a transfer. We must, therefore, look outside of the statutes to learn what they mean by declaring such instruments negotiable. What is negotiabil- ity? It is a technical term derived from the usage of merchants and bankers, in transferring, primarily, bills of exchange and, afterwards, promissory notes. At common law no contract was assignable, so as to give to an assignee a right to enforce it by suit in his own name. To this rule bills of exchange and promissory notes, payable to order or bearer, have been admitted exceptions, made such by the adoption of the law merchant. They may be transferred by indorsement and delivery, and such a transfer is called negotiation. It is a mercantile business transaction, and the capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes negotiability. The term "negotiable" ex- presses, at least primarily, this mode and effect of a transfer. In regard to bills and notes, certain other consequences generally, though not always, follow. Such as a liability of the indorser, if de- mand be duly made of the acceptor or maker, and seasonable notice of his default be given. So if the indorsement be made for value to a bona fide holder, before the maturity of the bill or note, in due course of business, the maker or acceptor cannot set up against the indorsee any defence which might have been set up against the payee, had the bill or note remained in his hands. So, also, if a note or bill of exchange be indorsed in blank, if pay- able to order, or if it be payable to bearer, and therefore negotiable by delivery alone, and then be lost or stolen, a bona fide purchaser for value paid acquires title to it, even as against the true owner. This is an exception from the ordinary rule respecting personal prop- erty. But none of these consequences are necessary attendants or constituents of negotiability, or negotiation. That may exist without them. A bill or note past due is negotiable, if it be payable to order. 184 ISSUE OF DOCUMENT OF TITLE TBANSFEB THEREOF (Ch. 2 or bearer, but its indorsement or delivery does not cut off the de- fences of the maker or acceptor against it, nor create such a contract as results from an indorsement before maturity, and it does not give to the purchaser of a lost or stolen bill the rights of the real owner. It does not necessarily follow, therefore, that because a statute has made bills of lading negotiable by indorsement and delivery, all these consequences of an indorsement and delivery of bills and notes before maturity ensue or are intended to result from such negotia- tion. Bills of exchange and promissory notes are exceptional in their character. They are representatives of money, circulating in the commercial world as evidence of money, "of which any person in law- ful possession may avail himself to pay debts or make purchases or make remittances of money from one country to another, or to re- mote places in the same country. Hence, as said by Story, J., it has become a general rule of the commercial world to hold bills of exchange, as in some sort, sacred' instruments in favor of bona fide holders for a valuable consideration without notice." Without such a holding they could not perform their peculiar functions. It is for this reason it is held that if a bill or note, indorsed in blank or pay- able to bearer, be lost or stolen, and be purchased from the finder or thief, without any knowledge of want of ownership in the vendor, the bona fide purchaser may hold it against the true owner. He may hold it though he took it negligently, and when there were suspicious circumstances attending the transfer. Nothing short of actual or constructive notice that the instrument is not the property of the person who offers to sell it ; that is, nothing short of mala fides will defeat his right. The rule is the same as that which protects the bona fide indorser of a bill or note purchased for value from the true owner. The purchaser is not bound to look be- yond the instrument. Goodman v. Harvey, 4 Ad. & E. 870 ; Goodman V. Simonds, 20 How. 343, 15 L. Ed. 934; Murray v. Lardner, 2 Wall, no, 17 E. Ed. 857; Matthews v. Poythress, 4 Ga. 287. The rule was first applied to the case of a lost bank-note (Miller v. Race, 1 Burr. 452), and put upon the ground that the interests of trade, the usual course of business, and the fact that bank-notes pass from hand to hand as coin, require it. It was subsequently held applicable to merchants' drafts, and in Peacock v. Rhodes (2 Doug. 633), to bills and notes, as coming within the same reason. The reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, used for transmission of money, or for the payment of debts or for pur- chases. It does not pass from hand to hand as bank-notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it,— a representative of those goods. But if the goods themselves be lost or stolen, no sale Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 185 of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost them, or from whom they were stolen. Why then should the sale of the symbol or mere representative of the goods have such an effect? It may be that the true owner by his negligence or carelessness may have put it in the power of a finder or thief to occupy ostensibly the position of a true owner, and his carelessness may estop him from asserting his right against a purchaser who has been misled to his hurt by that carelessness. But the present is no such case. It is established by the verdict of the jury that the bank did not lose its possession of the bill of lading negligently. There is no estoppel, therefore, against the bank's right. Bills of lading are regarded as so much cotton, grain, iron, or oth- er articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in com- merce, a very different thing from bills of exchange and promissory notes, answering a different purpose and performing different func- , tions. It cannot be, therefore, that the statute which made them ! negotiable by indorsement and delivery, or negotiable in the same man- ner as bills of exchange and promissory notes are negotiable, intend- ed to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usual- ly attend or follow the negotiation of bills and notes. Some of these consequences would be very strange if not impossible. Such as the liability of indorsers, the duty of demand ad diem, notice of non- delivery by the carrier, &c., or the loss of the owner's property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement. No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any in- novation upon the common law which it does not fairly express. Es- pecially is so great an innovation as would be placing bills of lading on the same footing in all respects with bills of exchange not to be inferred from words that can be fully satisfied without it. The law has most carefully protected the ownership of personal property, other than money, against misappropriation by others than the own- er, even when it is out of his possession. This protection would be largely withdrawn if the misappropriation of its symbol or represen- tative could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the per- son from whom he took the property had no right to it. We think, therefore, that the rule asserted in Goodman v. Harvey, Goodman v. Simonds, Murray v. Lardner (supra), and in Phelan v. Moss, 67 Pa. 59, 5 Am. Rep. 402, is not applicable to a stolen bill of lading. At least the purchaser of such a bill, with reason to believe 186 ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF (Ch. 2 that his vendor was not the owner of the bill, or that it was held to secure the payment of an outstanding draft, is not a bona fide pur- chaser, and he is not entitled to hold the merchandise covered by the bill against its true owner. In the present case there was more than mere negligence on the part of Miller & Brother, more than mere reason for suspicion. There was reason to believe Kuhn & Brother had no right to negotiate the bilb/This falls very little, if any, short of knowledge. It may fairly be assumed that one who has reason to believe a fact exists, knows it exists. Certainly, if he be a reasonable being. * * * Judgment affirmed. STOLLENWERCK et al. v. THACHER et al. (Supreme Judicial Court of JIassacliusetts, 1874. 115 Mass. 224.) Gray, C. J. This is an action of tort for the conversion of a num- ber of bales of cotton. A verdict has been ordered for the plaintiffs, and the case reserved for the determination of the full court upon a report containing an abstract of the evidence given at the trial, and a number of letters and documents. But the facts material to the deci- sion, assuming all the controverted ones to be according to the testi- mony introduced by the defendants, are not many ; and a brief state- ment of them will tend greatly to narrow the discussion of the prin- ciples of law by which the case is governed. The plaintiiTs, being buyers of cotton in Mobile, made an arrange- ment with Joseph I. Baker, a cotton broker in Boston, by which they agree to pay him, upon such orders on them as he should obtain from his customers here, fifty cents a bale, out of their own commission of one and a half per cent., furnish him with types of their classification of cotton, and keep him advised at their own expense of the condition of the cotton market in Mobile ; he agreed to procure and transmit the orders, and inform his customers of their acceptance or rejection; and the invoices were to be sent by the plaintiffs to, and the drafts for the price drawn upon, the customers, and the bills of lading attached to the drafts. In pursuance of an order given him by Gorham Gray & Company, Baker telegraphed to the plaintiffs to buy for them two hundred bales of cotton. The plaintiffs replied, refusing to negotiate on any other basis than that the bill of lading should be attached to the draft. They bought the cotton in Mobile, drew a bill of exchange on Gray & Com- pany against the cotton, took the bill of lading in their own name, in- dorsed it in blank, attached it to the bill of exchange, procured the latter to be discounted at a bank in Mobile, informed Baker of what they had done, and instructed him, on receiving the draft and bill of lading, to hold the bill of lading until the draft was paid. Baker by Sec. 8) ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF 187 telegram and letter assented to all this. The invoice sent by the plain- tiffs to Gray & Company showed that the cotton was consigned to the plaintiff's order. The Mobile Bank transmitted the draft, with the bill of lading attached, to a bank in Boston, which presented the draft to Gray & Company for acceptance. Upon such presentment. Gray & Company asked for the bill of lad- ing, and were told that Baker was to receive it. Gray & Company then accepted the draft, the bank delivered the bill of lading to Baker, and he afterwards delivered it to Gray & Company, who obtained the cotton from the carriers, gave them a check for the amount of the freight from Mobile to Boston, and pledged the cotton and delivered the bill of lading to the defendants as security for the payment of ad- vances on the cotton. Gray testified that he accepted the draft upon 'Baker's assurance that he would hand him the bill of lading as soon as it came to Baker's possession, that Baker shortly afterwards deliv- ered to him the bill of lading unconditionally, and that he transferred the cotton to the defendants believing that he owned it; and his tes- timony though contradicted by Baker's, must be assumed to be true for the purpose of deciding whether a verdict was rightly ordered for the plaintiffs. Baker and the plaintiffs were not partners as between themselves, and Gray & Company did not deal with Baker as a partner of the plaintiffs. His relation to the plaintiffs was that of a broker only. He looked to them, and not to the cotton, for the payment of his commis- sion. The case is not within Gen. Sts. c. 54. Gen. Sts. c. 54, § 2, pro- vide that "every factor or other agent intrusted with the possession of merchandise, or a bill of lading consigning merchandise to him, for the purpose of sale, shall be deemed to be the true owner thereof so far as to give validity to any bona fide contract made by him with any other person for the sale of the whole or any part of such merchan- dise." Baker was not a factor, or a general agent intrusted with the goods for the purpose of sale; but a special agent, with positive and re- stricted instructions to receive the bill of lading on the acceptance of the draft, hold the bill of lading and the cotton until the draft was paid, and then deliver them to Gray & Company. He had no right of possession of the bill of lading or the cotton for any other purpose, and no title in or lien on the cotton. This is not a case of stoppage in transitu. Gray & Company were not named in the bill of lading as consignees of the cotton, and the plaintiffs have never been divested of their property in the cotton as against Gray & Company or any persons claiming under them. The numerous cases cited at the bar differ in their circumstances rather than in the statement of principles. A bill of lading, even when in terms running to order or assigns, is not negotiable, like a bill of 188 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 exchange, but a symbol or representative of the goods themselves ; and the rights arising out of the transfer of a bill of lading correspond, not to those arising out of the indorsement of a negotiable promise for the payment of money, but to those arising out of a delivery of the property itself under similar circumstances. If the bill of lading is once assigned or indorsed generally by the original holder, upon or with a view to a sale of the property, any eubsequent transfer thereof to a bona fide purchaser may indeed give him a good title as against the original owner. But so long as the bill of lading remains in the hands of the original party, or of an agent intrusted with it for a spe- cial purpose, and not authorized to sell or pledge the goods, a person who gets possession of it without the authority of the owner, although with the assent of the agent, acquires no title as against the principal. National Bank of Green Bay v. Dearborn, 115 Mass. 219, 15 Am. Rep. 92; Gurney v. Behrend, 3 E. & B. 622, 632; Pease v. Gloahec, L. R. 1 P. C. 219, 228. In the present case, Baker, being a special agent authorized to de- liver the bill of lading only upon payment of the bill of exchange drawn against the goods and attached to the bill of lading, could not bind his principals by a delivery made without such payment. To hold otherwise would be to allow a person, intrusted with goods merely for the purpose of collecting the price and then delivering them, to sell them on credit. The authority of Baker, being special and limited, could not be enlarged by his own declarations. Alussey v. Beecher, 3 Cush. 511. It follows that Gray & Company, not having paid the draft, nor ac- quired possession of the bill of lading with the plaintiffs' consent, had no property in the goods, and could convey none to the defendants, so as to defeat the plaintiffs' title. The plaintiffs are therefore entitled to recover. This is not an action in the nature of assumpsit for the proceeds of a sale of the property, in which the plaintiffs might be deemed to have waived any tort, and be obliged to submit to a deduction of the ex- penses of the sale by which such proceeds had been obtained. It is an action in the nature of trover for the conversion of the goods, in which the plaintiffs are entitled to recover their market value at the time of the conversion by the defendants, and are not obliged to allow a com- mission to Gray & Company for doing an act which is not shown to have been for the interest or according to the intent of the plaintiffs Bartlett v. Bramhall, 3 Gray, 257. But the amount paid by Gray & Company to discharge the lien which the carriers had against the plaintiffs for the freight on the cot- ton enured to the benefit of the plaintiffs, and should be deducted from the market value of the goods. Adams v. O'Connor, 100 Mass 515 1 Am. Rep. 137; Whitney v. Beckford, 105 Mass. 267. That amount must therefore, unless the parties agree upon it, be ascertained by an Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 189 assessor, pursuant to the terms of the report, the verdict amended ac- cordingly, and Judgment rendered thereon for t!:e plaintiffs. POLLARD V. REARDON. REARDON v.. POLLARD. (Circuit Court of Appeals of the United States, 1895. 65 Fed. 848, 13 C. C. A. 171.) Appeals from the Circuit Court of the United States for the Dis- trict of Massachusetts. This was a suit by Reuben T. Pollard and others against Leverett Saltonstall, collector of the port of Boston, and Edmund Reardon, for the foreclosure of a chattel mortgage and an injunction. The cir- cuit court rendered a decree for complainants. 56 Fed. 861. De- fendant Reardon and complainants separately appealed from the de- cree. In August, 1888, one N. B. Mansfield made a bill of sale to Pol- lard, Pettus & Co., of New York, of a quantity of hides then on the coast of Africa, and loaded, or about to be loaded, on a vessel for shipment to said Mansfield. The bill of sale was given as security for the renewal of a note of Mansfield's for $10,500, held by Pollard, Pettus & Co. In October, 1888, in consideration of the indorsement by one Edmund Reardon of a note for $8,000, Mansfield gave to Reardon a memorandum of sale of the hides, agreeing to deliver the bill of lading when received. In November, 1888, the bill of lading was received by Mansfield, and by him indorsed and delivered to Reardon. The note indorsed by Reardon was once renewed, and before the arrival of the hides the renewal note was protested, and paid by Reardon. On the 8th of April, 1889, the vessel carrying the hides arrived, and on the 16th of April a permit was issued to Rear- don by the collector of customs to land the hides. April 17th, Pollard, Pettus & Co. demanded the hides from the collector, and immediately afterwards brought this suit to foreclose the chattel mortgage evi- denced by their bill of sale, and to enjoin the delivery of the hides to Reardon. At the time of the institution of the suit there remained due on the note of Mansfield to Pollard, Pettus & Co. $3,334.30, but they claimed that the hides were conveyed to them as security also for a balance due to them from Mansfield on general account. The court found in their favor as to the balance due on the note only, and this they assigned as error. Before Putnam, Circuit Judge, and Nelson and Webb, District Judges. 190 ISSUE OP DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 Putnam, Circuit Judge. The effect to be given to the negotiation of the bill of lading in this case does not seem to have been brought to the attention of the circuit court as it has been to ours. Bills of lading are not negotiable instruments in the full sense that promissory notes are, yet they are justly styled negotiable. Among the reasons for this are that they are well-recognized commercial instruments, that when indorsed in blank they carry title by mere delivery from hand to hand, and that the community gives credit in reliance on what appears on the face of them. Pollard v. Vinton, 105 U. S. 7, 8, 26 L. Ed. 998; Friedlander v. Railway Co., 130 U. S. 416, 424, 9 Sup. Ct. 570, 32 L. Ed. 991; Pease v. Gloahec, L. R. 1 P C 219, 227; 4 Daniel, Neg. Inst. (4th Ed.) § 1727. They have become by custom and necessity peculiarly subject to the rules stated by Lord Herschell in Bank v. Simmons, [1892] App. Cas. 201, 215, as follows: "The general rule of the law is that, where a person has obtained the prop-| erty of another from one who is dealing with it without the authority of the true owner, no title is acquired as against that owner, even though full value be given, and the property be taken in the belief that an unquestionable title thereto is being obtained, unless the person taking it can show that the true owner has so acted as to mislead him into the belief that the person dealing with the property had authority to do so. If this can be shown, a good title is acquired by personal estoppel against the true owner." The peculiar form and phraseology of ordinary bills of lading, and the generally known reliance placed upon them and credit given them in commercial communities, render the principles of these expressions especially applicable to them ; and common honesty, in the light of modern business and financial methods, throws a special burden on those who put them out. It is true, as said by the supreme court in the cases cited, that they are as so much cotton, grain, or corn, and that, as no sale of such articles, when lost or stolen, can divest owner- ship, the same is true as to sales of their lost or stolen symbols. In mere cases of theft or loss this is a clear rule ; yet when there is no theft or loss, but a voluntary intrusting to an agent or other person, though for a special purpose, with no notice on the face of a limited right, the fact is then to be considered that there is an ostensible au- thorization found in the word "assigns," appearing in the usual bill of lading, and in the one at bar, which is neither found nor implied in a mere change or delivery or possession of the articles of which bills of lading are the symbols. The same may be said of a bill of lading which has been indorsed in blank; as, by analogy to other commercial instruments of a negotiable character, such an indorse- ment apparently authorizes the holder to fill up the blank at his op- tion. The apphcation of the rules of estoppel to bills of lading like this at bar, appearing on their faces to be transferable in the li^ht of the Sec. 8) ISSUE OF DOCUMENT OP TITLE — TRANSFER THEREOF 191 views and expressions which we have cited, would seem to be in harmony with legal principles. Nevertheless, the state of the authori- ties on this topic is not satisfactory. It must be admitted that the or- dinary deposit of title papers does not enable the person holding them to make a title to personal property beyond what he himself possesses. The cases on this point are numerous. A marked one is Johnson v. Credit Lyonnais Co. (decided in 1877) 3 C. P. Div. 32, which touched the negotiability of certain dock warrants. Chief Justice Cockburn delivered the opinion, and said (page 40) that, at common law, the leaving in the vendor the possession of goods bought, or of the docu- ments of title, would not estop the vendee in case of a fraudulent sale or pledge by the party with whom the goods or documents were left. It is evident, however, that, as the chief justice concurred in Rumball v. Bank, 2 Q. B. Div. 194, he had in view only the ordinary principle touching such matters, which may be distinguished from cases involv- ing bills of lading negotiable in form. Numerous cases may be found where it has been held that a fac- tor who holds a bill of lading for sale cannot pledge; but in such cases either it appeared that there were grounds for charging the pledgee with knowledge of the factorship, or the decisions were made before the modern development of the doctrine of estoppel, or without giving it full consideration. The later English text-books, while laying down in general terms the proposition that a bill of lading is not nego- tiable in the full sense in which promissory notes are, do not seem to have come to the precise question upon which we must pass. Carv. Carr. by Sea (2d Ed. ; published in 1892) p. 490, lays down the ordi- nary rule that possession of the bill of lading is only equivalent to that of the goods themselves ; but the precise proposition in question here is not considered. The same may be said as to Benj. Sales (6th Ed.; published in 1892) p. 845. Scrutt. Charter Parties (3d Ed.; published in 1893) is no more definite; although on page 157 the au- thor says that "the lawful holder of a bill of lading, in whom the property in the goods is vested, may, by indorsement, transfer a right greater than he himself has, for he transfers his position under the contract evidenced in the bill of lading." Bank v. Henderson, L. R. 5 P C. 501, is directly in point in favor of Reardon, if the transaction did in fact raise a trust attaching to the bill of lading, as the court assumed it did. Sir Barnes Peacock cites with apparent approval (page 512) from the judgment in Rodger v. The Comptoir d'Escompte de Paris, E. R. 2 P. C. 393, the following : "The general rule, so clearly stated and explained by Lord St. Leon- ards, is that the assignee of any security stands in the same position as the assignor as to the equities arising upon it. This, as a general rule, was not disputed ; but it was contended that the case of a bill of lad- ing is exceptional, and must be dealt with on special grounds. Doubt- less the holder of an indorsed bill of lading may, in the course of com- 192 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 mercial dealing, transfer a greater right than he himself has. The exception is founded on the negotiable quality of the document. It is confined to the case where the person who transfers the right is him- self in actual and authorized possession of the document, and the transferee gives value on the faith of it, without having notice of any circumstance which would render the transaction neither fair nor honest." Xone of the decisions of the supreme court is in point. In some of them the rule is recognized — so frequently stated — that a factor who holds a bill of lading for sale cannot pledge, but we do not find that that court has ever said that advances made to a factor holding a clean bill of lading by one not chargeable with knowledge of the factorship will not be protected. In Conard v. Insurance Co., 1 Pet. 386, the following appears on page 445 (7 L. Ed. 189): "By the well-settled principles of commercial law the consignee is thus con- stituted the authorized agent of the owner, whoever he may be, to receive the goods ; and by his indorsements of the bill of lading to a bona fide purchaser for a valuable consideration, without notice of any adverse interest, the latter becomes, as against the world, the owner of the goods. This is the result of the principle that bills of lading are transferable by indorsement, and thus may pass the prop- erty. It matters not whether the consignee in such case be the buy- er of the goods or the factor or agent of the owner. His transfer, in such a case, is equally capable of divesting the property of the owner and vesting it in the indorsee of the bill of lading. And, strictly speaking, no person but such consignee can, by an indorsement of the bill of lading, pass the legal title to the goods." It is true that these expressions were not strictly in point. Nevertheless, they must be accepted as the unreserved opinion of the great jurist, Judge Story, who uttered them. It may be claimed that the various factors acts, now law in several states and in England, constitute, by implication, legislative declara- tions that the holder of a bill of lading cannot vest a title better than his own. But these acts relate to a multitude of matters. It must be admitted that legislation was desirable to remove doubts, and set- tle the law touching questions of the class under discussion; and many statutes, modern as well as ancient, have, after all, been found to be only declaratory of the common law. The transactions in issue in this case related to merchandise on the coast of Africa, about to be shipped on the high seas, and were between residents of Massachusetts and residents of New York. They were, therefore, not directly con- trolled by legislation all of which is local, nor can this court be of ne- cessity indirectly governed by any implications arising therefrom. On the whole, the legal principles applicable seem clear, and, if the case involves any obscurity, we think it is because those principles have not been freely stated or applied. In the developments of com- Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 193 merce and commercial credits the bill of lading has come to repre- sent the property, but with greater facility of negotiation, transfer, and delivery than the property itself. It is a negotiable instrument, even though not in the same sense as promissory notes or bills of ex- change. It carries on its face, in the words "and assigns," an au- thority to dispose of it, and, as we have seen, a like authority when indorsed in blank, by which the person who voluntarily puts it out, or permits it to be put out, ought to be estopped. And it has become so universal and necessary a factor in mercantile credits that the law should make good what the bill of lading thus holds out. There is every reason found in the law of equitable estoppel and in sound pub- 'lic policy for holding, and no injustice is involved in holding, that, if one of two must suffer, it should be he who voluntarily puts out of his hands an assignable bill of lading, rather than he who innocently advances value thereon. When Pollard, Pettus & Co. accepted from Mansfield a bill of sale of the hides in question, they knew that in the regular course of busi- ness a clean bill of lading for them would issue to him, clothing him with the customary indicia of absolute ownership. They took the chances arising from this. They must stand as though they assented to it, and they can claim no right against any one who dealt with Mansfield in good faith relying upon it. Their presumed assent to the issue of the bill of lading to Mansfield is emphasized by their laches in applying for it. Whatever may be the nature of their right, it cannot prevail against Reardon's title under the bill of lading. The law of stoppage in transitu admits the right of the purchaser of the cargo to stop it at any intermediate point, and transfer it by an actual delivery of it. Where the delivery is of the bill of lading, the point settled is that it is of the same effect as an actual delivery of the cargo. Therefore cases touching stoppage in transitu are con- sidered to relate rather to the question of the effect of the negotiation of the bill of lading than to that of the apparent authority of the per- son holding it. There is no question touching Reardon's bona fides. That his ad- vances constituted a present consideration for value is sustained by Leask v. Scott, 2 Q. B. Div. 376. This case seems to be now regard- ed in England as settled law. When Reardon first made his advances he did it with a stipulation that the bill of lading should be delivered to him as soon as it arrived. Consequently the delivery of it to him on arrival, in connection with the prior stipulation, constituted in equity but one transaction. Moreover, while Mansfield was still ap- parently solvent, Reardon renewed his advances on the strength of it. A question of jurisdiction has been suggested. It is, we think, without force. At the time the complainants below demanded the goods from the collector they had not .in fact been delivered from his custody. Therefore, under the provisions of section 934 of the Re- WooDW. Sales — 13 194 ISWfE OF DOCI'MEXT OF TITLE TRANSFEU THEREOF (Ch. 2 vised Statutes (U. S. Comp. St. 1901, p. 689) they were irreplevia- ble, although subject to the orders and decrees of the courts of the United States having appropriate jurisdiction. There was no form of action at common law which would give complainants possession of them. A bill in equity was the only, and therefore an appropriate, method of proceeding therefor. The bill in this case does not pray relief by the way of redeeming from Reardon, but merely demands possession of the goods, on the ground that the claim of Pollard, Pettus & Co., the complainants be- low, is prior to that of Reardon. Inasmuch as we find that Reardon has a prior claim, and a prior right of possession, no relief can be granted under this bill. Since it was filed, a stipulation was entered into between the parties in interest, by virtue of which the goods were delivered to Reardon without prejudice to the controversy involved in this suit. Therefore no further relief is asked for against the collector, and, on our conclusions, the complainants below were never entitled to any relief against him. By reason of the stipulation the collector had no occasion to take any share in this appeal, nor has he done so. He is therefore not entitled to any costs in this court. He, however, made a several defense in the circuit court, and properly did so. The decree of the circuit court is reversed, and the case remanded to that court, with directions to enter a decree dismissing the bill, with full several costs in that court for Saltonstall, and with full sev- eral costs in this court and in that court for Reardon. COMMERCIAL BANK v. J. K. ARMSBY CO. (Supremp Court of Georgia, 1904. 120 Ga. 74, 47 8. E. .5S0. 65 L. R. A. 44:;.) CandlBR, J. The J. K. Armsby Company, an Illinois corporation, shipped to ^\''alton & Carr, their brokers in Augusta, a quantity of salmon for distribution to different parties to whom the goods had been sold. \\'alton & Carr were merely agents of the Armsby Com- pany, and had no right or title to the salmon. The goods were ship- ped from a point in Oregon, by parties from whom they had been ordered by the Armsby Company, on a through bill of lading to Au- gusta, and were consigned to the order of the consignor, with direc- tions to notify Walton & Carr. The Armsby Company sent Wal- ton & Carr a check for the amount of the freight, which was paid, and it also mailed them the original bill of lading, which was indorsed blank. Carr, a member of the firm of Walton & Carr, took the bill of lading to the Commercial Bank of Augusta, and hypothecated it for a loan of money. Shortly thereafter Walton & Carr failed, and Sec. 8) ISSUE OF DOCUMENT OP TITLE TRANSFER THEREOF 195 the bank converted the sahiion for the payment of its debt, where- upon the Armsby Company brought against it the present suit, which was an action of trover. The case was tried before the judge of the city court of Richmond county, without a jury. The banlv showed that it was the general custom of trade in Au- gusta that bills of lading "to order notify" were attached to drafts for the purchase price of the goods represented by them, that pos- session of the bill of lading could only be obtained by payment of the draft, that possession of such a bill of lading was considered prima facie evidence of ownership of the property for which it was issued, and that it was treated by banks as negotiable paper. It was also shown that the J. K. Armsby Company had done business in August for a number of years, and that, while Walton & Carr were mer- chandise brokers, they also bought and sold goods on their own ac- count. It was admitted that neither the bank nor any of its officials knew or had reason to suspect that Carr had no right to convey the salmon, and that, in the event the bank should be held liable, the proper amount to be recovered was $700. The judge found in favor of the plaintiff, and rendered judgment in its favor for the amount mentioned. The defendant excepted. "Where an owner has given to another such evidence "of the right of selling his goods, as, according to the custom of trade or the common understanding of the world, usually accompanies the au- thority of disposal, or has given the external indicia of the right of disposing of his property, a sale to an innocent purchaser divests the true owner's title." Civ. Code, § 3539. The sole question for our determination, then, is, does a bill of lading of the character of the one involved in this suit constitute such an external indicium of the right of disposing of the property for which it was issued as to bring the case within the operation of the rule laid down in the Code section cited? As a general rule, the transferee of a bill of lading can obtain no better title to the goods which it covers than that which was in the person by whom it was transferred. Indeed, it is a self-evident proposition that no man can convey that which he does not possess. But the true owner of property may, by placing it in the power of another to defraud innocent purchasers by an apparently valid trans- fer of the property, cut himself off from claiming it, and thereby divest the title from himself. In 4 Am. & Eng. Enc. E. (2d Ed.) 551, it is said that an important exception to the general rule which has already been stated "arises in the case of the transfer of a bill of lading to a bona fide purchaser for value by a consignee to whom the goods are by the terms of the instrument made deliverable, or to whom the consignor and original owner of the goods has indorsed and delivered the bill. It seems to be established that in this case the transfer defeats the vendor's right of stoppage in transitu, and 196 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 passes the title to the goods to the bona fide transferee." See, also, 6 Cyc. 424; 1 Mechem, Sales, § 166; Pollard v. Reardan, 65 Fed. 848, 13 C. C. A. 171. While a bill of lading is not in the full sense a negotiable instru- ment, it is treated by universal commercial usage as a symbol of the goods for which it is issued, and consequently it is in a measure negotiable. In Georgia it may be pledged as security for debt (Civ. Code 1895, § 2956), and a bona fide assignee for value is protected in his title against the owner's right of stoppage in transitu (Civ. Code 1895, § 3553). In American Nat. Bank v. Georgia R. Co., 96 Ga. 665, 23 S. E. 898, 51 Am. St. Rep. 155, the status of bills of lading under our law is discussed with considerable fullness; and, while the decision in that case is not directly in point on the ques- tion involved in the case at bar, the reasoning of Mr. Chief Justice Simmons has an important bearing thereon. The following language from the opinion of Mr. Justice Miller in the case of McNeil v. Hill, Woolw. 96, Fed. Cas. No. 8,914, is there quoted with approval : "As civilization has advanced and commerce extended, new and artificial modes of doing business have superseded the exchanges by barter and otherwise which prevail while society is in its earlier and sim- pler stages. ' The invention of the bill of exchange is a familiar illustration of this fact. A more modern, but still not recent, in- vention of like character, for the transfer, without the cumbersome and often impossible operations of actual delivery, of articles of per- sonal property, is the indorsement or assignment of bills of lading and warehouse receipts. Instruments of this kind are sui generis. From long use and trade they' have come to have among commercial men a well understood meaning, and the indorsement or assignment of them as absolutely transfers the general property of the goods and chattels therein named as would a bill of sale." In this case there was no dispute as to the general custom of trade in regard to bills of lading of the character of the one negotiated by Carr with the Commercial Bank. It was the daily practice of banks in Augusta and elsewhere to advance money on such security, for possession of the bill of lading was regarded as prima facie evidence of the title of the holder to the goods of which the bill was the symbol. Ordinarily bills of lading of this kind are attached to drafts for the purchase prjce of the goods, and can only be obtained by payment of the drafts. t.Carr's possession of the bill of lading wasi therefore prima facie evidence that he had paid a draft drawn by | the consignor, and was entitled to the property. The departure of the Armsby Company from this custom placed it in the power of Carr to commit a fraud on the bank, an opportunity of which he seems to have promptly availed himself. Applying the well-known rule that, where one of two innocent persons must suffer from the wrong of another, the burden should be borne by him who placed Sec. 8) ISSUE OF DOCUMENT OF TITLE — TRANSFER THEREOF 197 it in the power of the wrongdoer to perpetrate the fraud, we fail to see how it can be held that the plaintiff can recover. The Georgia cases cited by counsel for the defendant in error do not, in our opinion, conflict with what is here laid down. The case of Tison V. Howard, 57 Ga. 410, which is more nearly in point than any of the other cases cited, is easily distinguishable from the case at bar. There the owner of the goods received from the transporta- tion company duplicate bills of lading, both of which he indorsed in blank; sending the original to his factor, and depositing the du- plicate in a bank for safe-keeping, and for no other purpose^ The bailee bank indorsed the duplicate bill of lading, and secured from the factor an amount of money in excess of the value of the goods. The court held, in effect, that a bill of lading is not, in the full sense, a negotiable instrument, and that, the deposit of the bill with the bank being purely a bailment for safe-keeping, the virtual theft of it by the banker did not deprive the true owner of the goods of his title. In the case now under consideration no such state of facts is made to appear. The Armsby Company forwarded to Walton & Carr a bill of lading, the possession of which, under the universal custom of business, gave a prima facie right to the disposal of the goods for which it was issued. The purpose for which the instrument was confided to Walton & Carr does not definitely appear from the record, but there is nothing to indicate that it was merely intrusted to them for safe-keeping. There was nothing to put the bank on notice that title to the property was in any one other than the holder of the bill of lading. A fraud was committed by Carr, by means of which he obtained from the bank a large sum of money. To say nothing of the provisions of section 3539 of the Civil Code of 1895, the plainest principles of equity require that the Armsby Company, which made the commission of the fraud possible, and not the bank, should bear the loss. Judgment reversed. All the Justices concur, except Lamar, J., dis- qualified." 44 By section 31 of the proposed Bills of Lading Act, which was apijroved by the Commissioners on I'niform State Laws in 1909, it is provided that "a negotiable bill may be negotiated by any person in possession of the same however such possession may have been acqiiired, if, by the terms of the bill, the carrier undertakes to deliver the goods to the order of such person, or If at the time of negotiation the bill is in such form that it may be negotiated by delivery." Compare 'Sales Act, § 32. And see article by Professor Bur- dick, "A Revival of Codification," 10 Columbia Law Rev. 118, 124. 198 ISSUE OF DOCUMICXT OF TITLE — TRANSFER THEREOF (Ch. 2 MOORE V. LOUISIANA NAT. BANK. (Supreme Court of Louisiana, ls!»L!. 44 La. Anu. 09, 10 South. 40T, 32 Am. St. Rep. :j:;i.'.) Breaux, J. This is an action by plaintiffs, a firm in Philadelphia, against the defendant, to recover the value of 50 barrels of whisky, sold by them to Oppenheimer & Co. The latter directed the plaintiffs to draw on them, payable in New Orleans, at one day's sight, for the purchase price. The whisky was in a bonded warehouse, for which plaintiffs held certificates. They drew on the purchasers, and attached their warehouse receipts, indorsed by them, to the bill, which was handed to the First National Bank of Philadelphia, which sent it, with the receipts, to the defendant for collection. The letter was brief, and did not notify the collecting agents to retain the receipts on acceptance of the draft. In compliance with usage, the draft was left with the drawees for examination. It was returned by them with their acceptance, and they retained the warehouse receipts. The ac- ceptors sold these receipts. The draft was returned by the collecting agent to the Philadelphia bank, unpaid. Plaintiffs allege that the illegal delivery of the warehouse certifi- cates by the defendant enabled the drawees to perpetrate a fraud upon their rights. Testimony was admitted for the purpose of proving the local usage and custom of collecting banks in matter of retaining or delivering, after the acceptance, of drafts, bills of lading, or ware- house certificates attached. Two of the witnesses, cashiers, testified that it is the custom of business houses to surrender all evidences of ownership annexed to the draft, immediately after its acceptance, tm- less instruction is given not to deliver them before its pa}"ment. Three ■other witnesses, also cashiers, testify that their respective banks would not deliver the warehouse certificates or bills of lading attached, on the acceptance of the draft, unless so instructed by the part)- by whom sent. The sale had been agreed upon. The remaining conditions to per- fect it were the acceptance of the draft by the drawee, and the trans- fer of the thing sold into the possession of the buyer. The seller is bound to deliver the thing which he sells, whether sold for cash or on credit; in case of non-delivery, the seller is liable to damages if any be thereby occasioned. The term given for payment will not re- lease the vendor from his obligation, unless since the sale the buyer has become a bankrupt, or is in a state of insolvency. The insolvenc)' of the drawees, at the time of the acceptance of the drafts, is not an issue of the case. The allegation and the proof do not raise that question. It is the duty of the collecting agent, immediate!)- after receiving a bill for collection, to take the steps necessary to its prompt acceptance, ai-id, if the instrument be not accepted, he must Sec. 8) ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF 199 take the necessary step to fix the Habihty of the drawee. If he fails, he becomes liable. In order to obtain the acceptance of the drawee, should he decline, unless there are conditions to the contrary, of which he is advised, he must deliver the warehouse receipts attached. If he retains them, he fails to make the delivery of the property the seller is bound to make. He retains the property without any instructions from the seller. Without delivery of the property, the drawee's acceptance would be without consideration, and his draft would be placed in commerce without his having received anything. The acceptance of the draft makes the drawee the principal debtor. As this draft was made payable one day after sight, with the three days of grace, it was demandable, as to its payment, in four days. It was not a cash sale; the records do not disclose that the contract implied a sale for cash. Plaintiffs' counsel argues as if it was an unavoidable inference, that should have controlled the action of the defendant. The general pur- pose of the law of negotiable paper and the good of commerce require exactness and certainty. The contract is well defined. It must be executed promptly and accurately. A sale on credit will not give rise to the presumption of any intended cash sale. The restricted indorsement is relied upon by plaintiffs. The in- dorsement "for collection" does not pass the title or the right to the proceeds of the paper, but it makes the indorsee or collecting agent the trustee of the holder, and as such he cannot be rendered liable if he complies with an agreement made manifest by the contract. From Tiedman on Commercial Paper (page 494) we copy: "But where the bill of exchange is payable in the future, in absence of special agree- ment, the bill of lading is to be delivered to the vendee upon his ac- ceptance of the bill of exchange according to its tenor, and the holder cannot insist upon holding it until the bill of exchange is paid. The drawee of the bill of exchange may refuse to accept, unless the bill of lading is surrendered to him." It was held in National Bank v. Merchants' Bank, 91 U. S. 92, 23 L. Ed. 208, — an analogous case, — that, in the absence of instructions, the plaintiff in error was justifiable in having surrendered the bill of lading annexed to the bill of acceptance. It is difficult to con- ceive of any other meaning of the bill. We abbreviate from that opinion: If the drawee had given a promissory note for the goods, payable at the expiration of the stipulated credit, it is clear that the vendor could not retain possession of the property, after receiving the note for the price. The consideration of the sale is the note. The acceptor of a bill of exchange stands in the same position as the maker of a promissory note. If he is denied possession until payment, the transaction ceases to be what it was intended, and is converted into a cash sale. The purchaser of property on credit has a right to imme- 200 ISSUE OF DOCUMENT OF TITLE TRANSFER THEREOF (Ch. 2 diate possession, unless there be a special agreement that it shall be retained by the vendor. Such an agreement is not to be presumed-^ The collecting agent has no right to assume that the vendee's term of credit expires before he has the goods, and require him to accept the vendor's draft, and only upon his engagement to deliver at a fu- ture time. With reference to the authority of the agent, who was intrusted (as was the agent in the case at bar) with a draft "for collection," the court holds that the instruction means simply to rebut the infer- ence from the indorsement that the agent is the owner of the draft; that the instructions were to collect the money; and, if the drawee is not bound to accept without surrender, it is the duty of the agent to make the surrender. "The drafts were all time drafts." One was drawn at sight ; but in Massachusetts, says the court, such drafts are entitled to grace, and in consequence the court classes it as a "time draft." In Lanfear v. Blossman, 1 La. Ann. 148, 45 Am. Dec. 76, it was decided that the holder of a bill of exchange cannot, in the absence of proof of any local usage to the contrary, or of the imminent in- solvency of the drawee, require the latter to accept the bill of ex- change, and he, as holder, retain the bill of lading attached. This decision is favorably commented upon by Justice Strong, the organ of the court, in the case to which we have just referred. It is pleaded that plaintiffs' claim is sustained by the local custom of merchants, and testimony was heard in support of the plea. The I principle upon which such evidence is to be considered is that the parties meant, when they sent the draft, to let the collecting bank fol- ' low the local custom and usage, and that, therefore, instructions were unnecessary. It is not proven that plaintiffs knew of any such local usage and custom, nor is it at all manifest that there is any local custom as contended by plaintiffs. / Analysis of the testimony leads to the conclusion that it is not /customary to retain warehouse receipts and bills of lading attached to I time drafts, after acceptance. The individual instances proven do not ' have the force of custom. They are not the result of acts repeated, "which have acquired the force of a tacit and common consent." Civil Code, art. 3. It is not the settled custom. If it were, it would be inconsistent with jurisprudence established by a number of trust- worthy decisions which exclude such a custom. The judgment appealed from is affirmed, at plaintiffs' costs.*' ■•= See McArthur Co. v. Old Second Nat. Bank, 122 Mich. 223, 81 N. W. 92 (i«)r)i. Sec. 9} EFFECT OF SALE BY BAILEE OR FACTOR 201 SECTION 9.— EFFECT OF SALE BY BAILEE OR FACTOR WILKINSON V.' KING. (Nisi Prlus, 1809. 2 Camp. 335.) Trover for a quantity of lead. The plaintiff had sent the lead in question to the wharf of one Ellil in the Borough of Southwark, there to remain till it should be sold. Ellil was accustomed to sell lead from this wharf ; but had no author- ity whatever to sell the lead in question, and never had sold any for the plaintiff before. However, he sold this lead to the defendants, who bought it bona fide as his property, and paid him for it by a bill of exchange. Garrow contended that this sale had taken place in market overt,, and had transferred the property in the lead to the defendants. The spot where the transfer was made was in the Borough of Southwark, which must be considered a part of the metropolis; and it was laid down in the books on this subject, that in London, every shop in which goods are publicly exposed to sale, is market overt for such things as the owner professes to trade in, and that though in the country, market overt is only on the special days when the market is held by charter or prescription, yet in London every day, except Sun- day, is market day. Therefore, this lead having been sold to the de- fendants by Ellil at his wharf, where he dealt in lead, became their property, and the plaintiff must seek his remedy against Ellil, whom he had enabled to commit the fraud, out of which the action arose. But Lord Ellenborough held, that the sale by Ellil did not change the property in the lead, and observed, that the doctrine contended for would give wharfingers the dominion over all the goods intrusted to them; but that a wharf could not be considered, even in London, as a market overt for the articles brought there. Ellil had no colour of authority to sell the lead, and no one could derive a good title to it under such a tortious conversion. Verdict for the plaintiff. PICKERING v. BUSK et al. (Court of King's Bench, 1812. 15 East, 38.) Trover for hemp. At the trial, before Lord Ellenborough, C. J., at the sittings after Trinity term in London, it appeared that Swal- low, a broker in London, engaged in the hemp trade, had purchased for the plaintiff, a merchant at Hull, a parcel of hemp then lying at Symonds's wharf in Southwark. The hemp was delivered to Swal- 202 EFFECT OF SALE BY BAILEE OR FACTOR (Ch. 2 low, at the desire of the plaintiff, by a transfer in the books of the wharfinger from the name of the seller to that of Swallow. Shortly afterwards. Swallow purchased for the plaintiff another parcel of hemp, lying at Brown's quay, Wapping, which latter parcel was trans- ferred into the names of Pickering (the plaintiff) or Swallow. Both these parcels of hemp were duly paid for by the plaintiff. Swallow, however, whilst the hemp remained thus in his name, having con- tracted with Hayward & Co. as the broker of Blackburn & Co. for the sale of hemp, and having none of his own to deliver, transferred into the names of Hayward & Co. the above parcels in satisfaction of that contract, for which they paid him the value. Hayward & Co. shortly after became bankrupts ; and the plaintiff, discovering these circumstances, demanded the hemp of the defendants, their assignees, and upon their refusal to deliver it, the present action was brought. His lordship was of opinion upon fliis evidence, that the transfer of the hemp, by direction of the plaintiff, into Swallow's name, au- thorized him to deal with it as owner, with respect to third persons ; and that the plaintiff, who had thus enabled him to assume the appear- ance of ownership to the world, must abide the consequence of his own act. A verdict was thereupon found for the defendants, with liberty to the plaintiff to move to set it aside. Lord Eliea*a4icelQriownership in Wmself, and so of an authority to sell, which would deceiv"e~and''defraud a fair purchaser if the law permitted the validity of the salTto be questioned. Sec. 9) EFFECT OP SALE BY BAILEE OR FACTOR 211 The plaintiff's counsel undertakes to avoid the application of this just and wholesome rule by saying that the taking of the bill of sale by Mason in his own name _ was not the p laintiff's act; and this i s true^ Mason bought the horse for the plaintiff, and paid for it with the plaintiff's money. Why he concealed the fact of his agency from Hubbard and why he took a bill of sale in his own name instead of that of his principal, does not appear; but inasmuch as this was all contrary to the truth of the transaction, it is fair to presume that it was part of the scheme of fraud which he then had it in his mind to perpetrate. So far there was certainly no act of the plaintiff, and nothing to prevent the application of the general rule, which Chancellor Kent says is a maxim alike of the civil and common law, that "nemo plus juris ad alium transferre potest quam ipse habet." 2 Kent's Com. 324. But the report states, that after the purchase "Mason informed the plaintiff that he had made the purchase, and showed him the bill of sale, and told him he could give him a bill of sale, and that would make it all right, but did not do so; and it was then ar- ranged that Mason should bring the horse to the plaintiff on the following Monday, this being on Saturday; and it was further ar- ranged that Mason, after he had brought the horse to the plain- tiff, should take him and keep him, and drive him to better break him," &c. What was the meaning of this talk about Mason giv- ing the plaintiff a bill of sale of his own horse? Why did he not hand over the bill of sale he took from Hubbard? True, it is not expressly stated by the referee that the plaintiff assented to this proposal of Mason, which if it had been carried out would have left Mason with the highest evidence of ownership still in his possession. But the inference is irresistible that he did assent to it, at least so far as to permit Mason to go away with Hubbard's bill of sale, hav- ing the horse still in his possession. Why did not the plaintiff take from his agent either the bill of sale or the horse? Counsel say he could not do it, perhaps, with- out a breach of the peace. Did he make the effort? That does not appear. Suppose he had demanded the bill of sale, and his agent had refused to give it up to him, would he have suspected then that there was anything unusual or wrong in Mason's conduct? If Ma- son had refused, upon demand, to give up either the horse or this evidence of title in himself, what was there to hinder the plamtiff from taking the animal upon a writ of replevin in the detinet, under our present statute? A refusal by Mason to hand over both the horse and the bill of sale upon demand, would amount to a conver- sion in law, and would in fact be evidence of the most conclusive character that he intended to appropriate the animal to his own use, regardless of the plaintiff's rights. Even if the plaintiff's suspicions were not aroused by the extraor- dinary circumstance that Mason had taken the bill of sale in his 212 EFFECT OF SALE BY BAILEE OE FACTOE (Ch. 2 own name, a demand of this sort would either have disarmed his agent of the power to deceive and defraud innocent purchasers, or would have developed a purpose to appropriate the property, which would call for immediate action by the plaintifif to secure himself, as against the rapacity of a thief. Why did the plaintiff suffer Mason to go away with the bill of sale and the horse both in his hands? No answer to this question appears in the case, and no answer at all sufficient to my mind has been suggested in the argument. That act of the plaintiff was, as it seems to me, little if at all less signifi- cant than if he had himself executed a bill of sale of the horse, and delivered it to Mason along with the animal. At any rate, I see no just reason why, so far as regards the rights of an innocent pur- chaser, it should not be followe.d by the same legal consequences. At the argument Mr. Carpenter put this supposed case: A., hav- ing sold his horse to B., delivers the animal, together with a bill of sale running to B., to his servant or agent, to be carried to the ven- dee. But the servant on the way, finding a customer for the horse, produces the bill of sale, represents himself to be the person there named as purchaser, and sells the horse to an innocent third person. Of course there could be no question of the right of the owner to recover his property, under that state of facts, against such inno- cent purchaser. The cases covering this point are numerous, of which Saltus v. Everett, 20 Wend. (N. Y.) 267, 32 Am. Dec. 541, is a good example. In that case it was held that the purchaser of part of a cargo of a vessel was not protected against the claims of the real owner, although the purchase was made under a bill of lading, regular and fair, on its face — it appearing on the trial of the cause that the master of the vessel, in which the goods were originally shipped, had fraudulently, at an intermediate port, trans- shipped the goods into another vessel, and procured a bill of lading in his own name, which he transferred to his agents, the vendors. If the plaintiff had not been informed of the fact that Mason had taken a bill of sale of the horse in his own name, and with that knowledge permitted him to go forth clothed with all the indicia of ownership, and so completely armed for the commission of a fraud, the case supposed in argument, and that class of cases of which Saltus v. Everett has been referred to as the type, might have ap- plication. As it is, I think they do not apply at all. I regard this act, or omission, if it should be called an omission, of the plaintiff as decisive of the case, and I am therefore of opinion that there should be judgment on the report for the defendant. Exceptions sustained.^" *9 See, also, O'Connor v. Clark, 170 Pa. 31S, 32 Atl. 1029, 29 L. R. A. 607 Sec. 9) EFFECT OF SALE BY BAILEE OK FACTOB 213 WARNER V. MARTIN. (Supreme Court of the I'nited States, 1850. 11 How. 209, 13 h. Ed. 667.) WaynB, J.^o We state such circumstances in this case as may be necessary for the appHcation of our opinion to other cases of a Hke kind. Martin & Franklin were manufacturers of tobacco in Richmond, Virginia. They were in the habit of shipping the article to Charles Esenwein in New York, as their agent and factor. In April, 1841, they made the first shipment upon a new account to Esenwein, and at intervals during the summer made other consignments to him. It was their practice to draw upon Esenwein, payable in four months, for an estimated portion of the proceeds of sale ; among other drafts were the following: 1841, May 27, at four months, due Sept. 30, for $800. " June 12, " " " Oct. 15, " 700. " July 3, " " " Nov. 6, " 300. " July 29, " " " Dec. 2, " 850. These drafts were not paid by Esenwein. The consignments dur- ing the period when the drafts were drawn were 162 half, and 160 whole boxes of tobacco. Esenwein 's entry of the consignment is: "Statement of tobacco received by Charles Esenwein & Co. from Messrs. Martin & Franklin of Richmond, Virginia, to sell for their account." The business relation between them in this transaction was that of principal and factor, unaffected by any particular instructions from the principals, or by any right or power acquired by the factor, beyond his general commission to sell the tobacco, according to the usages of trade in the place to which it had been sent for sale. In August, 1841, Esenwein became embarrassed and sailed for Europe. He left his business under the management of his clerk, Engelbert Caprano. On the 3d of September, Esenwein failed. Among his creditors was John A. Warner of Philadelphia. A short time before the failure, Mr. Warner, between whom and Esenwein there had been much previous dealing, went to New York. He then obtained from Caprano, the clerk, from the store of Esenwein, a quantity of tobacco, cigars, and other merchandise. The proof in the case is, that the tobacco was a part of the consignments which had been made within the dates before mentioned by Martin & Frank- lin to Esenwein. Warner says, in his answer to the bill of the complainant, that the same was purchased by him for a full consideration and price, in like manner as he had frequently purchased from Esenwein; and that »o Part of tbe opinion is omitted. 214 EFFECT OF SALE BY BAILEE OR FACTOR (Ch. 2 he did not know that the tobacco belonged to Martin & Frankhn. But he admits, "the insolvency of Esenwein was believed." In his amended answer he says, he purchased the tobacco bona fide, in man- ner as had been before stated by him. That it was paid for after the purchase, by his paying and adjusting $30,000 of his own notes, which he had loaned to Esenwein, by his paying and redeeming them. Subsequently, in three days after Esenwein's failure, Heald, Wood- ward & Co. of Philadelphia, bought from Warner 258 boxes of to- bacco, known as Martin's tobacco. The proof in the case is, that it was a part of that which Warner had obtained from Esenwein's clerk, which had been consigned to Esenwein by IMartin & Franklin, as al- ready stated. They aver, and there is no reason or cause to doubt it, that they purchased from Warner fairly, and for full value ; that they had no knowledge whatever at the time, that the tobacco or any part of it belonged to the complainants ; nor had they any reason to believe or know it. Their contract, however, with Warner, was rescinded in part. They received from him only 124 boxes, instead of the 258 which had been sold to them. * * * The exact questions raised by the record are, whether or not the transfer of the tobacco to Warner divested the plaintiff's ownership of it; and whether or not Warner's sale of a part of it to Heald, Woodward & Co., for a full consideration, without any knowledge upon their part of the plaintiff's interest when they bought from Warner, gave to them a property in it. * * •' On either of the grounds already mentioned, the plaintiff would be entitled to recover from the defendants in this case. But there is a third, which shall be stated in connection with other points respecting principals and factors, which it will not be out of place to notice. A factor or agent who has power to sell the produce of his principal, has no power to affect the property by tortiously pledging it as a security or satisfaction for a debt of his own, and it is of no conse- quence that the pledgee is ignorant of the factor's not being the owner. Paterson v. Tash, Str. 1178; Maanss v. Henderson, 1 East, 337; Newsom v. Thornton, 6 East, 17; 2 Smith, 207; McCombie v. Davies, 6 East, 538 ; 7 East, 5 ; Daubigny v. Duval, 5 T. R. 604 ; 1 Maule & Selw. 140, 147; 2 Stark. 539; Guichard v. r^Iorgan, 4 Moore, 36; 2 Brod. & Bing. 639; 2 Ves. Jr. 213. When goods are so pledged or disposed of, the principal may re- cover them back by an action of trover against the pawnee, without tendering to the factor what may be due to him, and without any tender to the pawnee of the sum for which the goods \vere pledged, Daubigny v. Duval, 5 T. R. 604; or without any demand of such goods, 6 East, 538; 12 Mod. 514; and it is no excuse that the pawnee was wholly ignorant that he who held the goods held them as a mere agent or factor, Martini v. Coles, 1 Maule & Selw. 140, unless, indeed, where the principal has held forth the agent as the principal, 6 Maule Sec. 9) EFFECT OF SALE BY BAILEE OR FACTOR 215 & Selw. 147. But a factor, who has a Hen on the goods of his prin- cipal, may dehver them over to a third person, as a security to the extent of his Hen, and may appoint such person to keep possession of the goods for him. In that case, the principal must tender the amount ■of the lien due to the factor, before he can be entitled to recover back the goods so pledged. Hartop v. Hoare, Str. 1187; Daubigny v. Duval, 5 T. R. 604; 6 East, 538; 7 East, 5; 3 Chitty's Com. Law, 193. So a sale upon credit, instead of being for ready money, under a general authority to sell, and in a trade where the usage is to sell for ready money only, creates no contract between the owner and the buyer, and the thing sold may be recovered in an action of trover. Paley, Principal and Agent, 109; 12 Mod. 514. Under any of these irregular transfers, courts of equity (as is now being done in this case) •will compel the holder to give an account of the property he holds. But it was said, though a factor may not pledge the merchandise •of his principal as a security for his debt, he may seU to his creditor in payment of an antecedent debt. No case can be found affirming such a doctrine. It is a misconception, arising from the misapplica- tion of correct principles to a case not belonging to any one of them. The power of the factor to make such a sale, and the right of the creditor to retain the property, has been erroneously put upon its be- ing the usual course of business between factors to make a set-off of balances as they may exist in favor of one or the other of them .against the price of subsequent purchases in their dealings. The difference between such a practice and a sale for an antecedent debt must be obvious to every one when it is stated. In the one, the mutual dealing between mercantile persons who buy and sell on their own account, and who also sell upon commission for others, is according to the well-known usage of trade. Its convenience requires that such a practice shall be permitted. But it must be remembered it is an allowance for the convenience of trade, and for a readier settlement ■of accounts between factors for their purchases from each other in that character. It does not, however, in any instance, bind a principal in the transfer of merchandise, if there has been a departure from the usages of trade, or a violation of any principle regulating the ■obligations and rights of principal and factor. Again, it has been supposed that the right of a factor to sell the merchandise of his principal to his own creditor, in payment of an antecedent debt, finds its sanction in the fact of the creditor's belief that his debtor is the owner of the merchandise, and his ignorance that it belongs to another; and if in the last he has been deceived, that the person by whom the delinquent factor has been trusted shall be the loser. The principle does not cover the case. When a contract is proposed between factors, or between a factor and any other cred- itor, to pass property for an antecedent debt, it is not a sale in the 216 EFFECT OF SALE BY BAILEE OR FACTOR (Ch. 2 legal sense of that word or in any sense in which it is used in refer- ence to the commission which a factor has to sell. Williamson v. Berry, 8 How. 495, 12 L. Ed. 1170. It is not according to the usage of trade. It is a naked transfer of property in payment of a debt. Money, it is true, is the consideration of such a transfer, but no money passes between the contracting parties. The creditor pays none, and when the debtor has given to him the property of another in release of his obligation, their relation has only been changed by his violation of an agency which society in its business relations cannot do with- out, which every man has a right to use, and which every person un- dertaking it promises to discharge with unbroken fidelity. When such a transfer of property is made by a factor for his debt, it is a departure from the usage of trade, known as well by the cred- itor as it is by the factor. It is more ; it is the violation of all that a factor contracts to do with the property of his principal. It has been given to him to sell. He may sell for cash, or he may do so upon credit, as may be the usage of trade. A transfer for an antecedent debt, is not doing one thing or the other. Both creditor and debtor know it to be neither. That their dealing for such a purpose will be a transaction out of the usage of the business of a factor. It does not matter that the creditor may not know, when he takes the prop- erty, that the factor's principal owns it; that he believed it to be the factor's in good faith. His dealing with his debtor is an attempt between them to have the latter s debt paid by the accord and satis- faction of the common law. That is, when, instead of a sale for a. price, a thing is given by the debtor to the creditor in payment, in which we all know that, if the thing given is the property of another, there will be no satisfaction. It is the dation en payement of the civil law as it prevails in Louisiana, which is, when a debtor gives, and the creditor receives, instead of money, a movable or immovable thing in satisfaction of the debt. Courts of law and courts of equity, in a proper case before either, will look at such a transaction as one in which both principal and creditor have been deceived by the factor, so far as the deceit is con- cerned; but it will also be remembered in favor of the principal, that the creditor has acquired the principal's property from his factor, with the creditor's knowledge, out of the usual course of trade, and will reinstate him in his former relation to his debtor, rather than that the creditor should be permitted to keep the property of another who is altogether without fault, in payment of his debt. As to a factor's power to bind his principal by a disposition of his goods, the common law rule is, "that, to acquire a good title to the employer's property by purchasing it from his agent, such purchase must have been, either in market overt and without knowledge of the seller's representative capacity, or from an agent acting according to his in- structions, or from one acting in the usual course of his employment. Sec. 9) EFFECT OF SALE BY BAILEE OR FACTOR 217 and whom the buyer did not know to be transgressing his instruc- tions," or that he had not such notice as the law deems equivalent to raise that presumption. "The reason of this is clear, for unless the transaction took place bona fide in a market overt, (in which case a peculiar rule of law in England steps in for its protection,) an agent sellipg without express authority must, that his acts may be supported, have sold under an implied one. But an implied one thereby always empowers the person authorized to act in the usual course of his employment; consequently, if he sells in an unusual mode, he could have no implied authority to support his act, and as he had no express one, his sale of course falls to the ground." Smith's Mercantile Law (Amer. Ed.) 118. The defendants are not within the compendious summary just stated. There has been a transfer of property, which was consigned to a factor for sale, by his clerk, to a creditor of his employer, who knew his debtor to be in failing circumstances, just as well as the clerk himself did; and of property, too, which the clerk knew to be the property of the plaintiff, and which the creditor bargained for know- ingly out of the usual course of trade. Nor should we omit to say, that Esenwein's opinion and disapproval of what had been done by his clerk with his principal's tobacco are significantly disclosed by the fact, that, upon his return from Europe, he redeemed so much of it as had been assigned to Mr. Conolly by his clerk in payment of a debt, and sold and remitted the proceeds to his principals. By the common law, the transfer of the plaintiff's tobacco to Warner cannot be maintained. He is responsible to them for the value of so much of it as was not transferred by him to Heald, Wood- ward & Co. Heald, Woodward & Co. are responsible for so much of it as Warner transferred to them, because Warner, having no prop- erty in it, could not convey any to them. But Warner is answerable to them for that amount, and he is replaced for the whole as a cred- itor of Esenwein, just as he was before the transaction occurred. The application of these principles of the common law to these parties, if it needed confirmation, would receive it from the statute of New York of April, 1830, for the amendment of the law relative to principals and factors or agents. The transfer to Warner was a New York transaction. The third section of that act very distinctly provides for those cases when the ownership, by the factor, of goods which he contracts to sell, shall be said to exist, to give protection to purchasers against any claim of the factor's principal. It is when he contracts for any money advanced, or for any negotiable instru- ment or other obligation in writing given for merchandise, upon the faith that the factor is the owner of it. The concluding words of the section are, "given by such other person upon the faith thereof." Three misconstructions of that act have been prevalent, but they have been corrected by the courts of New York. We concur with 218 EFFECT OF SALE BY BAILEE OE FACTOR (Ch. 2 them fully. One was, that the statute altered the common law, so as to give validity to a sale made by the factor for an antecedent debt due by him to the person with whom he contracts ; another, that the statute gave to a purchaser protection, whether he knew or not that the goods which the factor contracted to sell him were not the factor's, and belonged to his principal; and the other, that the concluding words, "upon the faith thereof," related to the advance made upon the goods, and not to the property which the factor had in them. Sim- ilar misconceptions were prevalent, and perhaps still prevail, con- cerning the corresponding section in the English factor's act, Geo. IV, c. 94, 1825. The alterations of the common law, in this paj-ticu- lar' by the English and the New York statutes, were suggested by practical and experienced merchants in both countries, to meet the exigencies of internal trade and its extension between nations. They are believed by their operation to be improvements in the law mer- chant. It may be owing to a misapprehension of those acts, that the defendants denied to the plaintiffs their rights. Fortunately the law secures them, and the case settled now as it is may prevent other controversies like it. We shall direct the decree of the circuit court to be affirmed; and also order a decree to be entered against the defendants, that each of them shall pay to the plaintiffs the value of the tobacco which the defendants respectively retained, with interest upon the same as from the dates of the transfers of it to them. RO?^IEO V. MARTUCCI. (Supreme Court of Errors of Connecticut. 1900. 72 Conn. 504, 45 Atl. 1, 90, 47 L. R. A. 001, 77 Am. St. Rep. 827.) HamErslEy, J.^^ The finding is in some respects strongly sug- gestive of bad faith on the part of the defendant. But as the court, notwithstanding the suggestive appearances, finds that the defendant paid a reasonable price, after inquiry, and without notice of defect in title, he must be treated as an innocent purchaser for value. We have then these facts : Ricciardelli & Bro., retail grocers in New Ha- ven, agreed to sell on commission for the plaintiffs, wholesale grocers in New York, a quantity of groceries valued at $559. The goods were received on consignment at New Haven on January 20th, and the same day the Ricciardellis, for the lump price of $965, sold their gro- cery store, stock (including the plaintiffs' property), fixtures, house- hold furniture, and good will of business, to the defendant, a purveyor of contract laborers in New York, and then disappeared without ac- counting to the plaintiffs. This action was brought the next day. There is no doubt as to the relation between the plaintiffs and the 61 The statement of facts is omitted. Sec. 9) EFFECT OF SALE BY BAILEE OE FACTOR 219 Ricciardellis. It is that of principal and factor, — a relation long re- garded as beneficial in the transaction of business, and one whose le- gal effect has been defined by numerous decisions. Lawrence v. Bank, 6 Conn. 521, 527. The property consigned is bailed, and remains in the ownership of the consignor until disposed of by the consignee in pursuance of the agency established by the fact of the consignment. If the consignee, in violation of the consignment, and out of the usual course of business, transfer to another, the consignor is entitled to re- take his property, notwithstanding it may have been so transferred to an innocent purchaser for value. This principle is too thoroughly es- tablished to permit of argument. The transfer by the Ricciardellis was in plain violation of the consignment. No serious claim to the contrary is made or can be maintained. The only real question is whether the plaintiffs have done anything which estops them from setting up their rights as consignors. If by their voluntary action they clothed the Ricciardellis with an appearance of ownership beyond that involved in the ordinary contract of consign- ment, and the defendant was thereby deceived to his damage, they are estopped from denying the authority thus evidenced by their acts. - This principle is rooted in justice, and has been applied to a great variety of conditions. Such action by the owner of property may fur- nish evidence of fraud, and the question of estoppel is sometimes con- fused with that of fraudulent transfer. Possession may be evidence of fraud when it conceals the usual evidence of a change of title. This applies especially to the mortgage or pledge of personal property, where the mortgagor is presumed to remain owner of the property un- less there is a change of possession. But it is different where property known to belong to one man comes into the possession of another. In such case it becomes a matter of inquiry whether he has borrowed it or hired it or purchased it, and this ought to be ascertained by him who proposes to trust his property upon the faith of this appearance. Forbes v. Marsh, 15 Conn. 384, 397. Accordingly cases of conditional sale made bona fide have been held good; and, in the modern and somewhat perilous enlargement of such sales, the fact of actual intent and good faith is made the test of the transaction. Lewis v. McCabe, 49 Conn. 141, 155, 44 Am. Rep. 217; Mack v. Story, 57 Conn. 407, 413, 18 Atl. 707. But here there is no question as to the nature of the transaction. It is the ordinary contract of consignment. There is no question of fraud on the part of the owner. The good faith of the plaintiff's con- duct is neither directly nor indirectly impugned. The sole claim is that he has "voluntarily permitted another to hold himself out to the world as being the true owner, and for this purpose intrusted him with the exclusive possession or other indicia of title under circumstances which would naturally tend to mislead." The cases where the real owner has been estopped by having clothed the possessor with indicia of title for such purposes and under such circumstances are many. 220 EFFEf'T OF SALE BY BAILEE OR FACTOR (Ch. 2 "But all these cases proceed upon the ground that the owner has de- liberately assumed a false position, and a character inconsistent with that of owner, which, if changed, would result in fraud and damage." They have no application to a case where the acts of the owner are confined to those incident to a legitimate bailment or consignment. "Every borrower or bailee for hire uses the thing bailed, in many re- spects, as his own, and his conduct, to some extent, furnishes a false index of property ; but yet, the legal powers and duties of bailee being entirely consistent with the true position and character of the owner, the rights of the bailor will be protected against the abuse of the bailee's powers, though he were to sell the property bailed to a bona fide purchaser." Baldwin v. Porter, 12 Conn. 473, 482, 483. A consignee dififers from an ordinary bailee mainly in that he is authorized to sell in the ordinary course of business ; but, if he sell out of the ordinary course of business, he abuses his powers, and against this abuse the consignor is protected, like any other bailor. When a mortgagee leaves the property mortgaged in the possession of the mortgagor, possession under such circumstances may be treated as an index of title. It is inconsistent with the real transaction, which demands a change of possession, and the mortgagee deliberately puts himself in a false position. But in the case of a consignment the re- verse is true. Possession by the consignee is consistent with the trans- action, and is evidence of the authority pertaining to that transaction, but furnishes no other index of title as against the consignor. Some act of the consignor inconsistent with the true relation is necessary for that purpose, — as if the bill for goods consigned were made out as one for goods sold, or a bill of lading were given which treats the con- signee as owner or purchaser. In such way the consignor may put himself in a false position, so that, if the rights of an innocent pur- chaser intervene, he cannot change that position without fraud and damage. There may be other acts by which a consignor may be es- topped from asserting his title, but they must be equivalent in force to the ones indicated. In the present case it does not appear whether the goods consigned, and received on the day of the sale, had been unpacked when the de- fendant first examined the stock. It is immaterial, except as bear- ing on the good faith of the defendant. But, if he had then asked for some evidence of ownership, he could only have been shown a bill for goods consigned, and the real character of the Ricciardellis' possession would have been apparent. The defendant chose to rely on the authority of the possessors to sell in their retail business indi- cated only by the possession described. He would have been protected in a purchase within the scope of such authority, which was real as well as apparent. But the selling out of the whole business was not within the scope of that authority. It does not necessarily follow that a retail dealer, authorized in the ordinary course of business to sell the articles on his shelves, is therefore the owner of the whole business Sec. 9) EFFECT OF SALE BY BAILEE OR FACTOR 221 and every article in his possession. If he attempts to sell his business and stock as a single chattel, he enters upon an outside and independ- ent transaction. The purchaser cannot retain, as against the real own- er, portions of that stock held under consignment, unless the owner has clothed the consignee with some index of ownership beyond that incident to the fact of a consignment. Where a principal, with full knowledge, permits his factor "to transact the ordinary business of a merchant in his own name, he would even then be bound by his acts ■only so far as they were within the ordinary mode of transacting the particular branch of business, provided there were no circumstances to show that he permitted him to use his own name with a view of im- posing upon others." Potter v. Dennison, 5 Oilman (111.) 590, 599. The plaintiff has done nothing to mislead, unless every consignment is misleading. He gave the Ricciardellis possession, but it was the possession of consignees only. He knew that the goods were to be sold by the consignees in their retail store in connection with their other stock, and that the goods were to be sold at retail in the name •of the consignees ; but these are the ordinary incidents of a consign- ment to a retail merchant. Ex parte Dixon, 4 Ch. Div. 133, 136, 137; Slack V. Tucker, 23 Wall. 321, 330, 23 L. Ed. 143; Potter v. Denni- son, 5 Oilman (111.) 598. The conduct of the plaintiff amounts to a ■consignment of his goods for sale in the ordinary course of business, and nothing more. The title cannot be defeated by any disposition of the property not within the agency established by such consignment. A consignee cannot transfer the property in payment of his own debt. Benny v. Pegram, 18 Mo. 191, 59 Am. Dec. 298. He must sell in the market where he transacts business. Wootiers v. Kaufman, 72) Tex. 395, 399, 11 S. W. 390; Catlin v. Bell, 4 Camp. 183; Marr v. Barrett, 41 Me. 403. He cannot sell by way of barter. Guerreiro v. Peile, 3 Barn. & Aid. 616, 618. He cannot pledge the goods consigned. Pater- son V. Tash, Strange, 1178; Kuckein v. Wilson, 4 Barn. & Aid. 443, 447; Kelly v. Smith, 1 Blatchf. 290, 293, Fed. Cas. No. 7,675; Oray V. Agnew, 95 111. 315. To turn over the goods consigned to another by a sale of his busi- ness and stock in trade is as distinctly a disposition foreign to the con- signment,, and for the benefit of the consignee, as a pledge, or sale in payment of consignee's debt, or a barter. "By the general rule, a fac- tor cannot bind the principal by a disposition of his property out of the ordinary course of business." Bank v. Heilbronner, 108 N. Y. 439, 444, 15 N. E. 701; Warner v. Martin, 11 How. 209, 224, 13 L. Ed. 667. We are asked to treat the ordinary incidents of a bona fide con- signment as sufficient indicia of title to enable the consignee to bind his principal by every act of ownership as against an innocent third par- ty. This would involve the reversal of the whole Hne of cases by which the contract of consignment has been recognized and defined. The court erred in overruling the claim of the plaintiff that upon the special facts found the goods in question were still the property of 222 EFFECT OF SALE BY BAILEE OR FACTOR (Ch. 2 the plaintiff, and that he was entitled to the immediate possession thereof. There is error. The judgment of the court of common pleas is reversed, and the cause remanded for further proceedings according to law. Torrance; and Baldwin, JJ., concurred. Andrews, C. J., and Hall, J., dissented.^* H. A. PRENTICE CO. v. PAGE et al. DAVIS V. SAME. (Supreme Judicial Court of Massachusetts, 1895. 164 Mass. 276, 41 N. E. 279.) Two actions of tort, for the conversion of certain personal prop- erty. The cases were tried together and the jury returned verdicts for the plaintiffs. If the instruction given was correct, judgment was to be ordered on the verdicts ; otherwise the verdicts were to be set aside and a new trial granted.''^ Morton, J. The goods which are the subject of these suits were obtained from the plaintiffs by one Gregg by means of false and fraudulent misrepresentations and forged conditional contracts of sale. After he had thus obtained the goods, Gregg pledged them to the defendants. Although there is nothing in the report of the pre- siding justice, or in the auditor's report, positively showing that the defendants took them in good faith, it is assumed in the instructions to the jury, and we take it for granted that they did. The H. A. Prentice Company also "trusted Gregg personally with some two thousand dollars' worth of merchandise, and charged the same to him in the regular course of business" ; but it is expressly stated in the report of the presiding justice that none of the goods which are the subject of these suits were "ever charged to him or purchased by him in any way, but were all delivered to said Gregg, upon his representation that he had a reliable customer for them," and we assume were all accounted for by him by forged conditional contracts of sale. The facts show that there was a larcenous taking of the goods by Gregg, for which he was afterwards convicted and sentenced. The defendants, in substance, requested the court to instruct the jury that if the goods were intrusted to Gregg to sell for cash, or on conditional contracts of sale, the defendants were protected by chap- ter 71, Pub. St., although the goods were obtained from the plaintiffs by Gregg by forgery and fraud. The court refused to give this instruction, and instructed the jury, in effect, that in order to protect a bona fide pledgee under chapter 71 "the goods or merchandise in the hands of an agent must have been intrusted to" the agent "to sell and dispose of in the ordinary course of business, as a common-law sale." ^-A dissenting opinion was delivered by Hall, J. 53 The statement of facts is abridged. Sec. 9) EFFECT OF SALE BY BAILEE OE FACTOR 223 Without undertaking to say that intrusting goods or merchandise to an agent or factor to sell means, under all circumstances, such a sale as defined by the court, we think, upon the undisputed facts, that the plaintiffs were clearly entitled to recover, and that, therefore, the instructions could have done no harm in the present case. There was no evidence to show that the goods were intrusted to Gregg to sell for cash, and therefore so much of the request as re- lated to that was inapplicable to the case before the court and jury. The object of chapter 71, Pub. St., is to protect parties dealing in good faith with factors or agents who have been intrusted with goods or merchandise for sale or consignment. It might be said that goods given, as these were, to one to be delivered by him to parties who he represented had purchased them, were not intrusted to him for sale, but as an agent for delivery merely. But, however that may be, we do not think that the statute applies when goods or merchandise have been procured, by the agent or factor, to be intrusted to him I for delivery, under what purport to be conditional contracts of sale, and in consequence of what, in law, constitutes a larceny of them on his part. In such a case the goods cannot be said to have been intrusted to him for sale in any manner, within any fair meaning of those words. It would be a contradiction in terms to say that goods are intrusted for sale to one who steals them. Rodliff v. Dallinger, 141 Mass. 1, 4 N. E. 805, 55 Am. Rep. 439; Thacher v. Moors, 134 Mass. 156; Stollenwerck v. Thacher, 115 Mass. 224; Dows v. Bank, 91 U. S. 618, 23 L. Ed. 214; Soltau v. Gerdau, 119 N. Y. 380, 23 N. E. 864, 16 Am. St. Rep. 843. If the goods have been properly intrusted to an agent for sale, a party afterwards dealing in good faith with the agent v^ill be pro- tected, though the latter may violate his instructions, or, in dispos- ing of or dealing with the goods, conduct himself fraudulently towards his principal. Bank v. Gardner, 15 Gray, 362, 374. But that was not the case here. In regard to the case of Baines v. Swainson, 4 Best & S. 270, which may seem opposed to the conclusion which we have reached, it should be observed that the English factors' acts (6 Geo. IV, c. 94) simply provide that the goods shall be "intrusted," and not as ours "in- trusted for sale," and the fact that they do not provide that they shall be intrusted for sale is adverted to in the argument of counsel and in the opinion given by Crompton, J. Id. 275, 281. See, also. Cole V. Bank, L. R. 10 C. P. 354, 373, 374, where Blackburn, J., says that Willes, J., in delivering judgment in Fuentes v. Montis, L. R. 3 C. P. 268, "speaks of Baines v. Swainson as going to the extreme of the law." Judgment on the verdicts." " For a summary of the efEect of Factors' Acts, in England and the United States, see Williston, 'Sales, §§ 318-323. See, also. Wisp v. Hazard, 66 CaU 459, 6 Pac. 91 (1885). 224 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 SECTION lO.-EFFECT OF RETENTION OF PROPERTY BY SELLER AFTER DELIVERY TO BUYER— "CON- DITIONAL SALE." '= HARKNESS v. RUSSELL. (Supreme Court of United States, 1SS6. 118 U. S. 663, 7 Sup. Ct. 51, 30 L. Ed. 2S.-X) This is an appeal from the supreme court of Utah. The action was brought in the district court for Weber county, to recover the value of two steam-engines and boilers, and a portable saw-mill con- nected with each engine. A jury being waived, the court found the facts, and rendered judgment for the plaintiff, Russell & Co. The plaintiff is an Ohio corporation, and by its agent in Idaho, on the second of October, 1882, agreed with a partnership firm by the name of Phelan & Ferguson, residents of Idaho, to sell to them the said engines, boilers, and saw-mills for the price of $4,988, nearly all of which was secured by certain promissory notes, which severally con- tained the terms of the agreement between the parties. One of the notes (the others being in the same form) was as follows, to-wit: "Salt Lake City, October 2, 1882. "On or before the first day of May, 1883, for value received in one sixteen-horse portable engine. No. 1,026, and one portable saw- mill, No. 128, all complete, bought of L. B. Mattison, agent of Rus- sell & Co., we, or either of us, promise to pay to the order of Russell. & Co., Massillon, Ohio, $300, payable at Wells, Fargo & Co.'s bank, Salt Lake City, Utah Territory, with ten per cent, interest per annum from October 1, 1882, until paid, and reasonable attorney's fees, or any costs that may be paid or incurred in any action or pro- ceeding instituted for the collection of this note or enforcement of this covenant. The express condition of this transaction is such that the title, ownership, or possession of said engine and saw-mill does not pass from the said Russell & Co. until this note and interest shall have been paid in full, and the said Russell & Co. or his agent has full power to declare this note due, and take possession of said engine and saw-mill when they may deem themselves insecure, even before the maturity of this note ; and it is further agreed by the makers here- of that if said note is not paid at maturity, that the interest shall be two per cent, per month from maturity hereof till paid, both before and after judgment, if any should be rendered. In case said saw-mill and engine shall be taken back, Russell & Co. may sell the same at 6 5 For a list of the states in which recording acts have been enacted, with citation of statutes and cases, see AVilliston, Sales, § 327. Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 225 public or private sale without notice, or they may, without sale, in- dorse the true value of the property on this note, and we agree to pay on the note any balance due thereon, after such indorsement, as damages and rental for said machinery. As to this debt we waive the right to exempt, or claim as exempt, any property, real or personal, we now own, or may hereafter acquire, by virtue of any homestead or exemption law, state or federal, now in force, or that hereafter may be enacted. "P. O., Oxford, Oneida County, Idaho Territory. "$300. Phelan & Ferguson." Some of the notes were given for the price of one of the engines with its accompanying boiler and mill, and the others for the price of the other. Some of the notes were paid; and the present suit was brought on those that were not paid. The property was delivered to Phelan & Ferguson on the execution of the notes, and subsequently they sold it to the defendant Harkness, in part payment of a debt due from them to him and one Langsdorf. The defendant, at the time of the sale to him, knew that the purchase price of the property had not been paid to the plaintiff, and that the plaintiff claimed title there- to until such payment was made. The unpaid notes given for each engine and mill exceeded in amount the value of such engine and mill when the action was commenced. The territory of Idaho has a law relating to chattel mortgages [Act of January 12, 1875], requiring that every such mortgage shall set out certain particulars as to parties, time, amount, etc., with an affi- davit attached that it is bona fide, and made without any design to defraud and delay creditors ; and requiring the mortgage and affidavit to be recorded in the county where the mortgagor lives, and in that where the property is located ; and it is declared that no chattel mort- gage shall be valid (except as between the parties thereto) without compliance with these requisites, unless the mortgagee shall have ac- tual possession of the property mortgaged. In the present case no affidavit was attached to the notes, nor were they recorded. The court found that it was the intention of Phelan & Ferguson and of Russell & Co. that the title to the said property should not pass from Russell & Co. until all the notes were paid. Upon these facts the court found, as conclusions of law, that the transaction between Phelan & Ferguson and Russell & Co. was a conditional or executory sale, and not an absolute sale with a lien re- served, and that the title did not pass to Phelan & Ferguson, or from them to the defendant, and gave judgment for the plaintiff. The su- preme court of the territory affirmed this judgment. This appeal was taken from that judgment. Mr. Justice Bradley, after stating the facts as above reported, de- livered the opinion of the court. WooDvv. Sales — 15 226 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 The first question to be considered is whether the transaction m question was a conditional sale or a mortgage ; that is, whether it was. a mere agreement to sell upon a condition to be performed, or an ab- solute sale, with a reservation of a lien or mortgage to secure the pur- chase money. If it was the latter, it is conceded that the lien or mort- gage was void as against third persons, because not verified by affi- davit, and not recorded as required by the law of Idaho. But, so far as words and the express intent of the parties can go, it is perfectly evident that it was not an absolute sale, but only an agreement to- sell upon condition that the purchasers should pay their notes at ma- turity. The language is : "The express condition of this transaction is such that the title * * * does not pass * * * until this note and interest shall have been paid in full." If the vendees should fail in this, or if the vendors should deem themselves insecure before the maturity of the notes, the latter were authorized to repossess themselves of the machinery, and credit the then value of it, or the proceeds of it if they should sell it, upon the unpaid notes. If this did not pay the notes, the balance was still to be paid by the makers by way of "damages and rental for said machinery." This stipulation was strictly in accordance with the rule of damages in such cases. Upon an agreement to sell, if the purchaser fails to execute his con- tract, the true measure of damages for its breach is the difference be- tween the price of the goods agreed on and their value at the time of the breach or trial, which may fairly be stipulated to be the price they bring on a resale. It cannot be said, therefore, that the stipula- tions of the contract were inconsistent with or repugnant to what the parties declared their intention to be, namely, to make an executory and conditional contract of sale. Such contracts are well known in the law and often recognized ; and, when free from any fraudulent intent, are not repugnant to any principle of justice or equity, even though possession of the property be given to the proposed purchaser. The rule is formulated in the text-books and in many adjudged cases. In Lord Blackburn's Trea- tise on the Contract of Sale, published 40 years ago, two rules are laid down as established: (1) That where, by the agreement, the vendor is to do anything to the goods before delivery, it is a condition precedent to the vesting of the property; (2) that where anything re- mains to be done to the goods for ascertaining the price, such as weighing, testing, etc., this is a condition precedent to the transfer of the property. Blackb. Sales, ISZ/ZAnd it is subsequently added that "the parties may indicate an mtention, by their agreement, to make any condition precedent to the vesting of the property ; and, if they do so, their intention is fulfilled^/ Blackb. Sales, 167. ]Mr. Benjamin, in his Treatise on Sales of/ /Personal Property, adds to the two formulated rules of Lord Blackburn a third rule, which is supported by many authorities, to-wit: (3) "Where the buyer is Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 227 by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fuliilled, even though the goods may have been actually delivered into the possession of the buyer." Benj. Sales, (2d Ed.) 236; Id. (3d Ed.) § 320. The author cites for this proposition Bishop v. Stillito, 2 Barn. & Aid. 329, note a; Brandt v. Bowlby, 2 Barn.. & Adol. 932; Barrow v. Coles, (Lord Ellenborough,) 3 Camp. 92; Swain v. Shepherd, (Baron Parke,) 1 Moody & R. 223; Mires v. Solebay, 2 Mod. 243. In the last case, decided in the time of Charles II, one Alston took sheep to pasture for a certain time, with an agreement that if, at the end of that time, he should pay the owner a certain sum, he should have the sheep. Before the time expired the owner sold them to another person; and it was held that the sale was valid, and that the agree- ment to sell the sheep to Alston, if he would pay for them at a certain day, did not amount to a sale, but only to an agreement. The other cases were instances of sales of goods to be paid for in cash or secu- rities on delivery. It was held that the sales were conditional only, and that the vendors were entitled to retake the goods, even after de- livery, if the condition was not performed ; the delivery being consid- ered as conditional. This often happens in cases of sales by auction, when certain terms of payment are prescribed, with a condition that, if they are not complied with, the goods may be resold for account of the buyer, who is to account for any deficiency between the second sale and the first. Such was the case of Lamond v. Duvall, 9 Q. B. 1030; and many more cases could be cited. In Ex parte Crawcour, L. R. 9 Ch. Div. 419, certain furniture dealers let Robertson have a lot of furniture upon his paying ilO, in cash and signing an agreement to pay £5 per month (for which notes were given) until the whole price of the furniture should be paid; and when all the installments were paid, and not before, the furniture was to be the property of Robertson; but, if he failed to pay any of the installments, the own- ers were authorized to take possession of the property, and all prior payments actually made were to be forfeited. The court of appeals held that the property did not pass by this agreement, and could not be taken as Robertson's property by his trustee under a liquidation proceeding. The same conclusion was reached in the subsequent case of Crawcour v. Salter, h. R. 18 Ch. Div. 30. In these cases, it is true, support of the transaction was sought from a custom which prevails in the places where the transactions took place, of hotel-keepers holding their furniture on hire. But they show that the intent of the parties will be recognized and sanctioned where it is not contrary to the policy of the law. This policy, in England, is declared by statute. It has long been a provision of the English bankrupt laws, beginning with 21 James I, c. 19, that if any person becoming bankrupt has in his possession, order, or disposition. 228 EETBNTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 by consent of the owner, any goods or chattels of which he is the re- puted owner, or takes upon himself the sale, alteration, or disposition thereof as owner, such goods are to be sold for the benefit of his creditors. This law has had the effect of preventing or defeating con- ditional sales accompanied by voluntary delivery of possession, except in cases like those before referred to ; so that very few decisions are to be found in the English books directly in point on the question un- der consideration. The following case presents a fair illustration of the English law as based upon the statutes of bankruptcy. In Horn V. Baker, 9 East, 215, the owner of a term in a distillery, and of the apparatus and utensils employed therein, demised the same to J. & S. in consideration of an annuity to be paid to the owner and his wife during their several lives, and upon their death the lessees to have the liberty of purchasing the residue of the term, and the ap- paratus and utensils, with a proviso for re-entry if the annuity should at any time be two months in arrear. The annuity having become in arrear for that period, instead of making entry for condition broken, the wife and administrator of the owner brought suit to recover the arrears, which was stopped by the bankruptcy of J. & S. The ques- tion then arose whether the utensils passed to the assignees of J. & S. under the bankrupt act, as being in their possession, order, and disposition as reputed owners ; and the court held that they did ; but that, if there had been a usage in the trade of letting utensils with a distillery, the case would have admitted a different consideration, since such a custom might have rebutted the presumption of owner- ship arising from the possession and apparent order and disposition of the goods. This case was followed in Holroyd v. Gwynne, 2 Taunt. 176. This presumption of property in a bankrupt arising from his pos- session and reputed ownership became so deeply imbedded in the English law that in process of time many persons in the profession, not adverting to its origin in the statute of bankruptcy, were led to regard it as a doctrine of the common law ; and hence in some states in this country, where no such statute exists, the principles of the statute have been followed, and conditional sales of the kind now un- der consideration have been condemned either as being fraudulent and void as against creditors, or as amounting, in effect, to absolute sales with a reserved lien or mortgage to secure the pavment of the purchase money. This view is based on the notion that such sales are not allowed by law, and that the intent of the parties, however hon- estly formed, cannot legally be carried out. The insufficiency of this argument is demonstrated by the fact that conditional sales are admissible in several acknowledged cases, and therefore there cannot be any rule of law against them as such. They may sometimes be used as a cover for fraud ; and, when this is charged, all the circum- stances of the case, this included, will be open for the consideration of Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 229 a jury. Where no fraud is intended, but the honest purpose of the parties is that the vendee shall not have the ownership of the goods until he has paid for them, there is no general principle of law to pre- vent their purpose from having effect. In this country, in states where no such statute as the English act referred to is in force, many decisions have been rendered sustaining conditional sales accompanied by delivery of possession, both as. be- tween the parties themselves and as to third persons. In Hussey v. Thornton, 4 Mass. 405, 3 Am. Dec. 224, (decided in 1808,) where goods were delivered on board of a vessel for the vendee upon an agreement for a sale, subject to the condition that the goods should remain the property of the vendors until they received secu- rity for payment, it was held (Chief Justice Parsons delivering the opinion) that the property did not pass, and that the goods could not be attached by the creditors of the vendee. This case was followed in 1822 by that of Marston v. Baldwin, 17 Mass. 606, which was replevin against a sheriff for taking goods which the plaintiff had agreed to sell to one Holt, the defendant in the attachment ; but by the agreement the property was not to vest in Holt until he should pay $100, (part of the price,) which condition was not performed, though the goods were delivered. Holt had paid $75, which the plaintiff did not tender back. The court held that it was sufficient for the plaintiff to be ready to repay the money when he should be requested, and a verdict for the plaintiff was sustained. In Barrett v. Pritchard, 2 Pick. (Mass.) 512, 515-516 (13 Am. Dec. 449), the court said : "It is impossible to raise a doubt as to the in- tention of the parties in this case, for it is expressly stipulated that 'the wool, before manufactured, after being manufactured, or in any stage of manufacture, shall be the property of the plaintiff until the price be paid.' It is difficult to imagine any good reason why this agreement should not bind the parties. '* * * The case from Taunton (Holroyd v. Gwynn) was a case of a conditional -sale ; but the condition was void as against the policy of the statute 21 Jac. I, c. 19, § 11. It would not have changed the decision in that case if there had been no sale; for, by that statute, if the true owner of goods and chattels suffers another to exercise such control and man- agement over them as to give him the appearance of being the real owner, and he becomes bankrupt, the goods and chattels shall be treated as his property, and shall be assigned by the commissioners for the benefit of his creditors. The case of Horn v. Baker, 9 East, 215, also turned on the same point, and nothing in either of these cases has any bearing on the present question." In Coggill V. Hartford & N. H. R. Co., 3 Gray (Mass.) 545-547, the rights of a bona fide purchaser from one in possession under a conditional sale of goods were specifically discussed, and the court held, in an able opinion delivered by Mr. Justice Bigelow, that a sale 230 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 and delivery of goods on condition that the title shall not vest in the vendee until payment of the price passes no title until the condition is performed, and the vendor, if guilty of no laches, may reclaim the property, even from one who has purchased from his vendee in good faith, and without notice. The learned justice commenced his opin- ion in the following terms : "It has long been the settled rule of law in this commonwealth that a sale and delivery of goods on condition that the property is not to vest until the purchase money is paid or secured, does not pass the title to the vendee, and that the vendor, in case the condition is not fulfilled, has a right to repossess himself of the goods, both against the vendee and against his creditors claiming to hold them under attachments." He then addresses himself to a consideration of the rights of a bona fide purchaser from the ven- dee, purchasing without notice of the condition on which the latter holds the goods in his possession ; and he concludes that they are no greater than those of a creditor. He says: "All the cases turn on the principle that the compliance with the conditions of sale and de- livery is, by the terms of the contract, precedent to the transfer of the property from the vendor to the vendee. The vendee in such cas- es acquires no property in the goods. He is only a bailee for a spe- cific purpose. The delivery which in ordinary cases passes the title to the vendee must take effect according to the agreement of the par- ties, and can operate to vest the property only when the contingency contemplated by the contract arises. The vendee, therefore, in such cases, having no title to the property, can pass none to others. He has only a bare right of possession, and those who claim under him, either as creditors or purchasers, can acquire no higher or better title. Such is the necessary result of carrying into effect the intention of the parties to a conditional sale and delivery. Any other rule would be equivalent to the denial of the validity of such contracts. But they certainly violate no rule of law, nor are they contrary to sound policy." This case was followed in Sargent v. Metcalf, 5 Grav (Mass.) 306, 66 Am. Dec. 368; Deshon v. Bigelow, 8 Gray (JMass.'l 159; Whitney v. Eaton, 15 Gray (Mass.) 223: Hirschorn v. Canney, 98 Mass. 149; and Chase v. Ingalls, 122 Mass. 381 ; and is believed to express the settled law of Massachusetts. The same doctrine prevails in Connecticut, and was sustained in an able and learned opinion of Chief Justice Williams, in the case of Forbes v. Marsh, 15 Conn. 384, (decided in 1843,) in which the principal authorities are reviewed. The decision in this case was followed in the subsequent case of Hart v. Carpenter, 24 Conn. 427, where the question arose upon the claim of a bona fide purchaser. In New York the law is the same, at least so far as relates to the vendee in a conditional sale and to his creditors; though there has been some diversity of opinion in its application to bona fide purchas- ers from such vendee. As early as 1822, in the case of Haggerty v. Sec: 10) EETENTION OF PROPERTY BY SELLER AFTER DELIVERY 231 Palmer, 6 Johns. Ch. (N. Y.) 437, where an auctioneer had deHvered to the purchaser goods sold at auction, it being one of the conditions of sale that indorsed notes should be given in payment, which the purchaser failed to give, Chancellor Kent held that it was a condi- tional sale and delivery, and gave no title which the vendee could transfer to an assignee for the benefit of creditors ; and he said that the cases under the English bankrupt act did not apply here. The chancellor remarked, however, that "if the goods had been fairly sold by P., [the conditional vendee,] or if the proceeds had been ac- tually appropriated by the assignees before notice of this suit and of the injunction, the remedy would have been gone." In Strong v. Taylor, 2 Hill (N. Y.) 326, Nelson, C. J., pronouncing the opinion, it was held to be a conditional sale where the agreement was to sell a canalboat for a certain sum, to be paid in freighting flour and wheat, as directed by the vendor, he to have half the freight until paid in full, with interest. Before the money was all paid the iDoat was seized under an execution against the vendee ; and, in a suit by the vendor against the sheriff, a verdict was found for the plaintiff, under the instruction of the court, and was sustained in banc upon the authority of the Massachusetts case of Barrett v. Pritchard, .2 Pick. (Mass.) 512, 13 Am. Dec. 449. In Herring v. Hoppock, 15 N. Y. 409, 411, 414, the same doctrine was followed. In that case there was an agreement in writing for the sale of an iron safe, which was delivered to the vendee, and a note at six months given therefor; but it was expressly understood that no title was to pass until the note was paid; and if not paid. Herring, the vendor, was authorized to retake the safe, and collect all rea- sonable charges for its use. The sheriff levied on the safe as the property of the vendee, with notice of the plaintiff's claim. The •court of appeals held that the title did not pass out of Herring. Paige, J., said: "Whenever there is a condition precedent attached to a contract of sale which is not waived by an absolute and uncondi- tional delivery, no title passes to the vendee until he performs the condition or the seller waives it." Comstock, J., said that, if the question were new, it might be more in accordance with the analogies •of the law to regard the writing given on the sale as a mere security for the debt in the nature of a personal mortgage ; but he considered the law as having been settled by the previous cases, and the court unanimously concurred in the decision. In the cases of Smith v. Lynes, 5 N. Y. 41, and Wait v. Green, 35 Barb. (N. Y.) 585, on appeal 36 N. Y. 556, it was held that a bona fide purchaser, without notice from a vendee who is in possession un- der a conditional sale, will be protected as against the original ven- dor. These cases were reviewed, and, we think, substantially over- ruled, in the subsequent case of Ballard v. Burgett, 40 N. Y. 314, in which separate elaborate opinions were delivered by Judges Grover 232 EETEN'TION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 and Lett. This decision was concurred in by Chief Judge Hunt, and Judges Woodruff, Mason, and Daniels; Judges James and Murray dissenting. In that case Ballard agreed to sell to one France a. yoke of oxen for a price agreed on, but the contract had the condition "that the oxen were to remain the property of Ballard until they should be paid for." The oxen were delivered to France, and he subsequently sold them to the defendant Burgett, who purchased and received them without notice that the plaintiff had any claim to them. The court sustained Ballard's claim ; and subsequent cases in New York are in harmony with this decision. See Cole v. Mann, 62 N.. Y. 1; Bean v. Edge, 84 N. Y. 510. We do not perceive that the case of Dows v. Kidder, 84 N. Y. 121, is adverse to the ruling in Ballard v. Burgett. There, although the plaintiffs stipulated that the title to the corn should not pass until payment of the price, (which was to be cash, the same day,) yet they indorsed and delivered to the purchaser the evidence of title, namely, the weigher's return, to enable him to take out the bill of lading in his own name, and use it in raising funds to pay the plaintiff. The purchaser misappropriated the funds, and did not pay for the corn. Here the intent of both parties was that the purchaser might dispose of the corn, and he was merely the trustee of the plaintiff, invested by him with the legal title. Of course, the innocent party who pur- chased the corn from the first purchaser was not bound by the eq- uities between him and the plaintiff. The later case of Parker v. Baxter, 86 N. Y. 586, was precisely similar to Dows v. Kidder; and the same principle was involved in Farwell v. Importers' & Traders' Bank, 90 N. Y. 483, where the plaintiff delivered his own note to a broker to get it discounted, and the latter pledged it as collateral for a loan made to himself. The legal title passed ; and although, as between the plaintiff and the bro- ker, the former was the owner of the note and its proceeds, vet that was an equity which was not binding on the innocent holder. The decisions in Maine, New Hampshire, and Vermont are under- stood to be substantially to the same effect as those of Massachusetts and New York ; though by recent statutes in Maine and Vermont, as also in Iowa, where the same ruling prevailed, it is declared in effect that no agreements that personal property, bargained and delivered to another, shall remain the property of the vendor, shall be valid against third persons without notice. George v. Stubbs, 26 Me. 243 ; Sawyer V. Fisher, 32 Me. 28; Brown v. Haynes, 52 Me. 578; Boynton v. Libby, 62 Me. 253; Rogers v. White'house, 71 Me. 222; Sargent v. Gile, 8 N. H. 325; McFarland v. Farmer, 42 N. H. 386; King v. Bates, 57 N. H. 446; Hefflin v. Bell, 30 Vt. 134; Armington' v. Hous- ton, 38 Vt. 448, 91 Am. Dec. 366; Fales v. Roberts, 38 Vt. 503; Dun- can V. Stone, 45 Vt. 123 ; Moseley v. Shattuck, 43 Iowa, 540 • 'Thorpe. V. Fowler, 57 Iowa, 541, 11 N. W. 3. Sec. 10) RETENTION OP PROPERTY BY SELLER AFTER DELIVERY 233 The same view of the law has been taken in several other states. In New Jersey, in the case of Cole v. Berry, 42 N. J. Law, 308, 36 Am. Rep. 511, it was held that a contract for the sale of a sewing- machine to be delivered and paid for by installments, and to remain the property of the vendor until paid for, was a conditional sale, and gave the vendee no title until the condition was performed ; and the cases are very fully discussed and distinguished. In Pennsylvania the law is understood to be somewhat different. It is thus summarized by Judge Depue, in the opinion delivered in Cole V. Berry, 42 N. J. Law, 314, where he says: "In Pennsylvania a distinction is taken between delivery under a bailment, with an op- tion in the bailee to purchase at a named price, and a delivery under a contract of sale containing a reservation of title in the vendor until the contract price be paid; it being held that in the former instance property does not pass as in favor of creditors and purchasers of the bailee, but that in the latter instance delivery to the vendee subjects the property to execution at the suit of his creditors, and makes it transferable to bona fide purchasers. Chamberlain v. Smith, 44 Pa. 431 ; Rose v. Story, 1 Pa. 190 [44 Am. Dec. 121] ; Martin v. Mathiot, 14 Serg. & R. (Pa.) 214 [16 Am. Dec. 491] ; Haak v. Linderman, 64 Pa. 499 [3 Am. Rep. 612]." But, as the learned judge adds: "This distinction is discredited by the great weight of authority, which puts possession under a conditional contract of sale and possession under a bailment on the same footing, — liable to be assailed by creditors and purchasers for actual fraud, but not fraudulent per se." In this connection, see the case of Copland v. Bosquet, 4 Wash. C. C. 588, Fed. Cas. No. 3,212, where Mr. Justice Washington and Judge Peters (the former delivering the opinion of the court) sustained a conditional sale and delivery against a purchaser from the vendee, who claimed to be a bona fide purchaser without notice. In Ohio the validity of conditional sales accompanied by delivery of possession is fully sustained. The latest reported case brought to. our attention is that of Call v. Seymour, 40 Ohio St. 670, which arose upon a written contract contained in several promissory notes given for installments of the purchase money of a machine, and resembling very much the contract in the case now under consideration. Follow- ing the note, and as a part of the same document, is this condition: "The express conditions of the sale and purchase of the separator and horse-power for which this note is given, is such that the title, ownership, or possession does not pass from the said Seymour, Sabin & Co. until this note, with interest, is paid in full. The said Seymour,, Sabin & Co. have full power to declare this note due, and take pos- session of said separator and horse-power, at any time they may deem this note insecure, even before the maturity of the note, and to sell the said machine at public or private sale, the proceeds to be applied upon the unpaid balance of the purchase price." The machine was. 234 RETENTION OP PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 seized under an attachment issued against the vendee, and the action was brought by the vendor against the constable who served the at- tachment. The case was fully argued, and the authorities pro and con duly considered by the court, which sustained the condition ex- pressed in the contract, and affirmed the judgment for the plaintiff. See, also, Sanders v. Keber, 28 Ohio St. 630. The same law prevails in Indiana. Shireman v. Jackson, 14 Ind. 439; Dunbar v. Rawles, 28 Ind. 225, 92 Am. Dec. 311; Bradshaw v. Warner, 54 Ind. 58; Hodson v. Warner, 60 Ind. 214; McGirr v. Sell, 60 Ind. 249. The same in Michigan. Whitney v. McConnell, 29 Mich. 12 ; Smith v. Lozo, 42 Mich. 6, 3 N. W. 227 ; Marquette Man- uf'g Co. V. Jeffrey, 49 Mich. 283, 13 N. W. 592. The same in Mis- souri. Ridgeway v. Kennedy, 52 Mo. 24; Wangler v. Franklin, 70 Mo. 659; Sumner v. Cottey, 71 Mo. 121. The same in Alabama. Fairbanks v. Eureka, 67 Ala. 109; Sumner v. Woods, 67 Ala. 139, 42 Am. Rep. 104. The same in several other states. For a very elaborate collection of cases on the subject, see Mr. Bennett's note to Benj. Sales, (4th Ed.) § 320, pp. 329-336; and Mr. Freeman's note to Kanaga v. Taylor, 7 Ohio St. 134, 70 Am. Dec. 62. It is unneces- sary to quote further from the decisions. The quotations already made show the grounds and reasons of the rule. The law has been held differently in Illinois, and very nearly in conformity with the English decisions under the operation of the bankrupt law. The doctrine of the supreme court of that state is that if a person agrees to sell to another a chattel on condition that the price shall be paid within a certain time, retaining the title in him- self in the mean time, and delivers the chattel to the vendee so as to clothe him with the apparent ownership, a bona fide purchaser, or an execution creditor of the latter, is entitled to protection as against the claim of the original vendor. Brundage v. Camp, 21 111. 330 ; Mc- Cormick V. Hadden, 37 111. 370; Murch v. Wright, 46 111. 488, 95 Am. Dec. 455; Michigan Cent. R. Co. v. Phillips, 60 111. 190; Lucas v. Campbell, 88 111. 447; Van Duzor v. Allen, 90 111. 499. Perhaps the statute of Illinois on the subject of chattel mortgages has influenced some of these decisions. This statute declares that "no mortgage, trust deed, or other conveyance of personal property having the ef- fect of a mortgage or lien upon such property, is valid as against the rights and interests of any third person, unless the possession thereof be delivered to and remain with the grantee, or the instrument provide that the possession of the property may remain with the grantor, and the instrument be acknowledged and recorded." It has been supposed that this statute indicates a rule of public policy con- demning secret liens and reservations of title on the part of ven- dors, and making void all agreements for such liens or reservations unless registered in the manner required for chattel mortgages. At all Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 235 events, the doctrine above referred to has become a rule of property in Illinois, and we have felt bound to observe it as such. In the case of Hervey v. Rhode Island Locomotive Works, 93 U. S. 664, 671, 23 I^. Ed. 1003, where a Rhode Island company leased to certain Illinois railroad contractors a locomotive engine and ten- der at a certain rent, payable at stated times during the ensuing year, with an agreement that, if the rent was duly paid, the engine and ten- der should become the property of the lessees, and possession was delivered to them, this court, being satisfied that the transaction was a conditional sale, and that, by the law of Illinois, the reservation of title by the lessors was void as against third persons unless the agree- ment was recorded, (which it was not in proper time,) decided that a levy and sale of the property in Illinois, under a judgment against the lessees, were valid, and that the locomotive works could not re- claim it. Mr. Justice Davis, delivering the opinion of the court, said : "It was decided by this court in Green v. Van Buskirk, 5 Wall. 307, and 7 Wall. 139, that the liability of property to be sold under legal process issuing from the courts of the state where it is situated, must be determined by the law there, rather than that of the jurisdiction where the owner lives. These decisions rest on the ground that every state has the right to regulate the transfer of property within its limits, and that whoever sends property to it impliedly submits to the regulations concerning its transfer in force there, although a different rule of transfer prevails in the jurisdiction where he resides. * * * The policy of the law in Illinois will not permit the owner of person- al property to sell it, either absolutely or conditionally, and still con- tinue in possession of it. Possession is one of the strongest evidences of title to this class of property, and cannot be rightfully separated from the title, except in the manner pointed out by the statute. The courts of Illinois say that to suffer, without notice to the world, the real ownership to be in one person, and the ostensible ownership in another, gives a false credit to the latter, and in this way works an injury to third persons. Accordingly, the actual owner of personal property creating an interest in another to whom it is delivered, if de- sirous of preserving a lien on it, must comply with the provisions of the chattel mortgage act. Rev. St. 111. 1874, 711, 712." The Illinois cases are then referred to by the learned justice to show the precise condition of the law of that state on the subject under consideration. The case of Hervey v. Rhode Island Locomotive Works is relied on by the appellants in the present case as a decision in their favor; but this is not a correct conclusion, for it is apparent that the only points decided in that case were — First, that it was to be governed by the law of Illinois, the place where the property was situated; secondly, that by the law of Illinois the agreement for continuing the title of the property in the vendors after its delivery to the vendees, whereby the latter became the ostensible owners, was void as against third persons. 236 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Cll. 2 This is all that was decided, and it does not aid the appellants, unless they can show that the law as held in Illinois, contrary to the great weight of authority in England and this country, is that which should govern the present case. And this we think they cannot do. We do not mean to say that the Illinois doctrine is not supported by some decisions in other states. There are such decisions ; but they are few in number compared with those in which it is held that conditional sales are valid and lawful as well against third persons as against the parties to the contract. The appellants, however, rely with much confidence on the deci- sion of this court in Herryford v. Davis, 102 U. S. 235, 243, 26 L. Ed. 160, a case coming from Missouri, where the law allows and sus- tains conditional sales. But we do not think that this case, any more than that of Hervey v. Rhode Island Locomotive Works, will be found to support their views. The whole question in Herryford v. Davis was as to the construction of the contract. This was in the form of a lease, but it contained provisions so irreconcilable with the idea of its being really a lease, and so demonstrable that it was an absolute sale with a reservation of a mortgage lien, that the latter interpretation was given to it by the court. This interpretation ren- dered it obnoxious to the statute of Missouri requiring mortgages of personal property to be recorded in order to be valid as against third persons. It was conceded by the court, in the opinion delivered by Mr. Justice Strong, that if the agreement had really amounted to a lease, with an agreement for a conditional sale, the claim of the ven- dors would have been valid. The first two or three sentences of the opinion furnish a key to the whole effect of the decision. ]\Ir. Jus- tice Strong says: "The correct determination of this case depends altogether upon the construction that must be given to the contract between the Jackson & Sharp Company and the railroad company, against which the defendants below recovered their judgment and obtained their execution. If that contract was a mere lease of the cars to the railroad company, or if it was only a conditional sale, which did not pass the ownership until the condition should be per- formed, the property was not subject to levy and sale under execution at the suit of the defendant against the company. But if, on the other hand, the title passed by the contract, and what was reserved by the Jackson & Sharp Company was a lien or security for the payment of the price, or what is called sometimes a mortgage back to the ven- dors, the cars were subject to levy and sale as the property of the railroad company." The whole residue of the opinion is occupied with the discussion of the true construction of the contract ; and, as we have stated, the conclusion was reached that it was not really a lease nor a conditional sale, but an absolute sale, with the reservation of a lien or security for the payment of the price. This ended the case ; for, thus interpreted. Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 237 the instrument inured as a mortgage in favor of the vendors, and ought to have been recorded in order to protect them against third persons. But whatever the law may be with regard to a bona fide purchaser from the vendee in a conditional sale, there is a circumstance in the present case which makes it clear of all difficulty.' -^The appellant in the present case was not a bona fide purchaser without notice. The court below find that, at the time of and prior to the sale, he knew the purchase price of the property had not been paid, and that Russell & Co. claimed title thereto until such payment was made. Under such circumstances, it is almost the unanimous opinion of all the courts that he cannot hold the property as against the true owners; but as the rulings of this court have been, as we think, somewhat misunder- stood, we have thought it proper to examine the subject with some ■care, and to state what we regard as the general rule of law where it is not affected by local statutes or local decisions to the contrary. It is only necessary to add that there is nothing either in the stat- ute or adjudged law of Idaho to prevent, in this case, the operation of the general rule, which we consider to be established by overwhelming authority, namelyytnat, in the absence of fraud, an agreement for a conditional sale m good and valid as well against third persons as against the parties to the transaction ; and the further rule, that a bailee of personal property cannot convey the title, or subject it to execution for his own debts, until the condition on which the agree- ment to sell was made, has been performed.// The judgment of the supreme court of thfe territory of Utah is af- firmed. CARPENTER v. SCOTT. (Supreme Court of Rhode Island, 1881. 1.3 R. I. 47T.) MaTTESON, J. This is an action of replevin to recover possession of a rolling mill, attached by the defendant, a deputy sheriff. On the 17th day of November, 1879, the Willets Manufacturing Company de- livered to John Anthony the mill in question under an agreement, pur- porting to be a lease, by which Anthony was to pay them for the mill five hundred dollars, in twenty monthly installments of twenty-five dollars each, the first on the date named and the rest on the 17th day ■of each succeeding month, with interest at seven per cent, per annum. If Anthony failed to make any payment within five days after the date specified for such payment, the Willets Manufacturing Company might terminate the contract and take immediate possession of the mill. At the expiration of the lease, Anthony, having complied ivith its conditions, was to receive a bill of sale of the mill. At the date of the delivery of the mill to Anthony, he was a member 238 RETENTION' OP PROPERTY BY SELLER AFTER DELIVERY (Cll. 2 of a partnership composed of Thomas Anthony, Thomas J. Linton, and himself. The business of the partnership was at that time, and until the 11th day of March 1880, continued to be, transacted in the name of John Anthony. The contract for the mill, though in his name, was for the benefit of the partnership, and the partnership funds were used for the first payment, and for the successive payments of the in- stallments as they became due. On the 1 1th day of March, 1880, the partnership, under the name of John Anthony & Co., executed and de- livered to the plaintiff a mortgage, signed by each of the partners, and purporting to convey, besides their other property, the mill in question, "subject to a certain claim of the Willets Manufacturing Company." In July following John Anthony withdrew from the partnership, and the business after that date was conducted under the name of Thom- as Anthony & Co. On the 22d day of June, 1881, the last installment of the rent, or price, of the mill was paid, and the Willets Manufac- turing Company gave a receipted bill of sale of it to Thomas Anthony & Co. This bill of sale named John Anthony as the vendee, and ac- knowledged payment of the price by Thomas Anthony & Co., for John Anthony. On the same day the Willets ^Manufacturing Company brought suit against John Anthony for an indebtedness of his to them, and delivered the writ to the defendant for service, which was made in part by attaching the mill replevied in this suit. The question raised by the foregoing facts is, whether the mortgage to the plaintiff, in so far as it purports to convey the rolling mill, is valid as against the attachment of the Willets ]\Ianufacturing Com- pany. We think it is. Such a transaction as that above described, by which the mill in question passed into the possession of John Anthony, though in form a lease, is regarded in law as a conditional sale. Good- ell V. Fairbrother, 12 R. I. 233, 34 Am. Rep. 631 ; Currier v. Knapp, 117 Mass. 324; Greer v. Church & Co., 13 Bush (Ky.) 430, 433, 434. Under it the vendee acquires, not only the right of possession and use, but the right to become the absolute owner upon complying with the terms of the contract. These are rights of which no act of the vendor can divest him, and which, in the absence of any stipulation in the contract restraining him, he can transfer by sale, or mortgage. Upon performance of the condition of the sale, the title to the proper- ty vests in the vendee, or in the event that he has sold, or mortgaged it, in his vendee, or mortgagee, without further bill of sale. Day v. Basset, 102 Mass. 445, 447; Crompton v. Pratt, 105 Mass. 255, 258; Currier v. Knapp, 117 Mass. 324, 325, 326; Chace v. Ingalls, 122 Mass. 381, 383. It follows from these principles, that immediately on pay- ment of the last installment of the price, the title to the rolling mill vested in John Anthony, or in him and his copartners, it is immaterial which, and that, thereupon, the plaintiff's mortgage became valid, and entitled to priority over the attachment of the Willets Manufacturing Company subsequently made. Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 239 The defendant contends that the plaintiff's mortgage is invalid as against the attachment, because the plaintiff had never taken posses- sion of the rolling mill under it. In support of this claim he cites Williams v. Briggs, 11 R. I. 476, 23 Am. Rep. 518, and Cook v. Cor- thell, 11 R. I. 482, 23 Am. Rep. 518. These cases are, however, vi'ide- ly different from the present. They do, indeed, hold that, at law, a mortgage of personal property to be subsequently acquired conveys no title, unless possession of the property when acquired is given to, or taken by, the mortgagee. They rest upon the familiar maxim, that no one can grant, or charge, that which he does not have. At the execution of the mortgages the mortgagors had no interest whatever in the property, the title to which was involved in these suits. It was property which was to come into their possession, and in which they were to acquire an interest, in the future, and which might not have been in existence, even, when the mortgages were made. In the pres- ent case, on the contrary, the mortgagors at the making of the mort- gage had the possession of the property, with the right to its posses- sion and use, and the right to become its absolute owners on complying with the conditions of the sale. These rights constituted an actual, present interest in the property, which, as we have seen above, is ca- pable of transfer by sale or mortgage. In accordance with the stipulation of the parties, judgment is ren-, dered for the plaintiff for costs. Judgment for plaintiff for costs. HERVEY V. DIMOND. (Supreme Court of New Hampshire, 1S92. 67 N. H. 342, 39 Atl. 331, 68 Am. St. Rep. 673.) Replevin, of household furniture. Facts agreed. February 5, 1891, the plaintiffs delivered from their place of business, in Boston, to one Fred D. Story, at Penacook, a lot of household furniture, under a contract in writing, in which it was stipulated that he had hired and received the same of the plaintiffs, and would pay them, for the rent and use thereof, the sum of $5 per month, until the price, $77.38, should be paid ; that the plaintiffs were to remain absolute owners of ' the property until the full price should be paid, when they were to "release their claim and right in the goods above leased" to Story. The contract further provided that if Story should fail to pay the rent as stipulated, or should remove the goods from Penacook, or sell or underlet them, or suffer them to be attached, he would thereby forfeit all right to the goods, and to the further use of them, and to all mon- eys paid, and that the plaintiffs might enter the premises of Story, and remove the same. August 14, 1891, Story paid, and the plaintiffs ac- cepted, a monthly installment, making the whole amount paid by him under the contract $30. On that day, the defendant, as deputy sher- 240 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 iff, attached the goods, as the property of Story, in the freight station at Penacook, awaiting shipment to Boston, on a writ in favor of one VVhitaker. In answer to a letter from the defendant inquiring the amount due them upon the contract, the plaintiffs replied, August 18th, that the balance due was $47.38; that they had given Story permis- sion to move the goods to East Boston ; and concluded, "So, we do not presume that you would care to detain the goods knowing they were leased property." A demand made September 8th for the goods was refused. On that day, Whitaker, the attaching creditor, tendered them $47.38, which was refused. Later, the same day, the defendant demanded in writing, of the plaintiffs, an account, under oath, of the sum due them by virtue of any contract with Story. The plaintiffs never made any reply to the demand. September 12, 1891, they replevied the goods, and took them to Boston. Smith, J. The contract (called a "lease") does not, in legal effect, differ materially from a conditional sale. Although, by the contract, it was stipulated that the plaintiffs should remain absolute owners of the goods until the full price should be paid, it does not follow that Story had no interest in the property. He had the right to pay the balance due, and become the owner of the property. While the plain- tiffs remained the general owners until the full price should be paid. Story's interest was that of a special owner, which the law recognizes and protects. It was an assignable and attachable interest, his assignee or attaching creditor acquiring the same rights as he had. If Story failed to make the monthly payments according to the contract, and the plaintiffs might for that cause have asserted a forfeiture, they waived the default by accepting an installment August 14th. Although the attachment was nominally of the property, yet it plain- ly appears that Whitaker did not intend to attach in disregard of the plaintiffs' rights, and he fully recognized them by tendering the amount due. If necessary, the officer's return can be amended to conform to the fact. By the tender of the amount due the plaintiffs, their title to the goods became vested in Story, subject to Whitaker's attachment. As Whitaker seasonably tendered the amount of their claim, the defendant is entitled to judgment for the value of the prop- erty, and for his costs. A few of the authorities in support of these views are Sargent v. Gile, 8 N. H. 325 ; Porter v. Pettengill, 12 N. H. 299; Bailey v. Colby, 34 N. H. 29, 66 Am. Dec. 752; McFarland V. Farmer, 42 N. H. 386; Partridge v. Philbrick, 60 N. H. 556. There is a clause in the contract that Story, by suffering the prop- erty to be attached, would forfeit all right to and use of the goods. It does not appear that Story procured or advised the attachment to be made. Whether he can be said to have "suffered" the attachment to be made, when it was not made by his procurement or with his consent, and when, so far as appears, he could not prevent it, is a Sec. 10) RETENTION OF PROPERTY BY SELLER AFTER DELIVERY 241 question not made. The plaintiffs have not contended or suggested that Story's interest in the goods was terminated by the attachment. Case discharged. All concurred.'*" SPOONER V. CUMMINGS. SAME V. HANDI^EY. (Supreme Judicial Court of Massacliusetts, 1890. 151 Mass. 313, 23 N. E. 839.) Two actions of replevin, of a horse and of a mare respectively. The answer in each case contained a general denial, and that in the second case also set up fraud and laches on the part of the plain- tiff, and an authority from him to sell the mare to the defendant. Trial in the Superior Court, before Aldrich, J., who allowed a bill of exceptions in each case. In the first case there was evidence that on May 26, 1888, the plaintiff, who then owned the horse in question, sold it to one Pope, who bought and received it upon an agreement in writing signed by him, which recited that the horse was to be and remain the en- tire and absolute property of the plaintiff until paid for in full by Pope ; that the plaintiff was a dealer in horses, and had sold horses to Pope for several years ; and that Pope, before paying the plaintiff for the horse in question, resold it to the defendant, on Tune 2, 1888, and received payment for it from him. The plaintiff contended and asked the judge to rule, that the de- fendant, under his answer, could only be permitted to show that the conditional agreement was not made, or that the horse had been paid for by Pope. The judge declined so to rule, but ruled that the de- fendant might be permitted to show that the plaintiff gave to Pope authority, express or implied, by the course of dealing between them, to sell the horse before payment; and the plaintiff excepted. The defendant thereupon introduced evidence which showed that for a long period the plaintiff and Pope had engaged in similar trans- actions, and that, according to the course of dealing between them. Pope purchased horses from the plaintiff, and gave him similar con- ditional agreements in writing; and that the plaintiff would urge Pope to sell such horses, and the latter, before paying for them, would resell them and send money to the plaintiff, which the latter would apply as he saw fit on any of the agreements. One Trull was permitted to testify against the plaintiff's objection, that about the middle of June, 1888, the plaintiff told him to tell Pope that he 5 6 As to the rights of the trustee in bankruptcy of a conditional vendee, see In re WUUamsburg Knitting Mill (D. O.) 190 Fed. 871 (1911); In re Kreuger (D. C.) 199 Fed. 36T (1912). Wood w. Sales — 16 242 RETENTION OF PROPERTY BY SELLER AFTER DELIVERY (Ch. 2 had a carload of horses coming, and to sell as many horses as he could. The judge gave an instruction among others to the jury, which permitted them to find, from the course of deaUng between the par- ties, that the plaintiff had given Pope implied authority to sell the horse in question ; and further instructed them, that, if the plaintifif, notwithstanding the conditional agreement between the parties, con- sented that Pope might sell the horse to the defendant, trusting that Pope would send him the money in payment for it, he could not set up the conditional agreement with Pope as against the defendant. The jury returned a verdict for the defendant ; and the plaintiff alleged exceptions. Knowlton, J."^^ Under the answer of the defendant, any evidence was competent which tended to contradict the contention of the plaintifif that the title to the horse and the right of possession were in him. Verry v. Small, 16 Grav, 121, 122; Whitcher v. Shattuck, 3 Allen, 319. The defendant was not a party to the written contract between the plaintiff and Pope, but claimed outside of it, and in support of his own title he might show by parol what was the real arrangement between them, even if it differed from that contained in the writing. Kellogg V. Tompson, 142 Mass. 76, 6 N. E. 860. If the plaintiff expressly or impliedly authorized the sale by Pope to him, he, having bought in good faith from the apparent owner, acquired a good title. It is immaterial whether his right depends upon an actual authority to make the sale, or upon facts which estop the plaintiff from deny- ing the validity of the sale. Burbank v. Crooker, 7 Gray, 158, 159, 66 Am. Dec. 470; Haskins v. Warren, 115 Mass. 514, 538; Tracy V. Lincoln, 145 Mass. 357, 14 N. E. 122; Bank v. Buffinton, 97 Mass. 498; Fowler v. Parsons, 143 Mass. 401, 9 X. E. 799. The testimony as to the course of dealing between the plaintiff and Pope, involving a long series of transactions, all of the same kind, and conducted generally in the same way, was competent, as tending to show an expectation and understanding on the part of both that Pope would sell the horses which he bought of the plaintiff as he had opportunity, and that he was impliedly authorized to sell this horse to the defendant. Hubbell v. Flint, 13 Gray, 277; Bank V. Goodsell, 107 Mass. 149; Lynde v. McGregor, 13 Allen, 172; Bragg V. Railroad Corp., 9 Allen, 54. The testimony of Trull, as to the message sent to Pope by the plaintiff about the middle of June, was of a conversation so soon after the sale of June 2d to the defendant that the judge might well admit it in his discretion. It related to the general course of dealing, of which the sale to Pope of the horse replevied was a part. 5 7 The statement and the opinion in the second case are omitted. Sec. 11) RETENTION OF POSSESSION BY SELLER AFTER TRANSFER 243 The jury were rightly permitted to find that the plaintiff impliedly authorized the sale by Pope to the defendant, and that he was estop- ped to deny the vaHdity of the title which the defendant acquired, relying on Pope's possession and apparent ownership. Exceptions overruled/* SECTION 11.— EFFECT OF RETENTION OF POSSESSION BY SEEEER AFTER TRANSFER OF PROP- ERTY TO BUYER EDWARDS V. HARBEN. (Court of King's Bench, 1788. 2 Term Rep. 587.) Assumpsit for goods sold to the defendant's testator. The defend- ant pleaded that he was not executor, nor had ever administered as such ; and, secondly, that he had fully administered, &c. Replication, that he had administered divers goods &c. of the testator ; and issue thereon. And to the second plea, that the defendant, at the time of exhibiting the plaintiff's bill, had, and still has, goods and chattels of che deceased in his hands sufficient to satisfy the plaintiff's demands ; and issue thereon. At the trial at the last Assizes at East Grinstead, Sussex, a verdict was found for the plaintiff with £22. 18s. 6d. dam- ages and 40s. costs, subject to the opinion of this court on the follow- ing case: William Tempest Mercer in his life-time, and before the time of the execution of the bill of sale herein-after mentioned, was indebted to the plaintiff in the sum of £22. 18s. 6d. for goods sold and delivered, which sum still remains due to the plaintiff. William Tempest Mer- cer, at the time of the execution of the said bill of sale, was likewise indebted to the defendant in the sum of £191. for money lent. On the 27th of March 1786 Tempest Mercer offered to the defendant a bill of sale of his goods, household furniture, and stock in trade, in his house at Lewes, by way of security for the said debt. The de- fendant refused to accept of the same, unless he should be at liberty to enter upon the effects and sell them immediately after the expira- = ■* "If, however, the resale made by the buyer is of a totally different char- acter from that which the seller authorized, or is estopped to deny that he authorized, this principle does not apply." Williston, Sales, § 329. See Bur- bauk V. Crooker, 7 Gray, 358, 66 Am. Dec. 470 (1856). But compare Bass, Heard & Howie v. International Harvester Co., 160 Ala. 154, 53 South. 1014, 33 L. R. A. (N. S.) 374 (1910). As to estoppel of seller in favor of buyer's creditors, see Flint Wagon Works V. Maloney (Del.) 81 Atl. 502 (1911) ; note, 12 Columbia Law Rev. 180 ; Williston, Sales, | 329. 244 RETENTION OF POSSESSION BY SELLER AFTER TRANSFER (Ch. 2 tion of fourteen days from the execution thereof, in case the money should not be sooner paid; to which Tempest Mercer agreed, and accordingly on the same day executed a bill of sale in the common form, by which Mercer bargained and sold to the defendant for ever his household furniture, medicines, stock in trade [particularly speci- fying them], and all and every other the goods, chattels, and effects whatsoever, in and about his dwelling-house and premises at Lewes. Immediately upon the execution of the bill of sale possession was delivered to the defendant in the manner described therein, viz. by the delivery of one cork screw in the name of the whole, but in no other manner whatsoever. All the effects described in the bill of sale remained in the possession of William Tempest Mgrcer until the time of his death, which happened on the 7th of April, 1786. On the 8th of April, 1786, being before the expiration of fourteen days from the execution of the bill of sale, the defendant entered and took pos- session of the effects contained in the bill of sale, being then in the house of the deceased, and afterwards sold the same for £236. 7s. 5d. William Tempest fiercer died intestate, and no letters of admin- istration were taken out to the deceased by the defendant, or by any other person, before the commencement of this action. The question for the opinion of the court is, whether the defendant is entitled to retain the produce of the said effects, or at least the value of il91., the consideration of the bill of sale : or whether the bill of sale is void as against the creditors of William Tempest Mercer; and the plaintiff in this action is entitled to recover his debt of £22. 18s. 6d. against the defendant, as executor de son tort. BullBR, J. This is an action brought by the plaintiff, who is a creditor of Mercer, against the defendant as executor. It does not appear by the case that any other goods than those mentioned in the bill of sale came to the defendant's hands. The bill of sale is dated on the 27th March, 1786, and is a general bill of sale of all the de- fendant's household furniture and stock in trade. This bill of sale is to take effect immediately on the face of it : but there was an agreement between Mercer and the defendant, that the goods should not be sold till the expiration of fourteen days from the date of its execution ; and no possession was actually taken till after the death of Mercer, which happened within the fourteen days : but there was a formal delivery of a cork screw in the name of the whole. On this case two questions arise : First, whether this bill of sale be void or not; and Secondly, if void, whether the defendant by having taken these goods under the bill of sale, made himself liable as an executor de son tort. The first question came before the court in the last term in the case of Bamford v. Baron, 2 Term. Rep. 594, note, on a motion for a new trial from the Northern circuit : and after hearing that case argued, we thought it right to take the opinion of all the judges upon it. Ac- Sec. 11) RETENTION OF POSSESSION BY SELLER AFTER TRANSFER 245 cordingly we consulted with all the judges, who are unanimously of opinion that unless possession accompanies and follows the deed, it is fraudulent and void; I lay stress upon the words "accompanies and follows," because I shall mention some cases where, though possession was not delivered at the time, the conveyance was not held to be fraudulent. There are many cases on this subject; from which it appears to me that the principle which I have stated never admitted of any serious doubt. So long ago as in the case in Bulstrode, the court held that an absolute conveyance or gift of a lease for years, unattended with possession, was fraudulent; but if the deed or con- veyance be conditional, there the vendor's continuing in possession does not avoid it, because by the terms of the conveyance the vendee is not to have the possession till he has performed the condition. Now here the bill of sale was on the face of it absolute, and to take place immediately, and the possession was not delivered; and that case makes the distinction between deeds or bills of sale which are to take place immediately, and those which are to take place at some future time. For in the latter case the possession continuing in the vendor till that future time, or till that condition is performed, is con- sistent with the deed; and such possession comes within the rule, as accompanying and following the deed. That case has been universally followed by all the cases since. One of the strongest is quoted in Bucknal and Others v. Roiston, Pr. in Chan. 287 ; there one Brewer, having shipped a cargo of goods, bor- rowed of the plaintiff £600. on bottomry, and at the same time made a bill of sale of the goods, and of the produce and advantage thereof, to the plaintiff; there Sir E. Northey cited a case "where a man took out execution against another; by agreement between them the owner was to keep the possession of them upon certain terms, and after- wards another obtained judgment against the same man, and took the goods in execution : and it was held that he might, and that the first execution was fraudulent and void against any subsequent creditor, because there was no change of the possession, and so no alteration made of the property." And he saidy it had been ruled forty times in his experience at Guildhall, that^if a man sell goods, and still continue in possession as visible ovmer of them, such sale is fraudu- lent arad void as to creditors, and that the law has been always so held. /The lord chancellor held in the principal case that the trust of thosff^ goods appeared upon the very face of the bill of sale. That though they were sold to the plaintiffs, yet they trusted Brewer to negotiate and sell them for their advantage, and Brewer's keeping possession of them was not to give a false credit to him as in other cases which had been cited, but for a particular purpose agreed upon at the time of the sale. So that the Chancellor in that case proceeded on the distinction which I have taken ; he supported the deed, because the want of possession was consistent with it. This has been argued 246 RETENTION OF POSSESSION BY SELLER AFTER TRANSFER (Ch. 2 by the defendant's counsel as being a case in which the want of pos- session is only evidence of fraud, and that it was not such a circum- stance per se as makes the transaction fraudulent in point of law : that is the point which we have considered, and we are all of opinion that if there is nothing but the absolute conveyance, without the pos- session, that in point of law is fraudulent. On the other hand there are cases, where the vendor has continued in possession, and the bill of sale has not been adjudged fraudulent, if the want of immediate possession be consistent with the deed. Such was the case of Lord Cadogan v. Kennet, Cowp. 432; because there the possession fol- lowed the deed. So also the case of Haslington and Another v. Gill and Another, Sheriff of Middlesex, Tr. 24 Geo. Ill, B. R. ; there per- sonal property, consisting (inter alia) of some cows, was settled on the marriage of the plaintiff's wife on certain trusts ; and the court held that only those which were purchased after the marriage could be taken to satisfy the debts of the husband. The second question then is, whether the defendant's having taken possession of these goods after Alercer's death, though under the bill of sale, will make him an executor de son tort. The two cases, which were cited by the defendant's counsel, are decisive of this point. In Bac. Abr. (2 Bac. Abr. 605) it is saic)//if a man make a deed of gift of his goods in his life-time by covin to oust his creditors of their debts, yet after his death the vendee shall be charged for them.''/ There too the possession was delivered to the vendee. To suppott this doctrine 13 H. IV, 4, b, Rol. Abr. 549, are both quoted. Then in what manner shall he be charged ? He can only be charged as ex- ecutor ; because any intermeddling with the intestate's effects makes him so. The cases in Cro. Fa. and Yelv. cited at the bar prove it, and state the manner in which he shall be charged. There is also another strong case on this point in Dyer, Dy. 166, b. In short every intermeddling after the death of the party makes the person so inter- meddling an executor de son tort. Grose, J., observed that it was unnecessary to repeat what had been said from the bench ; but said that he was perfectly satisfied that the law was as had been stated. Postea to the plaintiff.^" OS "Sales made by debtors in fraud of creditors are usually regarded as be- ing governed by the statute of 13 Ellz. c. 5, and the decisions made under if, but other statutes liad been previously passed on the same subject, and in 1776 Lord llansfleld, in Cadogan v. Kennet [Cowp. 4.32], said that 'the prin- ciples and rules of the common law, as now universally iinown and under- stood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes of 1.3 Eliz. c. 5, and 27 Eliz. c. 4. The former of these statutes relates to creditors only ; the latter to purchasers. These statutes cannot receive too liberal a construc- tion, or be too much extended in suppression of fraud.' "The statute of 1,3 Eliz. c. 5 [made perpetual by 2!) Eliz. e. 5], which merely Me. 4O0, 40 Am. Rep. 366; Barney v. Dewey, 13 Johns. (N. Y.) 226, 7 Am. Dec. 372; Hubbell v. Meigs, 50 N. Y. 491. The general doctrine which controls this action is fully reviewed by Mr. Wallace in a note to Pasley v. Freeman, 2 Smith, Lead. Cas. 101. 284 EFFECT OF FRAUD ON THE SELLER (Ch. 2 As said by Bigelow (Frauds, p. 484) : "To profess an intent t6 do or not to do, when a party intends the contrary, is as clear a case of mis- representation and of fraud as could be made." See, also, page 466, as to what constitutes a representation. In Goodwin v. Home, 60 X. H. 486, the court say : "Ordinarily false promises are not fraudulent, nor evidence of fraud, and only false representations of past or existing facts are actionable, or can be made the ground of defense. * * * feut when a promise is made with no intention of performance, and /for the very purpose of accomplishing a fraud, it is a most apt and /effectual means to that end, and the victim has a remedy by action or defense. Such are cases of concealed insolvency and purchases lof goods with no intention to pay for them." In Byrd v. Hall, 1 Abb. Dec. (N. Y.) 286, it was held that, although a purchase of goods on credit by one who knows himself to be insol- vent is not fraudulent, yet, where it is made with a preconceived de- sign not to pay, it is fraudulent. See, also, Alulliken v. Millar, 12 R. I. 296; Thompson v. Rose, 16 Conn. 81, 41 Am. Dec. 121 ; Hen- nequin v. Naylor, 24 N. Y. 139; Devoe v. Brandt, 53 N. Y, 465; Story, Sales (2d Ed.) § 176, and cases in note 2; Douthitt v. Apple- gate, 33 Kan. 395, 6 Pac. 575, 52 Am. Rep. 533 ; Morrill v. Black- man, 42 Conn. 324; Skinner v. FHnt, 105 :Mass. 528; Earl of Bristol V. \A'ilsmore, 2 Dowl. & R. 760; Lobdell v. Baker, 1 Aletc. (Mass.) 193, 35 Am. Dec. 358; Cooley, Torts (2d Ed.) 559; Load v. Green, 15 Mees. & W. 215. In short, the making of one state of things to appear to those with whom you deal to be the true state of things, while you are acting on the knowledge of a different state of things, — among the oldest definitions of fraud in contracts, — is exemplified in this case. See Eee V. Jones, 17 C. B. (N. S.) 494. The defendant made it to ap- pear, by the act of buying on credit, that he intended to pay for the goods in question, while in fact he intended to cheat the plaintiffs out of them ; and to hold that such a transaction does not amount to fraud would be to make it easy for cheats and swindlers to escape the just consequence of their unrighteous acts. W^ have hesitated somewhat in arriving at the conclusion that an action of deceit will lie upon the facts set out in the declaration for the reason that, among the numerous cases of fraud and deceit to. be found in the books, we have not been referred to any, nor havil we been able to find any, where the action of deceit was based simpll) on the act of buying goods on credit, intending not to pav for them. In Lyons V. Briggs, 14 R. I. 224, 51 Am. Rep. 372, which was an action of deceit, Durfee, C. J., intimates, however, that deceit would he, m a case like the one before us, by the use of the following lan- guage : "It is not alleged that the buyer did not intend to pay when he bought, but only that he falsely and fraudulently asserted that he could be safely trusted." But the authorities are overwhelming to the effect that it is ^ fraud to purchase goods intending not to pav Sec. 12) EFFECT OF FRAUD ON THE SELLER 285 for them, and that the vendor, upon discovering the fraud, may re- pudiate the sale and reclaim the property, or may sue in trover or in some other action of tort for the damages sustained by the fraud. And, this being so, we fail to see why an action of deceit, which is ] an action of tort based on fraud, may not lie as well; for to obtain goods on credit, intending not to pay for them, is as much a trick or device as it would be to falsely represent in words any material fact whereby the vendor should be induced to part therewith. But defendant's counsel contends that the alleged representation was not as to any fact, present or past, but merely as to what the defendant would do in the future with reference to paying for the' goods, and that to say what one intends to do is identical to saying what one will do in the future, which amounts simply to a promise ; and, furthermore, that a representation of what will happen in the future, even if not realized, is not such a representation as will sup- port this action. We do not assent to this method of reasoning. The state of a man's mind at a given time is as much a fact as is the state of his digestion. Intention is a fact. Clift v. White, 12 N. Y. 538. Hence a witness may be asked with what intent he did a given act. Seymour v. Wilson, 14 N. Y. 567. A man who buys and ob- tains possession of goods on credit, intending not to pay for them, is then and there guilty of fraud. The wrong is fully completed, and no longer exists in intention merely, and a cause of action instantly accrues thereon in favor of the vendor to recover for the wrong and injury sustained. It is true the purchaser may afterwards repent of the wrong and pay for the goods, and the vendor may never know of the wrongful intent. But this does not alter the case at all as to the original wrong, and the liability incurred thereby. Of course, a mere intention to commit a crime or to do a wrong is no offense; but, when the intention is coupled with the doing or accomplishment of the act intended, that moment the wrong is perpetrated, and the corresponding liability incurred. See Starch Factory v. Lendrum, 57 Iowa, 582, 10 N. W. 900, 42 Am. Rep. 53. In Stewart v. Emerson, 52 N. H. 301, where it was alleged, in reply to the defendant's plea of discharge in bankruptcy, that the debt in question was created by the fraud of the defendant. Doe, J., in the course of a long and vigorous opinion, used the following language, which is so apt and pertinent that we quote it. He said: "When the intent not to pay is concealed, the intent to defraud is acted out. The mere omission of A. to disclose his insolvency might not be satisfactory proof of a fraudulent intent in all cases. He might expect to become solvent. He might intend to pay all his creditors. He might intend to pay B., though unable to pay others. His fixed purpose never to pay B. is a very different thing from his present inability to pay all or any of his creditors. A man may buy goods, with time for trying to pay for them, on the strength of his known or inferred disposition to pay his debts, his habits, character, busi- 286 EFFECT OF FRAUD ON THE SELLER (Ch. 2 ness capacity, and financial prospects, without his present solvency being thought of, and even when his present insolvency is known to the vendor. But who could obtain goods on credit with an un- concealed determination that they should never be paid for? The concealment of such a determination is conduct which reasonably involves a false representation of an existing fact, is not less mate- rial than a misrepresentation of ability to pay (Bradley v. Obear, 10 N. H. 477), and is an actual artifice, intended and fitted to de- ceive. * * * /^j^ application for or acceptance of credit by a purchaser is a representation of the existence of an intent to pay at a future time, and a representation of the nonexistence of an intent not to pay. What principle of law requires a false and fraudu- lent representation to be express, or forbids it to be fairly inferred from the act of purchase? A representation of a material fact, im- plied from the act of purchase, and inducing the owner of goods to sell them, is as effective for the vendee's purpose as if it had been previously and expressly made. If it is false, and known to the pre- tended purchaser to be false, and is intended and used by him as a means of converting another's goods to his own use without compen- sation, under the false pretense of a purchase, why does it not render such a purchase fraudulent ? When the intent is to pay, it is neces- sarily understood by both parties, and need not be expressly repre- sented as existing. When the intent is not to pay, it is of course concealed. Whether the deceit is called a false and fraudulent rep- resentation of the existence of an intent to pay, or a fraudulent con- cealment of the existence of an intent not to pay, the fraud described is, in fact, one and the same fraud." Demurrer overruled, and case remitted to the common pleas divi- sion for further proceedings.'" WHITE V. GARDEN. (Court of Common Pleas, 1851. 10 C. B. 919.) Trover for iron. Pleas — first, not guilty; secondly, not possessed. At the trial, before Jervis, C. J., at the sittings in London, after the last term, the evidence disclosed the following facts : One Parker, in August, 1850, bought of the defendants seventy tons of iron, paying for it £83. in cash, and giving a bill for the residue, ill3. 14s., purporting to be accepted by one Thomas, a seedsman at Rochester. Parker afterwards sold the iron to the plaintiff, to whom it was, by Parker's order, delivered by the defendants. On the 1st of October, Parker made a further purchase of fifty tons of iron from the defendants, for which he gave them a bill also '0 But see Smith v. Smith, 21 Pa. 367, 60 Am. Dec. 51 (1853) ; Dawe v. Morris, 149 Mass. 188, 21 X. E. 313, I L. R. A. IfjS, 14 Am. St Key 404 (1SS9) • Williston, Sales, § 637. Sec. 12) EFFECT OF FRAUD ON THE SELLER 287 purporting to be accepted by Thomas. This second parcel of iron was hkewise sold by Parker to the plaintiff, and was forwarded to the plaintiff's wharf on the 4th of October, by one Riddell, the defend- ants' lighterman, pursuant to a dehvery order signed by Parker on the 3d. The barge containing the fifty tons was left, with the delivery order by Riddell, alongside the plaintiff's wharf to be unloaded. Sub- sequently, the defendants, having discovered that the supposed ac- ceptor of the bills was a fictitious person, and that they had been defrauded, sent Riddell to the pldintiff's wharf to get back the iron. Riddell accordingly took away the lighter, with twenty-nine tons of the iron which remained therein : and the defendants gave the plain- tiff notice of the fraud, and desired him not to part with any of the iron in his possession purchased of Parker. The purchases were bona fide on the part of the plaintiff, and had been made at the fair market price, and through the intervention of a broker. It appeared that Parker had given the defendants a false address : but it did not appear that the defendants had made any inquiry either about him or the acceptor of the bills, until after the iron had been sent by them to the plaintiff's wharf. On the part of the defendants, it was insisted, that, the transaction being a fraud on the part of Parker, no property in the iron passed to him, and consequently none could be acquired by his vendee, though no party to the fraud. For the plaintiff, it was submitted, that the right in the original vendors to rescind the sale, was at an end when the goods had come to the hands of a bona fide purchaser for value. The lord chief justice left four questions to the jury — first, whether the plaintiff had purchased the iron from Parker, bona fide ; secondly, whether there had been a delivery of the iron by the defendants to the plaintiff; thirdly, whether Parker had obtained the iron animo furandi; fourthly, whether he had obtained it by fraud. The jury answered the first two questions in the affirmative, and the third in the negative: but, as to the fourth, they said they could not agree in finding fraud, though they were all of opinion that Parker never intended to pay for the iron. His lordship thereupon directed a verdict to be entered for the plain- tiff, for £75., the value of the twenty-nine tons of iron removed from alongside the plaintiff's wharf, — leave being reserved to the defend- ants to move to enter a verdict for them, if the court should be of opinion that no property in the iron passed by the sale from Parker to the plaintiff. CrESSwUi^l, J. I am of opinion that this rule must be discharged. It appears that the plaintiff made a contract with Parker for the pur- chase of fifty tons of iron. It may be very doubtful whether Parker had the iron at the time. But afterwards (or before, as the case may 288 EFFECT OP FRAUD ON THE SELLER (Ch.2 be) he purchased fifty tons of iron from the defendants, giving them in payment a bill purporting to be accepted by a supposed seedsman at Rochester. It turned out that that was a fictitious bill; no such persoiy as that described as the acceptor being to be found at Roches- ter //The transaction on the part of Parker was altogether f raudulentJ uU^g thus by fraud induced the defendants to trust him, Parker sells the iron to the plaintifif, and gives him a delivery order, which is acted upon by the defendants, who send the iron to the plamtifif s wharf by their own lighterman. Having received the iron alongside his wharf, the plaintiff pays Parker for it; and the defendants after- wards, having in the interim discovered that they had been defrauded, seize the iron. The question is, whether the plaintifif, who it is admitted acted bona fide, by this purchase obtained a property in the iron. It seems to me that the case of Parker v. Patrick, as explained in Load v. Green, well warrants us in discharging this rule. Parke, B., there says that that case may be supported on the ground that the transaction is not absolutely void, except at the option of the seller; that he may elect to treat it as a contract, and he must do the contrary before the buyer has acted as if it were such, and re-sold the goods to a third party; and that Wright v. Lawes is an authority to the same effect. I think it is. And I see no difificulty or hardship in so deciding/ One of two innocent parties must suffer: and surely it is more j^t that the burthen should fall on the defendants, who were guilty of negli- gence in parting with their goods upon the faith of a piece of paper which a little inquiry would have shown to be worthless, rather than upon the plaintiff, who trusted to the possession of the goods them- selves. Though Parker could not have enforced the contract, I see no reason why the plaintiff should notV/ Rule discharged.'^ v SALTUS v. EVERETT. (Court for the Correction of Errors of New York, 1838. 20 Wend. 207, 32 Am. Dec. 541.) Error from the Supreme Court. Everett brought an action of trover in the superior court of law of the city of New-York against Alessrs. Saltus, for a quantity of lead. In August, 1825, Bridge & Vose, merchants at New-Orleans, shipped 179 pigs of lead on board the brig Dove, of which William Collins was master, consigned to Messrs. Tufts, Eveleth, & Burrell, of New- York, on account and risk of Otis Everett, the plaintiff, to whom they were referred for instructions. The Dove put into Norfolk in distress, and part of the lead was sold to pay expenses, and the residue was '1 Concurring opinions were rendered by Williams and Talfourd, J J., and .Tervis, C. J. Sec. 12) EFFECT OF FRAUD ON THE SELLER 289 transferred in December, 1825, by an agent of Capt. Collins, to the schooner Dusty Miller, Captain Johnson, who signed a bill of lading, acknowledging the lead to have been shipped by F. M., agent for Wil- liam Collins, and promising to deliver the same in New- York, to or- der, on payment of freight. The Dusty Miller met with a disaster on her voyage to New- York, and on her arrival there, the lead, by the order of Capt. Collins, was delivered to the firm of Coffin & Cart- wright, who paid the freight, and $72.87, the average contribution, charged upon the lead, for the loss occasioned by the disaster to the Dusty Miller. On the 9th March, 1826, Coffin & Cartwright sold the lead to the Messrs. Saltus, the defendants, for $542.74, and received payment. The freight of the lead from New-Orleans to New-York, amounted to $14.72. Everett brought an action against Coffin & Cartwright, to recover the value of the lead, but was nonsuited, in failing to prove that be- fore suit brought, he offered to pay the freight, average and charges to which the lead was liable, and which had been advanced by Messrs. Coffin & Cartwright, and this court, on application, refused to set aside the nonsuit. (See 6 Wendell, 603.) In October, 1831, the plaintiff demanded the lead of the Messrs. Saltus, and offered to pay any law- ful demands they had on the same; to which they answered, that they would have no further communication on the subject. It was proved that in March, 1826, one of the firm of Tufts, Eveleth, & Burrell demanded of the Messrs. Saltus, the lead, or its value, and received for answer, that they had bought the lead, and paid for it, and would not do anything about it. Upon this evidence the plaintiif was again nonsuited. Whereupon he sued out a writ of error, remov- ing the record into the supreme court, where the judgment of the su- perior court was reversed. See opinion delivered in the supreme court. (IS Wendell, 475, et seq.) The defendants then removed the record into this court. Senator Verplanck.'^ * * * i^^e main question depends up- on and involves the general rule that ought to govern, between the conflicting rights of bona fide purchasers of personal property, bought without notice of any opposing claim, and those of the original own- er, divested of the possession or control of his property by accident, mistake, fraud, or misplaced confidence. The original owner now claims his lead against purchasers who bought for a fair price, in the usual course of trade, from persons holding the usual evidence of such property, (a bill of lading endorsed to them,) and in actual possession of the goods. Of these two innocent parties, which of the two is to bear the loss arising from the wrong doing of the third? The universal and fundamental principle of our law of personal property, is, that no man can be divested of his property without his 72 Part of the opinion Is omitted. Wood w. Sales — 19 290 EFFECT OF FRAUD ON THE SELLER (Ch. 2 own consent; and, consequently, that even the honest purchaser un- der a defective title cannot hold against the true proprietor. That "no one can transfer to another a better title than he has himself ;" is a maxim, says Chancellor Kent, "alike of the common and the civil law, and a sale, ex vi termini, imports nothing more than that the bona fide purchaser succeeds to the rights of the vendor." The only ex- ception to this rule in the ancient English jurisprudence was, that of sales in markets overt, a custom which has not been introduced among us. "It has been frequently held in this country that the English law of markets overt had not been adopted, and consequently as a general rule, the title of the true owner cannot be lost without his consent." 2 Kent's Comm. 324, and cases there cited. To whatever and however numerous exceptions this rule of our law may be subject, it is unquestionably the general and regulating prin- ciple, modified only by the absolute necessity or the obvious policy of human affairs. The chief justice of the superior court has said, in his opinion on this case, that "it must be conceded that a purchaser fori a fair and valuable consideration, in the usual course of trade, with- out notice of any conflicting claim or any suspicious circumstances tc awaken inquiry, or to put him on his guard, will, as a general rule, be protected in his purchase, and unaffected by any latent claim. But there are exceptions to this rule." Now, I cannot agree with the learned chief justice that this is the general rule. On the contrary, I think it obvious that it is but the broad statement of a large class of exceptions to the operation of a much more general principle, and that statement of exceptions is subject again to many limitations. I have stated the general and governing law ; let us now see what are precisely the exceptions to it. The first and most remarkable class of these exceptions relates to money, cash, bank bills, checks, and notes payable to the bearer or transferable by delivery, and in short whatever comes under the gen- eral notion of currency. It was decided by Lord Chief Justice Holt, at an early period of our commercial law, that money and bills payable to bearer, though stolen, could not be recovered after the)' had passed into currency; and this "by reason of the course of trade which cre- ates a property in the holder." "They pass by delivery only, and are considered as cash, and the possession always carries with it the prop- erty." Anon., 1 Salk. 126. A long series of decisions, beginning with Miller v. Race, 1 Burr. 452, has now settled the law, that possession of such paper is presumptive proof of property, and that he who re- ceived it in the course of trade for a fair consideration, without any reason for just suspicion, can hold it against the true owner, and re- cover on it against the drawer, maker, and other parties, even if the paper had been stolen from or lost by the former holder; such for- mer holder retaining all his original rights only against the thief or the finder, or whoever received the paper from them under suspicious Sec. 12) EFFECT OF FRAUD ON THE SELLER 291 circumstances. These decisions have been argued upon as authorities (at least in the way of analogy) both at bar and in opinions of the courts, in cases involving the same question as to goods or other mov- able property. Hence, it was inferred that goods bought or received "in the course of trade, stand on the same footing with bank notes or checks so received." But an examination of the cases will show that this part of the law of negotiable paper rests on grounds quite peculiar to itself, for the following reasons : 1. The protection of the bona fide holder of paper, transferable by delivery, extends even to cases where the paper has been lost or stolen. But it has been often decided that loss by accident, theft, or robbery, does not divest the title of the owner of goods, nor give a title in them to a fair after purchaser. 2. The rule is put by all the authorities on the express arid sepa- rate ground of the necessity of sustaining the credit and circulation of the currency. Thus Lord Chief Justice Hardwicke: "No dispute ought to be made with the holder of a cash note, who came fairly by it, for the sake of currency, to which discrediting such notes would be a great disturbance." See, too, the reasoning of Lord Mansfield, in all cases on this head decided before him. Thus, says he, in the case of a stolen note, Peacock v. Rhodes, 2 Doug. 636: "An assignee must take the thing assigned, subject to all the equity to which the original party was subject. If this rule was applied to bills, it would stop their currency." Similar reasons are assigned for the same decision by American judges. 3. The analogy between notes and moveables or goods, is expressly denied in the leading cases on this head. Thus, in reply to an argument founded on that similarity, Lord Mansfield answers, (Miller v. Race, 1 Burr. 457 :) "The whole fallacy of the argument rests upon com- paring bank notes to what they do not resemble, and what they ought not to be compared to, viz., goods, or securities, or documents for debts. Now, they are not goods, nor securities, nor similar to them ; they are treated as cash to all purposes," &c. Setting wholly aside, then, this part of the law as to cash, bank notes, and bills to bearer, as founded on the peculiar necessities of currency and trade, and regulated by decisions and usages peculiar to itself, what rules do we find to obtain in other instances of conflict between the rights of original owners and those of fair purchasers? After a careful examination of all the English cases and those of this state, that have been cited or referred to, I come to this general con- clusion, that the title of property in things movable can pass from the owner only by his own consent and voluntary act, or by operation of law; but that the honest purchaser who buys for a valuable consid- eration, in the course of trade, without notice of any adverse claim, or any circumstances which might lead a prudent man to suspect such adverse claim, will be protected in his title against the original owner 292 EFFECT OF FRAUD ON THE SELLER (Ch. 2 in those cases^ and in those only, where such owner has by his own direct voluntary act conferred upon the person from whom the bona fide vendee derives title, the apparent right of property as owner, or of disposal as an agent. I find two distinct classes of cases under this head, and no more. I. The first is, when the owner, with the intention of sale, has in any way parted with the actual property of his goods, with his own consent, though under such circumstances of fraud or error, as would make that consent revocable, rescind the sale, and authorize the re- covery of the goods as against such vendee. But if the property passes into the hands of honest purchasers, the first owner must bear the loss. Thus, to take an instance from our own reports, where goods were obtained by a sale on credit, under a forged recommenda^ tion and guaranty, and then sold to a bona fide purchaser in the cus- tomary course of trade, the second buyer was protected in his posses- sion against the defrauded original owner. JMowrey v. Walsh, 8 Cow. 243. So, again, where the owner gave possession and the apparent title of property to a purchaser, who gave his worthless note, in fraud- ulent contemplation of immediate bankruptcy, a fair purchase from the fraudulent vendee was held to be good against the first owner. Root V. French, 13 Wend. 572, 28 Am. Dec. 482. See, also, ;\IcCarty v. Vickery, 12 Johns. 348. In all such cases, to protect the new pur- chaser, there must be a full consent of the owner to the transfer of property, though such consent might be temporary only obtained by fraud or mistake, and therefore revocable against such unfair first purchaser. II. The other class of cases in which the owner loses the right of following and reclaiming his property is, where he has, by his own voluntary act or consent, given to another such evidence of the right of selling his goods as, according to the custom of trade, or the com- mon understanding of the world, usually accompanies the authority of disposal ; or, to use the language of Lord Ellenborough, when the owner "has given the external indicia of the right of disposing of his property." Here it is well settled that, however the possessor of such external indicia may abuse the confidence of his principal, a sale to a fair purchaser divests the first title, and the authority to sell so con- ferred, whether real or apparent, is good against him who gave it. Thus, the consignee, in a bill of lading, is furnished by his consignor with such evidence of right of disposal, according to the custom and law of trade, so that the bona fide holder of the bill endorsed by the consignee is entitled to all the rights of property of the consignor in those goods, if bought fairly in the course of business, although the actual consignee, under whose endorsement he holds, has no right to the goods as against the former owner. If such goods were not paid for, they might be stopped in transitu by the owner, unless his con- Sec. 12) EFFECT OF FEAUD ON THE SELLER 293 signce has already assigned his bill of lading; but that assignment divests the owner of his right of stoppage against such assignee. The famous series of decisions in the various courts in the case of Lickbarrow v. Mason, (2 T. R. 63 ; 2 H. Black, R. 211 ; 5 T. R. 367,) which led to the establishment of the doctrine of this qualified nego- tiability of bills of lading, memorable alike in legal and commercial history, strongly illustrates the whole question before us. There, Bul- ler and his associate judges, trained up at the feet of the great father of English commercial jurisprudence, maintained and established the law as we now hold it, under the influence of Mansfield's genius upon his reasoning and on his authority, against those of Lord Lough- borough and others, the most learned lawyers of their times. All the arguments and admissions of both sides show how deeply the general principle is rooted in the law of England, that (to use Lord Loughborough's words) "mere possession, without a just title, gives no property, and the person to whom such possession is transferred by delivery must take the hazard of the title of its author.'' It is only as an express exception to this rule that it was maintained, and finally established, that the custom of merchants, evidenced and sanctioned by legal decisions, and founded on those conveniences of trade, so admirably stated by Buller, had compelled the courts to con- sider the owner as giving his consignee evidence of the power of dis- posal, which it was not for him to dispute when the goods had fairly passed into other hands, on the faith of that evidence. But there is no case to be found, or any reason or analogy anywhere suggested in the books, which would go to show that the real owner could be concluded by a bill ot lading not give^jDi^JnmseH^JiuLbjrsome^ 'person, erroneously "or Tf audulently, as in this present case. The ''assignment of the bill ot lading^coiiyeyg, Jiot an absohite right to goods, but the right and tit le merely qf^ the _actual consignor^- who ''alone isjb ound by ^jt. Again: The owner may lose the right of recovering his goods against purchasers, by exhibiting to the world a third person as hav- ing power to sell and dispose of them; and this, not only by giving a direct authority to him, but by conferring an implied authority. Such an authority may be implied by the assent to and ratification of prior similar dealings, so as to hold such person out to those with whom he is in the habit of trading, as authorized to buy or sell. It may be inferred from the nature of the business of the agent, with fit accompanying circumstances. "If a man," says Bayley, J., in Pick- ering V. Busk, 15 East, 44, "puts goods into another's custody, whose common business it is to sell, he confers an implied authority to sell," and the cause was decided on that ground. But this implied authority must arise from the natural and obvious interpretation of facts, ac- cording to the habits and usages of business; and it never applies 294 EFFECT OF FRAUD ON THE SELLER (Ch. 2 where the character and business of the person in possession, do not warrant the reasonable presumption of his being empowered to sell property of that kind. If, therefore, to use an illustration of Lord Chief Justice EUenborough, in the case just cited, a person entrusts his watch to a watchmaker to be repaired, the watchmaker is not ex- hibited to the world as an owner or agent, and credit is not given as such, because he has possession of the watch, the owner, therefore, would not be bound by his sale. When these exceptions cease, the general rule resumes its sway; and the law is therefore clear, that an agent, for a particular purpose, and under a limited power, cannot bind his principal if he exceed his power. "Whoever deals with an agent constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power." 2 Kent's Comm. 621, and the authorities there cited. Beyond the precise exceptions I have above stated I think our law has not carried the protection of the fair vendee against the defrauded or unfortunate owner. It protects him when the owner's misplaced confidence has voluntarily given to another the apparent right of prop- erty or of sale. But if the owner loses his property, or is robbed of it, or it is sold or pledged without his consent by one who has only a temporary right to its use by hiring, or otherwise, or a qualified pos- session of it for a specific purpose, as for transportation, or for work to be performed on it, the owner can follow and reclaim it in the hands of any person, however innocent. Among the numerous cases to this effect, I will cite only that of Hoare v. Parker, 2 T. R. 376, which I select not only on account of the strong and unhesitating man- ner of the decision, but because it was pronounced by the very judges who, in the case of Lickbarrow v. Mason, had carried the protection of a bona fide purchaser under a bill of lading far beyond the rigor of the ancient law. There, plate had been pawned by a widow who had only a life interest in it under her husband's will, of which fact the pawnee had no notice. It was not doubted that the lien for the moneys advanced on such pledge was void against the remainderman, after the widow's death. "Per curiam : This point is clearly settled, and the law must remain as it is, until the legislature think fit to pro- vide that the possession of such chattels is proof of ownership." In order to decide in such conflicts between the claims of equally meritorious sufferers by the wrong of a third party, public policy must draw an arbitrary line somewhere, and the greatest merit of such a rule must be its certainty and uniformity. The rule of our law, as I understand it, is perfectly consistent with the equity between the parties, as far as such equity can apply; and it serves the great interests of commerce, in a state of such extensive foreign and domestic trade as ours, by protecting the property of the stranger, as well as of our own citizens, against the possible frauds of carriers by sea, or by internal transportation, whilst it throws upon Sec. 12) EFFECT OF FRAUD ON THE SELLER 295 the resident merchant the responsibility of taking care with whom he deals, and teaches him a lesson of wholesome caution. It is no mean proof of the wisdom of the rule, that it agrees in substance with the provisions of the Napoleon Code. The Code, like our law, holds as a general rule, that the sale of goods by any but the true holder, is a nullity ; "L,a vente de la chose d'autrui est nulle." Code Civil III. art. 1599. It confines the au- thority of the special agent or mandataire to the strict limits of his power ; and in sales, the power must always be special and express. Code Civil, art. 1989. It allows the right of revendication or stop- page in transitu against the insolvent or fraudulent purchaser or con- signee ; but that right ceases, as with us, against the consignee, when the goods have been fairly sold according to the bills of lading ; "ven- dues sans f raude sur f actures et connaissements." Code de Commerce, Liv. III., art. 576, 577, 578. The Scotch law, as I gather from Bell's Commentaries, lays down a different rule, that "a purchaser, in the course of trade, should be protected in the purchase of goods from any one who has them in lawful possession." This agrees with the doctrine of our su- perior court, and might be a safe enough rule if generally adopted and understood. But it is not the rule of our own law, which is per- haps quite as wise, as well as certainly founded on a much larger and wider commercial experience. Let us apply these conclusions to the present case. Collins, the per- son whose sale it is asserted must divest the original owner of his rights in favor of the bona fide purchaser, stands, it is said by the superior court, in a double relation of "a master, who is at the same time the consignee of the goods, and who himself filled the character of shipper, and has therefore an undoubted power to sell, and his bona fide transfer will be effectual to purchasers against any secret trust for others with which his apparent title might be affected." Had the lead been consigned to Collins from the intermediate port, by the own- er or his agent, this would be true. But it is shipped by Myers, of whom neither the owner, nor any one with full power to represent him in this matter, had any knowledge as an agent, and under whose care the vessel and cargo were placed by Collins, so that he appeared only as his representative, and thus he styles himself in the bill of lading. The plaintiff below comes in no wise within the rule I have stated. He has neither given to Collins documentary and mercantile evidence of property in a bill of lading from himself or his own agent with competent power, nor the evidence customary in business, such as to hold him out as an agent authorized to change the title of his prop- erty in his goods. The assumed authority of shipping goods in his own name and to his own order, at Norfolk, and the documentary evidence of it in the bill of lading, can have no more effect as to the 296 EFFECT OF FKADD ON THE SELLEB (Ch. 2 title of the property, than if he had forged such a bill of lading at New Orleans. Neither does the selection of a ship and its master vest in the mas- ter any implied authority to sell the ship, or any part of her cargo. His business is to carry the goods, and no more, with some other clearly defined and very limited powers, to be exercised only in cases of absolute necessity. He stands in the same legal relation to his cargo with the watchmaker, in the case supposed by Lord Ellenbor- ough, who has in his hands a watch to be repaired. He is not ex- hibited to the world as the owner, or agent for selling: and if he does sell it, the sale is void against the true proprietor. The law of shipping is well known to the commercial world, to declare that the master has no authority to sell the cargo, or any part of it, unless under circumstances of pressing necessity abroad; and of that absolute necessity, the burden of proof rests on the purchas- er, and the presumption is against it. As Judge Bayley states the law, (Morris v. Robinson, 3 Barn. & Cress. 196.) "The captain has no right to act as agent for the owner of the goods, unless in absolute neces- sity. The purchaser obtains no property by the act of his professing to sell." And this was held where the master acted in perfect good faith. How much stronger is the case of a probable fraud ! Thus again, in Freeman v. East India Co., 5 Barn. & Aid. 619, Abbott, C. J., says, "a sale of a cargo, or any part of it, by the master, can con- fer no title, unless there was an absolute necessity ;'' and the reason of the rule is thus assigned by Judge Best in the same case : "A car- rier by sea and by land stands in the same relation to the owner of goods to be carried. Their duty is to carry the goods, and the au- thority only such as is necessary. The purchaser, knowing that neces- sity alone can justify the sale, and give him a title to what he buys, will assure himself that there is a real necessity for the sale before he makes the purchase ; and caution on his part will prevent what has frequently happened, the fraudulent sale of ships and cargoes in for- eign ports." Such, then, being the well-settled and generally known law, the se- lection of a master or any other carrier, by sea or land, does nothing to exhibit such a carrier to the world as having the power of dispos- ing of the goods he carries. The owner does nothing to enable him to commit a fraud on third persons. He gives merely a qualified pos- session, and if that is turned into an assumed right of ownership, it is tortious conversion, and will not divest the owner's title. It is true that the rule will sometimes, as was urged by Chief Jus- tice Jones, "involve purchasers in great perils;" but that peril can scarcely be called "unreasonable," since there is a reason of public policy of at least equal weight to counterbalance this inconvenience. It is the same which is the ground of the absolute prohibition to a master or carrier to sell the goods he transports except under insur-_ Sec. 12) EFFECT OF FRAUD ON THE SELLER 297 mountable necessity ; it is to prevent, in the language of the court in the case just quoted, (5 Barn. & Aid. 623,) "fraudulent sales of ships and cargoes in foreign ports." Now the fraudulent consignments or change of the apparent evidence of property for the purpose of sell- ing elsewhere, is but another form of the same evil. I may add that this same rule, however rigid and occasionally hard in its operations is no small safeguard to the protection of the owner's rights in goods and other property, in active commerce necessarily placed under the temporary control, and in the legal though qualified possession of agents, sailors, carriers, boatmen, servants, and clerks, as well as of those who may have them stored for safe keeping, and their clerks, porters, and servants. * * * Judgment unanimously affirmed. ^^ BARNARD et al. v. CAMPBELL et al. (Court of Appeals of New York, 1874. 55 N. Y. 456, 14 Am. Eep. 289.) Appeal from order of the General Term of the Supreme Court in the First Judicial Department, reversing a judgment in favor of plaintiffs and granting a new trial. This was an action of replevin to recover possession of 1,370 bags of hnseed. Defendants, who were merchants in New York, had, prior to Au- gust 21st, 1863, been negotiating with one E. P. Jeffries, of Boston, for the purchase of a quantity of' linseed ; the negotiations were closed on the twenty-first, by a sale of Jeffries, through his broker in New York, of 1,800 bags. Pursuant to the terms of sale, defendants, on the same day, mailed to Jeffries their notes for the seed purchased, which were received by him and immediately pledged as collateral for a loan. During these negotiations, Jeffries had been negotiating with plaintiffs, at Boston, for the purchase of linseed, and on the twenty-first contracted for 1,800 bags. It was disputed upon the trial whether the sale was to be for cash or upon a ten days' credit. On the twenty-fourth of August, plaintiffs, induced by fraudulent representations upon the part of Jeffries, delivered to him an order for 1,370 bags, which were delivered to him and shipped to defendants. A bill of lading taken deliverable to them, which was forwarded by mail on the twenty-fifth. Jeffries failed on the twenty-seventh. On the arrival of the seed in New York, it was demanded by plaintiffs. Further facts appear in the opinion. Allen, J. The only question involved in the action is, whether the plaintiffs and original owners, or the defendants, the purchasers from Jeffries, the fraudulent vendee of the plaintiffs, have the better title T3A concurring opinion was delivered by Chancellor Walworth. 298 EFFECT OF FRAUD ON THE SELLER (Ch. 2 to the merchandise in controversy. That as against Jeffries, the right of the plaintiffs to rescind the sale and reclaim the goods, by reason of the fraud of the latter, is perfect, is conceded, and was so held up- on the trial. Such right continues as against any one acquiring title under Jeffries, unless under well-recognized principles of law, and un- der the circumstances of this case Jeffries could transfer a better title than he had, or the plaintiffs by their acts are estopped from as- serting title as against a purchaser from him. But two questions of fact were submitted to the jury: 1. Whether the sale to Jeffries was for cash or upon credit ; and, 2. If for cash, whether payment was waived and the goods delivered so as, but for the fraud, to vest the property in Jeffries. The jury found, either that the sale was upon credit, or that the payment of the purchase-price, as a condition precedent to the delivery of the property to and the vesting of the title in Jeffries was waived, and that the delivery to him was absolute and unconditional ; and the defendants had a verdict, under the instructions of the judge, that the equitable rule applied, thatVwhen one of two innocent parties must suffer loss by reason of the fraud or deceit of another, the loss shall fall upon him by whose act or omission the wrong- doer has been en- abled to commit the fraud ; and that the plaintiffs were in the position of a party who lets another have property unconditionally, and there- by enables him to sell the same and receive the purchase-price from a third person ; and that in such case the purchaser takes the title.^ In other words, the plaintiffs were held to be estopped from claiming the goods from the defendants in case the jury found that there had been an unconditional delivery by the plaintiffs to Jeffries, notwith- standing as the judge at the circuit expressly declared, and as the evidence showed, the defendants purchased the goods from a broker of Jeffries in New York on the 21st of August, and paid for them the same day by transmitting their notes to Jeffries at Boston, who at once negotiated them ; and Jeffries obtained neither the property nor any order for its delivery, or documentary evidence of title or of his purchase, until the 24th of the same month, three days after the trans- action was consummated as between Jeffries and the defendants. That is, it was held at the circuit that the subsequently-acquired pos- session of Jeffries operated by relation to create an estoppel as of the 21st of August, in favor of the defendants and against the plaintiffs; and the jury were in terms instructed that the defendants were pur- chasers in good faith for value, and acquired a title paramount to that of the plaintiffs, and were entitled to a verdict ; and they had a verdict and judgment upon this view of their rights. That the defendants were purchasers in good faith, that is, without notice or knowledge of the fraud of Jeffries, or of the defects in his title, for a full consideration actually paid to Jeffries, is not disputed. Both plaintiffs and defendants are alike innocent of any dishonest or fraudulent intent, and one or the other must suffer loss by the frauds Sec. 12) Ei^B^ECT OF FRAUD ON THE SELLER 299 of one with whom they dealt in good faith, for legitimate purposes, and with honest intention. Both were alike the victims of the same fraudulent actor, and if one rather than the other of the parties has done any act enabling the fraud to be committed, and without which it could not have been perpetrated upon the other in the exercise of or- dinary care and discretion, the loss should, within the rule before re- ferred to, fall on that one of the parties aiding and abetting the fraud, or enabling it to be committed. But good faith, and a parting of value by the one, will not alone determine who should have the loss, or fix the ownership of the property fraudulently purchased from the one and sold to the other.\The general rule is that a purchaser of property takes only such title as his seller has, and is authorized to transfer ; that he acquires precisely the interest which the seller owns, and no other or greaterX. "Nemo plus juris ad alium transferre potest quam ipse habet." Broom I^.eg. Max. 452. The general rule of law is undoubted that no one can transfer a better title than he himself possesses. "Nemo dat quod non habet." Per Willes, J., Whistler v. Forster, 14 C. B. (N. S.) 248. To this rule there are however some exceptions, and unless the defendants are within the exceptions they must abide by the title of Jeffries.'* The defendants can only resist the claim of the plaintiffs to the merchandise by establishing an equitable estoppel, founded upon the acts of the plaintiffs, and in the application of the rule applied by the judge at the circuit, by which, as between two persons equally innocent^sg, loss resulting from the fraudulent acts of another shall rest upon him by whose act or omission the fraud has been made possible. ^This rule, general in its terms, only operates to protect those who, in dealing with others, exercise ordinary caution and pru- dence, and who deal in the ordinary way and in the usual course of business and upon the ordinary evidences of right and authority in those with whom they deal, and as against those who have volunta- rily conferred upon others the usual evidences or indicia of ownership of property, or an apparent authority to deal with and dispose of it. In such case, for obvious reasons, the law raises an equitable estop- pel, and as against the real owner, declares that the apparent title and authority which exists by his act or omission shall quoad persons acting and parting with value upon the faith of it, stand for and be regarded as the real title and authority. It is not every parting with the possession of chattels or the documentary evidence of title that will enable the possessor to make a good title to one who may purchase from him. So far as such a parting with the possession is necessary in the business of life, or authorized by the custom of trade, the owner of the goods will not be affected by a sale by the one having the cus- tody and manual possession. Dyer v. Pearson, 3 B. & C. 38; New- 7* The court here considered the exceptions of negotiable paper, bills of lading, and sales in market overt. 300 EFFECT OF FRAUD ON THE SELLER (Ch. 2 som V. Thornton, 6 East, 17; Dayton v. Kynne, 3 B. & A. 320; Bal- lard V. Burgett, 40 N. Y. 314. But the owner must go farther, and do some act of a nature to mislead third persons as to the true posi- tion of the title. Pickering v. Busk, 15 East, 38. Two things must concur to create an' estoppel by which an owner may be deprived of his property, by the act of a third person, without his assent, under the rule now considered. 1. The owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of it ; and 2. The person alleging the es- toppel must have acted and parted with value upon the faith of such apparent ownership or authority, so that he will be the loser if the appearances to which he trusted are not real. In this respect it does not differ from other estoppels in pais. Weaver v. Barden, 49 N. Y. 286; McGoldrick v. Willets, 52 N. Y. 612; City Bank v. R., \V. & O. R. Co., 44 N. Y. 136; Saltus v. Everett, 20 Wend. 267, 32 Am. Dec. 541; Wooster v. Sherwood, 25 N. Y. 278; Brower v. Peabody, 13 N. Y. 121. In the case before us every element of an estoppel is wanting, and no case was made for the application of the rule by which, under some circumstances, one, rather than the other of two innocent per- sons, is made to bear the loss occasioned by the fraud of a third person. The defendants consummated their purchase from Jeffries, acting- through his broker in New York, and paid for the merchandise by remitting, at his request, directly to Jeffries on the 21st of August, at which time Jeffries had neither the possession nor right of posses- sion of the property, nor any documentary evidence of title or any indicia of ownership, or of dominion over the property of any kind. The plaintiffs had done nothing to induce the defendants to put faith in or give credit to the claim of Jeffries of the right to sell the proper- ty. The defendants then parted with the consideration for the pur- chase of the seed, not upon the apparent ownership of Jeffries, but upon his assertion of right of which the plaintiffs had no knowledge, and for which they are not responsible. Neither did the defendants at any time do or forbear to do any act in reliance upon the apparent ownership of the property by Jeffries, or induced by any act or dec- laration of the plaintiffs. In Knights v. Wiffen, L. R., 5 Q. B. 660, the plaintiff was induced to rest satisfied under the belief that he had acquired title to the property purchased, and so to alter his position, by abstaining from proceedings to recover back the money which he had paid to his vendor, by the declaration of the defendant that it was all right, and his promise that when the forwarding note should be received he would put the barley on the line. The defendants here at no time had any declaration or statement of the plaintiffs upon which to rely, and were not led to act or for- bear to act by any documentary evidence of title in Jeffries emanating from them. There is a manifest equity in holding the owner of prop- Sec. 12) EFFECT OF FRAUD ON THE SELLER 301 crty estopped from asserting title as against one who, for value ac- tually paid, has purchased it from one having, by the voluntary act or negligence of the owner, the apparent title with right of disposal, but with this limitation there is no hardship in holding to the rule that the right of property in chattels cannot be transferred unless on the ground of authority or title. Public policy requires that purchasers of property should be vigilant and cautious, at least to the extent of seeing that their vendors have some and the usual evidence of title, and if they are content to rest upon their declarations they may not impose the loss, which is the result of their own incautiousness or credulity, on another. The payment for or parting with value for the goods by the purchaser from the fraudulent vendee lays at the foundation of the estoppel, for if he has parted with nothing, he can lose nothing by the retaking of the goods by the original owner, and that payment must be occasioned by the acts or omissions of such owner. It is the payment that creates the estoppel, and if that is not made in reliance on the acts of the owner, the latter is not and can- not, in the nature of things, be estopped. The order granting a new trial must be affirmed, and judgment ab- solute for the plaintiffs. All concur. Order affirmed and judgment accordingly. BUTTERS V. HAUGHWOUT et al. (Supreme Court of Illinois, 1866. 42 111. IS, 89 Am. Dec. 401.) BrEESE, J.'" This was an action of replevin, brought in the Cook circuit court by E. V. Haughwout and others, crockery and china ware merchants in the city of New York, against William A. Butters, an auctioneer in Chicago. The defendant is not a real party to the controversy. He stands in the attitude of a mere stakeholder. James Duncan of the dry goods house of Ubsdell, Pearson & Co., of St. Louis, is the real defendant, who had sent the goods in controversy, with some others of his own, to Butters to be sold. After the action of replevin was commenced, it was agreed between the agent of the plaintiffs and Duncan, that all of the goods sent by Duncan to But- ters, should be sold by him together, and the proceeds should be di- vided between the plaintiffs and Duncan, in proportion to their in- terests. The action was to recover the possession of twenty-three casks of French china ware, and their contents, of the value of two thousand five hundred dollars. The pleas were non cepit, non detinet, and property in James Dun- can. The controversy arises on the third plea. The jury found a verdict for the plaintiffs. A motion for a new trial being overruled and exception taken, judgment was entered on 7 5 The statement of facts and part of the opinion are omitted. 302 EFFECT OF FRAUD ON THE SELLER (Ch. 2 the verdict, to reverse which the defendant prosecutes this writ of error. * * * The claim of the plaintiffs in the replevin, was based upon the alle- gations of fraudulent representations made by one Morgan, to whom they sold the goods, and a knowledge thereof by Duncan, who re- ceived them from Morgan on account of a pre-existing debt due by Morgan to Duncan. Duncan claimed the goods by a fair purchase, for a valuable con- sideration, without any notice of any fraud on the part of Morgan in obtaining the goods. The only consideration proved, was a pre-existing debt of a large amount, due by Morgan to Duncan, and that these goods were re- ceived by Duncan on account of that indebtedness. * * * The counsel for the defendants in error contend, that Duncan could not buy the goods in question from Morgan, the fraudulent vendee, paying nothing for them in the nature of a new consideration, but tak- ing them merely on account of a pre-existing indebtedness, the sale having been promptly disaffirmed by the defendants, and the goods reclaimed so soon as the fraud was discovered. Counsel admit that, as to commercial paper, such as bills of ex- change and negotiable promissory notes, the holder of such, if taken in the regular course of business before due, and for a valuable con- sideration, is not subject to have his title questioned — that, in such case, a pre-existing debt is a valuable consideration for the transfer. But he says commercial paper, in the regular course of business, is not taken upon the title of the holder, but upon the credit given to it by the policy of the law, and although stolen, a bona fide holder will not be affected if he has no knowledge of the theft, and has acted with due caution. He insists that it is not so with lands or chattels, they being taken on the title of the vendor. But he admits that a sale of chattels, effected by fraudulent misrepresentations, may ripen into a title in the vendee so as to conclude the vendor by his acqui- escence, manifested by his bringing a suit for the purchase-money, by lapse of time with knowledge of the fraud, or by a sale to a bona fide purchaser ; but to be a bona fide purchaser he must purchase in ignorance of the fraud, and must actually pay a new consideration, and a pre-existing debt is not such a new consideration, although it is a valuable consideration. And he also admits that there may be circumstances which would entitle a party claiming as a bona fide purchaser to favorable consideration, when a previous indebtedness is used as the consideration, in whole or in part, for the new purchase, such as the surrender of securities, the cancellation of mortgages, and the like. These admissions by the defendants' counsel seem to us to admit away their whole case. If a pre-existing debt be a valuable considera- tion for the purchase and transfer of personal property, a most im- Sec. 12) EFFECT OF FRAUD ON THE SELLER 303 portant element to make a sale valid is shown, and if the transaction be fair and honest, with no knowledge of any fraud on the part of his vendor, what is wanting to vest the title in such a purchaser? If a previous indebtedness be used, in whole or in part, as the considera- tion for the new purchase, and that is a valuable consideration, as is admitted, is it not a question for the jury how this indebtedness was used; — was it in the surrender of securities, the cancellation of mort- gages, or the hke? It being admitted that a pre-existing debt is a valuable consideration for the sale of goods, in the absence of all knowledge on the part of the purchaser of any fraud on the part of his vendor, the court should, on the admission of the defendant, have instructed the jury as asked by the plaintiff in error. The instruction proceeds on the ground the goods were taken from Morgan in part payment of a pre-existing debt due from him to Duncan, that they were taken in good faith, and without any knowledge, on the part of Duncan, of any fraud in Morgan in obtaining the goods. Whether or not Duncan canceled mortgages, or surrendered securities he held against Morgan, or discharged other indebtedness in whole or in part, were facts to be inquired into by the jury. * * * All the cases cited by defendants' counsel hold, that, if the party receiving a note parts with anything valuable, he is entitled to enforce the payment of the note, irrespective of the equities as between the original parties. But taking it on a pre-existing debt he parts with nothing, and if he fails in his title, he is in a condition no worse than he was before he took the assignment; and the same is true of the purchaser of goods, he loses nothing by the transaction, he has ad- vanced no new consideration, and is not injured if his title does not prevail. This idea is paramount, and runs through all the cases, but is mere assumption. A creditor who takes goods in payment, in whole or in part, of a precedent debt, in good faith, having no reason to suspect any other claim existing to the property, and having no reason to doubt his title, is lulled into security. He rests in the belief that his debt is paid, and, in that belief, foregoes all effort to seek other payment or se- curity. This idea, although scouted by Woodworth, Justice, in the Case of Coddington, is, we think, the ruling point in the case. Why, we ask, is not the equity of such a person as strong against another claimant as if he had paid a new consideration — had actually counted out the dollars in payment? He would be in no worse condition in the latter case than in the former, for, in either case, on failure of title, he could recover back the money paid, or the amount of the credit he had given on the pre-existing debt, or the value of the se- curities he had delivered up, or the mortgage on which he had caused satisfaction to be entered. This will not be denied, so that the reason given for the doctrine is more specious than sound. 304 EFFECT OF FRAUD ON THE SELLER (Ch. 2 In the one gase, if the title of the new claimant is allowed to pre- vail, the party taking the goods on an antecedent debt, may lose a debt he would not have otherwise lost. In the other case, he may lose the consideration which he has paid. He is liable to equal injury in either case, and, therefore, we think it is not true to say, that, when property is taken in payment of a precedent debt, the party, if he loses it, is in no worse condition by being obliged to surrender it. At any rate, it is a matter of uncertainty that a party so receiving goods in payment of a precedent debt, is in no worse condition if they are taken from him, than he was before he received them. If he loses ^ security he might have obtained, he is in a worse condition. If his vendor becomes insolvent after the credit is indorsed on his note or account, or his mortgage entered as satisfied before the goods are re- claimed, he is in a worse condition. As commercial paper is but the representative of the property of the country, and good policy requiring that the latter should circulate freely, we think, if in the one case a pre-existing debt is a valuable consideration for the assignment, so in the other, the same considera- tion should be available in its purchase, the element of good faith existing in both transactions. Every day's experience shows us that creditors do not usually take property in payment of a debt, certainly not when the money can be had ; what difference can it make then, if a debtor, having no money, honestly transfers his chattels to his cred- itor to pay a debt? and why should not the creditor be secure in the acquisition, if he has acted in good faith, and is ignorant of any latent equities or prior claim ? The hardship, if there be any, is on the cred- itor, for the reason, such transactions, however honest they may be, are more open to the charge of fraud, and more difficult to be de- fended against such a charge, than where money is actually paid, but in principle we can perceive no substantial difference. * * * Judgment reversed.'" 70 In Leaslv v. Scott, 2 Q. B. D. .376 (1S77), Bramwell, L. J., said: "Prac- tically such a couslderatlon as is now under discussicjn has always a pres- ent operation. It stays tlie hand of the creditor. If the plaintiff had agreed on the day the bill of lading was handed to him to give a week's time, there would have been a present consideration. • * • If in this ease the plain- tiff had bought the goods out and out and then been paid part of his debt with the price, the consideration would have sufficed, If the transaction was not colorable. If the plaintiff had said, 'I cannot take this bill of lading safe- ly as the consideration would be past, do it -with the broker next door, and gi\e me his check,' that would have been valid. Is it desirable to introduce such niceties into commercial law?" Sec. 12) EFFECT OF FRAUD ON THE SELLER 305 SLEEPER V. DAVIS. (Supreme Court of New Hampshire, 1886. 64 N. H. 59, 6 Atl. 201, 10 Am. St. Rep. 377.) Replevin for goods bought from the plaintiffs by one Nellie Davis and by her sold to the defendants. Facts agreed. The plaintiffs claim to hold the goods on the ground that they were purchased with a fraudulent intent on the part of said Nellie Davis of not pay- ing for them, which entitled the plaintiffs to rescind the sale. The ofificer found a portion of the goods, and delivered them to the plain- tiffs. A few days after, the plaintiffs brought an action of assumpsit against Nellie Davis to recover the price of that portion of the goods not taken on the replevin writ; and judgment has been entered in this suit upon default, for the price of the goods, less the value of those taken on the replevin writ. The consideration of the sale by Nellie Davis to the defendants was an antecedent debt due from her to them. The defendants claim that the plaintiffs, by bringing the action of assumpsit and taking judgment, precluded themselves from maintaining this action. The cause is to stand for trial unless the court hold that the defendants are entitled to judgment on the above facts. AllBn, J. The fraudulent purchase of the goods by Nellie Davis entitled the plaintiffs to rescind the contract of sale, and recover them as their own by an action of replevin, or their value by an action of trover. The same right existed in favor of the plaintiffs against the defendants, who purchased and took the goods of the fraudulent vendee, unless the purchase was made in good faith by the defend- ants, relying on their vendor's apparent title, with no notice of the fraud, and for a valuable consideration paid at the time. Bradley V. Obear, 10 N. H. 477; Kingsbury v. Smith, 13 N. H. 109; Farley V. Lincoln, 51 N. H. 577, 12 Am. Rep. 182. The action of assumpsit against the vendee was brought after the replevin suit, and was for the price of the goods not replevied. Having rescinded the contract of sale, and not finding all the goods, so as to take them in replevin, the plaintiffs might have sued in trover for the conversion of the remainder. The vendee having disposed of the goods for her own benefit, the plaintiffs might waive the tort, and maintain assumpsit for the proceeds, not upon the original contract of sale, which has been rescinded, but upon the implied promise to pay for property wrongfully appropriated., Mann v. Locke, 11 N. H. 248; Smith v. Smith, 43 N. H. 536. If, by the action of assumpsit, the plaintiffs affirmed the sale to the defendants, it was only an affirmance of the sale of those goods the price of which was sought to be recovered in the suit, and did not affect the plaintiffs' right to further prosecute their suit against the defendants for the other goods taken in replevin. Woodw.Salbs — 20 30G EFFECT OF FKAUD ON THE SELLER (Ch. 2 The action of assumpsit was not a revocation of the rescission of the contract of sale, nor a waiver nor release of the right of action against the defendants for the goods replevied, and is not a good ground of defense to this suit. The vendee of the goods had title and possession, and, before the contract was avoided for fraud, could make to an innocent purchaser for value a sale in which he would be protected against the claim of the first vendor. Benj. Sales, §§ 64S, 649; Kingsbury v. Smith and Farley v. Lincoln, supra. The consideration for the defendants' pur- chase was an antecedent debt claimed to be due them from the plain- tiffs' vendee, and the plaintiffs claim that the purchase, for that rea- son, was not one for value. The defendants, at the time of the sale to them, paid nothing. They received the goods in satisfaction of what they had before paid, and not upon the strength of any new consideration or value then parted with. The right thus acquired was not in equity, su- perior to the plaintiffs' right of reclaiming the goods for fraud in the sale, and the advantage the defendants gained by their transaction could not equitably be retained against the plaintiffs. If, of the two innocent parties, the plaintiffs clothed the fraudulent vendor with title and possession of the goods, on the strength of which she could, until the contract was avoided, sell to the defendants, they do not suffer by the plaintiffs' rescission of the contract of sale and recap- ture of the goods ; for, to the extent of the value of the goods re- taken, the debt which the vendee attempted to pay to the defendants would not be discharged, and to that extent they are left in the posi- tion they were in before the transaction. By the plaintiffs' recap- ture of their goods the defendants lose nothing which they are en- titled to retain. In Kingsbury v. Smith, supra, the consideration for the sale of the property, of which a title was fraudulently obtained, was a debt due the purchaser, and an overcoat delivered at the time; and upon the ground that the purchaser took the property in good faith, without notice of the fraud, and that the overcoat was a sufficient considera- tion for the purchase, the decision was that the purchaser was pro- tected in his claim against that of the original vendor. It was not decided that the discharge of the debt made the purchase bona fide and one for value, and there is nothing in the opinion which shows that, had the debt been the sole consideration, the decision would not have been in favor of the defrauded vendor. In other jurisdictions it has been decided that the purchaser of goods from a fraudulent vendee cannot maintain his claim to the goods against the right of the original vendor, as that of a bona fide purchaser for value, where the consideration of his purchase is merely the discharge of an antecedent debt. Barnard v. Campbell, 58 N. Y. 73, 76, 17 Am. Rep. 208; Stevens v. Brennan, 79 N. Y. Sec. 12) EFFECT OF FRAUD ON THE SELLER 307 254, 258; Fletcher v. Drath, 66 Mo. 126; Poor v. Woodburn, 25 Vt. 235; Sargent v. Sturm, 23 Cal. 359, 83 Am. Dec. 118. The assignee of the fraudulent vendee in insolvency, taking the assignment for the benefit of the insolvent's creditors, could not maintain his right to the goods against the demand of the original owner, who by fraud had been induced to give a title, (Farley v. Lincoln, 51 N. H. 577, 12 Am. Rep. 182; Bussing v. Rice, 2 Cush. [Mass.] 48;) nor could an assignee of the fraudulent vendee in bankruptcy retain the goods against the claim of the defrauded vendor. Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993; Montgomery v. Machine Works, 92 U. S. 257, 23 L. Ed. 656. If the defendants had given their note for the price of the goods; instead of receiving them in discharge of a debt, they could not re- sist the plaintiffs' claim, unless they had paid the note before the plaintiffs rescinded the contract. Matson v. Melchor, 42 Mich. 477, 4 N. W. 200. If they had received the goods in pledge as collateral security for their debt, or a mortgage of them for the same pur- pose, the pledge and mortgage could not be upheld against the plain- tiffs' claim. Poor v. Woodburn, supra. If the defendants had at- tached the goods upon a suit for the recovery of their debt, the at- tachment would be no bar to the plaintiffs' right of recovery, (Brad- ley V. Obear, 10 N. H. 477; Buffington v. Gerrish, 15 Mass. 156, 8 Am. Dec. 97; Wiggin v. Day, 9 Gray [Mass.] 97;) and if they had obtained judgment in their suit, and purchased the property at an execution sale, they could not maintain their right to it against the plaintiffs' claim. Devoe v. Brandt, 53 N. Y. 462, 466. If the de- fendants could not have maintained their right to the goods upon an attachment made to secure their debt before the rescission of the contract of sale by the plaintiffs, for reasons at least equally strong they could not receive the goods in payment of the same debt, and hold them against the plaintiffs' right of recapture in replevin. What they could not hold, taken by lawful process, they cannot claim to hold when taken voluntarily with the consent of the vendee for the same purpose. According to the terms of the agreed case the cause must stand for trial. Case discharged. Bingham, J., did not sit. The others concurred." " In Goodwill v. Mass. Loan, etc., Co., 152 ila.s.s. 189, 25 X. E. 100 (1890), •Field, C. J., said: "Whatever may be the law in the case of a transfer of chat- tels in payment of a pre-existing debt, when the debt is thereby discharged we think that by the weight of authority a pledging of chattels as security for a pre-existing debt, when there is no present consideration whatever for the pledge, does not constitute the pledgee a holder for value, within the meaning of the rule we are considering. * * * " But see, contra, Kranert v. Simon, 65 111. 344 (1872). For a concise discussion of the question, upon principle, see Williston, Sales, § 620. 308 DESTRUCTION OF THE GOODS — RISK OF LOSS (Cll. 3 CHAPTER III DESTRUCTION OF THE GOODS— RISK OF LOSS DEXTER V. NORTON et al. (Court of Appeals of New York, 1871. 47 N. Y. 62, 7 Am. Rep. 415.) Appeal from a judgment entered upon an order of the General Term of the Supreme Court in the First Judicial District, overruling plaintiff's exceptions, and directing judgment dismissing the complaint, in accordance with ruling of the court at circuit. This action is brought to recover damages for a breach of a con- tract to sell and deliver cotton. Defendants, on the 5th day of Oc- tober, 1865, at the city of New York, agreed to sell and deliver to the plaintiff 607 bales of cotton, bearing certain marks and numbers, spec- ified in the contract, at the price of forty-nine cents per pound, and fourteen bales, bearing marks and numbers, specified in the written contract, at the price of forty-three cents per pound, the cotton to be paid for on delivery. Defendants delivered to the plaintiff 460 bales of said cotton, the remaining 161 bales were accidentally destroyed by fire without fault or negligence of the defendants. Cotton rose in value after the sale, and plaintiff claimed to recover the increase on the 161 bales. The court dismissed the complaint, upon the ground that a fulfillment of the contract by the sellers had become impossible by the destruction, without their fault, of the subject-matter of the sale, and they were, therefore, excused from the obligation to per- form their agreement. Plaintiff excepted. Church, Ch. J. The contract was for the sale and delivery of spe- cific articles of personal property. Each bale sold was designated by a particular mark, and there is nothing in the case to show that these marks were used merely to distinguish the general kind or quality of the article, but they seem to have been used to describe the particular bales of cotton then in possession of the defendant. Nor does it ap- pear that there were other bales of cotton in the market of the same kind, and marked in the same way. The plaintiff would not have been obliged to accept any other cotton than the bales specified in the bought note. The contract was executory, and various things remained to be done to the one hundred and sixty-one bales in question bv the sellers before delivery. The title therefore did not pass to the vendee, but re- mained in the vendor. Joyce v. Adams, 8 N. Y. 291. This action was brought by the purchaser against the vendor to re- cover damages for the non-delivery of the cotton, and the important and only question in the case is, whether upon an agreement for the Ch. 3) DESTRUCTION OF THE GOODS RISK OF LOSS 309 sale and delivery of specific articles of personal property, under cir- cumstances where the title to the property does not vest in the ven- dee, and the property is destroyed by an accidental fire before delivery without the fault of the seller, the latter is liable upon the contract for damages sustained by the purchaser. The general rule on this subject is well established that where ^h? performance of a duty or charge created by law is prevented by in- evitable accident without the fault of the party he will be excused, but where a person absolutely contracts to do a certain thing not im- possible or unlawful at the time, he will not be excused from the obli- gations of the contract unless the performance is made unlawful, or isx prevented by the other party. Neither inevitable accident nor even those events denominated acts of God will excuse him, and the reason given is, that he might have provided against them by his contract. Paradine v. Tone, Aleyn, 27; Harmony v. Bingham, 12 N. Y. 99, 62 Am. Dec. 142; Tompkins v. Dudley, 25 N. Y. 272, 82 Am. Dec. 349. But there are a variety of cases where the courts have implied a condition to the contract itself, the ei?ect of which was to relieve the party when the performance had without his fault, become impossible; and the apparent confusion in the authorities has grown out of the difficulty in determining in a given case whether the implication of a condition should be applied or not, and also in some cases in placing the decision upon a wrong basis. The relief afforded to the party in the cases referred to is not based upon exceptions to the general rule, but upon the construction of the contract. For instance, in the case of an absolute promise to marry, the death of either party discharges the contract, because it is inferred or pre- sumed that the contract was made upon the condition that both par- ties should live. So of a contract made by a painter to paint a picture, or an author to compose a work, or an apprentice to serve his master a specified number of years, or in any contract for personal services dependent upon the life of the individual making it, the contract is discharged upon the death of the party, in accordance with the condition of con- tinued existence, raised by implication. 2 Smith, Lead. Cas. 50. The same rule has been laid down as to property : "As if A. agrees to sell and deliver his horse Eclipse to B. on a fixed future day, and the horse die in the interval, the obligation is at an end." Benj. Sales, 424. In replevin for a horse and judgment of retorno habendo, the death of the horse was held a good plea in an action upon the bond. [Carpenter v. Stevens] 12 Wend. 589. In Taylor v. Caldwell, 113 E. C. R. 824, 3 Best & Smith, 836, A. agreed with B. to give him the use of a music hall on specified days, for the purpose of holding concerts, and before the time arrived the building was accidentally burned; Held, that both parties were discharged from the contract. Black- burn, J., at the close of his opinion, lays down the rule as follows: 310 DESTRUCTION OF THE GOODS — RISK OF LOSS (Ch. 3 "The principle seems to us to be, that in contracts in which the per- formance depends on the continued existence of a given person or thing, a condition is impHed that the impossibility of performance, arising from the perishing of the person or thing, shall excuse the performance." And the reason given for the rule is, "because from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or thing." In School District v. Dauchy, 25 Conn. 530, 68 Am. Dec. 371, the defendant had agreed to build a school-house by the 1st of May, and had it nearly completed on the 27th of April, when it was struck by lightning and burned ; and it was held that he was liable in damages for the nonperformance of the contract. But the court, while en- forcing that general rule in a case of evident hardship, recognizes the rule of an implied condition in case of the destruction of the specific subject-matter of the contract ; and this is the rule of the civil law. Pothier Cont. Sale, art. 4, § 1, p. 31. We were referred to no au- thority against this rule. But the learned counsel for the appellant, in his very able and forcible argument, insisted that the general rule should be applied in this case. While it is difficult to trace a clear dis- tinction between this case and those where no condition has been im- plied, the tendency of the authorities, so far as they go, recognize such a distinction, and it is based upon the presumption that the parties contemplated the continued existence of the subject-matter of the contract. The circumstances of this case are favorable to the plaintiff. The property was merchandise sold in the market. The defendant could, and from the usual course of business we may infer did, protect him- self by insurance; but in establishing rules of liability in commercial transactions, it is far more important that they should be uniform and certain than it is to work out equity in a given case. There is no hard- ship in placing the parties (especially the buyer) in the position they were in before the contract was made. The buyer can only lose the profits of the purchase ; the seller may lose the whole contract price, and if his liability for non-delivery should be established, the enhanced value of the property. After considerable reflection, I am of the opin- ion that the rule here indicated of an implied condition in case of the destruction of the property bargained without fault of the party, will operate to carry out the intention of the parties under most circum- stances, and will be more just than the contrary rule. The buyer can of course always protect himself against the effect of the implied con- dition, by a provision in the contract that the property shall be at the risk of the seller. Upon the grounds upon which this rule is based of an implied con- dition, it can make no difference whether the property was destroyed by an inevitable accident or by an act of God, the condition being that the property shall continue to exist. If we were creating an exception Ch. 3) DESTRUCTION OF THE GOODS — RISK OF LOSS 311 to the general rule of liability, there would be force in the considera- tions urged upon the argument, to limit the exception to cases where the property was destroyed by the act of God, upon grounds of pub- lic policy, but they are not material in adopting a rule for the con- struction of the contract so as to imply a condition that the property was to continue in existence. It can make no difference how it was destroyed, so long as the party was not in any degree in fault. The minds of the parties are presumed to have contemplated the possible destruction of the property, and not the manner of its destruction; and the supposed temptation and facility of the seller to destroy the property himself cannot legitimately operate to affect the principle involved. The judgment must be affirmed. Allun, Grover and Rapai^lo, JJ., concur. Peckham and Foiv- GER, JJ., dissent. Judgment affirmed. ONTARIO DECIDUOUS FRUIT GROWERS' ASS'N v. CUT- TING FRUIT PACKING CO. (Siipreine Court of California, 1901. 134 Cal. 21, 66 Pac. 28, 53 L. K. A. 681. 86 Am. «t. Rep. 231.) Gray, C. This action was brought to recover the price of certain peaches sold and delivered under a contract in writing. The de- fendant set up as a defense noncompliance of plaintiff with the con- tract, and also a counterclaim on account of damages arising out of such noncompHance. The plaintiff had judgment, from which, and from an order denying a new trial, the defendant appeals. The contract between the parties contains the following stipula- tions : "Seller has this day sold and agrees to deliver to buyer f. o. b. cars at South Cucamonga, and buyer has bought and agrees to receive from seller, the peaches, to the extent named, grown during the year 1898 on the orchard or land known and described as fol- lows : Sundry orchards in Ontario and Cucamonga, at the prices and on the terms and conditions named." Then follow the terms, showing the grades and varieties of peaches sold, the minimum and maximum quantities of each, and the price per ton, and then the contract proceeds as follows : "Deliveries shall be made between the 20th day of July and the 1st day of September, 1898, and shall conform as far as possible to the mutual convenience of buyer and seller." Then follows a description of the fruit as to quality and size, and after that we quote again : "Payments shall be made as follows : One-half the delivery value within ten days of the date of full deliv- ery, and one-half (the balance) of delivery value within thirty days of the date of final delivery, or the execution of all the terms of this contract by the seller." The contract is signed by the corporation plaintiff as the "seller" and the defendant corporation as the "buyer." 312 DESTRT'c.'TION OP THE GOODS RISK OF LOSS (Ch. 3 At the trial it was shown by oral evidence, against the objection and exception of defendant, that the "sundry orchards," spoken of in the written contract referred to and was confined to orchards be- longing to the stockholders of plaintiff. It appears that the fruit crop in the districts mentioned in the con- tract promised well at the date of the making of said contract, and that in an ordinary year the orchards referred to therein would have produced sufficient fruit to carry out the contract. But before it was fully grown the season turned unusually dry and hot, and hot winds impaired the quantity and quality of the fruit to such an e.xtent that it was impossible for plaintifif to furnish, from the orchards of its stockholders in the said districts mentioned in the contract, a quan- tity of fruit equal to one-half of the minimum amount agreed to be furnished. Plaintiff did, however, furnish to defendant and defendant received such fruit as was grown on said orchards of the varieties and qualities described in the contract. When it was apparent that the varieties named in the contract could not be obtained from said orchards to the extent agreed upon, the defendant offered to accept "Salway" peaches in satisfaction of the contract, but the plaintiff failed to comply with this offer. "Salway" peaches were not men- tioned in the contract. The defendant places its contention for a reversal upon three grounds, as follows : First, the plaintiff could recover nothing without a full delivery of the minimum contract quantity of fruit, as such delivery was a condition precedent to the right to recover anything under the contract; second, the court "erred in permitting plaintiff to explain by oral evidence what was meant by "sundry orchards" ; and, third, plaintiff's refusal to furnish Salway peaches in accord- ance with defendant's request. As to the first ground, we think that defendant should not be per- mitted to accept and retain the peaches of plaintifif, and yet refuse to pay for them. The defendant's agents had inspected the orchards of the stockholders of plaintifif, and it must have known at the time it was receiving this fruit that it was impossible to comply strictly with the contract. The rule is that, "though a contract of sale be entire and the seller deliver only a part of the goods bargained for, yet, if the vendee retain such part, the vendor may recover the value of the part retained in an action for goods sold and delivered." Clark v." Aloore, 3 Mich. 55. The acceptance and retention of a part of the goods is treated as a waiver of the condition precedent as to the delivery of the rest of the goods. And wdiere the sale is of specific goods, and the goods perish before delivery, without the fault of the vendor, the vendee has no right of action for failure to deliver on the part of the vendor. This rule appHes also where it becomes impossible to deliver a part of the property sold, as is illustrated in the English case of Howell v. Coupland, L. R. 9 Q. B. 462. As to this case we quote from Benj. Sales, § 570, as follows : "The Ch. 3) DESTRUCTION OF THE GOODS RISK OF LOSS 313 principle of Taylor v. Caldwell [3 Best & S. 826] was applied to a case (Howell v. Coupland, L. R. 9. Q. B. 462,) where the contract was to sell '200 tons of potatoes grown on land belonging to the defendant in Whaplode.' The potatoes were not in existence at the date of the contract, but the land, when sown, was capable in an average year of producing far more than the quantity of pota- toes contracted for. There was a failure of the crop from disease, and the vendor was only able to deliver eighty tons. In an action for nondelivery of the residue, the defendant was held to be excused from further performance on the ground that the contract was for a portion of a specific crop, and therefore subject to an implied con- dition that the vendor should be excused if, before breach, perform- ance became impossible from the perishing, without default on his part, of the subject-matter of the contract." In the case at bar, the sale having been of specific varieties of fruit growing and to be grown on specific orchards, and the orchards having been so far affected by the extraordinary drought that they did not produce sufficient fruit of the varieties named to comply with the contract, the plaintiff could be compelled to perform the con- tract only so far as it was possible for it to do so. It could not be| made to perform impossibilities, nor was it liable in damages by way of counterclaim or otherwise for a failure to comply with its con- tract resulting from vis major, and not attributable tO' any fault on' the part of said plaintifif. Nor could plaintiff be compelled to sub- 1 stitute other peaches than those contemplated in the original con-| tract of sale. If the sale had been of a specific lot of horses, and half of them had died before delivery, I take it that no one would contend that the vendor could be compelled to substitute other horses before he could recover for such as the vendee had already received. The vendee having accepted a part of the fruit, it should pay for it at the agreed rate, and the loss of the other fruit is the misfortune of the vendee as well as of the vendor, and neither is liable to the other on account of it. Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415. The furnishing of other peaches for those lost would be sub- stituting a new sale, rather than substantially complying with the original contract of sale. There is nothing in Remy v. Olds (Cal.) 34 Pac. 218, 21 L. R. A. 645, in any way conflicting with the fore- going principles. There was no error in permitting plaintiff by parol evidence to identify the subject-matter of the contract. The expression "sundry orchards in Ontario and Cucamonga" shows on its face that it was not the purpose of the contract to include all the orchards in the districts named, and it therefore became necessary to resort to oral evidence to explain what orchards were meant. Benj. Sales, § 213; Tayl. Ev. §§ 1194, 1195. Nor was there prejudicial error in per- mitting it to be shown by oral evidence that defendant agreed at the time the contract was signed not to hold the plaintiff bound to de- 314 DESTRUCTION- OF THE GOODS — RISK OF LOSS (Ch. 3 liver the minimum quantity mentioned in the contract, unless that quantity was actually grown on the particular orchards embraced in the contract, because, as we have already seen, that condition could be fairly impHed from the written agreement, and it could do no harm to prove by oral evidence that which was already established by the writ- ten contract. The judgment and order should be affirmed. Chipman and Smith, CC, concurred. Pbr Curiam. For the reasons given in the foregoing opinion, the judgment and order are affirmed.^ CALCUTTA & BURMAH STEAAT NAV CO., Limited, v. DE MATTOS. DE MATTOS v. CALCUTTA & BURAL\H STEAM XAW CO., Limited. (Court ol Queen's Bench, ist;;;. 32 Law J. Q. B. 322.) Blackburn, J.^ These cross actions arise out of the same trans- action. A special case has been stated, on the argument of which some very important and difficult questions of mercantile law were mooted and argued by Mr. Bovill for the company, and Mr. Mellish for De Alattos; but the view I take of the case makes it unnecessary to pro- nounce an opinion on most of these. The question which, in my view of the case decides everything, is : What was the meaning of the contract between the parties ? That contract is contained in five let- ters set out in the case, and, being in writing, it is for the Court to construe it. The first of those letters bore date the 1st of May 1860, and the contract was finally concluded by the last, which bore date the 7th of May, 1860. Leaving out those parts of the contract not relevant to the present dispute, and stating the terms, as they were finally agreed to, in the very words of the letters, the contract is thus expressed: "De Mattos is to supply the company with 1,000 tons of any of the first-class steam coals on the Admiralty list, obtainable at the port of shipment, the selection of the particular description to be at the company's op- tion, delivered at Rangoon, alongside craft, steamer, floating depot, or pier, as may be directed by the company's agent at that port. Ship- ment to be before the 30th of June then next. The price to be 43s. per ton of 20cwt. delivered at Rangoon. Payment, one-half of invoice value by bill at three months, on handing bill of lading and policies of insurance to cover the amount, or in cash under discount at the 1 Compare Anderson v. May, 50 Minn. 280, 52 N. W. 530, 17 L. R. A. 555, 36 Am. St. Rep. 642 (1S92), 2 The statement of facts and part of the opinion are omitted. Ch. 3) DESTRUCTION OF THE GOODS— RISK OF LOSS 315 rate of i5. per cent., at De Mattos's option. The balance by the com- pany's Rangoon agent's drafts on the company in I^ondon, on comple- tion of delivery at Rangoon." This contract having been entered into on the 7th of May, De Mat- tos, in furtherance of it procured a charter of the ship Waban. The company were not parties to this charter-party, nor privy to its con- tents. By it the freight payable to the shipowners was 40s. per ton ; it was all made payable by bills in London, to be accepted by the charterer (De Mattos), part upon the shipment of the goods, but to be returned if the goods were not delivered at their destination ; the residue on certificate of the due delivery. So that by the provisions of this charter-party the whole charter freight of 40s. per ton was made contingent on the right delivery at Rangoon (so that the ship- owners had a right, by trans-shipment, if necessary, to carry on the goods to Rangoon for the purpose of earning this freight of 40s. per ton.), and the freight being all payable in London by the charterers, the shipowner renounced all lien for freight. De Mattos shipped on board this vessel 1,166 tons (being more than the quantity specified in his contract, viz., 1,000 tons). He took a bill of lading for that quantity, expressing the freight "to be paid by the charterers as per charter-party;" so that the bill of lading pro- vides that there shall be no freight payable on delivery, and conse- quently no lien for it as against the assignee of the bill of lading. He also effected a policy of insurance for £1,400., being somewhat above the half of the invoice value of 1,166 tons at 45s.; the precise half of the invoice value being £1,311. 15s. He transmitted the bill of lading and policy to the company, and received payment under dis- count of the £1,311. 15s. It is not explained in the case how it came that De Mattos shipped 1,166 tons instead of 1,000 tons; but as no objection was made, I presume that it had been so arranged between the parties; at all events, the Court having power to draw inferences of fact, I draw the inference that the parties agreed that the 166 tons extra were shipped on similar terms to those relating to the 1,000 tons. These facts are sufficient to raise the question on the solution of which I think this case depends, viz., What was the effect of the con- tract as regards the property in the goods and the right to the price, from the time of the handing over the shipping documents and paying half of the invoice value? There is no rule of law to prevent the parties, in cases like the present, from making whatever bargain they please. If they use the words in the contract showing that they in- tend that the goods shall be shipped by the person who is to supply them on the terms, that when shipped they shall be the consignee's property, and at his risk, so that the vendor shall be paid for them whether delivered at the port of destination or not, this intention is effectual. Such is the common case where goods are ordered to be sent by a carrier to a port of destination. The vendor's duty is, in 1 31G DESTRUCTION OP THE GOODS — RISK OF LOSS (Ch. 3 such cases, at an end when he has delivered the goods to the carrier,, and, if the goods perish in the carrier's hands, the vendor is dis-j charged, and the purchaser is bound to pay him the price. See Dun- lop V. Lambert, 6 CI. & Fin. 600. If the parties intend that the ven-l dor shall not merely deliver the goods to the carrier, but also under- take that they shall actually be delivered at their destination, and ex- press such intention, this also is effectual ; in such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled^ to the price, but he is liable for whatever damage may have been sustained by the purchaser in consequence of the breach of the ven-/ dor's contract to deliver at the place of destination. See per Lord' Cottenham, C, delivering judgment in the House of Lords in Dun- lop V. Lambert, 6 CI. & Fin. 621. But the parties may intend an intermediate state of things ; they may intend that the vendor shall deliver the goods to the carrier, and that, when he has done so, he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of contract if the goods do not reach their destination ; and yet they may intend that the/ whole or part of the price shall not be payable unless the goods do arrive. They may bargain that the property shall vest in the puij- chaser, as owner, as soon as the goods are shipped, that they shall then be both sold and delivered, and yet that the price (in whole or in part) shall be payable only on the contingency of the goods arriving ; just as they might, if the\' pleased, contract that the price should not be payable unless a particular tree fall ; but without any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall. Where the contract is of this kind, the position of the vendor and purchaser, in case the goods do not ar- rive, is analogous to that of freighter and shipowner, in the ordinary contract of carriage on board a ship, in case the goods are prevented from arriving by one of the excepted perils. The shipowner is not bound to carry and deliver at all events; but, though he is excused if prevented by the excepted perils, yet no freight is earned or payable unless the goods are delivered. In the case of freight, also, the ques- tion often arises, whether a pa\ment made at the port of shipment is an advance of part of the freight, returnable if the goods are not delivered and freight earned, or is an absolute payment, leaving only the balance contingent on the safe delivery of the goods, — a question very analogous to one that arises on the present contract. See the cases as to pre-payment of freight collected in M'Lachlan on Ship- ping, p. 443. The parties in the present case have not, in express terms, declared their intention as to the time when the property in the coals was to be transferred from De Mattes, who was to supply the coals, to the company; and we are left to collect the intention from the various stipulations in the contract. It is clear that the coals are to be ship- ped in this country, on board a vessel to be engaged by De Mattos, Ch. 3) DESTRUCTION OF THE GOODS RISK OF LOSS 317 to be insured, and the policy of insurance and the bill of lading and invoice to be handed over to the company. As soon as De Mattos, in pursuance of these stipulations, gave the company the policy and bill of lading, he irrevocably appropriated to this contract the goods which were thus shipped, insured, and put under the control of the company. After this, he could never have been required, nor would he have had the right, to ship another cargo for the company ; so that from that time that, which had originally been an agreement to sup- ply any coals answering the description, became an agreement relat- ing to those coals only, just as much as if the coals had been specified from the first. Sir Cresswell Cresswell, in delivering an elaborate judgment of the Privy Council in Gilmour V. Supple, 11 Moo. P. C. 566, says: "By the law of England, by a contract for the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shewn that such was not the in- tention of the parties." ''Various circumstances," he adds, "have been treated by our Courts as sufficiently indicating such contrary inten- tion." I think this a very accurate statement of the law ; and I think, therefore, that in construing this contract, the prima facie construc- tion is, that the parties intended that the property in the coals vested in the company, and the right to the price in De Mattos, as soon as it came to relate to specific ascertained goods; that is, on the handing over the documents; and the inquiry must be, whether there is any sufficient indication in the contract of a contrary intention. As to one-half of the price, the balance, as it is called in the letter form- ing the contract, the intention that it should only be paid "on comple- tion of delivery at Rangoon," seems to me as clearly declared as words could possibly declare it; and consequently, I think, as to that half of the price no right vested in De Mattos, unless and until there was a complete delivery at Rangoon. But, consistently with this, there might be an intention that there should be a complete vesting of the property in the goods in the com- pany, and a complete vesting of the right to the half of the price in De Mattos; so as in effect to make the goods be at the risk of the company, though half the price was at the risk of De Mattos: so that the goods were sold and delivered, though the payment of half the price was contingent on the delivery. And this, I think, is the true legal construction of the contract. There are, undoubtedly, some expressions in the letters, which may plausibly be said to indicate an intention, that the whole risk shall be on De Mattos up to the time of the contemplated delivery at Rangoon. The coals are to be -delivered at Rangoon; the whole price is expressed to be "45s. per ton of 20cwt. delivered at Rangoon." I fully admit, that the argument, that these words imply an under- taking that the coals shall be delivered at Rangoon, or, at least, that nothing shall be paid except for such coals as are delivered at Rangoon, 318 DESTRUCTION OF THE GOODS — RISK OF LOSS (Ch. 3 is a very forcible one. But then, we must look at the whole contract. We find that the coals when shipped are to be insured, and the policy of insurance is to be handed over to the company. It is consistent with this, that the policy was to be handed over to the company, only to be a collateral security for an advance ; but it is more natural that it should be given to them, because the risk which the policy covered was to be theirs. The bill of lading is handed to them so as to give them the actual, de facto, dominion over the goods and to confer upon them the power of giving to a third party, by a sale or pledge of that bill, what that third person would believe to be a rightful dominion over the goods. This, too, is consistent with the bill of lading being delivered to the company merely with a view to give them an ef- fectual security for an- advance; but, as before, I think the more natural solution of it is, that it was given to them because, the prop- erty being theirs, they were entitled to the control of the goods. It is very true that the company (a steam navigation company, who wanted coals for their own use) probably did not contemplate sell- ing the goods to third parties, and therefoi^e the argument as to the intention of the parties, arising from the possession of the bill of lad- ing, is not so strong as if the purchaser had been an ordinary mer- chant, who purchased the coals meaning to sell them again, and who, therefore, presumably stipulated for the bill of lading in order that he might be able, without breach of contract or bad faith, to sell them again ; but though the company probably did not mean to sell this cargo before it arrived at Rangoon, they had, from the time the bill of lading was put into their hands, power to do so if they thought fit ; and it seems to me that the fact, that the contract contains a stipula- tion for that power in favour of the purchasers, is very strong to shew, that the property, and consequently the risk, was intended to be in them from the time they received the bill of lading. * * * If the true construction of the contract be that which I put upon it, there is no difficulty in disposing of the case. The company are\ not entitled to recover back any portion of the money paid to De Mattos : for it was to be his absolutely on handing over the policy and bill of lading ; nor are they entitled to maintain any action against him for not causing the goods to be delivered at Rangoon : for he had not entered into any contract to the effect that he would at all events cause them to be delivered there. They, therefore, fail entirely in their action against him. De Mattos, on the other hand, is not en-l titled to recover from the company any part of the balance of the\ price which by the contract was made payable b^■ the drafts of the company's Rangoon agents "'on completion of the delivery at Ran-\ goon;" for no portion of the coals ever was delivered at Rangoon according to the contract. It is true that 850 tons were tendered there to the company, who might have had them, if they would have paid to the captain of the Alfred Lamont 45s. per ton in discharge of his claim for freight ; and it is true also that they refused to pay this sum Ch. 3) DESTRUCTION OF THE GOODS — RISK OF LOSS 319 (as they had a full right to refuse) ; and that when the captain chose to sell the coals by auction they purchase them, paying 25s. per ton. The effect of this was, that these coals actually did come into their possession at Rangoon ; but the delivery, on the completion of which the balance of the price was by the contract to become payable, was a delivery under the contract "at Rangoon, alongside craft, steamer, floating depot, or pier," without any further payment being made. There never was any such delivery. The observations of Lord Brougham in delivering the judgment of the Privy Council in Logan v. Le Mesurier, 6 Moo. P. C. 132, seem to me much in point on this part of the case. If the conduct of the company's agents at Rangoon had been mala fide, and such as to prevent the delivery according to the contract, or if it had amount- ed to a waiver of the fulfilment of the condition, then no doubt, as against them, the condition might have been considered as fulfilled, and the balance would have been payable. We have power to draw inferences of fact ; but I think there is nothing stated in the case, that would justify us in putting such a construction on the conduct of the company's agents at Rangoon, or in drawing such an inference of fact. In my opinion, the second question in the case must be answered in favour of the company. There remains only one other point to consider. The company pur- chased the 850 tons from the captain of the Alfred Lament. It was argued with great force by Mr. Mellish, that the captain of the Al- fred Lament had no right to sell those coals, and consequently that the company purchasing them, with notice of the facts (if notice was material), were guilty of a conversion, and liable in trover to the true owner of the goods. I am not prepared to dissent from this view of the case, but it is not necessary to decide this point. If it were nec- essary, I should wish to consider the grounds of my opinion with some care, and state them at length, as some of the points involved are of great importance and great difficulty. But if I am right in the con- struction I have put upon the contract, the goods were not at the time of the sale the property of De Mattos, and he, at all events, can main- tain no action for their conversion. The result is, that in each of the cross-actions there should, in my opinion, be judgment for the defendants. In the action by the company against De Mattos, judgment for De Mattos. In the action by De Mattos against the company, judgment for the company.^ 3 Opinions were also delivered by Wightman, J., and Cockburn, C. J., both of whom held that, though the property in the coals passed to the company on the shipment and delivery of the shipping documents, De Mattos was bound to deliver them at Rangoon, and, having failed to do so, he was liable to refund the half of the purchase money which he had received and to pay any damages arising from the nondelivery. Mellor, J., concurred in the opin- ion of Blackburn, J.; but the court being evenly divided, he, being junior :y20 DESTRUCTION OF THE GOODS — RISK OF LOSS (Ch. 3 McNEAL V. BRAUN. ' (Court of Errors and Appeals of New Jersey, 1S91. 53 N. J. Law, 617, 23 Atl. 687, 26 Am. St. Rep. 441.) DEPue, J."* Braun, the plaintiff below, in 1883, was a wholesale dealer in coal at Philadelphia. McNeal, who is now plaintiff in error, was engaged in the foundry business at Burlington, in this state. On the 14th of June, 1883, McNeal ordered from the plaintiff 98 tons of lump and steamboat coal, to be delivered at Burlington, at $4.10 a ton, delivered. The coal was shipped in a barge called "The Way- ward" on the 21st of June. The barge arrived at Burlington on the 23d, but it was not until the 26th that she was laid along-side of the wharf. On the afternoon of that day the defendant's foreman notified the captain of the barge to place it along-side of the defendant's wharf. In order that the boat might be so placed that the steam-hoist could be used for unloading, the boat was separated into its two parts. The forward part was made fast to the wharf, being separated from the wharf by a float about three feet wide, furnished by the defend- ant, for the purpose of steadying the boat in a position that was nec- essary for the working of the iron buckets on the steam elevator. The after-part of the boat was moored on the river side of the other part. When the forward compartment of the boat was placed in position the buckets of the hoisting works were lowered upon the boat, and preparations were made by the defendant's servants for unloading the coal. They completed their preparations about 10 minutes before 6 o'clock, and stopped work at 6, the usual time for quitting work. During the night this compartment of the boat sank, with the coal that was in it. The compartment that was moored in the river re- mained in safety. After the sinking of the forward compartment, the coal that was in the other compartment was unloaded and taken by the defendant. The suit was for the whole quantity of coal sold, but the contro- versy at the trial was with respect to the coal that was sunk and en- tirely lost. Under the charge of the court the jury found for the\ plaintiff the full contract price for the entire shipment. The order for the coal was given by the defendant to Arkless, the agent of the plain- tiff, at the plaintiff's place of business in Philadelphia. The order was for a cargo of coal of an approved size and quality. The coal was not at that time separated from the plaintiff's stock on hand. The price to be paid was $4.10 per ton, delivered at Burlington. The carrier was selected by the plaintiff, and he took from him a bill of judge, withdrew his opinion. Judgment was entered in the first action, for the plaintiffs; in the second action, for the defendants. In the Exchequer Chamber (33 L. J. Q. B. 214), the Judgment in the first action was reversed; Hi the second action, affirmed. « I'art of the opinion is omitted. Ch. 3) DESTRUCTION OF THE GOODS RISK OF LOSS 321 lading, signed by the master in these words: "Shipped by Charles Braun, in good order, on board the boat called 'Wayward,' now lying at Philadelphia, and bound for Burlington, N. J., ninety-eight tons of Thomas Lehigh coal, which I promise to deliver at the aforesaid port of Burlington in like good order, the dangers of the seas only excepted, unto A. H. McNeal, or assigns, he or they paying freight for the same at the rate of twenty one-hundredths dollars per ton. * * * 25 tons lump. 7.3 tons steam-boat. Captain to tend guy. 98" The contract price of $4.10 a ton was the price of the coal delivered at Burlington. If the defendant paid freight pursuant to the direc- tion in the bill of lading, the freight paid was to be deducted from the contract price. Responsibility for loss in transportation, in carriage by sea, has oc- casioned considerable discussion in the English courts. The rules on this subject are stated by Lord Cottenham in Dunlop v. Lambert, 6 Clark & F. 600-62 L and by the court of queen's bench and the ex- chequer chamber in Navigation Co. v. De Mattos, 32 Law J. Q. B. 332, 33 Law J. Q. B. 214; and particularly by Mr. Justice Blackburn, whose opinion in that case is quoted at considerable length in 1 Benj. Sales, (Corbin's Ed.) § 503, and more fully in Blackb. Sales, (Black- stone Ed.) 234. It is sometimes stated as a general rule that delivery to the carrier is delivery to the consignee, and that the goods are to be carried to their destination at his risk. But an examination of the decisions to that effect will show that this doctrine prevails only where the contract of sale, as between the consignor and consignee, was concluded at the place of shipment, and the undertaking to ship was collateral to -me contract of sale, as in Tregelles v. Sewell, 7 Hurl. & N. 572i./p. will also be found that the rule uniformly adopted in the line of decisions is that the risk of loss in transportation depends upon the nature of the transaction, the terms of the contract, and the intention of the parties. * * * It was undisputed in the case now before the court, and in fact was conceded by the plaintiff's counsel, that delivery of the coal by the plaintiff at Burlington, at his own expense, was a material term in the contract of sale. Under a contract of this sort, delivery of the coal on board the barge was delivery to the master, as the plaintiff'sl bailee or agent, to perform for him the act of delivery in execution- of his contract. 1 Benj. Sales, (Corbin's Ed.) § 556. Meanwhile, and until delivery was consummated in such a manner as to be effectual a^ between vendor and purchaser, the coal was at the plaintiff's' risk. On the main issue, which the learned judge declared to be the ques- tion, whose loss was the coal which sank? his instruction was that this WooDW. Sales — 21 :;22 DESTRUCTION OF THE GOODS RISK OF LOSS (Ch. 3 issue would depend upon whether the sale had been completed before the loss occurred ; that where parties have bargained, the one that he will sell and the other that he will buy, the duty rests upon the seller to deliver the article in pursuance of the agreement he has made, and that to complete the sale there must be an acceptance by the .pur- chaser of the article which he purchased, in accordance with that agreement; that when that has been done "the sale is completed, and any loss after that time falls upon the man who bought. I mean, any loss which is the result of no wrongful or intentional negligence of the parties." The court also instructed the jury that, if there was an acceptance by the defendant, then the position of the captain became changed, and his duty as the agent of the plaintiff was at an end; and this question was left to the jury upon the acts and conduct of the defend- ant's servants before they stopped work that night, with the instruc- tion that if the jury should determine from the testimony "that the defendant or his employes so acted that they recognized that that coal was there at their disposal, under their dominion, within their power, and that they so acted as to show that they were dealing with it as if it were AlcXeal's, from those acts you may determine that there was an acceptance of the coal, as being the coal which had been bought under that bargain." The transaction between the parties was an order for a certain quantity of coal, part lump coal and part steam-boat coal, of an ap- proved quality. It was, in effect, a contract of sale by sample. On such a sale of goods, it is a condition implied by law that the buyer shall have a fair opportunity, by examining the goods, to satisfy him- self that they are in accordance with the contract. 2 Benj". Sales (Corbin's Ed.) §§ 910, 102,S, 1042; Isherwood v. Whitmore, 11 Mees. & W. 347; Startup v. McDonald, 6 Man. & G. 593; Croninger v. Crocker, 62 N. Y. 152. And under a shipment of goods by a carrier the consignee is entitled to inspect and examine the goods, to ascer- tain whether they correspond with the invoice, and to a reasonable time within which to receive and remove the goods. For that pur- pose a reasonable time within usual business hours must be allowed, and during that period the liability of the carrier as carrier remains undischarged. Bradstreet v. Heron, Abb. Adm. 209, 214; Manu- facturing Co. V. The Tangier, 1 Cliff. 396, Fed. Cas. No. 12,266; Dib- ble V. Morgan, 1 Woods, 406, Fed. Cas. No. 3,881 ; The Tybee, 1 Woods, 358-363, Fed. Cas. No. 14,304; The Iddo Kimbah, 8 Ben. 297, Fed. Cas. No. 7,000; 5 Myer, Fed. Dec. "Carriers," §§ 802, 803, 846, 852, 1008; The Eddy, 5 Wall. 481-493, 18 L. Ed. 486; Price V. Powell, 3 N. Y. 322 ; Dunham v. Railroad Co., 46 Hun (N. Y.) 245; Miller v. Navigation Co., 10 N. Y. 431 ; Hedges v. Railroad Co., 6 Rob. (N. Y.) 119, reversed in court of appeals, but not on this point, 49 N. Y. 223; Moses v. Railroad Co., 32 N. H. 523, 64 Am. Dec. Ch. 3) DESTRUCTION OP THE GOODS — RISK OF LOSS 32S 381; Graves v. Steam-Boat Co., 38 Conn. 143-152, 9 Am. Rep. 369; Richardson v. Goddard, 23 How. 28-39, 16 L. Ed. 412; Bourne v. Gatliffe, 3 Man. & G. 643-687, 11 Clark & F. 45-70; 3 Lewis, Ann. R. & Corp. R. 54, note to Railroad Co. v. Ludden, (Ala.) reported in 7 South. 471. The acts done by the defendant's servants before they quit work were of a two-fold character : First. In directing the barge to be laid along-side of the wharf for unloading. The captain made the boat fast to the wharf, and remained in charge during the night. The designation by the defendant of his wharf as the place for unloading was an act in performance of the defendant's duty, as consignee, to provide a place for the discharge of the cargo. Second. In the prep- arations for unloading. The barge was laid along-side the float about 10 minutes before 6. The buckets were lowered down upon the barge, and possibly a small quantity of coal was unloaded. The hands quit work at 6, and replaced the buckets on the wharf. In these acts there was no evidence of an acceptance of the entire cargo, nor of a discharge of the carrier from his responsibility. Under the rules of\ law I have stated, the defendant was entitled to a reasonable oppor- tunity to unload the entire cargo for examination to ascertain whether the coal corresponded with his order, and had arrived in good condi- tion. By law he was secured these rights without discharging the liability of the carrier. Even if the goods had been accepted so as to pass title as between vendor and purchaser, the defendant, under the plaintiff's undertaking to deliver them at Burlington, still had a right to a reasonable time to unload them under the plaintiff's contract to' transport and deliver the goods. * * * Judgment reversed. MARTINEAU et al. v. KITCHING. (Court of Queen's Bench, ]S72. L. R. 7 Q. B. 4.36.) Action to recover the price of sugars sold by plaintiffs to defendant. The plaintiffs, sugar refiners, were in the habit of selling to brokers the whole of each filling of sugar, consisting of from 200 to 30O loaves or "tillers" each, the terms always being "Prompt at one month ; goods at seller's risk for two months," the "prompt" day being the Saturday next after the expiration of one month from the sale. The titlers in each filling were stored on the plaintiffs' premises, and were from time to time fetched away by the purchasers or their subvendees, being weighed on their removal, each titler weighing from thirty-eight to forty-two pounds. If the whole of the lots con- tained in one sale-note had not (which was frequently the case) been taken away on the "prompt" day payment was made by the pur- chaser (by bill or cash) at an approximate sum calculated on the 324 DESTRUCTION OF THE GOODS — RISK OF LOSS (Ch. 3 probable weight, the actual price being afterwards adjusted on the whole filling being cleared. The defendant, who was an old customer of the plaintiffs, had bought four fillings, consisting of specific titlers, each marked on the above terms, and had paid the approximate price of the four lots, and had fetched some of each lot away. A fire occurred on the plain- tiffs' premises after the expiration of the two months from the dates of sale to the defendant, destroying the whole contents of the ware- houses. TAt the time of the fire the plaintiffs had floating policies of insurance which covered goods on the premises "sold and paid for, but not removed;" but they had no agreement or understanding with their customers as to any insurance; and the amount insured, which the plaintiffs received from the underwriters, was not sufficient to cover the loss of their own goods, exclusive of the titlers undelivered which they had sold to the defendant.^ Blackburn, J. I am also of opinion that our judgment must be in favour of the plaintiffs. The case arises in this way. [The learned judge referred to par. 21, and stated the facts.] The dif- ficulty which is raised' is, that these goods had perished before they were actually weighed ; and two points were made by Mr. Brown ; he contended that because they had not been weighed the property had not passed, and that it therefore followed, as an inexonerable rule of law, that they were not to be paid for, because they were still the property of the plaintiffs. This, however, I do not think is the correct way of putting the case, and I do not think that we need decide whether the property passed or not. As a general rule, res perit domino, the old civil law maxim, is a maxim of our law ; and when you can shew that the property passed the risk of the loss, prima facie, is in the person in whom the property is. If, on the other hand, you go beyond that, and shew that the risk attached to the one person or the other, it is a very strong argument for shewing that the property was meant to be in him. But the two are not in- separable. It may be very well that the property shall be in the one and the risk in the other. In the present case I think all that is necessary to decide is, that the risk was not in the sellers. When the first month had elapsed, and payment had been made, still the buyers had, from their express stipulation, a right to have the goods remain a month at the refiners' warehouse at the refiners' risk. Let us suppose that the refiners had become bankrupt. If in consequence of the risk being in the refiners, which by this stipulation it clearly would be during the two months, the property was still in the refiners, their assignees in bankruptcy would take the entire property, and the buyers, who had paid the ap- proximate price, would be obliged to come in and prove, and get so 6 This statement of the facts is taken from the headnote. Part of the opinion is omitted. Ch. 3) DESTRUCTION OP THE GOODS— RISK OF LOSS 325 many shillings in the pound as they might be able to prove for. That would be a monstrous hardship, and in such a case as that I should be very much inclined to struggle very hard to find any legal reason for saying that, though the risk remained in the sellers, yet the prop- erty had passed to the buyers as soon as they had made the payment. If the question arose in such a case as that, I am rather inclined to think it would be necessary to look carefully into Simmons v. Swift, 5 B. & C. 857, and some other cases, to see if one could decide that the property had passed. But in this case that does not arise; the second of the two months had elapsed, during which the stipulation was that the goods were to be at the sellers' risk. I think expressio unius est exclusio alterius. I cannot construe that stipulation, ex- cept as implying that at the expiration of the two months the goods are to be at the buyer's risk. That construction would be greatly fortified, if it required fortification, by the fact that at the end of the two months the sellers did send a note to remind the buyer that the goods are at his risk; and this being a stipulation between two parties, who are both sui juris, that they are to be at the buyer's risk after the two months, the question is, is that effectual at law ? Mr. Brown's argument was, that the goods must be at the sellers' risk, because, as he contended, the property had not passed to the buyer. I have already intimated that, if it were necessary, I should consider very long before I said that. However, assume that it had not passed. If the agreement between the parties was, "I contract that when you pay the price I will deliver the goods to you, but the , property shall not be yours, they shall still be my property so that I may have dominion over them ; but though they shall not be yours, I stipulate and agree that if I keep them beyond the month the risk shall be upon you ;" and then the goods perish ; to say that the buyer could then set up this defence and say, 'Although I stipulated that the risk should be mine, yet, inasmuch as an accident has happened which has destroyed them, I will have no part of that risk, but will throw it entirely upon you because the property did not pass to me," is a proposition which stated in that way, appears to be absolutely a a reductio ad/gbsurdum ; and that is really what the argument amounts to. /Zi the parties have stipulated that, if after the two months the-^ods remain in the sellers' warehouse, they shall, never- theless, remain there at the buyer's risk, it would be a manifest ab- surdity to say that he is not to pay for them; and I think the case of Castle v. Playford, Law Rep. 7 Ex. 98, is a clear authority of the Court of Exchequer Chamber, . that where the parties have stip- ulated that the risk shall be on one side, it matters not whether the property had passed or not. The parties here have by their express stipulation impliedly said', after the two months the goods shall be at the risk of the buyer, consequently it is the buyer who must bear the loss. Z' 326 DESTRUCTION OF THE GOODS RISK OF LOSS (Ch. 3 Then Mr. Brown said, "But how can the buyer pay when he was to pay at 47s. per cwt., and the goods have never been weighed, and therefore it would never be known with certain precision how many cwt. there were?" I answer to that, in the first place, that the point is concluded by the authority of Alexander v. Gardner, 1 Bing. N. C. 671, Turley v. Bates, 2 H. & C. 200; 33 L. J. (Ex.) 43, and the re- cent case of Castle v. Playford, Law Rep. 7 Ex. 98 in the Exchequer Chamber, which all go to shew that where the price is not ascer- tained and it could not be ascertained with precision in consequence of the thing perishing, nevertheless the seller may recover the price, if the risk is clearly thrown on the purchaser, by ascertaining the amount as nearly as you can. There is another reason which in this case would clearly apply — the delay in weighing is quite as much the fault of the purchaser as of the sellers. When the prompt day comes the sellers have a right to require that the goods should be weighed at once, so as to ascer- tain the price, and to have it paid to the last farthing. It may be for the mutual convenience of both parties; but still it is the buyer, in effect, who requests that, as he is going to leave them longer, the weighing should be postponed for a time. Therefore it is in conse- quence of his delay that the weighing does not take place. Now by the civil law it always was considered that, if there was any weigh- ing, or anything of the sort which prevented the contract being per- fecta emptio, whenever that was occasioned by one of the parties be- ing in mora, and it was his default, though the emptio is not perfecta, yet if it is clearly shewn that the party was in mora, he shall have the risk just as if the emptio was perfecta. That is perfectly good sense and justice, th'bugh it is not necessary to the decision of the present case, that; when the weighing is delayed in consequence of the interference of the buyer, so that the property did not pass, even if there were no express stipulation about risk, yet because the non- completion of the bargain and sale, which would absolutely transfer the property, was owing to the delay of the purchaser, the purchaser should bear the risk just as much as if the property had passed^The inclination of my opinion is, as 1 have said, that the property is in the purchaser, but we need not decide that at all to-day, and it might re(juire some consideration to see how far the case of Simmons '\-. Swift, 5 B. & C. 857, really governs the case. * * * Judgment for the plaintiffs.'' Coiifumng oiiiiiioiis were delivered by Coekburn, C. J., and Lush and Quain, JJ. Ch. 3) DESTRUCTION OF THE GOODS— RISK OF LOSS 327 BURNIvEY V. TUFTS. (Supreme Court of Mississippi, isso. 66 Miss. 48, 5 Soutli. 627, 14 Am. St. Rep. 540.) Appeal from Circuit Court, Copiah County ; J. T. Wharton, Judge. The appellant, M. D. Burnley, bought of the appellee, James W. Tufts, a soda fount, which was to be paid for by the month, each of said payments being evidenced by the following promise in writing, one given for each month: "10.00. Hazlehurst, Miss., June 5, 1885. "For value received — ^ after date I promise to pay to the order of James W. Tufts ten dollars, with interest, 6 per cent. The consideration of this and other notes is the following described soda-water apparatus: [Here follows description of apparatus.] "Nevertheless it is understood and agreed by and between me and the said James W. Tufts that the title to the above-mentioned prop- erty does not pass to me, and that until all said notes are paid the title to the aforesaid property shall remain in said James W. Tufts, who shall have the right, in case of nonpayment at maturity of either of said notes, without process of law, to enter and retake, and may enter and retake immediate possession of said property wher- ever it may be, and remove the same. Payable at the Merchants' and Planters' Bank, Hazlehurst, Miss. M. D. Burnley." Burnley paid several of these notes, and his store, including the soda-water apparatus, was burned, and he refused to pay the re- maining notes as they became due. Whereupon Tufts brought suit to enforce the payment of said remaining notes, and recovered judg- ment, from which Burnley appealed. Cooper, J. Burnley unconditionally and absolutely promised to pay a certain sum for the property the possession of which he re- ceived from Tufts. The fact that the property has been destroyed while in his custody, and before the time for the payment of the notes last due, on payment of which only his right to the legal title of the property would have accrued, does not relieve him of payment of the price agreed on. He got exactly what he contracted for, viz., the possession of the property, and the right to acquire an absolute title by payment of the agreed price. The\ transaction was some- thing more than an executory conditional sate. The seller had done all that he was to do except to receive the purchase price ; the pur- chaser had received all that he was to receive as the consideration of his promises to pay. The inquiry is not whether, if he had foreseen the contingency which has occurred, he would have provided against it, nor whether he might have made a more prudent contract, but it is whether by the contract he has made his promise is absolute or conditional. The contract made was a lawful one, and as we have said, imposed upon the buyer an absolute obligation to pay. To 328 DESTKUCTION OF THE GOODS — RISK OF LOSS (Cll. 3 relieve him from this obhgation the court must make a new agree- ment for the parties, instead of enforcing the one made, which it cannot do. Manufacturing Co. v. Cole, 4 Lea (Tenn.) 439, 40 Am. Rep. 20; Keitt v. Counts, 15 S. C. 493. The judgment is affirmed.' FARMERS' & MECHANICS' BANK v. LOGAN. (Court of Appeals of New York, 187S. 74 N. Y. 568.) See ante, p. 156, for a report of this case.* McCONIHE V. NEW YORK & E. R. CO. (Court of Appeals of New York, 3859. 20 N. Y. 495, 75 Am. Dec. 420.) Appeal from the Supreme Court. Action to recover damages upon a contract made between Mal- lorj, the plaintiff's assignor, and the defendant, in December, 1849, by which Mallory was to furnish materials and build fifteen lumber cars for the defendant, for four hundred and seventy-five dollars per car, to be paid for in six months from the average delivery. The contract was subsequently so modified that the company agreed to furnish for the cars the iron boxes of a peculiar model manufactured by the company, the expense of the boxes to be taken from the price of the cars. One four-wheel car was to be completed in thirty days, and one on each day thereafter til! the whole number should be completed. Mallory commenced the work immediately, and at great expense selected and purchased the materials (except the boxes) expressly for the cars. Mallory set up seven of the cars and had the work ready to set up the others, and those set up were completed as far as it was possible without the boxes, which the company neg- lected to furnish. The company did not manufacture the boxes, but they were and could be made only by one Brandt, and he was in the employment of the defendant. Had the company furnished the boxes all the cars could have been completed by the 1st of March, 1850, but in fact were not. The labor as far as proceeded with was performed at great inconvenience, in consequence of the boxes not having been furnished. Mallory expended for materials for the cars, ' Compare J. M. Arthur & Co. v. Blackman (C. C.) 63 Fed. 536 (1894). In Hollenberg Music Co. v. Barron, 100 Ark. 403, 140 S. W. 582, 36 L. R. A. (N. S.) 594 (1911), it was held that the destruction of goods which had been retaken by the seller because of the buyer's default did not relieve the buyer from the obligation to pay the balance of the price. sAnd see, further, us to ris'- of loss where goods are shipped under a bill of lading, Wllliston, Sales, § 305. Ch. 3) DESTRUCTION OF THE GOODS— RISK Or LOSS 329 and in labor upon their construction, &c., the sum of $2,159.54. He was unable to obtain insurance upon the materials and property. From the 1st of March, 1850, to the 18th May following, the cars remained in that condition, while Mallory was repeatedly urging the company to furnish the boxes. On the 18th of May, 1850, without any carelessness on the part of Mallory, all the cars and materials, except the iron, were consumed by fire, and the irons were mate- rially injured. After the fire Mallory used such portion of the iron as was available, in making other cars for the company. Mallory was prevented from completing the special contract by the failure of the defendant to furnish the boxes as agreed by it. No specific dam- ages for not furnishing the boxes were proved. Mallory, before the commencement of the action, transferred the claim to the plaintiff. Upon the trial at the circuit the judge directed the jury to ren- der a verdict for the plaintiff for $2,159.54, subject to the opinion of the court at general term, with liberty to the court to render judg- ment for either party, and if for the plaintifif, then for such sum as the plaintifif might be entitled to recover on the proof in the case. The cause was heard at the general term in the third district, where the facts were found as above stated, and judgment was given thereon for the defendant, from which the plaintifif appealed to this court. GrovEr, J. The court at General Term found the fact that Mallory would have completed the cars had he not been prevented from so doing by the failure of the company to furnish the boxes therefor, according to their agreement. Had this been a contract for work and labor to be performed by Mallory for the defendant, and he had been prevented from completing the contract by a failure of the de- fendant to perform on its part, he would have been entitled to re- cover for what he had done under the contract. Koon v. Greenman, 7 Wend. 121 ; Jones v. Judd, 4 N. Y. 412. That is not this case. Mallory agreed to build for the defendant fifteen lumber cars, from materials to be furnished by him, except the boxes, which the defendant agreed to furnish, and the expense of which was to be deducted from the price of the cars. This was in eflfect an agreement for the sale of the cars, thereafter to be con- structed by Mallory, to the defendant, and did not vest any property in the defendant until the cars were completed and delivered. An- drews V. Durant, 11 N. Y. 35, 62 Am. Dec. 55. In that case the au- thorities are cited and very ably reviewed, and it is unnecessary again to examine them upon this proposition. It then follows that the cars set up, and materials furnished for those not set up, were the property of Mallory at the time of their destruction by the fire. The rule is that the party in whom the title to property is vested must bear the loss in case of destruction by accident. This rule is not questioned by the appellant, and it is unnecessary to cite the cases establishing it. The defendant cannot be held liable 330 DESTRUCTION OF THE GOODS— EISK OF LOSS (Ch. 3 to the plaintiff for the value of the property destroyed upon the ground that the title had been transferred by Mallory to the com- pany. The ground of liability of the defendant, for the property de- stroyed, if any, is that the failure to furnish the boxes according to the agreement prevented Mallory from completing and delivering the cars, and rendered it necessary for him to keep the property on hand until it was destroyed by the fire. But this was not the neces- sary consequence of the failure to deliver the boxes. Mallory might have rescinded the contract and proceeded at once for his damages. The cars and materials would have remained his property and he could have made any use of them he chose. He could have recov- ered from the defendant the contract price for the cars, deducting therefrom what it would have cost to complete them, and the value of the materials provided for the cars in the condition they then were. But Mallory was not obliged to take this course. He could insist upon completing the cars, and the defendant could not object to the delay in the delivery so long as that delay was occasioned by the neglect of the company to comply with the agreement on their part. The plaintiff in this case had not put an end to the contract. The court find that he repeatedly called upon the company to furnish the boxes up to the time of the fire. The contract continued in full force between the parties to that time. The fire was accidental and had no connection with the defendant's breach of the contract; they are, therefore, not responsible therefor. Had the defendant delivered the boxes on the 1st of May preceding the fire, and had Mallory proceeded to finish the cars pursuant to the contract, and while so proceeding the fire had occurred, I presume no one would have insisted that the defendant was liable for the loss. I do not see that this case differs in a legal view from the one supposed. J^Ial- lory was calling upon the company for the boxes to enable him to complete the cars, electing to continue the contract in force. This disposes of the substantial rights of the parties. The fact is found that no specific damages were proved to have resulted from the delay of the company in delivering the boxes. The plaintiff proved, and the fact is found, that the defendant vio- lated its contract. The plaintiff was, therefore, entitled to nominal damages. Judgment should have been given therefor for the plain- tiff. No important right is affected by the judgment. The plain- tiff, had judgment been given for him for a nominal sum, would still have been subjected to costs. The verdict was subject to the opinion of the court. This court should give such judgment as the Supreme Court ought to have given. I think this a proper case for the ap- plication of the maxim that the law does not regard trifles, and that the judgment should be affirmed. Skldkn, J., expressed no opinion; all the other Judges concurring Judgment affirmed. Ch. 4) OBLIGATIONS OF SELLER AND BUYER 331 CHAPTER IV OBLIGATIONS OF SELLER AND BUYER SECTION 1.— EXPRESS WARRANTIES WILLISTON ON SALES. § 195. Early Law of Warranty. — The law of warranty is older by a century than special assumpsit, and the action upon the case on a warranty was one of the bases upon which the law of assumpsit seems to have been built. The action on a warranty was regarded as an action of deceit, and the words "warrantizando vendidit" seem to have been necessary to make a good count as the words "super se assump- sit" later were in the action of assumpsit. The action was thus con- ceived of at the outset as an action of tort.^ This is, of course, also true of the action of assumpsit ; but it was not long before assumpsit came to be regarded, as it is regarded to-day, as distinguished from tort and rather to be classed in its essential nature with covenant than with trespass on the case. But the right of action on a warranty was not regarded at once as similar in its nature to assumpsit. It was, indeed, not until 1778 that the first reported decision occurs of an ac- tion on a warranty brought in assumpsit," though from the language of the court in that case it appears that the practice of declaring in lAmes History of Assumpsit, 2 Harv. Daw Kev. 1, 8: "Notwithstanding tlie undertaldng, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest reported case upon a warranty, Fitz. Ab. Monst. de Faits, pi. 160 (138.3), the defendant objects that the aelion is in the nature of covenant, and that the plaintiff shows no si^ecialty, but "non al- locatur, for it is a writ of trespass." There was regularly no allusion to con- sideration in the count in case ; if, by chance, alleged, it counted for nothing. Moor V. Russell, Skin. 104; s. c. 2 Show. 284. How remote the action was from an action of contract appears plainly from a remark of Choke, -J.: "If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have an action of deceit; but if It was by deed, I shall have an action of covenant." Y. B. 11 Edw. IV, 6, pi. 11. That is to say, the parol contract of guuianty, so familiar in later times, was then unknown. The same judge, and Brian, C. J., agreed, al- though Littleton, J., inclined to the opposite view, that if a servant warranted goods which he sold for his master, that no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defendant, must show in addition to his undertaking, some act by him, that is, a sale ; hut the owner was the seller, and not the friend or servant, in the cases sup- posed. A contract, again, is properly a promise to act or forbear in the future. But the action under discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come." 2 Stuart V. Wilkins, 1 Doug. 18 (1778). 332 OBLIGATIONS OF SELLER AND BTJYEE (Ch. 4 assumpsit had been common for some years before. It is probable that to-day most persons instinctively think of a warranty as a contract or promise ; but it is believed that the original character of the action cannot safely be lost sight of, and that the seller's liability upon a war- ranty may sound in tort as well as in contract. CHANDELOR v. LOPUS. (Excbequer Chamber, 1625. Cro. Jac. 4.) Action upon the case: Whereas the defendant being a goldsmith,, and having skill in jewels and precious stones, had a stone, which he affirmed to Lopus to be a bezar-stone, and sold it to him for one hun- dred pounds ; ubi revera, it was not a bezar-stone. The defendant pleaded not guilty, and verdict was given and judgment entered for the plaintiff in the king's bench. But error was thereof brought in the exchequer chamber; because the declaration contains not matter sufficient to charge the defendant, viz. that he warranted it to be a bezar-stone or that he knew that it was not a bezar-stone ; for it may be he himself was ignorant wheth- er it were a bezar-stone or not. And all the justices and barons (except Anderson) held, that for this cause it was error. For the bare affirmation that it was a bezar- stone, without warranting it to be so, is no cause of action. And al- though he knew it to be no bezar-stone, it is not material. For every one, in selling his wares, will affirm that his wares are good, or the horse which he sells is sound : yet if he does not warrant them to be so, it is no cause of action. And the warranty ought to be made at the same time of the sale. Fitz. Nat. Brev. 94, c. & 98, b; 5 Hen. 7, pi. 41; 9 Hen. 6, pi. 53; 12 Hen. 4, pi. 1; 42 Ass. 8; 7 Hen. 4, pi. 15. Wherefore, forasmuch as no warranty is alleged, they held the declaration to be ill. Anderson to the contrary; for the deceit in selling it as a bezar, whereas it was not so, is cause of action. But notwithstanding it was adjudged to be no cause, and the judgment was reversed. CROSS V. GARDNER. (Court of Iving's Bench, 1689. 1 Show. 6S.] Case. The declaration states that there was a colloquium between the plaintiff and defendant, concerning certain oxen in the defendant's possession and sale of them ; that the defendant did then and there affirm them to be his own; that the plaintiff ratione inde, did buy them and gave so much ; that in fact the oxen were the property of J. S. and he seized and took them. Sec. 1) EXPRESS WARRANTIES 333 On the general issue and verdict for the plaintiff, it was moved in arrest of judgment, that the declaration is ill, for here is no warranty. An affirmance of right will not amount to it ; for it ought to be war- rantizando vendidit; nor is here any deceit, for it is not said, "know- ing them to be none of his," and he might come to their possession as executor, or they might be like his own, and in the night his own re- moved, and these put in their places, and so he is not guilty of any falsity. E contra urged, that here is a colloquium laid of them, and we bought them trusting to that affirmation which was false, and that is a deceit. If a man having possession of goods sell them as his own, an action lies for the deceit. And at last upon much debate judgment was given for the plaintiff. These cases were cited : Cro. Jac. 474, 196, 197 ; 42 Assiz. 8. Moore, 126; Kenrick's Case, Roll. 1. Abr. 96; Harvey v. Young, Yelv. 40. JENDWINE V. SLADE. (Court of King's Bench, 1797. 2 Esp. 572.) This was an action brought to recover damages on the sale of two pictures, one of which was said to be a Sea-piece by Claud Loraine, the other a Fair by Teniers, which the defendant had sold to the plaintiff as originals, when in fact they were copies. The defence relied on was, that they were sold under a catalogue, not amounting to an absolute warranty, but upon which the buyer was to exercise his own judgment; and further, that a bill had been filed by the defendant, two years ago, to compel the plaintiff to complete the sale ; to which he had put in no answer, but paid the money, and that therefore he could not now seek to rescind the contract after such acquiescence The plaintiff's counsel answered this objection, by insisting that the name of the artist put opposite any picture in a catalogue was a war- ranty; and if the article sold did not correspond with it, it avoided the sale ; and as to the transaction in respect to paying the money, that the plaintiff was deceived, but had brought his action as soon as he discovered the fraud. Several of the most eminent artists and picture-dealers were called, who differed in their opinions respecting the originality of the pic- tures. When the evidence was closed, Lord Kenyon said: It was impossible to make this the case of a -warranty ; the pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import ? That, in the opinion of the seller, the picture is the work of 334 ■ OBLIGATIOXS OF SELLER AND BUYER (Ch. 4 the artist whose name he has affixed to it. The action in its present shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the deter- mination to the judgment of the buyer, who is to exercise that judg- ment in the purchase. With respect to the bringing of the action, his Lordship added, that if any fraud has been committed in a sale, if the party comes recently after discovery of the deception, he is not barred by circumstances having taken place, such as were stated. The cause was referred to arbitration. WOOD V. SMITH. (Court of King's Bench, 1S29. 4 Car. & P. 45.) Assumpsit. The first count of the declaration stated, that, in con- sideration that the plaintiff would buy a certain mare of the defend- ant, the defendant undertook and faithfully promised, "that the said mare was sound to the best of his knowledge." And the plaintiff averred, that, confiding, &c., he bought the mare at the price of i25. ; and that the defendant did not, nor would regard his said promise, but subtilely contriving, &c., deceived the plaintiff in this, that the said mare was not sound, but, on the contrary thereof, was un- sound, as the defendant then well knew. There were other special counts, and the money counts. Plea — General issue. It was proved, that, at the time of the sale of the mare, the plain- tiff said to the defendant, "She is sound of course?" To which the latter replied, "Yes, to the best of my knowledge." And on the plain- tiff saying, "Will you warrant her?" ,the defendant said, "I never warrant, I would not even warrant myself." Evidence was also given, that the mare was unsound, and that the defendant knew it. Gurney, for the defendant, objected that the declaration should have been in tort and not in contract, as there was an express refusal to warrant. Lord TUNTERDBN, C. J. I think that this declaration is sufficient; there is a count on a promise, that the mare was sound to the best of the defendant's knowledge, with a breach, that he knew her to be un- sound. Now, if a man says, when he sells a mare, "she is sound to the best of my knowledge, but I will not warrant her," and it turns out that the mare was unsound, and that he knew it, I have no doubt that he is answerable. Verdict for the plaintiff, with leave to move to enter a nonsuit. In the ensuing Term, Gurney moved, in pursuance of the leave given, contending that the action should have been in deceit, and not m assumpsit, because there was an express refusal to warrant. He Sec. 1) EXPRESS WARRANTIES 335' cited Williamson v. Allison, 2 East, 446, and Dobell v. Stevens, 5 D. & R. 490. Bayley, J. The general rule is, that whatever a person represents at the time of a sale, is a warranty. But the party may give either a general warranty, or he may qualify that warranty. By a general warranty, the person warrants at all events ; but here the defendant gives a qualified warranty, as he only warrants the mare sound for all he knows. Parke, J. I have very frequently seen such counts as this. Rule refused. POWER V. BARHAM. (Court of King's Bench, 1836. 4 Adol. & El. 473.) Assumpsit. The declaration stated that, in consideration that the plaintiff, at the defendant's request, would buy of him four pic- tures at a certain price, to wit, &c., the defendant "promised the plaintiff that the said pictures were painted by a certain artist or master in painting, called or named Canaletti, otherwise Canaletto." Breach, that the said pictures "were not, nor was either of them, painted by the said artist or master called or named Canaletti, other- wise Canaletto," whereby the said pictures were and are of little or no use, &c., and the plaintiff lost the benefits, &c. Plea, non as- sumpsit. On the trial before Coleridge, J., at the sittings in Mid- dlesex after last term, it appeared that the defendant sold the pictures, to the plaintiff for il60., and, at the time of the sale, gave the follow- ing bill of parcels and receipt: "Mr. N. Power. "May 14th, 1832. "Bought of J. Barham. Four pictures. Views in Venice, Canaletto, £160.0.0' Settled by two pictures, £ 50.0.0 And a bill at five months, 1 10.0.0 "J. Barham." £160.0.0 A carver and gilder, who had been employed by the plaintiff to procure original pictures for him, gave evidence of previous repre- sentations by the defendant to him and to the plaintiff, that the pic- tures were genuine ; some doubt, however, was raised as to the ex- pressions actually used. The witness stated that the pictures were in the manner of Canaletti, and, at the time of the sale, appeared to him worth the money. A witness experienced in paintings stated, that he considered the pictures not to be Canaletti's, and valued them at about £8. each ; and some other evidence was given on this point. For the defendant it was contended that the bill of parcels was not a ;J36 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 warranty, but only an expression of opinion; and Jendwine v. Slade, 2 Esp. N. P. C. 572, was cited. The learned Judge, in summing up, told the jury that the pictures were admitted not to be Canaletti's, and that the only question on the pleadings was, whether the prom- ise was made; and he submitted to their consideration, upon the whole of the evidence, whether the defendant had made a represen- tation as part of his contract, that the pictures were genuine, not using the name of Canaletti as matter of description merely, or as an expression of opinion upon something as to which both parties were to exercise a judgment, but taking upon himself to represent that the pictures were Canaletti's. His Lordship noticed the argu- ment on behalf of the defendant, as to the bill of parcels ; and said that the words of Lord Kenyon, in the case referred to, must be con- sidered, not as a general rule of law, but as a direction to the jury on the circumstances of that case. The jury found a verdict for the plaintifif, saying, "We think the bill of parcels is a warranty." Lord Dexmax, C. J. I think that the case was correctly left to the jury. We must take the learned Judge to have stated to them that the language of Lord Kenyon in Jendwine v. Slade, 2 Esp. N. P. C. 572, was merely the intimation of his opinion upon such a con- tract as was then before him. It may be true, that in the case of very old pictures, a person can only express an opinion as to their genuineness ; and that is laid down by Lord Kenyon in the case re- ferred to. But the case here is that pictures are sold with a bill of parcels, containing the words "Four pictures, Views in Venice, Canaletto." Now words like these must derive their explanation from the ordinary way in which such matters are transacted. It was, therefore, for the jury to say, under all the circumstances, what was the effect of the words, and whether they implied a warranty of genuineness, or conveyed only a description, or an expression of opinion. I think that their finding was right: Canaletti is not a very old painter.^ But, at all events, it was proper that the bill of parcels should go to the jury with the rest of the evidence. Rule refused.* McFARLAND v. NEWMAN. (Supreme Court of Pennsylvania, 1839. 9 Watts, 55, 34 Am. Dec. 497.) Newman, the plaintiff below, brought an action of assumpsit against McFarland on an alleged warranty of a horse passed to him as sound in all respects but the colt-distemper. It was proved that the horse had a defluxion from the nose at the time of the bargain ; that 3 Canaletti died in 1768 ; Claude Lorraine and Teniers (the younger), the painters mentioned in Jendwine v. Slade, died, the first in 1682, the latter in 1694. * Concurring opinions were deliA-ered by Llttlcdale and 'Williams, JJ. Sec. 1) EXPRESS WARRANTIES 337 McFarland assured Newman it was no more than the ordinary dis- temper to which colts are subject; and that it had been of only a few days' continuance; whereas it was testified that the horse had exhibited the same symptoms all the time McFarland had him (a pe- riod of ten or eleven months), and the evidence was very strong that he had an incurable disease called glanders. It was testified also, that the person of whom McFarland had him, had passed him away as a glandered horse, or at least had refused to say to McFarland that he was otherwise ; that McFarland had been told of the true nature of the disease by another person; and that he himself had said he feared it was, or would become something worse than the distemper. The judge charged that knowledge of unsoundness with- out denial of it, would not entitle the plaintiff to recover; but that "a positive averment, made by the defendant at the time of the con- tract, of a material fact, is a warranty ; that it is part or parcel of the contract." The jury found for the plaintiff, assessing damages at $75 ; and the defendant tendered a bill of exceptions. Gibson, C. J.-" On no subject have the decisions been so anoma- lous as on warranty of chattels ; and an attempt to arrive at a satis- factory conclusion about any principle supposed to be settled by them, would be hopeless, if not absurd. Of such jarring materials have they been compounded, that it is impossible to extract from them any principle of general application; and we are left by them in the predicament of mariners compelled to correct their dead reckoning by an observation. The civil law maxim is, doubtless, that a sound article is warranted by a sound price ; but the common-law courts started with the doctrine that though the sale of a chattel is fol- lowed by an implied warranty of title, and a right of action ex delicto for wilful misrepresentation of the quality; yet that the maxim caveat emptor, disposes of all beside. Thus was the common law originally settled; and the current of decision ran smooth and clear in the channel thus marked out for it, from the days of the year books, till within a few years past, when it suddenly became turbid and agitated; and, as in the case of promises conjured up to elude the Statute of I^imitations, it finally ran wild. The judges, in pur- suit of a phantom in the guise of a principle of impracticable policy and questionable morality, broke away from the common law, not, however, by adopting the civil law principle of implied warranty as to soundness, but by laying hold on the vendor's commendation of his commodity, and not at first as absolutely constituting an express warranty but as evidence of it. I say the policy of this principle is impracticable, because the op- erations of commerce are such as to require that the rules for its regulation admit of as few occasions for reclamation as possible; 5 Part of the opinion is omitted. ■Woodw.Sai.es — 22 338 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 and I say its morality is questionable, because I am unable to dis- cern anything immoral in the bona fide sale of an article represented to be exactly that as which the vendor had purchased it. It is to be remembered that I am speaking of the sale of a thing accepted by the vendee after opportunity had to inspect and test it, and not of a sale of which he was necessarily compelled by the circumstances to deal on the faith of the vendor's description; nor yet of a sale on the concoction of which he was overreached by misrepresentation or trick. For the latter, he doubtless has his remedy ; but not by an ac- tion ex contractu; and I therefore lay the vendor's motive out of the case as one that can have no legitimate influence on the ques- tion of warranty. But a positive assertion of what he knew not to be either true or false, is as unconscionable, and might be as injurious as an intentional falsehood; and what is the vendee's remedy for it where the scienter cannot be proved? The fallacy of the question, is in assuming that he ought to have any remedy at all. The relation of buyer and seller, unlike that of cestui que trust, attorney and client, or guardian and ward, is not a confidential one ; and if the buyer, instead of exacting an explicit warranty, chooses to rely on the bare opinion of one who knows no more about the matter than he does himself, he has himself to blame for it. If he will buy on the seller's responsibility, let him evince it by demanding the proper security; else let him be taken to have bought on his own. He who is so simple as to contract without a specification of the terms, is not a fit subject of judicial guardianship. Reposing no confidence in each other, and dealing at arms' length, no more should be required of parties to a sale, than to use no falsehood ; and to require more of them, would put a stop to commerce itself in driv- ing every one out of it by the terror of endless litigation. Yet such would be the tendency of the civil law scion which the judges have been laboring to engraft on the common-law stock. It would be curious but unprofitable to trace their advances towards the object by the footsteps in the cases. In none of them have I discovered any principle so plausible as that assumed by the judge who tried the present cause, that an averment of a material fact is part of the contract, a position, however, that will not bear a moment's ex- amination. A sale is a contract executed, on which, of course, no action can be directly founded; but an action may be founded directly on a warranty, and it was doubted in Stuart v. Wilkins, Doug. 18, whether an action could be maintained for a breach of it in any other way; consequently, though it is a concomitant, it is also a collateral, self- existent contract; and no more a part of the sale, than a covenant of warranty in a deed is part of the conveyance. It is not easy to say what notions had previously been entertained; but for a short time after the new doctrine had been broached, the distinction be- Sec. 1) EXPRESS WARRANTIES 339 tween representation and warranty was ostensibly observed. But in Wood V. Smith, 4 C. & P. 45, it was resolved "that whatever a person represents is a warranty:" and thus the previous distinction, flimsy and inoperative as it had become in practice, was formally laid aside. And that the court went even further, is manifest from a glance at the circumstances. The plaintiff, chaffering for a mare, had said interrogatively, "she is sound, of course," and the defendant had replied, "Yes, to the best of my knowledge;" but to the di- rect question "Will you warrant her," he answered, "I never war- rant, I would not even warrant myself." Yet in the teeth of this peremptory refusal, it was adjudged that he had actually entered into an express warranty, and that the plaintiff had purchased on the faith of it. This conclusion is so forced, unnatural and opposed to the very declared understanding and intent, that one is tempted to think the court had so far lost sight of the nature of a warranty as to have forgotten that it is a contract ; "that the assent to every contract must be mutual; that every agreement must be so certain and complete that each party may have an action on it; and that it would be incomplete if either party withheld his assent to its terms." I quote these common-place principles from Mr. Chitty's Treatise on Contracts, because I happen to have the book at hand. It is true, he says, that in many cases the law implies the party's assent to a promise; but, he also says, that such a contract is an implied one, and our business, at present, is with the elements of an express war- ranty. Now it is not, and cannot be, a wholesome interpretation which involves a party in engagements he never dreamed of con- tracting, or to which he expressly refused to assent. If it is true, as it is said to be, that the plain, ordinary and popular sense of words shall prevail, in preference to their strict grammatical sense, the de- cision in Wood V. Smith is more than questionable; for that the parties themselves put no such meaning on their discourse, as did the court, is evident from the plaintiff's request that the defendant would annex a warranty to his representation, and from the defend- ant's refusal to do so. After that, it is hard to see what room there was for interpretation. Even the civil-law implication of warranty, if it were inadmissible on no other ground, would be repressed by it, on the foot of the maxim, "expressum facit cessare tacitum." It may be said in extenuation, that the court did not hold the defendant to a warranty of the mare's soundness, but only to a warranty of soundness to the best of his knowledge. So much the worse. He had refused to enter into any warranty whatever, and it would have required no greater stretch to hold that he had entered into a gen- eral warranty of soundness, than to hold that he had entered into a special warranty of what he thought or knew. It would, too, have relieved the court from the awkwardness of resting the recovery on the collateral warranty of an immaterial fact, which, assigned as a 340 OBLIGATIONS OF SELLER AND BUYER (Cll. 4 breach, would not have entitled the plaintifif even to nominal damages. And what makes the judicious grieve, is that all this violence to the ancient principles of the law was gratuitous ; for, as in Chandler v. Ivopus, Cro. Jac. 4, as well as in the case before us, the plaintiff had a remedy as efficacious by an action for the deceit. * * * As the cause goes back to another jury, it is proper to iji-timate the principle on which a correct decision of it must depend<^ Though to constitute a warranty requires no particular form of/words, the paked averment of a fact is neither a warranty itself, nor evidence of it. In connection with >i5tlier circumstances, it certainly may be taken into consideration ;/mit the jury must be satisfied from the whole that the vendor a«^ally, and not constructively, consented to be bound for the truth of his representation/zShould he have used expressions fairly importing a willingness to ^ thus bound, it would furnish a reason to infer that he had intentionally induced the vendee to treat on that basis : but a naked affirmation is not to be dealt with as a warranty, merely because the vendee had gratuitously relied on it; for not to have exacted a direct engagement, had he desired to buy on the vendor's judgment, must be accounted an instance of folly. Testing the vendor's responsibility by these principles, jus- tice will be done without driving him into the toils of an imaginary contract. Judgment reversed, and a venire de novo awarded.' HAWKINS v. PEMBERTON et al. (Commission of Appeals of Xew York, 1872. 51 N. Y. 198, 10 Am. Rep. 595.) This action was brought to recover damages for an alleged breach of contract of purchase. The defence was a breach of warranty as to the character of the article purchased, also fraud. On the 15th of January, 1867, Burdett, Jones & Co., who were auctioneers in the city of New York, sold the plaintiff twenty-three barrels of what was called blue vitriol. The auctioneer, at the time of the sale, the plaintiff being present, stated that the article was "blue vitriol, sound and in good order." The defendants, being the highest bidders, became the purchasers at eight cents per pound, relying upon the representation of the auctioneer, that it was "blue vitriol," and believing that it was such. At the time of the purchase, the defendants examined some of it, and it had the appearance of blue vitriol, being blue. They took a sample of it away, and the next morning found that it had turned nearly all white on the surface from exposure to the air, and con- « Chief Jiistico (rili-im's view lias been followed consistently in Pennsyl- vaiiiii. For » eouipnrii lively recent case in which Ms opinion in the prin- cipal case was quoted with approval, see Holmes v. Tyson 147 Pa 305 23 Atl. 564, 15 L. R. A. 200 (1S02). ' ' ,SeC. 1) EXPRESS WARRANTIES 341 eluding it was not blue vitriol, they immediately notified the plaintiff that they would not take it. The plaintiff then notified them that he should sell it upon their account and look to them for any loss. He accordingly did sell it at auction for about five cents per pound, and the loss was near $400, which this action was brought to recover. It was subsequently discovered, by chemical analysis, that the article contained only from seventeen to twenty-five per cent, of blue vitriol, chemically called sulphate of copper, and that the balance was mostly green vitriol, chemically called sulphate of iron or copperas. It was not possible at the time of the sale to discover, by any examination which could then be made, the true character of this article. It could be discovered by exposure for some hours to the air or by chemical analysis. This article had just been imported from Germany, and it was shown by a manufacturing chemist, who formerly resided in Ger- many, that it was known there as saltzburger vitriol, and not as blue vitriol. A chemist, sworn on behalf of the plaintiff, testified that it was not blue vitriol, nor white vitriol, but, chemically speaking, mixed vitriol. While sulphate of copper was worth from eight to nine and a half cents per pound, sulphate of iron was worth only one and a half cents per pound. At the close of the evidence upon the trial, defendants requested to go to the jury upon the questions of breach of warranty and fraud. The court refused the request, and directed a verdict for the plain- tiff, and ordered the exceptions to be heard in the first instance at the General Term. A verdict was rendered accordingly. Eari<, C.' This action was brought against the defendants as pur- chasers of an article called, at the time of the sale, blue vitriol, to re- cover damages for refusing to take and pay for the same, and upon the trial the court refused to submit the evidence to the jury and or- dered a verdict for the plaintiff. The defendants failed to establish their defense of fraud, and upon that question I think there was no evidence to submit to the jury. //We have only therefore to consider whether there was evidence tending to show that the plaintiff at the sale warranted the article to be blue vitriol, sound ancl, in good order, and whether there was a breach of this warrantV/ It is unquestioned that there was a warranty that the article was sound and in good order, and I am quite clear that there was no breach of this warranty. It was good, sound saltzburger or mixed vitriol. It was just as it was made ; not damaged, or in any way out of order. It was in its natural, normal condition, and it could not be said of such an article that it was unsound. Did the plaintiff warrant the article to be blue vitriol? It is un- questioned that at the time of the sale, through his auctioneer, he rep- resented it to be blue vitriol, and that the defendants bought it as ' Part of the opiniou is omitted. 342 OBLIGATIONS OF SELLER AND BrYER (Cll. 4 such, relying upon that representation. To constitute a warranty, it is not necessary that the word "warranty" should be used. It is a general rule that whatever a seller represents, at the time of a sale, is a warranty. Wood v. Smith, 4 Car. & Payne, 45. In Stone v. Denny, 4 Mete. (Mass.) 151, it is said that the courts in their later decisions "manifested a strong disposition to construe liberally, in favor of the vendee, the language used by the vendor in making any affirmation as to his goods, and have been disposed to treat such affirmations as warranties whenever the language would reasonably authorize the inference that the vendee so understood it." In Oneida Manuf. Society v. Lawrence, 4 Cow. 440, Chief Justice Savage says: "There is no particular phraseology necessary to con- stitute a warranty. The assertion or affirmation of a vendor concern- ing the article sold must be positive and unequivocal. It must be a representation which the vendee relies on, and which is understood by the parties as an absolute assertion, and not the expression of an opinion." And generally, where the representation is not in writing, the question of warranty is to be submitted to the jury. Duffee v. Mason, 8 Cow. 25. It is not true, as sometimes stated, that the representation, in order to constitute a warranty, must have been intended by the vendor, as well as understood by the vendee, as a warranty. If the contract be in writing and it contains a clear warranty, the vendor will not be per- mitted to say that he did not intend what his language clearly and ex- plicitly declares ; and so if it be by parol, and the representation as to the character or quality of the article sold be positive, not mere mat- ter of opinion or judgment, and the vendee understands it as a war- ranty, and he relies upon it and is induced by it, the vendor is bound by the warranty,' no matter whether he intended it to be a warranty or not. He is responsible for the language he uses, and cannot es- cape liability by claiming that he did not intend to convey the impres- sion which his language was calculated to produce upon the mind of the vendee. Here it is not questioned that the language used was sufficient to constitute a warranty that the article sold was sound and in good or- der; and why should it not as well extend to the character of the article? When a buyer purchases an article whose true character he cannot discover by any examination which it is practicable for him to make at the time, why may he not rely upon the positive repre- sentation of the seller as to its character as well as to its quality and condition? I can discover no distinction in principle in the two kinds of representation; and yet it is claimed in behalf of the plain- tiff that there is a distinction, and certain cases are cited to uphold it, which I will proceed briefly to consider. * * * 1 therefore reac^ the conclusion, both upon principle and authority, that upon the facts of this case a jury might properly have inferred Sec. 1) EXPRESS WARRANTIES 343 that therfewas, upon the sale, a warranty that the article sold was blue vitriol. /it was at least the duty of the court to have submitted the questj^n of warranty to the jury. I think the facts were so clear and undisputed that the court could, without error, have decided, as a question of law, that there was a warranty, but this it is unnecessary to decide upon this appeal. The only remaining question to be considered is, whether there was a breach of this warranty, and this can need but little discussion. The article sold, if it was known at all in market, was known by another name. It had only from seventeen to twenty-five per cent of blue vitriol in it. It was not an inferior article of blue vitriol, but a dif- ferent substance with a small admixture of blue vitriol. The judgment should therefore be reversed and a new trial granted, costs to abide event. All concur. Judgment itversedJi HOBART V. YOUNG. (Supreme Court of Vermont, 1S91. 63 Vt. 363, 21 Atl. 612, 12 L. E. A. 603.) Action to recover damages for deceit and full warranty in the sale of a horse. The evidence of the plaintiff tended to show that in early June, 1888, he purchased a pair of horses, of which the horse in question was one ; that he first saw these horses in May ; that about the 1st of June he rode after them with the defendant ; and that the defend- ant then warranted them to be sound. The plaintiif did not purchase them that day, but agreed with the defendant upon a price at which he could have them, and afterwards, on the 5th of June, sent his man Somers with a check and a bill of sale for them. The defendant received the check, and signed the bill of sale. The horses were de- livered by the defendant's brother. Upon getting the horses home the plaintiff ascertained that one of them had a ringbone, which was the unsoundness complained of. * * * The bill of sale which the plaintiff signed was as follows: "Al- burgh, June 5th, 1888. J. W. Hobart, bo't of Sumner Young, Esq., one pair of black (Pilot) geldings, sound and kind, $487.50; to be de- livered on the cars at the depot with good halters, duties paid, and certificates of the same attached hereto. Rec'd. payment. S. Young." The court also instructed the jury that the plaintiff could recover if they found that the defendant warranted the horses upon the occasion when the plaintiff rode after them and agreed tipon the price, about June 1st. ^ RowULL, J. * * * It was not error to submit to the jury to find whether there was a verbal warranty on the 2d of June, the last 8 Part of the statement of facts and part of the opinion are omitted. 344 OBLIGATIONS OF SELLER AND BUXEE (Ch. 4 time plaintiff saw the horses before the purchase. Although he did not buy them that day, the price was then agreed upon at which he could have them. The testimony on the part of the plaintiff, ad- mitted without objection, presented two aspects as to warranty, name- ly, that of a verbal warranty on June 2d, and that of a written war- ranty on June Sth. The defendant denied both, and said that the bill of sale did not contain a warranty, and that if it did he was not bound by it because of the circumstances in which he signed the bill. No objection was made to the admission of the parol evidence as varying the written contract. In this posture of the case it was the duty of the court to submit both aspects of that question ; for it is not neces- sary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that they should be made during the course of the negotiations that lead to the bargain, and should then enter into the bargain as a part of it. Wil- mot V. Hurd, 11 Wend. (N. Y.) 585; 2 Benj. Sales, (Corbin's Ed.) § 929. An important question is whether the words "sound and kind," contained in the bill of sale, constitute an express warranty as matter of law. The law of warranty has undergone much change since Chan- delor V. Lopus, Cro. Jac. 4, decided in the exchequer chamber in 1803. It was there held that an affirmation that the thing sold was a bezoar- stone was no warranty; for, it was said, every one, in selling his wares, will affirm that they are good, or that the horse he sells is sound ; yet, if he does not warrant them to be so, it is no cause of ac- tion. But latterly courts have manifested a strong disposition to- construe liberally in favor of the purchaser what the seller affirms about the kind and quality of his goods, and have been disposed to treat such affirmations as warranties when the language will bear that construction, and it is fairly inferable that the purchaser so un- derstood it. Stone v. Denny, 4 Mete. (Mass.) 155 ; Hawkins v. Pem- berton, 51 N. Y. 198, 10 Am. Rep. 595. And now any affirmation as| to the kind or quality of the thing sold, not uttered as matter of com- munication, opinion, nor belief, made by the seller pending the treaty of sale, for the purpose of assuring the purchaser of the truth of the affirmation and of inducing him to make the purchase, if so received and relied upon by the purchaser, is deemed to be an express warran- ty. And in cases of oral contracts it is the province of the jury to de" cide, in view of all the circumstances attending the transaction, wheth- er such a warranty exists or not. Foster v. Caldwell's Estate, 18 Vt. 176; Bond v. Clark, 35 Vt. 577; Shippen v. Bowen, 122 U S 575 7 Sup. Ct. 1283, 30 L. Ed. 1172. But when the contract is in writing, it is for the court to construe! It, and to decide whether it contains a warranty or not, (Wason v. Rowe, 16 Vt. 525 ;) and by the great weight of recent authority posi- tive statements in instruments evidencing contracts of sale, descrip- Sec. 1) EXPRESS WARRANTIES 345 tive of the kind, or assertive of the quahty and condition of the thing i sold, are treated as a part of the contract and regarded as warranties/ if the language is reasonably susceptible of that construction, and it is fairly inferable that the purchaser understood and relied upon it' as such. Thus, in Hastings v. Covering, 2 Pick. (Mass.) 214, 13 Am. Dec. 420, the sale note described the article as "prime quality winter sperm oil." The plaintiff declared in assumpsit on a warranty, and had judgment. In Henshaw v. Robins,' 9 Mete. (Mass.) 83, 43 Am. Dec. 367, the bill of particulars affirmed the article to be indigo. The court said that that imported an express warranty if it was so intend- ed, and that it must be taken to have been so intended, as there was no evidence to the contrary. In Brown v. Bigelow, 10 Allen (Mass.) 242, a case exactly in point, these very words, "sound and kind," were held to constitute a general warranty of soundness. In Gould v. Stein, 149 Mass. 570, 22 N. E. 47, 5 L. R. A. 213, 14 Am. St. Rep. 455, a bought and sold note described the article as "Ceara scrap rubber as per sample, of second quality." The court said that it did not admit of doubt that the note was intended to express the terms of the sale, and that the contract of the parties was to be found in what was thus written, read in the light of the attendant circumstanc- es. Held a warranty that the rubber was of second quality, and that the fact that the plaintiff made such examination of it as he pleased did not necessarily do away with the warranty. Osgood v. Lewis, 2 Har. & G. (Md.) 495, 18 Am. Dec. 317, is a leading case on this subject. There the bill of particulars contained a statement that the article was "winter-pressed sperm oil," and the question was whether those words were per se a warranty; and it was held that they were, for it was said they could not be regarded as mere matter of opinion or belief, but as the assertion of a material fact that the defendant assumed to know and to warrant the existence of. In Kearly v. Duncan, 1 Head (Tenn.) 397, 72> Am. Dec. 179, the words, "said negroes, sound in body and mind," contained in a re- ceipt for the price paid for them, were held clearly to constitute a warranty of soundness. The words, "being of sound mind and limb, and free from all disease," in a bill of sale of slaves, were held a war- ranty in Cramer v. Bradshaw, 10 Johns. (N. Y.) 484. This case is criticised by Bennett, J., in Foster v. Caldwell's Estate, 18 Vt. 181, who would treat the words as a mere representation, descriptive of the property sold. But that case seems to have stood the test in New York, while Seixas v. Woods, 2 Caines, 48, 2 Am. Dec. 215, and Swett V. Colgate, 20 Johns. 203, 11 Am. Dec. 266, to which he refers, and which held that no warranty arises from a description of the kind of property sold, have been expressly overruled by Hawkins v. Pemberton, 51 N. Y. 198, 10 Am. Rep. 595, as not properly applying the doctrine that they correctly announce, wherein a contrary applica- tion is made, and wherein it is held that there is no distinction in 346 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 principle between a representation as to quality and condition and a representation as to kind and character. And in 1 Smith, I^ead. Cas. (7th Amer. Ed.) 341, it is said that such a distinction is too refined to be practicable. In Yates v. Pym, 6 Taunt. 446, a description of bacon in a sale note as "prime singed" was held to be a warranty that it was prime singed. So in Bridge v. Wain, 1 Starkie, 504, the goods sold were described in the invoice as "scarlet cuttings." Held a warranty that they answered the known mercantile description of scarlet cuttings. The advertisement of the sale of a ship described her as a "copper- fastened vessel," whereas she was only partially copper-fastened, and not what was called in the trade a "copper-fastened vessel." Held a warranty that she was copper-fastened. Shepherd v. Ivain, 5 Barn. & Aid. 240. A sold note described turnip seed as "Skirving's Swedes." Coleridge, J., said that there was no doubt that the statement was inade by the defendant a part of the contract, and it was held to be a warranty that the seed was Skirving's. Allen v. Lake, 18 Q. B. 560. In Wetherill v. Neilson, 20 Pa. 448, 54 Am. Dec. 741, the bill of sale described the soda-ash as being of a certain strength, whereas it was of a less strength, and unmerchantable. Held no warranty. It is said in 1 Smith, Lead. Cas. (7th Amer. Ed.) 343, that this case stands almost, if not quite, alone, and cannot be reconciled with the general course of decisions in this country and in England. In Barrett v. Hall, 1 /Vikens (Vt.) 269, the note was payable in "good cooking-stoves." The court said that no definite quality could be intended from the term "good," and that it imported nothing but opinion, and was no warranty, and referred to Chandelor v. Lopus, Cro. Jac. 4, for authority, which is no longer authority. But we do not say that the court was wrong in that case, for "good" is a very common term of praise in trade, and as used in the note, ascribed no particular quality to the stoves, and might well be regarded, in that case, as mere matter of opinion or commendation, and as so un- derstood by the parties. In W'ason v. Rowe, 16 \^t. 525, the bill of sale said the horse was "considered sound." Held no warranty; and with good reason, for "considered" was no assertion of a fact, but a mere expression of opinion. The more recent cases in this state rec- ognize the general rule that positive statements of fact by the seller in respect of the kind or the quality of the thing sold that constitute a part of the contract or form its basis, and that are fairlv susceptible of such a construction, are to be regarded as warranties. Thus in Beals V. Olmstead, 24 Vt. 114, 5S Am. Dec. 150, one of the reasons given why the defendant's statements ought to be regarded as war- ranties is that they were made positively, and concerning matters as to which he was supposed and professed to have knowledge. There- fore, it is said, he ought to expect to be bound by them. See, also, Drew V. Edmunds, 60 Vt. 401, 15 Atl. 100, 6 Am. St. Rep. 122; Enger v. Dawley, 62 \^t, 164, 19 Atl. 478. Sec. 1) EXPRESS WARRANTIES 347 It is sufficiently certain, as matter of construction, that the words, "sound and kind," found in the bill of sale before us, were intended by the parties to be a part of the contract of sale, and as such it would be unreasonable to construe them as an expression of mere opinion when they positively ascribe to the horses a condition and a quality; that the defendant assumed to know they possessed, and that he had peculiar means of knowing whether they possessed or not, while the plaintiff had no such means. We think the words, reading the instru- ment in the light of the attendant circumstances, clearly constitute an express warranty of soundness, and that the chief judge was right in so holding. Judgment affirmed. NORRIS et al. v. PARKER. (Court of avil Appeals of Texas, 1896. 15 Tex. Civ. App. 117, 38 S. W. 259.) FiNLBY, J. Appellants' general statement of the nature and result of the suit is accepted by appellee as being correct, and is as follows : "On March 17, 1894, W. H. Parker of Clarksville, Tex., sold and de- livered to W. T. Norris and G. B. Dean, at Detroit, Tex., a fine Span- ish jack for breeding purposes, and received in payment therefor the sum of $400 cash, and their promissory note for the sum of $400, due and payable to his order on November 15, 1894. At the time of sale all the hair had been smoothly clipped off said jack. On that evening, and the next morning thereafter, the animal showed symptoms of be- ing unwell, and gradually grew worse, until it died, on the tenth day following. In consequence thereof the (;lefendants refused to pay the note therefor when it matured. On January 7, 1895, the payee, W. H. Parker, instituted this suit in the county court of Red River county, Tex., to enforce the collec- tica of the same. On January 30, 1895, the defendants filed their first amended original answer, and, under oath, specially set up and alleged, by way of cross bill and plea in reconvention,iJflat they purchased the jack from plaintiff under a warranty that itywas perfectly sound in every particular, a vigorous and sure foal getter, and that the shear- ing would not injure its health, but be the very life of same; that they relied on the warranties, and that they were a part of the inducements for making the purchase and paying the price therefor; that it was unsound at the time of the sale, and wholly unable to perform the services of 'a breeder, without any fault on their part. They further alleged that, if it were not diseased at the time of sale, as before stated, its death was occasioned from the effects of a disease brought on by reason of said shearing, and that the consideration in said note by rea- son thereof had wholly failed, and prayed for cancellation of same, and judgment over against plaintiff for the sum of $415. The foregoing statement, while not setting forth all the allegations 348 OBLIGATIONS OF «elli;r and buyer (Ch. 4 in defendants' answer, we think, is sufficient to show the grovinds of their defense. On January 30, 1895, plaintiff filed his first supple- mental petition, which consisted of a general demurrer and a general denial." On January 23, 1896, the case was tried before a jury, and the same resulted in a verdict and judgment for plaintiff in the sum of/$3 13.35, from which judgment this appeal is prosecuted. /The issues upon the trial were "whether the plaintiff, at the time of the sale, warranted the jack to be sound and a sure foal getter, and that the^^lipping would not hurt it," and whether the warranty had failed./ /There was a conflict in the evidence between the testimony of the plaintiff and of the defendants. The court charged the jury as follows : "Where a person sells an animal, and warrants it to be sound at the time of such sale, he is bound by his warranty to the vendee. I therefore charge you that if you believe, from the evidence, that plain- tiff sold the jack to the defendants at the time alleged, and warranted it to be sound ; and if you should believe, from the evidence, that at the time of such sale said jack was unsound, not a sure foal getter, and not as warranted to be by the plaintiff (if plaintiff did give war- ranty), — ^you will find for defendants, on their cross bill, for the sum of $415, and interest to date from March 17, 1894, and also find that the note for $400 sued on in this suit is without consideration. But if you should believe, from the evidence, that said jack was sound at the time of sale, and a good breeder, as represented by plaintiff to de- fendants, you will find for plaintiff for amount of note sued on, inter- est, and attorney's fees as prayed for, and against the defendants on their cross bills. I further charge you that defendants would be bound to observe all patent conditions and defects in the jack at the time they bought him, and if there were any latent defects in the animal known to plaintiff, and of such a character as to render said jack worthless, and he failed to disclose them, it would be a breach of his warranty (if he made a warranty), and you will find for defendants as above stated." Appellants' counsel requested of the court the following charge which was refused : "If you believe, from the evidence, that at the time said animal was sold to defendants, its hair was clipped off ; and if you further believe, from the evidence, that plaintiff guarantied that the shearing would be the very making of such animal, and that such warranty was part of the inducement for defendants to com- plete the contract of sale and execute the note sued on; and if you further believe, from the evidence, that said shearing was the proxi- mate cause of the death of said animal, and that defendants exercised ordinary care to prevent the death of said animal as heretofore ex- plained, — you will return a verdict for defendants." Appellants complain at the charge of the court, and the refusal of their special charge asked. We are of the opinion that the charge of the court is objectionable, and that the substance of the special charge should have been given. Appellants alleged an express warranty that Sec. 1) EXPRESS WARRANTIES 349 the animal was sound, that it was a sure foal getter, and that it would not suffer injury from having been sheared. The court instructed the jury, in effect, that, notwithstanding such express warranty, the purchasers must take notice of the patent conditions and defects, and that the vendor would not be responsible for latent or hidden defects unknown to him. The jury may have understood by this charge that the purchasers must take notice that the animal had been sheared, and, if there were any evil effects of such shearing, unknown to the vendor, that he would not be liable on his express wa;-ranty, even though they should believe that the shearing of the anmal caused its death. This is the very reverse of the law of the czs// If the vendor warranted to the purchasers that the shearing would not damage the animal, and the shearing did produce its death, then the warranty was broken, and the purchasers could not be held liable for the purchase price of the animal^Y It is true that, drainarily, a general warranty in the sale of chattels does not cover defects which are plain and obvious to the purchaser, or which are at the time known to, him ; but where there is an express and special warranty, the warrantor is bound by the terms of his con- tract of warranty. "It is sometimes stated, without qualification, that an express warranty does not cover patent defects, unless expressly included and referred to. But, while this may be true, so far as to raise the presumption that the purchaser was aware of the patent de- fects, and therefor did not rely upon the warranty for protection against defects of whose existence he was already aware, yet that pre- sumption cannot be held to be conclusive, andVwherever it can be i shown that the buyer relied absolutely upon his warranty and made no attempt to exercise his own judgment in the determination of the value and quality of tho'/^oods, the warranty will cover obvious, as, well as hidden, defectsyy But, in order that, in any case, the obvious- ness of the defect maiy exclude it from the operation of the express warranty, it must be so patent that an ordinary purchaser may dis- cover it, and that no special skill or knowledge is required for its de- tection. And not only must the defect itself be discoverable, but its full and complete scope and effect. If the patent defect does not at the time of sale appear to be very serious, and it develops into a more serious trouble, the express warranty of soundness will be broken thereby. And the fact that the consequences of the defect cannot be reliably determined in advance is in itself evidence of an intention of the buyer to rely upon the warranty for protection against the possi- ble consequences of the defect: If the seller throws the purchaser off his guard by his representations or actions, or in any other way conceals the defects, they will, of course, so far as that purchaser is concerned, cease to be patent defects, and will be included in the war- ranty. It hardly needs to be stated that an express warranty may be so constructed as to include every obvious as well as latent defect, and that the present inquiry is simply into the presumption of law 350 OBLIGATION'S OF SELLER AND BUYER (Ch. 4 when the language of the warranty is general, and contains no specific or necessary reference to the obvious defects." Tied. Sales, § 195. In Benjamin on Sales (page 627) it is said: "There seems to be nO' good reason why a warranty may not cover obvious defects as well as Others, if the vendor is willing to give it, and the buyer is willing to buy defective property on the assurance of the warranty. If he relies on his own judgment alone, he does not rely on his warranty." "A special warranty on the sale of a horse may be made to cover blem- ishes or defects which are open and visible, if the intention to do so is clearly manifested," is the language of the supreme court of Minnesota in the case of Fitzgerald v. Evans, 49 Minn. 541, 52 N. W. 143. In Watson V. Roode, 30 Neb. 264, 46 N. W. 491, it is said: "A vendor is liable for patent defects in personal property sold, when it is so stip- ulated in the warranty." See, also, Henderson v. Railroad Co., 17 Tex. 580, 67 Am. Dec. 675; Hobart v. Young, 12 L. R. A. 694, note; s. c. 63 Vt. 363, 21 Atl. 612; Powell v. Chittick, 89 Iowa, 513, 56 N. W. 652; Williams v. Ingram, 21 Tex. 300. The same portion of the charge of the court above quoted is made the basis of another assignment of error, and complaint is leveled at that particular portion of the charge which says : "If there were any latent defects in the animal known to plaintiff, and of such a nature as to render said jack worthless, and if he failed to disclose them, it would be a breach of his warranty (if he made a warranty)." The proposition urged by appellants is that, if plaintiff made an express warranty that the animal was sound and a sure foal getter, he was bound by the terms of the warranty, and would not be relieved by the fact that he honestly believed the animal to be sound and a sure foal getter. On this phase of the case appellants asked the following special charge : "You are instructed that it is not necessary for the vendor of an animal to know that the same is unsound, or not a sure foal getter, in order to make him hable on a warranty of soundness, or that -the same was a sure foal getter. If you believe, from the evidence, that the plaintiff warranted the said animal, for which the note sued on was executed, to be sound and a sure foal getter and you further be- lieve, from the evidence, that the said plaintiff honestly believed said animal was sound, and a sure foal getter, at the time of said warranty, but if you further believe, from the evidence, that said animal was unsound, and not a sure foal getter, you will find for defendants, al- though you may believe that plaintiff honestly believed said warranties to be true at the time they were made." The special charge presented the law, and should have been given. It is unnecessary to discuss the other assignments of error and the propositions urged thereunder. The principles of law applicable to the two phases of the case, that of express general warranty, and ex- press special or specific warranty, have already been stated. Upon another trial the court should present the two phases of the case as Sec. 1) EXPRESS WARRANTIES 351 made by the respective parties, and announce the principles of law- applicable to each, as laid down in this opinion. On account of the errors pointed out, the judgment is reversed, and the cause remanded POWERS V. BRIGGS. (Supreme Coiirt of Michigan, 1905. 139 Mieli. 664, 103 N. W. 194.) Montgomery, J.° This action was brought to recover the price of a hay loader sold and delivered to the defendant. The defense was that the loader was bought under an express warranty that it would do good work and would load hay from windrows, and that, if it failed to do so, defendant might return it ; that it did not answer the terms of the warranty; and that defendant returned it. There was a sharp contest on the trial. The circuit judge submitted to the jury the three questions: (1) Whether there was such a warranty as claimed ; (2) whether defendant gave the machine a fair test within a reasonable time, and found that the machine would not do good work; and (3) whether within a reasonable time thereafter he re- turned the machine to plaintiff. If there was evidence which justified the submission of each of these questions to the jury, we think the concise, clear charge of the circuit judge covered all the points in the case, and that no elaboration was necessary. It is insisted, however, that the evi- dence shows that the sale, when made, was not accompanied by a war- ranty. Plaintiff's contention in this regard is best stated in his re- quest to charge : "The time when the warranty was made, if any were made, becomes important in this suit. If you find that some time prior to the delivery of the machine the plaintiff, either by phone or otherwise, tried to sell a hay loader to the defendant, and in the negotiations made warranties and representations of what such ma- chine would do, and said that if said machine did not do good work the defendant would not have to keep it, and that it might be returned; and find that the offer and proposal of the plaintiff was not at the time accepted by the defendant, but that the defendant said he would con- sider the matter, and let the plaintiff know whether he would take the machine or not ; and find, further, that the plaintiff afterwards called the defendant by phone and asked him if he was going to take the , machine, and whether the plaintiff should order a machine for him, and that the defendant then informed the plaintiff, in substance, that he (the defendant) had concluded not to buy a machine, and that the plaintiff need not order a machine for defendant — that would end the negotiations at that point, and all representations and warranties, if any, made by the plaintiff up to that time, would not bind the plain- s Part of the opinion is omitted. ;J32 OBLIGATIdXS OF SELLER AND BUYER (Ch. 4 tiff in any after negotiations or proposals of sale, unless he expressly renewed them. If the status of affairs then was that the plaintiff had made a proposal of sale which the defendant rejected, a new war- ranty would have to be made by the plaintiff in order to bind him." We do not think this request correctly states the law. The evi- dence shows that, after the conversation referred to in the request, the subject was again taken up, and the loader ordered. In the view most favorable to plaintiff, it was a question for the jury as to whether the subsequent order had reference to, and was understood to have reference to, the preceding conversation, and whether both f)arties understood that the loader was ordered under the warranty which was a part of the offer of the machine in the first instance. The case of Childs v. O'Donnell, 84 Mich. 533, 47 N. W. 1108, is easily distinguished. It was there held that a warranty on a sale of one bill of goods did not attach tO' a sale of another bill at a later tmt./Fn the present case the negotiations all related to the identical machine delivered to the defendant, and the question is whether all that was said during the negotiations was understood to have refer- ence to these machines, and whether, in the understanding of the parties, the proposed warranty attached when the sale was finally consummated.//* * * Judgment affirmed. SECTION 2.— IMPLIED WARRANTY OF TITLE GOULD V. BOURGEOIS. (Supreme Court of New Jersey, 1889. 51 X. J. Law, 361, 18 Atl. 64.) Depue, J.i" * * * The theory on which a warranty of title is implied upon the sale of personal property is that the act of selling is an affirmation of title. The earher EngHsh cases, of which Medina V. Stoughton, 1 Salk. 210, 1 Ld. Raym. 593, is a type, adopted a dis- tinction between a sale by a vendor who was in possession and a sale where the chattel was in the possession of a third person ; annexing a warranty of title to the former, and excluding it in the latter. In the celebrated case of Pasley v. Freeman, 3 Term R. 51, Buller, J., re- pudiated this distinction. Speaking of Medina v. Stoughton, 'this learned judge said that the distinction did not appear in the report of the case by Lord Raymond, and he adds: "If an affirmation at the time of the sale be a warranty, I cannot feel a distinction between the vendor's being in or out of possession. The thing is bought of him, 10 Part of the opinion is omitted. Sec. 2) IMPLIED WARRANTY OF TITLE 353 and in consequence of his assertion; and, if there be any difference, it seems to me that the case is strongest against the vendor when he is out of possession, because then the vendee has nothing but the war- ranty to rely on." Nevertheless the English courts continued to recognize the distinction, with its incidents, as adopted in Medina v. Stoughton, to some extent, at least so far as to annex the incident of an implied warranty of title on a sale by a vendor in possession. Lat- er decisions have placed the whole subject of implied warranty of title on a more reasonable basis. Mr. Benjamin, in his Treatise on Sales, after a full examination and discussion of the late English cases, states the rule in force in England at this time in thtt following terms : "A sale of personal chattels implies an affirmation by the vendor that the I chattel is his, and therefore he warrants the title, unless it be shown/ by the facts and circumstances of the sale that the vendor did not! intend to assert ownership, but only to transfer such interest as he| might have in the chattel sold." 2 Benj. Sales, (Corbin's Ed.) §§ 945- 961. In this country the distinction between sales where the vendor is in possession and where he is out of possession, with respect to im- plied warranty of title, has been generally recognized ; but the tend- ency of later decisions is against the recognition of such a distinction, and favorable to the modern English rule. Id. § 962, note 21. Bid. War. §§ 246, 247. The American editor of the ninth edition of Smith's Leading Cases, in the note to Chandelor v. Lopus, after citing the cases in this country which have held that the rule of caveat emptor applies to sales where the vendor is out of possession, re- marks that in most of them what was said on that point was obiter dicta, and observes "that there seems no reason why, in every case where the vendor purports to sell an absolute and perfect title, he should not be' held to warrant it." 1 Smith, Lead. Cas. (Edson's Ed.) 344. In Wood v. Sheldon [42 N. J. Law, 421, 36 Am. Rep. 523] Chief Justice Beasley, in delivering the opinion of the court, adopted, in terms, the rule stated by Mr. Benjamin, and made it the foundation of decision. The precise question now under discussion did not then arise. In Eichholz v. Bannister, 17 C. B. (N. S.) 708-721, Erie, C. J., said : "I consider it to be clear upon the ancient authorities that, if the vendor of a chattel by word or conduct gives the purchaser to understand that he is the owner, that tacit representation forms part of the contract ; and that if he is not the owner his contract is broken. * * * In almost all the transactions of sale in common life, the seller, by the very act of selling, holds out to the buyer that he is the owner of the article he offers for sale." In that case it was held that on the sale of goods in an open shop or warehouse, in the ordinary course of business, a warranty of title was implied ; but there is a line of English cases holding that, where WooDW. Sales — 23 354 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 the facts and circumstances show that the purpose of the sale, as it must have been understood by the parties at the time, was not to con- vey an absolute and indefeasible title, but only to transfer the title or interest of the vendor, no warranty of title will be implied. In this proposition the fact that the vendor is in or out of possession is only a circumstance of more or less weight, according to the nature and circumstances of the particular transaction. Thus in Morley v. Attenborough, 3 Exch.500, the holding was that on a sale by a pawn- broker at public auction of goods pledged to him in the way of busi- ness there was no implied warranty of absolute title, the undertaking of the vendor being only that the subject of the sale was a pledge, and irredeemable by the pledgeor. In Chapman v. Speller, 14 Q. B. 621, the defendant bought goods at a sheriff's sale for £18. The plaintiff, who was present at the sheriff's sale, bought of the defend- ant his bargain for £23. The plaintiff was afterwards forced to give up the goods to the real owner. He then sued the defendant, alleging a warranty of title. The court held that there was no implied war- ranty of title nor failure of consideration; that the plaintiff paid the defendant, not for the goods, but for the right, title, and interest the latter had acquired by his purchase, and that this consideration had not failed. In Bagueley v. Hawley, L. R- 2 C. P. 625, a like decision was made, where the defendant resold to the plaintiff a boiler the for- m.er had bought at a sale under a distress for poor rates, the plaintiff having knowledge at the time of his purchase that the defendant had bought it at such sale. In Hall V. Conder, 2 C. B. (N. S.) 22, the plaintiff, by an agree- ment in writing by which, after reciting that he had invented a meth- od of preventing boiler explosions, and had obtained a patent therefor within the United Kingdom, transferred to the defendant "the one- half of the English patent'' for a consideration to be paid. In a suit to recover the consideration the defendant pleaded that the invention was wholly worthless, and of no public utility or advantage whatever, and that the plaintiff was not the true and first inventor thereof. On demurrer the plea was held bad, for that, in the absence of any alle- gation of fraud, it must be assumed that the plaintiff was an inven- tor, and there was no warranty, express or implied, either that he was the true and first inventor within the statute of James, or that the in- vention was useful or new ; but that the contract was for the sale of the patent, such as it was, each party having equal means of ascer- taining its value, and each acting on his own judgment. A like deci- sion was made in Smith v. Neale, 2 C. B. (N. S.) 67. Chief Justice Erie, in his opinion in Eichholz v. Bannister, describes Morley v. Attenborough, Chapman v. Speller, and Hall v. Conder, as belonging to the class of cases where the conduct of the seller ex- presses, at the time of the contract, that he merely contracts to sell such title as he himself has in the thing. The opinion is valuable, in Sec. 2) IMPLIED WARRANTY OF TITLE 355 that, while it rescues the cominon-law rule of imphed warranty of title from the assaults of distinguished judges who held that caveat emptor applied to sales in all cases, and that in the absence of express warranty or fraud the purchaser was remediless, it also placed the rule under the just limitation that it should not apply where the circum- stances showed that the sale purported to be only a transfer of the vendor's title. Expressions such as "if a man sells goods as his own, and the title is deficient, he is liable to make good the loss," (2 Bl. Comm. 451,) or "if he sells it as his own, and not as agent for an- other, and for a fair price, he is understood to warrant the title," (2 Kent, Comm. 478,) — as a statement of the principle on which the doc- trine of implied warranty of title rests, is not inconsistent with the principle adopted by Chief Justice Erie. Stating the principle in the negative form adopted in Morley v. Attenborough, that there is no undertaking by the vendor for title unless there be an express warran- ty of title, or an equivalent to it by declaration or conduct, affects only the order of proof. It was conceded in that case that the pawnbro- ker selling his goods undertook that they had been pledged, and were irredeemable by the pledgeor, and if it be assumed, as I think it must be, that the act of selling amounts to an affirmation of title of some sort, but that its force and effect may be explained, qualified, or en- tirely overcome by the facts and circumstances connected with the transaction, the difference between Morley v. Attenborough and Eich- holz V. Bannister will rarely be of any practical importance. * * * BURT V. DEWEY. (Court of Appeals of New York, 1869. 40 N. Y. 2S3, 100 Am. Dee. 482.) This was an action to recover damages for the breach of an im- plied warranty of title to a horse. The plaintiff testified that in December, 1852, he bought a horse of the defendant, and paid him therefor eighty dollars; that he afterwards sold the horse, which subsequently passed through the hands of several persons. While the horse was in possession of plain- tiff, he was identified as a horse formerly in possession of Joseph Dysart; and Dysart testified that said horse was stolen from him, a short time before the purchase by the plaintiff. It was then shown that in 1856, an action was commenced in a Justice's Court by Dysart against the plaintiff for the horse, and a judgment recovered for its value. It did not appear that the defendant had any notice of that action, or that the judgment had been paid. A motion was made for a nonsuit, the plaintiff waiving all claim for nominal damages, which motion was thereupon granted on the ground that it did not appear that plaintiff had paid the Dysart judg- ment recovered against him. 356 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 On appeal the General Term reversed the judgment, and ordered a new trial ; from that order the defendant has appealed to this court. jAiiiCS, J." * * * The important question in this case is, -whether the plaintiff could recover without proving actual loss or damage, by reason of defendant's want of title to the chattel. There was no evidence that plaintiff or his vendees had ever been disturbed in their possession or enjoyment of the property; nor had plaintiff ever parted with any money or property in consequence thereof. It is true a judgment had been recovered against the plaintiff for the value of the horse ; but until satisfied it only established a liability, not a loss. It might never be enforced. As the true owner was de- prived of his property by a felony, he might pursue others, through whose hands it had pa-sed, even the defendant, and satisfy his claim against them. Until a satisfaction, the owner's rights of action against others than plaintiff remain intact. In its operation and legal bearings this case is very like a covenant of warranty for quiet enjoyment in the sale of land. If A. convey land to B., and B. to C, and C. to D., all with covenants of warranty for quiet enjoyment, and D. is e\icted, he may sue any or all of the preceding covenantors till he obtain satisfaction ; but no intermediate convenantee can sue his covenantor till he himself has been compelled to pay damages upon his own warranty. \Mthy v. Mumford, 5 Cow. 137; Baxter v. Ryerss, 13 Barb. 267. In the case of breach of an implied warranty of title to a chattel the vendee is not bound to await legal action against him. If satis- fied of the insufficiency of his vendor's title, and that the true owner would recover the property in an action, he may surrender it and re- cover its value in an action against his vendor, by affirmatively es- tablishing that the vendor was without title ; or the vendor may await the prosecution of an action. If the vendor be notified of the action and rec[uired to defend, a judgment, if obtained, would be conclusive as to his want of title ; but if not notified and judgment is obtained, the onus of showing want of title would rest upon the vendee, the same as if surrendered without action. Sweetman v. Prince, 26 N. Y. 224, 232. If the property be surrendered to the true owner, then the vendee's loss and damage is established ; but if a judgment be had against him, either with or without notice, the vendee's loss or damage is not established without proofs of satisfaction or payment of the judgment. In this case the true owner (as in cases of covenants of warranty running with the land) would have a right of action against any possessor subsequent to the larceny; and that possessor against any prior covenantors which might be pursued until this damage or loss is satisfied; hence any intermediate vendee or covenantee could not be permitted to maintain an action against his immediate war- 11 Part of tlie opinion Is omitted. Sec. 3) IMPLIED WARRANTY OF QUALITY 357 rantor or covenantor in the absence of fraud without proof of dam- age by loss of property or compulsory payment of money. I think the plaintiff on the trial, by omitting to prove payment of the judgment obtained against him, failed to establish a right of action as against the defendant, and hence was properly nonsuited. The judgment of the General Term should be reversed and that of the Circuit affirmed. SECTION 3.— IMPLIED WARRANTY OF QUALITY JONES et al. v. JUST. (Court of Queen's Bench, 1868. L. R. 3 Q. B. 197.) Mellor, J.^^ In this case, on the trial before Blackburn, J., at' Liverpool, it appeared that the plaintiffs, through Messrs. Beneke & Co., their brokers, entered into a contract with the defendant for the purchase of a quantity of Manilla hemp, to arrive. The sold note was in the following terms : "Liverpool, 19th Oct., 1865. We have this day sold for you the following goods to Messrs. J. A. Beneke & Co. J. H. V. 200 bales Manilla hemp, expected to ar- rive p. Richard Cobden, @ Singapore, for Liverpool, 309 expected to arrive pr. Christopher Newton, @ Singapore for Liver- pool, 209 expected to arrive pr. Fortitude @ c- , T A 5H 193/ , , , Smgapore for London, ^ J^ expected to arrive pr. Opher, @ Singapore for Liverpool, @ £38 10s. pr. ton of 2240 lbs., cost freight and insurance. Shipping weights. Payment, cash against shipping documents on 21st Oct. 1865, less 21/0 % discount." The shipping documents were duly delivered to the plaintiffs, and the price was paid. All the vessels named in the contract arrived in due course, with the respective numbers of bales of hemp having marks corresponding to those specified in the contract on board; and the bales were delivered to the plaintiffs. On examination of the bales it was found that the whole of those marked J. H. V. were in such a state as to afford strong evidence that they had at some time, probably from a shipwreck when on the voyage from Manilla to Singapore, been wetted through with salt water, had afterwards been unpacked and dried, and then repacked in the bales which were after- wards shipped at Sinpagore. Manilla hemp is divided into several qualities. The hemp in the bales in question, if in good condition, would have been what is called 12 The statement of facts is omitted. 358 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 "fair current Manilla hemp," which is not the lowest quality ; but in all the bales the hemp was damaged to some extent, though not so far as to make it lose the character of hemp. After some correspondence between the parties, the hemp was sold by auction by the plaintiffs' orders as "jManilla hemp, with all faults," and at the auction it realized about 75 per cent, of the price which similar hemp would have fetched if undamaged. The price of hemp had risen considerably since the contract, so that the proceeds of the sale were very nearly equal to the invoice price. There was no at- tempt to shew that the defendant knew of the state in which the hemp had been shipped at Singapore. At the close of the plaintiffs' case, r^lr. Brett, for the defendant, contended that, in point of law, under this written contract, there was no further condition or warranty than that the bales on their arrival should answer the description of bales of Manilla hemp, which they did, as was proved by the fact that the hemp, though sold with a stig- ma upon it, fetched a price only 25 per cent, below that of sound hemp ; and that as to quality or condition there was no warranty ; that consequently the maxim caveat emptor applied. The learned judge expressed an opinion adverse to this view. He said: 'T think that the question is for the jury, whether what was supplied under this contract was, when shipped at Singapore, such as to answer the description of reasonabl)- merchantable Alanilla hemp, that being the warranty which, I think, the law implies in a contract to supply, as this ; though it would be different in a sale of specific things which the purchaser might examine, or of things sold by sam- ple. And I think the question whether it is fairly and reasonably merchantable, is a question of more or less, which must be left to the jury as reasonable men to determine." The judge then reserved leave to move to enter the verdict for the defendant, if there was no evi- dence to go to the jury of a breach of warranty. Upon this intimation of opinion, the counsel addressed the jury, and the case was left to them substantially to the effect above stated ; and the jury were further told that if they found for the plaintiffs, the damages should be measured by the rate which the hemp was \v(_)rth when it arrived compared with the rate which the same hemp would have realized had it been shipped in the state in which it ought to have been shipped : thus, in effect, giving the plaintiffs the benefit of the rise in the market. The jury found for the plaintiffs, damages £756. Mr. Brett, in the ensuing Term, obtained a rule to enter the verdict for the defendant, pursuant to the lea\e reserved; or for a new trial, on the ground of misdirection as to the measure of damages, which he contended ought at most to have been the difference between the value of the article actually delivered, viz., fair average Manilla hemp Sec. 3) IMPLIED WARRANTY OF QUALITY 359 in a damaged state, and the value of sound Manilla hemp of the low- est quality which might have been supplied at Singapore under this contract. The other objections to the direction were substantially only varied modes of putting the point reserved. We thought that if the contract had the effect which the direction stated it to have, the true measure of the damages was given, as it put the plaintiffs in the position in which they would have been if the con- tract had been fulfilled ; but we took time to consider the question as to what the contract really was, which is no doubt one of importance and difficulty. After careful consideration, we are of opinion that Blackburn, J.'s, direction was substantially correct. On the argument before us, it was contended that the contract was performed on the part of the de- I fendant by the shipping at Singapore of an article which answered/ the description of "Manilla hemp," although at that time it was so/ damaged as to have become unmerchantable. It was said that there being no fraud on the part of the vendor, and both parties being equal- ly ignorant of the past history and actual condition of the article con-j tracted for, and neither of them having had the opportunity of in-l specting it, it was the duty of the vendees to have stipulated for a( merchantable article if that was what they intended to contract for. In other words, it was said that the maxim, caveat emptor, applied in j such a case, in the same way as on a sale of a specific article by a person not being the manufacturer or producer, even though the de- fect was latent and not discoverable upon examination. We are of opinion that there is a great distinction between the present case and the sale of goods in esse, which the buyer may in- spect, and in which a latent defect may exist, although not discover- able on inspection. The cases which bear upon the subject do not appear to be in con- flict, when the circumstances of each are considered. They may, we think, be classified as follows : First, where goods are in esse, and may be inspected by the buyer, ^ and there is no fraud on the part of the seller, the maxim caveat emptor applies, even though the defect which exists in them is latent, and not discoverable on examination, at least where the seller is nei- ther the grower nor the manufacturer: Parkinson v. Lee, 2 East, 314. The buyer in such a case has the opportunity of exercising his judgment upon the matter; and if the result of the inspection be un- satisfactory, or if he distrusts his own judgment he may if he chooses require a warranty. In such a case, it is not an implied term of the contract of sale that the goods are of any particular quality or are merchantable. So in the case of the sale in a market of meat, which the buyer had inspected, but which was in fact diseased, and unfit for food, although that fact was not apparent on examination, and the seller was not aware of it, it was held that there was no implied war- 360 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 ranty that it was fit for food, and that the maxim caveat emptor ap- plied. Emmerton v. Mathews, 7 H. & N. 586, 31 L. J. (Ex.) 139. Secondly, where there is a sale of a definite existing chattel spe- cifically described, the actual condition of which is capable of being, ascertained by either party there is no implied warranty. Barr v. Gib- son, 3 M. & W. 390. Thirdly, where a known described and defined article is ordered of a manufacturer, although it is stated to be required by the purchaser for a particular purpose, still if the known, described, and defined thing be actually supplied, there is not warranty that it shall answer the particular purpose intended by the buyer. Chanter v. Hopkins, 4 M. & W. 399; OUivant v. Bayley, 5 O. B. 288. Fourthly, where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied. Brown v. Edgington, 2 Man. & G. 279 ; Jones v. Bright, 5 Bing. 533. In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judg- ment and not upon his own. Fifthly, where a manufacturer undertakes to supply goods, man- ufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article. Laing v. Fidgeon, 4 Camp. 169 ; 6 Taunt. 108. And this doctrine has been held to ap- ply to the sale by the builder of an existing barge, which was afloat but not completely rigged and furnished ; there, inasmuch as the buy- er had only seen it when built, and not during the course of the build- ing, he was considered as having relied on the judgment and skill of the builder that the barge was reasonably fit for use. Shepherd v. Pybus, 3 Man. & G. 868. If, therefore, it must be taken as established that, on the sale of goods by a manufacturer or dealer to be applied to a particular pur- pose, it is a term in the contract that they shall reasonably answer that purpose, and that on the sale of an article by a manufacturer to a vendee who has not had the opportunity of inspecting it during the manufacture, that it shall be reasonably fit for use, or shall be mer- chantable, as the case may be, it is diiScult to understand why a sim- ilar term is not to be implied on a sale by a merchant to a merchant or dealer who has had no opportunity of inspection. Accordingly in the case of Bigge v. Parkinson, 7 H. & N. 955, 31 L. J. (Ex.) 301, upon a contract to supply provisions and stores to a ship guaranteed to pass the survey of the East India Company's officers, it was held by the Court of Exchequer Chamber that there was an implied term in the contract, that the stores should be reasonably fit for the purpose Sec. 3) IMPLIED WARRANTY OF QUALITY 361 for which they were to be supplied, notwithstanding that the vendor had specially contracted that they should pass the survey of the East India Company's officers. We are aware of no cas e in which the maxim, caveat emptor, has be en applied where there has been no opportunity of inspection^ or w here th at opportunity had not b een waived. The case of Gardiner V. Gray, 4 Tamp. 144, 145, appears strongly in point to the present. The contract was for the sale of twelve bales of waste silk imported from the continent, and before it was landed samples were shewn to plaintiff's agent, and the bargain was then made, but without refer- ence to the sample. It was purchased in London, and sent to Man- chester, and on its arrival there was found to be of a quality not sale- able under the denomination of "waste silk." Lord Ellenborough ex- pressed his opinion that "the purchaser under such circumstances had a right to expect a saleable article answering the description in the contract. Without any particular warranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity the maxim, caveat emptor, does not apply." In general, on the sale of goods by a particular description, whether the vendee is able to inspect them or not, it is an implied term of the contract that they shall reasonably answer such description, and if they do not, it is unnecessary to put any other question to the jury; thus, in Wieler v. SchiHzzi, 17 C. B. 619, 25 L. J. (C P.) 89, and in Josling v. Kingsford, 13 C. B. (N. S.) 447, 32 L. J. (C. P.) 94, the substantial question put to the jury was, did the goods delivered reasonably an- swer the description in the contract? And the answer of the jury be- ing that they did not, that answer sufficed to determine each case. In one of those cases there was no opportunity to inspect, in the other there was. So in the case of Nichol v. Godts, 10 Ex. 191, 23 L. J. (Ex.) 314, where the contract was for the sale of "foreign refined rape oil, warranted only equal to sample," it was held in an action for not accepting the article tendered, that it was necessary for the vendor to establish that it was not only equal to the sample as to qual- ity, but that it was in fact such an article as answered the description of foreign refined rape oil. In Wieler v. Schilizzi, 17 C. B. 619, 25 L. J. (C. P.) 89, in which there was no opportunity to inspect, and no express stipulation as to quality, it would have been necessary, had the finding of the jury affirmed that the article delivered did in fact an- swer the description of "Calcutta linseed," to determine whether the judge ought not to have put the further question, was it reasonably merchantable? It certainly was not determined that such a question would have been wrong, though perhaps the words "tale quale" in that contract might have the effect of excluding any such warranty; and Willes, J., in his judgment, 17 C. B. at p. 624, said that the pur- chaser in that case "had a right to expect, not a perfect article, but an article which would be saleable in the market as Calcutta linseed." L!62 OBLIGATIOXS OF SELLER AND BUYEE (Ch. 4 It appears to us that, in every contract to supply goods of a speci- fied description which the buyer has no opportunity to inspect, the goods must not only in fact answer the specific description, but must also be saleable or merchantable under that description. In the words of Lord Ellenborough in Gardiner v. Gray, 4 Camp, at p. 145, "With- out any particular warranty this is an implied term in every such con- tract." In the present case the question appears to be, was the article as delivered at Singapore merchantable or saleable in the market un- der the description of "Manilla hemp?" Blackburn, J., appears to have divided that question into two, viz. : Was the article, in fact, ^Manilla hemp? Secondly, was it merchantable? The precise mode of submitting the question is not material, provided the substantial di- rection was correct, as we think it was. The counsel for the defendant relied upon a case of Turner v. Mucklow, 8 Jur. (N. S.) 870, 6 L. T. (N. S.) 690, tried before Mellor, J., in the year 1862, at Liverpool. In that case the plaintififs were calico printers, and had contracted to sell to the defendant, who was a drysalter and dye extract manufacturer, a boat-load of "spent mad- der." The defendant, not finding the spent madder supplied suitable for his purpose, repudiated the contract, and refused to pay for it. It appeared that the plaintiffs, in their trade as calico printers, used large quantities of madder roots, having extracted from which the finer colouring matter by chemical processes they placed the refuse or spent madder in a large heap in their yard. They occasionally used portions of it, and by tlie application of other chemical processes ex- tracted from it a colouring matter called garancine, but they did not manufacture spent madder for sale. On a previous occasion they had sold to the defendant, who was a manufacturer of garancine, a small quantity of spent madder from their accumulation; and on the oc- casion in question the defendant, by letter, bargained with the plain- tiffs for a quantity of their spent madder, which he did not inspect before delivery, and upon a portion of it being used by the defendant for the purpose of manufacturing garancine, it turned out that the garancine produced by it was of very inferior quality and unmarket- able. The jury were directed that if the article supplied fairly and reasonably answered the description of "spent madder," there was no implied warranty that it was of any particular quality or fitness for any particular use, and upon that direction the jury found a verdict for the plaintiffs ; and upon the argument on a rule which was ob- tained for a new trial, on the ground of misdirection, the Court of Exchequer held the direction to be right; Martin, B., declaring his opinion to be "that no direction was ever more correct." In that case it is to be observed that the defendant had the oppor- tunity, if he had chosen to avail himself of it, to inspect the heap of sijent madder; he knew that it was the refuse madder after it had i^i^ne through the plaintiffs' processes, and that it was not manufac- Sec. 3) IMPLIED WARRANTY OF QUALITY 363 tured for sale. These circumstances entirely distinguish that case from the present. The counsel for the defendant also relied upon the statute 19 & 20 Vict. c. 60, § 5,^^ as a sort of implied legislative declaration of the law of England upon that subject in favour of his argument; but, upon examining the section referred to, it does not appear to bear out that view, for all that it declares is, that a seller of goods, without knowledge that they are defective or of bad quality, shall not be held to have warranted their quality or sufficiency. It has already appeared that there is not in general, on the sale of goods in England to be supplied, an implied warranty that they shall be of any particular quality or sufficiency for any particular purpose, but merely that they shall be merchantable goods of the description bargained for. The present case depends on the distinction between a sale of particular articles and a contract to supply articles of a par- ticular kind. The authority of Chancellor Kent, Kent's Commentaries, vol. 2, p. 479 of the 6th Ed., the last by the author himself, (11th Ed., pp. 633- 635,) was also appealed to; but as the American cases which he cites are generally adverse to his opinion, it can at most be said that the opinion of an eminent writer is opposed to the authority of the cases which he cites. It appears to us, in the result of this case, that the maxim of caveat emptor cannot apply, and that it must be assumed that the buyer and seller both contemplated a dealing in an article which was merchantable. The buyer bought for the purpose of sale, and the seller could not on any other supposition than that the article was merchantable have found a customer for his goods, and the buyer must be taken to have trusted to the judgment, knowledge, and information of the seller, as it is clear that he could exercise no judgment of his own; and this appears to us to be at the root of the doctrine of im- plied warranty, and that in this view it makes no difference, whether the sale is of goods specially appropriated to a particular contract, or to goods purchased as answering a particular description. It was contended further by the defendant's counsel that the ship- pers at Singapore were the persons who selected the goods in ques- tion, and that the defendant, who merely sold them to arrive, was as little aware of their true condition when shipped as the plaintiffs ; but it is clear that the defendant, if not directly connected with the ship- is "Where goods shall after the passing of this act be sold, the seller, if at the time of the sale he was without knowledge that the same were de- fective or of bad quality, shall not be held to have warranted their qualit,y or sufBciency, but the goods with all faults shall be at the risk of the pur- chaser, unless the seller shall have given an express warranty of the quality or sufBciency of stich goods, or unless the goods have been expressly sold for a specified and particular purpose, in which case the seller shall be consid- ered without such warranty to warrant that the same are fit for such pur- pose." [lliis statute applies only to Scotland.] 364 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 pers as his correspondents, must at least have purchased from them, and had recourse against them for not supplying an article reasonably merchantable. The remarks of Cockburn, C. J., on the argument in Bigge v. Park- inson, 7 H. & N. at p. 959, though not in terms repeated by him in de- livering the judgment of the Court of Exchequer Chamber, are really involved in it, and are very closely in point here. We are therefore of opinion that Blackburn, J.'s, direction was right,, and that this rule must be discharged. Rule discharged. BARNARD v. KELLOGG. (Supreme Court of the United States, 1S70. 10 WalL 383, 19 L. Ed. 987.) Error to the Circuit Court for the District of Connecticut, the case being this : In the summer of 1864, Barnard, a commission merchant resid- ing in Boston, Massachusets, placed a lot of foreign wool, received from a shipper in Buenos Ayres, and on which he had made ad- vances, in the hands of Bond & Co., wool brokers in Boston, to sell, with instructions not to sell unless the purchaser came to Boston and examined the wool for himself. These brokers sent to E. N. Kellogg & Co., merchants and dealers in wool, in Hartford, Con- necticut, at their request, samples of the different lots of wool, and communicated the prices at which each lot could be obtained. Kel- logg & Co., in reply, offered to take the wool, all round, at fifty cents a pound, if equal to the samples furnished, and Bond & Co., for their principal, on Saturday, the 6th day of August, by letter and telegram, accepted this offer, provided Kellogg & Co. examined the wool on the succeeding Monday and reported on that day whether or not the)- would take it. Kellogg & Co. acceded to this condition, and the senior member of the firm repaired to Boston on the day named and examined four bales in the broker's office as fully as he desired, and was offered an opportunity to examine all the bales, and have them opened for his inspection. This he declined to do, and concluded the purchase on the joint account of all the plain- tiffs. Some months after this, on opening the bales it was ascer- tained that a portion of them were falsely and deceitfully packed, by placing in the interior rotten and damaged wool and tags, which were concealed by an outer covering of fleeces in their ordinary state. This condition of things had been unknown to Barnard, who had acted in good faith. It was, however, communicated to him, and he was asked to indemnify the purchaser against the loss he sustained in consequence of it. This he declined to do, and the purchaser brought this suit. The declaration counted: -■Sec. 3) IMPLIED WARRANTY OF QUALITY 365 1st. Upon a sale by sample. 2d. Upon a promise, express or implied, that the bales should not be falsely packed. 3d. Upon a promise, express or implied, that the wool inside of the bales should not differ from the samples by reason of false packing. The court below, trying the cause without the intervention of a jury, held that there was no express warranty that the bales not examined should correspond to those exhibited at the brokers' store, and that the law under the circumstances could not imply any. But the court found as matters of fact, that the examination of the in- terior of the bulk of bales of wool generally, put up like these, is not custom.ary in the trade; and though possible, would be very inconvenient, attended with great labor and delay, and for these reasons was impracticable ; and t hat by the custom of merchant^ and d ealers in fo rei gn wool in jjales^ m Boston and New York, the principal markets of this country where such wool is sold, t here is an implied warranty of the seller to the purchas er that the sa me is not falsely or deceitfully packed, and the court held as a matter ofTawTtKaTTh'e' ctrstom was valid and binding on the parties to this • contract, and gave judgment for the purchaser. This writ of error was taken to test the correctness of this ruling. Mr. Justice Davis delivered the opinion of the court. No principle of the common law has been better established, or more often affirmed, both in this country and in England, than that in sales of personal property, in the absence of express warranty, where the buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is neither the manufacturer nor grower of the article he sells, the maxim of caveat emptor applies. ■Such a rule, requiring the purchaser to take care of his own inter- ests, has been found best adapted to the wants of trade in the busi- ness transactions of life. And there is no hardship in it, because if the purchaser distrusts his judgment he can require of the seller a warranty that the quality or condition of the goods he desires to buy corresponds with the sample exhibited. If he is satisfied with- out a warranty, and can inspect and declines to do it, he takes upon himself the risk that the article is merchantable. And he cannot relieve himself and charge the seller on the ground that the exam- ination will occupy time, and is attended with labor and inconveni- ence. If it is practicable, no matter how inconvenient, the rule applies. One of the main reasons why the rule does not apply in the case of a sale by sample, is because there is no opportunity for a personal examination of the bulk of the commodity which the sample is shown to represent. Of such universal acceptance is the doctrine of caveat emptor in this country, that the courts of all the States in the Union ;JG6 OBLIGATIONS OP SELLER AND UfYER (Cll. -1 where the common law prevails, with one exception (South Caro- lina), sanction it. Applying this acknowledged rule of law to this case, it is easy to settle the rights of the parties, and to interpret the contract which they made. That the wool was not sold by sample clearly appears. And it is equally clear that both sides understood that the buyer, if he bought, was to be his own judge of the quality of the article he purchased. Barnard expressly stipulated, as a condition of sale that Kellogg should examine the wool, and he did examine it for himself. If Kellogg intended to rely on the samples as a basis of purchase, why did he go to Boston and inspect the bales at all, after notice that such inspection was necessary before the sale could be completed? His conduct is wholly inconsistent with the theory of a sale by sample. If he wanted to secure himself against possible loss, he should either have required a warranty or taken the trouble of inspecting fully all the bales. Not doing this, he cannot turn round and charge the seller with the consequences of his own negligence. Barnard acted in good faith, and did not know or have reason to believe that the wool was falsely packed. The sale on his part was intended to be upon the usual examination of the article, and the proceeding by Kellogg shows that he so understood it, and it is hard to see what ground of complaint even he has against Barnai'd. It will not do to say that it was inconvenient to examine all the bales, because if inconvenient it was still practicable, and that is all, as we have seen, that the law requires. The case of Salisbury v. Stainer, reported in 19 Wend. (X. Y.) 159. 32 Am. Dec. 437, is similar in its facts to this case, and the court apphed to it the rule of caveat emptor. There bales of hemp were sold which turned out to be falsely packed. The purchaser wished to treat the sale as a sale by sample ; but the court said to him, "You were told to examine for yourself, and having opened one bale, and at liberty to open all, and omitting to do it, you cannot be permitted to allege that the sale was a sale bv sample, nor to recover damages as on an implied warranty.' It is, therefore, clear by the general principles of law, adopted in the interests of trade and commerce, that the seller in this instance was not answerable over for any latent defects in the bales of wool. But the learned court below having found that by the custom of dealers in wool in New York and Boston there is a warranty by the seller implied from the fact of sale, that the wool is not falsely packed, and having held Barnard bound by it, the inquiry arises whether such a custom can be admitted to control the general rules of law in relation to the sale of personal property. It is to be regretted that the decisions of the courts, defining what local usages may or may not do, have not been uniform. In some judicial tribunals there has been a disposition to narrow the limits Sec. 3) IMPLIED WARRANTY OF QUALITY 367 of this species of evidence, in others to extend them, and on this, account mainly the conflict in decision arises. But it it is liard to reconcile all the cases, it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office of a custom or usage in trade is to ascertain and ex- plain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its- existence, and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signification, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent / with the contract, or expressly or by necessary implication contra- 1 diets it, it cannot be received in evidence to afifect it. See notes to Wigglesworth v. Dallison, 1 Smith's Leading Cases, 498 ; 2 Parsons on Contracts, §§ 9, 535 ; Taylor on Evidence, 943, and following. Usage, says Lord Lyndhurst, "may be admissible to explain what is doubtful; it is never admissible to contradict what is plain." Blackett v. Royal Exchange Assu. Co., 2 Crompton & Jervis, 249. And it is well settled that usage cannot be allowed to subvert the settled rules of law. See note to 1 Smith's Leading Cases, supra. Whatever tends to unsettle the law, and make it different in the different communities into which the state is divided leads to mis- chievous consequences, embarrasses trade, and is against public policy. If, therefore, on a given state of facts, the rights and liabil- ities of the parties to a contract are fixed by the general principles of the common law, they cannot be changed by any local custom of the place where the contract was .made. In this case the common law did not, on the admitted facts, imply a warranty of the good quality of the wool, and no custom in the sale of this article can be admit- ted to imply one. A contrary doctrine, says the court, in Thomp- son V. Ashton, 14 Johns. (N. Y.) 317, "would be extremely pernicious in its consequences, and render vague and uncertain all the rules of law on the sales of chattels." In Massachusetts, where this contract was made, the more recent i decisions on the subject are against the validity of the custom set 1 up in this case. In Dickinson v. Gay, 7 Allen, 29, 83 Am. Dec. 656, which was a sale of cases of satinets made by samples, there were in both the samples and the goods a latent defect not discoverable by inspection, nor until the goods were printed, so that they were unmerchantable. It was contended that by custom there was in such a case a warranty implied from the sale that the goods were merchantable. But the court, after a full review of all the authorities, decided that the custom that a warranty was implied, when by law it was not implied, was contrary to the rule of the common law on 368 OBLIGATIONS OF SKLLER AND BUTEE (Cll. 4 the subject, and therefore void. If anything, the case of Dodd v. Farlow, 11 Allen, 426, 87 Am. Dec. 726, is more conclusive on the point. There forty bales of goat skins were sold by a broker, who put into the memorandum of sale, without authority, the words "to be of merchantable quahty and in good order." It was contended that by custom, in all sales of such skins, there was an implied warranty that they were of merchantable quality, and, therefore, the broker was authorized to insert the words, but the court held the custom itself invalid. They say, "It contravenes the principle, which has been sanctioned and adopted by this court, upon full and deliberate consideration, that no usage will be held legal or binding on parties, which not only relates to and regulates a particular course or mode of dealing, but which also engrafts on a contract of sale a stipulation or obligation which is inconsistent with the rule of the common law on the subject." It is clear, there- fore, that in Massachusetts, where the wool was sold and the seller lived, the usage in question would not have been sanctioned. In New York there are some cases which would seem to have adopted a contrary view, but the earlier and later cases agree with the Massachusetts decisions. The question in Frith v. Barker, 2 Johns. 327, was, whether a custom was valid that freight must be paid on goods lost by peril of the sea, and Chief Justice Kent, in deciding that the custom was invalid, says : "Though usage is often resorted to for explanation of commercial instruments, it never is, or ought to be, received to contradict a settled rule of commercial law." In Woodrufif v. Merchants' Bank, 25 Wend. 673, a usage in the city of New York, that days of grace were not allowed on a certain description of commercial paper, was held to be illegal. Nel- son, chief justice, on giving the opinion of that court, says : "The effect of the proof of usage in this case, if sanctioned, would be to overturn the whole law on the subject of bills of exchange in the city of New York;" and adds, "if the usage prevails there, as testi- fied to, it cannot be allowed to control the settled and acknowledged law of the State in respect to this description of paper." And, in Beirne v. Dord, 5 N. Y. 95, 55 Am. Dec. 321, the evidence of a cus- tom that in the sale of blankets in bales, where there was no ex- press warranty, the seller impliedly warranted them all equal to a sample shown, was held inadmissible, because contrary to the set- tled rule of law on the subject of chattels. But the latest authority in that State on the subject, is the case of Simmons v. Law, *42 N. Y. 219. That was an action to recover the value of a quantity of gold-dust shipped by Simmons from San Francisco to New York on Law's hne of steamers, which was not delivered. An attempt was made to limit the liability of the common carrier beyond the terms of the contract in the bill of lading by Sec. 3) IMPLIED WARKANTY OF QUALITY 3G9 proof of the usage of the trade, which was well known to the ship- per, but the evidence was rejected. The court, in commenting on the question, say : "A clear, certain, and distinct contract is not sub- ject to modification by proof of usage. Such a contract disposes of all customs by its own terms, and by its terms alone is the con- duct of the parties to be regulated, and their liability to be deter- mined." In Pennsylvania this subject has been much discussed, and not always with the same result. At an early day the Supreme Court of the State allowed evidence of usage, that in the city of Philadelphia the seller of cotton warranted against latent defects, though there were neither fraud on his part or actual warranty. Snowden v. Warder, 3 Rawle, 101. Chief Justice Gibson, at the time, dissented from the doctrine, and the same court, in later cases, has disapproved of it (Coxe V. Heisley, 19 Pa. 243; Wetherill v. Neillson, 20 Pa. 448, 54 Am. Dec. 741), and now hold that a usage, to be admis- sible, "must not conflict with the settled rules of law,, nor go to defeat the essential terms pf the contract." It would unnecessarily lengthen this opinion to review any further the American authorities on this subject. It is enough to say, as a general thing, that they are in harmony with the decisions already noticed. See the American note to Wigglesworth v. Dallison, 1 Smith's Leading Cases, where the cases are collected and distinctions noticed. The necessity for discussing this rule of evidence has often occurred in the highest courts of England on account of the great extent and variety of local usages which prevail in that country, but it would serve no useful purpose to review the cases. They are collected in the very accurate English note to Wigglesworth v. Dallison, and are not different in principle from the general current of the Amer- ican cases. If any of the cases are in apparent conflict, it is not on account of any difference in opinion as to the rules of law which are applicable. These rules, says Chief Justice Wilde, in Spartali v. Benecke, 10 Common Bench, 222, "are well settled, and the difficulty that has arisen respecting them, has been in their application to the varied circumstances of the numerous cases in which the discussion of themi has been involved." But this difficulty does not exist in applying these rules to the circumstances of this case. It is apparent, thafj the usage in question was inconsistent with the contract which the I parties chose to make for themselves, and contrary to the wise rule] of law governing the sales of personal property. It introduced ai] new element into their contract, and added to it a warranty, which 1 the law did not raise, nor the parties intend it to contain. The par- 1 ties negotiated on the basis of caveat emptor, and contracted accord-' ingly. This they had the right to do, and by the terms of the con- WooD w. Sales — 24 370 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 Itract the law placed on the buyer the risk of the purchase, and re- llieved the seller from liability for latent defects. But this usage of trade steps in and seeks to change the position of the parties, and to impose on the seller a burden which the law said, on making his contract, he should not carry. By this means a new contract is made for the parties, and their rights and Habilities under the law essen- tially altered. This, as we have seen, cannot be done. If the doc- trine of caveat emptor can be changed by a special usage of trade, in the manner proposed by the custom of dealers of wool in Boston, it is easy to see it can be changed in other particulars, and in this way the whole doctrine frittered away. It is proper to add, in concluding this opinion, that the conduct of the parties shows clearly that they did not know of this custom, and could not therefore have dealt with reference to it. Judgment reversed, and the cause remanded with directions to award a venire de novo. Bradley and Strong, JJ., dissented. CAMPION V. MARSTON. (Supreme Judicial Court of Maine, 1904. 99 Me. 410. 59 Atl. 548.) Emery, J.^* In the spring of 1890 Mr. Campion, the plaintiff, was the owner of a stack of ice at Sebago Lake, measuring about 1,400 tons. Messrs. Jones & Marston were a firm of brokers and dealers in ice, having their ofifice at Hallowell. On May 24, 1900, presumably after some prior conversation or correspondence, Mr. Marston, for the firm, wrote to the plaintiff as follows : "The ice you have we can give $3.75 for F. O. B. for June, July shipment ; will take it as soon as we can. The ice to be weighed on the wharf by a sworn weigher." This offer was practically accepted. It was mutually understood that the price $3.75 was the price per ton, that the place of delivery was on board ship at Portland, and that the vessels were to be furnished by Jones & Marston, the purchasers. Nothing appears to have been said or written by either party about the quality of ice, whether mer- chantable or not; nor does it appear that Jones & Marston inspected the ice before purchasing, though, so far as appears, they could have done so. Under this contract of sale the plaintiff delivered the ice on board ship at Portland to the amount of 1,390 tons by weight, and Jones & Marston accepted it, and carried it away to market. It was weighed by a sworn weigher as it went on board. The plaintiff now seeks to recover the full contract price of $3.75 per ton for the whole 1,390 1* Part of the opinion is omitted. Sec. 3) IMPLIED WAURANTY OF QUALITY 371 tons. The defendant claims a reduction in price on the ground that much of the ice was not merchantable when delivered. The pivotal question of law is whether this defense is admissible. Two subsidiary- questions are presented by the exceptions, viz.: (1) Whether the con- tract of sale of the ice included by implication an assurance or warran- ty, that the ice was merchantable ; (2) whether the acceptance of the Ice at the place of delivery on board ship constituted a satisfaction or waiver of such warranty. Ice of a certain degree of purity and hardness is a merchantable commodity, and as such has a quotable market price. If of less than that degree of purity and hardness, it has no quotable market price, and is not merchantable — is not sure of a sale. Ice is not graded like grain or cotton, each grade having its own market and price. If not merchantable, its sale at any price is uncertain. Indeed, ^hejeryn "icf" i n the tra Hp inppn s "merchantable ice." Hence, whenever a contra ct o f sale of ice is made, it is a contract of sale of merchantable ice, un- l ess'otherwise stipulated. _ jrhe pur£has£3iJ:2£i:iojne.£^entitled to receive merchantable ice. Goocfja ith requires th e seller tP furnish it. Good faith, bona fides, should be as much of an essential part of a contract now as it was in the time of Justinian. Ice is homogeneous. A particular lot of ice has no individuality like a domestic animal, a building, a parcel of real estate, a factory, a ma- chine or plant, or any other specific individual article, where the pur- chaser ordinarily has a choice and makes an examination and selec- tion. Of course, if the purchaser of ice does in fact examine ice be- fore purchasing, and buys upon his own judgment, he may, perhaps, come under the rule of caveat emptor ; but this purchaser is not shown to have done so. The plaintiff was offered and accepted what it con- ceded to have been the price for merchantable ice. In law, as well as in morals and honor, he must be held to have promised that his ice to be delivered was of that quality. Messrs. Jones & Marston received the ice into their vessels at Port- land as delivered. While being taken from the cars, weighed, and put on board ship it was open to view and inspection, and was seen by their agents. These circumstances may be evidence, and even strong evidence, that they accepted the ice bargained for, and in full satisfac- tion of the contract of sale, including all that good faith demanded of the plaintiff ; but the circumstances do not in themselves constitute, as a matter of law, an acceptance in satisfaction or waiver of the plain- tiff's promise that the ice was merchantable. Jones & Marston were not obliged to decide the matter then. They could lawfully have re- fused to receive the ice if not merchantable; or they -could have taken it, leaving the question of rebate for unmerchantable ice to be deter- mined afterwards. It does not necessarily^ follow from their accept- ance of tJTeJc£_thatIlS£y-^£ka^sejl_th£-rl^i"''iff frnm-bis-promise or obrigat^orrthi Ftheke was merch antable. Whether they did in fact take the ice as full satisfaction of the contract of sale, and thus release 372 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 the plaintiff from that obligation, was a question of fact for the jury. * * * Exceptions and motion overruled. RANDAI^L V. NEWSON. (Court of Appeal, Queen's Bench Division, 1877. 2 Q. B. Div. 102.) Brett, J. A." This case was tried upon the footing that it was an action brought against the defendant, a coach-builder, to recover damages in respect of injuries to the plaintiff's horses and carriage, by reason of the defendant having supplied to the plaintiff a defective carriage pole. The jury found that the pole was not reasonably fit and proper for the use of the carriage ; but that there was no negli- gence on the part of the defendant (including, of course, his servants or agents) in supplying the pole. The price of a new pole was £3. The damage done to the horses and carriage was much more. But the only damages found by the jury were i3. Upon these findings the court of queen's bench, applying to this contract the principle laid down in Readhead v. Midland Railway Co., L. R. 2 Q. B. 412, in error L. R. 4 Q. B. 379, gave judgment for the defendant. No dis- pute was made at the trial, or in argument, as to the nature of the order given and accepted; the questions argued were whether the de- fendant was liable at all, and what was the extent of damages to which he might be subjected, if he was liable at all. Now as to these questions, jt is to be taken, although nothing specific seems to have been said, that the order given and accepted was not merely for a pole in general, but for the supply of a pole for the plaintiff's carriage ; and that the contract therefore was for the pur- chase and sale, or supply, of an article for a specific purpose. In other words, the subject-matter of the contract was not merely £ pole, but a pole for the, purchaser's carriage ; or, to state the proposition in an equivalent fonn, the thing, which would, if the contract were form- ally drawn up, be described in it as the subject-matter of it, would not be merely a pole generally, but a pole to be purchased for a specific purpose, namely to be used in the plaintiff's carriage. The question is, what, in such a contract, is the implied undertaking of the seller as to the efficiency of the pole ? Is it an absolute warranty that the pole shall be reasonably fit for the purpose, or is it only par- tially to that effect, limited to defects which might be discovered by care and skill? In order to decide this question it seems advisable to ascertain the primary or governing principle on which the earlier cases were de- 10 Part of the opinion is omitted. An opinion was delivered by Kelly, C. B. Sec. 3) IMPLIED WARRANTY OF QUALITY 373 cided, and to see whether the principle on which they were decided ought to be modified by the decision in Readhead v. Midland Rail- way Co. The earliest case seems to be Parkinson v. L,ee, 2 East, 314, in 1802. It is sufficient to say of it that, either it does not determine the extent of a seller's liability on the contract, or it has been over- ruled. Neither can the case of Fisher v. Samuda, 1 Camp. 190, in 1808, be said to decide anything. The first cases of importance are Gardiner v. Gray, 4 Camp. 144, and Laing v. Fidgeon, 6 Taunt. 108, in 1815. In Gardiner v. Gray the contract was for the purchase and sale of "waste silk." The silk was imported, and the bulk had not been seen either by the defendant, the seller, or the plaintiff, the buy- er. Lord Ellenborough said: "I am of opinion that, under such circumstances" (i. e. a sale of silk as waste silk) "the purchaser has a right to expect a saleable article, answering the description in the contract. Without any particular warranty, this is an implied term in every such contract." The contract was for the purchase and sale of a commodity described generally, not described to be ordered or supplied for a particular purpose. The description of it was that it was waste silk. From that it is implied that it is, or in other words it is assumed that it might be, specifically described as saleable waste silk. The decision, therefore, is that the commodity offered and de- livered must answer the description of it and be saleable waste silk. The principle is that the commodity offered must answer the descrip- tion of it in the contract. Laing v. Fidgeon is to the same effect. In Gray v. Cox, 4 B. & C. 108, 115, in 1825, the case was decided on a variance; but Abbott, C. J., stated that he was of opinion, "that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose."' The commodity ordered was copper for sheathing the ship Coventry. It was proved that no defect could be discovered by inspection of the article, and it was admitted that the defendants were ignorant of the defective quality of the copper. It is obvious that Lord Tenterden did not consider the seller relieved by reason of the defect being^ latent. This ruling of Lord Tenterden was adopted in the decision of Jones V. Bright, 5 Bing. 533, 540, in 1829. The contract was for cop- per sheathing for a ship. The question proposed by Ludlow, Serjt., in argument was, "whether the law will, according to the dictum of Lord Tenterden, in Gray v. Cox, 4 B. & C, at p. 115, lay upon the seller or manufacturer an obligation to warrant in all cases that the I article which he sells shall be reasonably fit and proper for the pur- I pose for which it is intended, and render him responsible for all the! consequences which may result, if it shall be found not to answer they purpose for which it was designed, and that, on account of some la-1 tent defect of which he was ignorant, and which shall not be proved! to have arisen from any want of skill on his part, or the use of im-| 374 OBLIGATIONS OF SELLER AND BUYER (Cll. 4 proper materials, or any accident against which human prudence might have been capable of guarding him." Here, therefore, the whole proposition, with and without limitations, was plainly laid be- fore the judges for their consideration. The answer given by Best, C. J., was : "I wish to put the case on a broad principle. If a man sells an article he thereby warrants that it is merchantable, — that it is fit for some purpose. If he sells it for that particular purpose, he thereby warrants it fit for that purpose. * * * Whether or not an article has been sold for a particular purpose is, indeed, a question of fact ; but if soId//or such purpose, the sale is an undertaking that it is fit. * * =]//The law then re- solves itself into this, — that if a man sells genially, he undertakes! that the article sold is fit for some purpose ; if he sells it for a particu-j lar purpose, he undertakes that it shall be fit for that particular pur-J pose." Nothing can be more clear than that the rule is advisedh'\ enunciated as a warranty without limitation. Brown v. Edgington, 2 M. & G. 279, is to the same effect. In Wieler v. Schilizzi, 17 C. B. 619, 622, 25 L. J. (C. P.) 89, the contract was for "Calcutta linseed." Jervis, C. J., told the jury that the question for them to consider was, "whether there was such an admixture of foreign substances in it as to alter the distinctive char- acter of the article, and prevent it from answering the description of it in the contract." Cresswell, J., said, "They were to say whether the article delivered reasonably answered the description of Calcutta lin- seed." Crowder, J., said, "The jury in effect found that the article delivered did not reasonably answer the description in the contract." Willes, J., said, "The purchaser had a right to expect, not a perfect article, but an article which would be saleable in the market as Cal- cutta linseed. If he got an article so adulterated as not reasonably to answer that description, he did not get what he bargained for." In this case it is to be observed that all the judges adopted the form of stating the principle which was used by Lord EHenborough in Gardi- ner V. Gray, 4 Camp. 144. In Nichol v. Godts, 10 Ex. 191, 23 L. J. (Ex.) 314, the contract was for "foreign refined rape oil, warranted only equal- to samples." The oil offered was equal to samples, but both samples and oil were adul- terated. Parke, B., told the jury "that the statement in the sold-note as to the samples related to the quality only of the article, and that according to the contract the defendant was entitled to have rape oil delivered to him." Piatt, B., in banc, said; "I understand that the oil to be delivered was to be equal to the samj^les in qualit)'. P.ut the defendant did not refuse to accept the oil tendered to him on the ground that it did not equal the sam]ile>, but on account of its not be- ing foreign refined rape oil at all. And the learned judge told the jury that if they should think that was so, the defendant was not bound to accept it. That direction was perfectly correct. If the Sec. 3) IMPLIED WARRANTY OF QUALITY 37.J jury had found that the article which the plaintiff tendered was known in the market under the name and description of foreign refined rape oil, the plaintiff would have been entitled to succeed ; but the question was put to the jury, ,and they were of opinion that it was not known as such." And Parke, B., said "the evidence went to show that the oil offered did not answer the description of the article sold." This form of stating the rule was distinctly adopted in Josling v. Kingsford, 13 C. B. (N. S.) 447, 32 L. J. (C. P.) 94, by Erie, C. J., and Willes, J. Erie, C. J., told the jury "that the defendant could only perform his part of the contract by delivering that which in com- mercial language might properly be said to come under the denomina- tion of oxalic acid ; and that if they should be of opinion that the arti- cle delivered by the defendant as oxalic acid did not properly fulfil that description they should find for the plaintiff." I have cited these cases, and the principles laid down in them, in order clearly to ascertain what is the primary or ultimate rule from which the rules which have been applied to contracts of purchase and sale of somewhat different kinds have been deduced. Those different rules, as applied to such different contracts, are carefully enumerated and recognized in Jones v. Just, L. R. 3 Q. B. 197. In some contracts the undertaking of the seller is said to be only that the article shall be merchantable ; in others, that it shall be reasonably fit for the purpose to which it is to be applied. In all, it seems to us, it is either assumed or expressly stated, that the fundamental undertakin g is, t hat the ar- ticle offered or deliv ered shall answer tne descripiion o f it contained in the contract . That rule corhpnsl:ti all Lhe uLlltirs ; they are adapta- tions of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the circum- stances, what, in or according to the contract, is the real mercantile or business description of the thing which is the subject-matter of the bargain of purchase or sale, or, in other words, the contract. If that subject-matter be merely the commercial article or commodity, the undertaking is, that the thing offered or delivered shall answer that description, that is to say, shall be that article or commodity, saleable or merchantable. If the subject-matter be an article or commodity\ to be used for a particular purpose, the thing offered or delivered mustl answer that description, that is to say, it must be that article or com- 1 modity, and reasonably fit for the particular purpose. The governing principle, therefore, is that the thing offered and de-\ livered under a contract of purchase and sale must answer the descrip-1 tion of it which is contained in words in the contract, or which would be so contained if the contract were accurately drawn out. And if that be the governing principle, there is no place in it for the suggested limitation. If the article or commodity offered or delivered does not in fact answer the description of it in the contract, it does not do so more or less because the defect in it is patent, or latent, or discover- 376 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 able. And accordingly there is no suggestion of any such limitation in any of the judgments in cases relating to contracts of purchase and sale. Unless, therefore, there is some binding authority to the con- trary, we ought not now to introduce by implication a limitation into contracts of purchase and sale which has never been introduced be- fore. * * * Judgment reversed.^' 16 WHITE V. OAKES et al. (Supreme .TucUdal Court of JIaine, 189(3. ,S.S Me. 367, 34 Atl. 175.) HaskBll, J. The defendants, being dealers in furniture, and not manufacturers, sold a folding bed to the plaintiff, without express warranty of any kind. The bed proved dangerous to the persons using it, not from defective parts, but from faulty design. It proved to be a trap, suited to crush its occupants by shutting up like a jackknife when slept upon. The weight of its occupants, if sufficient to over- come the gravity of the upright headpiece, would tip that forward, and the bed collapse, /^his bed did so, injuring a man sleeping in it so that he became partially paralyzed. The defendants had no knowl- edge of this danger. If, therefore, the plaintiff may recover in this case, it must be from an implied warranty against the dangers of its contrivance. The mechanism of this bed could be observed by the purchaser as well as by the vendor. Neither, unless skilled in mechanics, would be likely to discover the dangers of it, unaided by any object lesson. The hinge or flexible joint upon which the bed hung was a contrivance of folding iron straps that really brought the point of support much fur- ther front at the head than they seemed to, thereby overcoming the gravity of the headpiece, and tending to pitch it forward. The bed, when sufficiently loaded, would bring the center of gravity of the up- right headpiece so far outside its base, or so nearly so, that any un- usual disturbance might work that result, especially when the casters were turned under. "In the sale of chattels by the manufacturer from specific uses, an implied warranty arises that the article is fit for the use intended." 16 Compare Hoe v. .Sanborn, 21 N. Y. 552, 78 Am. Dec. 163 (1860). The action was upon a promissory note, and it appeared that the note was given for tlie purrliase price of certain .saws manufactured by the plaintiffs and sold to the defendant, one of which, through defective material or want of being iiroperly tempered, was so soft as to be entirely useless. Seldeu, J., said: ■' » * In the present case, a jiortion of the alleged defect in the saw «-ould seem to ha\'e arisen from the unsuitableness of the material of which it was made. The rule on the subject, I hold to be this: The vendor is lialile. in such cases, for any latent defect not disclosed to the purchaser, arising frona the manner in which the article was manufactured; and if he, knowingly, uses Impi-oper materials, he is liable for that also; but not for any latent defect in the material which he is not shown and cannot be pre- sumed to have known. • • » " Sec. 3) IMPLIED WARRANTY OF QUALITY 377 Downing v. Dearborn, 77 Me. 457, 1 Atl. 407. In the sale of chattels without express warranty and without fraud, caveat emptor applies, and there is no implied warranty. Briggs v. Hunton, 87 Me. 145, 32 Atl. 794, 47 Am. St. Rep. 318; Kingsbury v. Taylor, 29 Me. 508, 50 Am. Dec. 607 ; Winsor v. Lombard, 18 Pick. (Mass.) 57 ; Mixer v. Coburn, 11 Mete. (Mass.) 559, 45 Am. Dec. 230; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Howard v. Emerson, 110 Mass. 320, 14 Am. Rep. 608. If the sale be by description, without opportunity f^ inspection, the description must be met. /nrhe sale of this bed was with full opportunity of inspection. It was 'shown to the purchaser, and the terms of sale were put in writing. She therefore took no implied warranty, or an equivalent right, unless facts were concealed from her that made the transaction fraudulent. No concealment is shown^It does not appear that the defendants knew of the dangerous contrivance that operated the bed. They deny such knowledge. But it is said that, after the sale, the bed broke down ; that the defendants were called upon to take it back ; and that they said they would fix it, and warrant it all right. One of the iron straps had broken, and the defendants put on a new one. The defend- ants were neither bound to repair the bed nor take it back. They gratuitously repaired it, and any warranty they might have then made would have been without consideration, and not binding. But the conversation testified to does not amount to a warranty of its safety in use. At most, it can only be considered an assurance that its mechanism had been made sound. It does not appear that they were then informed of any inherent danger in its use from faulty con- trivance. Had they been aware of this, and concealed the danger, and allowed the plaintiff to further use the bed when they knew of its dangerous character, other considerations would arise, not material here. There is no phase of the case as presented that can cast any lia- bility upon the defendants. The plaintiff asks to amend by inserting a count for the purchase money paid. The amendment could do the plaintiff no good. The bed was bargained on installments. The plaintiff says that, after the shocking disaster with the bed, the defendants demanded payment of money overdue, which being refused, they took the bed. The defend- ants deny the demand, but say that they retook the bed by plaintiff's consent. In either case, under the terms of sale, they might do so. They have both part payment and the bed. That was their legal right, and a more generous course cannot be demanded by law. Judgment for defendants.^' " Compare Preist v. Last [1903] 2 K. B. 148. 378 OBLIGATIONS OV SELLER AXD BUYER (Ch. 4 DAVIS CALYX DRILL CO. v. MALLORY et al. (Cii-cuif Ccun-t of Appciils, Eighth Cii-cuit, 1005. 137 Fed. .^S'i, 00 C. C. A. 602, <.;9 L. R. A. '.)Vl) In Error to the Circuit Court of the United States for the South- ern District of Iowa. (">n lune 25, 1902, the Davis Calyx Drill Company, a corporation, made a written contract with S. H. Mallory to furnish him free on board the cars at Tarrytown, in the state of New York, one class F3 drill, which is described in its catalogue, and certain specific ma- chinery, tools, and articles, for which Mallory promised to pay $2,- 459. ^Mallory has since died, and the defendants are the executrices of his will. The Calyx Company made and delivered the drill, the machinery, and the articles according to the contract, and this is an action to recover their purchase price. Two defenses were inter- posed — fraudulent misrepresentation and the breach of an implied warranty by the plaintiff. The court withdrew the former defense, and submitted the latter to the jury. There was evidence which had a tendency to establish these facts : The plaintiff was a corporation engaged in the manufacture of drills and other machinery at Tarrytown, in the state of Xew York. Mallory was engaged in prospecting for coal in lands in Lucas county, in the state of Iowa, and William Haven was his agent. Haven had used a diamond drill for this purpose prior to June, 1902, but he ob- jected to it because it would frequently fail to produce any core, for the reason that the coal was soft, and the diameter of the core was only one inch. He was desirous of obtaining a drill which would produce a larger core. He heard of the Davis Calyx drill, procured one of the plaintiff's catalogues, went to Tarrytown, and saw one of the plaintiff's drills in operation with a shot bit ; but he could not form any opinion upon the question whether or not it was fit to work in the strata in earth in Lucas county, in the state of Iowa. The drill was provided with a cutter and a shot bit, and these were exchanged in the operation to accommodate the drill to the hardness of the ma- terial through which it was to pass. Ha\en met the secretary and the general manager of the plaintiff. He described to them the strata through which a drill must pass in boring holes upon the land of Mr. Mallory, and explained to them that he desired to get a machine which would produce a larger core than a diamond drill, and would operate as economically and rapidly. They told him that their ma- chine was just the drill he wanted. They showed him pieces of stone through which it had passed, and stated to him that it would sink 25 or 30 feet per da}- ; that it would operate as economically and as rapidly as a diamond drill, and would get a larger core. Thereupon Haven made the contract in suit on behalf of his principal, Mallory, in reliance upon these representations, and upon the judgment of Sec. 3) IMPLIED WARRANTY OF QUALITY 379 the officers of the plaintiff, expressed in this way. The plaintiff furnished the drill and all the other specific machinery, tools, and articles described in the contract, and furnished an expert to set up and operate the drill. But the machine would not work satisfactorily. It would sink only 8 or 10 feet per day on the average, while a diamond drill would bore into the same ground at the rate of 25 feet per day. The plaintiff claimed that these facts evidenced an implied war- ranty that the drill would be fit and suitable to bore holes through the strata in Lucas county, Iowa, underneath his land, as rapidly and economically as a diamond drill. All the testimony relative to this alleged warranty was received over the objections of the plaintiff, and was contradicted by testimony which it produced. The court instructed the jury, in effect, that if Haven correctly described to the secretary and general manager of the plaintiff the strata through which the drill was to be sunk under the land of Mallory, and if the secretary and general manager knew where the drill was to be used, and stated that it would do as much work there, and do it as econom- ically, as a diamond drill, then the plaintiff had made an implied warranty that the drill would work in this way, and that, if it did not do so, the defendants had a right to rescind the contract, to re- turn the drill, and to recover the expenses which they or their de- cedent had incurred in the attempt to operate it. The plaintiff ex- cepted to this portion of the charge, and to the introduction of the evidence relative to the alleged warranty, and there was a verdict for the defendants. Sanborn, Circuit Judge, after stating the case as above, deliv- ered the opinion of the court. An implied warranty that an article will be fit for a particular pur- pose may be inferred from a contract to make or supply it to ac- complish that purpose, because the accomplishment of the purpose is the essence of the undertaking. But no such warranty arises out of a contract to make or supply a specific, described, or definite article, although the manufacturer or dealer knows that the vendee buys it to accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the accomplishment of the purpose. In other words, a warranty that a machine, tool, or article sold is fit and suitable to accomplish a particular purpose or to do a specific work may be implied when the manufacturp-r or dealer knows the purpose or work to be effected, and the purchase of the machine, tool, or article is in reality an employment of the vendor to do the work by making or furnishing a machine, tool, or article to effect it. Kellogg Bridge Co. v. Hamihon, 110 U. S. 103, 116, 3 Sup. Ct. 537, 28 L. Ed. 86; Breen v. Moran, 51 Minn. 525, 53 N. W. 755; Leopold V. Van Kirk, 27 Wis. 152, 156; Brenton v. Davis, 8 Blackf. (Ind.) 318, 44 Am. Dec. 769; Omaha Coal, etc., Co. v. Fay, 37 Neb. t 380 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 68, 75, 55 N. W. 211 ; Lee v. Sickles Saddlery Co., 38 Mo. App. 201, 205; Rodgers & Co. v. Niles & Co., 11 (3hio St. 53, 57, 78 Am. Dec. 290; White v. Adams, 77 Iowa, 295, 297, 42 N. W. 199. But no implied warranty that a machine, tool or article is suitable to accomplish a particular purpose or to do a specific work arises where the vendor orders of the manufacturer, or purchases of the I dealer, a specific, described, or definite machine, tool, or article, al- I though the vendor knows the purpose or work which the purchaser vntends to accomplish with it and assures him that it will effect it. .Such an assurance is but the expression of an opinion, when it is ifollowed by a written contract, complete in itself, which is silent upon the subject. The extent of the implied warranty in such a case is that the machine, tool, or article shall correspond with the descrip- tion or exemplar, and that it shall be suitable to perform the ordinary work which the described machine is made to do. Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 518-519, 12 Sup. Ct. 46, 35 L. Ed. 837; Keates v. Cadogan, 2 E. L. & E. 320, 10 C. B. 591; Grand Ave. Hotel Co. v. Wharton, 24 C. C. A. 441, 443, 79 Fed. 43, 45; Morris v. Bradley Fertilizer Co., 64 Fed. 55, 56, 12 C. C. A. 34, 35; Leake on Contracts (4th Ed.) 261, 262; 1 Parsons on Contracts, 586, 587; Union Selling Co. v. Jones, 128 Fed. 672, 675, 677, 63 C. C. A. 224, 227, 229; McCray Refrigerating, etc., Co. v. Woods, 99 Mich. 269, 58 N. W. 320, 321, 41 Am. St. Rep. 599; Cosgrove v. Bennett, 32 Minn. 371, 20 N. W. 360; Goulds v. Brophy, 42 Minn. 109, 43 N. W. 834, 6 L. R. A. 392; Wisconsin Red Pressed Brick Co. v. Hood, 54 Minn. 545, 56 N. W. 165; Fairbanks, Morse & Co. v. Baskett, 98 Mo. App. 53, 71 S. W. 1113; Wheaton Roller Mill Co. V. John T. Noye Mfg. Co., 66 Minn. 156, 68 N. W. 854, 855; Boiler Co. V. Duncan, 87 Wis. 120, 58 N. W. 232, 41 Am. St. Rep. 33 ; Case Plow Works V. Niles, Scott & Co., 90 Wis. 590, 63 N. W. 1013; Deming v. Foster, 42 N. H. 165, 175 ; Horse v. Union Stockyard Co., 21 Or. 289, 28 Pac. 2, 3, 14 L. R. A. 157; Dushane v. Benedict, 120 U. S. 630, 647, 7 Sup. Ct. 696, 30 L. Ed. 810; Carleton v. Jenks, 80 Fed. 937, 26 C. C. A. 265 ; Checkrower Co. v. Bradley & Co., 105 Iowa, 537, 546, 75 N. W. 369; Latham v. Shipley, 86 Iowa, 543, 53 N. W. 342; Blackmore v. Fairbanks, Morse & Co., 79 Iowa, 289, 44 N. W. 548; Parsons Band-Cutter, etc., Co. v. Mallinger, 122 Iowa, 703, 98 N. W. 580. If the purchaser, Mallory, or his agent. Haven, had described the , strata through which he desired to drive the drill, and had ordered the Calyx Company to make or to select and furnish to him a drill that would bore the desired holes through these strata as rapidly and economically as a diamond drill, for an agreed price, and the plaintiff had accepted the order, an implied warranty would have arisen that the drill to be furnished under that contract would do the work as speedily and cheaply as a diamond drill. But an accepted order to Sec. 3) IMPLIED WARRANTY OF QUALITY 381 make and deliver a specific, described drill, which the vendor is en- gaged in making, has no such effect, although the manufacturer knows the use for which the vendee desires to obtain it. The rea- son for this rule is conclusive and unanswerable. When a manu- facturer or dealer agrees to make or furnish an article that will ac- , complish a particular purpose, the accomplishment of the purpose ) is the substance of his undertaking, and he is free to make or to sup- ply any article that will do the work required. If he furnishes an article that will accomplish this purpose, he performs his contract, although the article he supplies may differ widely from that con-' templated by the purchaser when he made the agreement to buy. On the other hand, when the manufacturer or dealer contracts to make! or to deliver a specific and definitely described article, to enable the 1 vendor to accomplish a known purpose, the essential part of his ob- ' ligation is the delivery of the identical article described in the con-^ tract ; and the delivery of a different article, although it may better accomplish the desired result, is not a performance of his agreement, and does not entitled him to recover the purchase price. The furnish- ing of the article described, and that alone, whether that article is fit for the known purpose to which the vendee intends to apply it or not, constitutes a compliance with the contract by the vendor, and entitles him to secure its fruits. The familiar illustration of this distinction by Maule, J., in Keates V. Cadogan, 2 Eng. Law & Eq. Rep. 320, 10 C. B. 591, is still the most felicitous: "If a man says to another, 'Sell me a horse fit to carry me,' and the other sells a horse which he knows to be unfit to ride, he may be liable for the consequences; but if a man says, 'Sell me that gray horse to ride,' and the other sells it, knowing that the for- mer will not be able to ride it, that would not make him liable." In Kellogg Bridge Co. v. Hamilton, 110 U. S. 108, 116, 3 Sup. €t. 537, 28 L. Ed. 86, the bridge company had erected a portion of the falsework requisite for the construction of a bridge across the Maumee river. Hamilton made a contract with the company to pur- chase the falsework, the foundation of which was concealed by the river, and to complete the bridge. While he was engaged in the per- formance of this contract, the falsework gave way, by reason of de- fects in its construction, and precipitated the iron upon it into the river. The Supreme Court held that the bridge company impliedly warranted that the work which it sold to Hamilton was suitable to construct the bridge upon because it built this falsework, and had sold it to Hamilton to accomplish that specific purpose." 18 In this case Mr. Justice Harlan said: "According to tlie principles of de- cided cases, and upon clear Rrounds of justice, the fundamental inquiry must always be whether, under the circumstances of the particular case, the buyer had the right to rely and necessarily relied on the judgment of the seller and not upon his own. In ordinary sales the buyer has an opportunity of inspecting the article sold; and the seller not being the maker, and there- lore, having no special or technical knowledge of the mode in which it was 382 OBLIGATIONS OF SELLER AND BUYER (Ch. 4 But in Seitz v. Brewers' Refrigerating Co., 141 U. S. 510, 512, 519, 12 Sup. Ct. 46, 35 L. Ed. 837, the refrigerating company had been informed before it made its agreement that Seitz was cooling his brewery with ice, that he wanted to dispense with the use of ice, that no machine would be of any value to him unless it would enable him to accomplish this result, and that such a machine must continuously cool 150,000 cubic feet of air to a temperature of 40° Fahrenheit. Thereupon the refrigerating company assured Seitz that its machine would accomplish this result, and, in reliance upon this statement, he entered into a written contract with the company to the effect that the latter should supply and put in operation in his brewery a No. 2 size refrigerating machine, as constructed by it, for the sum of $9,450. The company made and put such a machine in his brewery, but it did not work satisfactorily, and it was incapable of cooling 150,000 cubic feet of air to 40° Fahrenheit. The Supreme Court held that this case fell under the rule that "where a known, described, and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described, and definite thing be actually supplied, there is no warranty that it shall answer the particular purpose in- tended by the buyer," and that there was neither an expressed nor an implied warranty that the ice machine would do the work for which the manufacturer knew that it was purchased, or that it would cool 150,000 cubic feet of atmosphere to 40° Fahrenheit or to any other temperature. This decision indicates the unavoidable conclusion in the case at bar. It also answers the contention of counsel that this case is not governed by the rule that there is no implied warranty of fitness where a known, definite, and described thing is purchased, because Mallory and Haven were not familiar with, and had had no ex- made, tbe partle.s stand upon ground.s of sulist'intial equality. If there be. In fact, in the particular case, any inequality, it is .such that the law cannot or ought not to attempt to proyide against; consequently, the buyer in such cases—the seller giylng no express \varranty and making no representations tending to mislead— Is holden to have purchased entirely on his own judg- ment. But when the .seller is the maker or manufacturer of the thing sold, the fair presumption is that he understood the process of its manufacture, and was cognizant of any latent defect cau.sed by such process and against which reasonable diligence might have guarded. This presumption is justi- fied, in part, by the fact that the manufacturer or maker by his occupation holds himself out as competent to make articles reasonably adapted to the purposes for which such or .similar articles are designed. When, therefore, the buyer has no opportunity to inspect the article, "or when, from the sit- uation, inspection is impracticable or useless. It is unreasonable to suppose that he bought on his own judgment, or that he did not relv on the Judgment of the seller as to latent defects of which the latter, if iie used due care, must have been informed during the process of manufacture. If the buyer relied, and under the circumstances had reason to rely, on the judgment of the seller, who was the manufacturer or maker of the article, the law implies a warranty that it is reasonably fit for the use for which it was designed, the seller at the time being informed of the purpose to devote it to that use." Sec. 3) IMPLIED WARRANTY OF QUALITY 383 perience in the operation of, the class F3 drill which they purchased. It is not the familiarity of the purchaser with the character and work of the machine ordered, but the identity of the thing described in the contract, which brings the latter within the rule. Seitz was probably ignorant of the character and of the operation of the No. 2 size refrigerating machine which he bought, and he relied upon the as- surance of the vendor that it would cool his brewery as he desired. But the machine which he ordered was identified by the description in his contract, and that description made it a known, described, and definite thing. So in the case at bar the description in the accepted order which Haven made of the class F3 drill perfectly identified it ■ — made it a known, described, and definite thing, within the mean- ing of this rule, and brought the contract clearly under its operation. In Grand Avenue Hotel Co. v. Wharton, 24 C. C. A. 441, 443, 79 Fed. 43, 45, the vendee ordered two boilers for use in its hotel. The vendor knew the use to which the vendee intended to put the articles, and knew that it must necessarily use the muddy water of the Missouri river in order to operate them. The boilers were fur- nished, but they would not operate with the water of the Missouri river. This court held that there was no implied warranty that they would do so, and sustained the judgment for their purchase price. In Boiler Co. v. Duncan, 87 Wis. 120, 58 N. W. 232, 234, 41 Am. St. Rep. 33, the purchaser informed the manufacturer before he made his order that he required a boiler that would produce 130 pounds steam, working pressure, and thereupon the latter offered to furnish a described boiler, and he accepted the offer. The boiler specified was furnished, but it failed to produce 130 pounds steam, working pressure, or to do the work for which the manufacturer knew the purchaser ordered it. The Supreme Court of Wisconsin decided that there was no implied warranty that it would accomplish the particular purpose for which it was bought, and said : "The dis- tinction seems to be between the manufacture or supply of an article to satisfy a required purpose, and the manufacture or supply of a specified, described, and defined article, as in this case." In Goulds V. Brophy, 42 Minn. 109, 112, 43 N. W. 834, 835, 6 L. R. A. 392, the vendee ordered from the catalogue of the manu- facturer an auger outfit to bore wells. The vendor furnished the outfit, but it was not suitable to bore the wells which the vendee de- sired to sink. The Supreme Court of Minnesota held that there was no implied warranty that it would do so, and said : "There was an implied warranty— or, more correctly speaking, condition of the contract— that it should conform to the description, and be of good material and workmanship according to that description, but none that it should answer the purpose described or supposed." There are many authorities to the same effect, but it would be a work of supererogation to review them. The contract of the Calyx 384 OBLIGATIONS OF SELLEU AND BUYER (Ch. 4 Drill Company in this case was expressed in writing. It was that it would make and deliver to the purchaser, Mallory, one class F3 drill, and certain other machines and articles, which were definitely specified in the contract. When it supplied these articles, it performed its agreement, whether they were suitable to perform the specific work of boring holes in the land controlled by the vendee in Lucas county, Iowa, or not. There is no averment or proof that they were not fit to accomplish the general purpose for which they were made — to bore holes in the earth under ordinary circumstances. The contract of the Calyx Drill Company was not that it would make and deliver a drill which would sink holes in the ground of the vendee in Lucas county as rapidly and economically as a diamond drill; and, if it had made and deli\-ered a drill which would have done this, it would have been required, if the testimony of the defendants is true, to have furnished a different drill and different machinery from that described in its contract, and in so doing it would have failed to perform it. The reception of the evidence and the charge of the court upon this subject were erroneous (1) because there was no implied war- ranty that the drill and machinery would be fit to bore holes through the specific strata in the earth in Lucas county ; and (2) because, if there had been such a warranty, it would not have included a cove- nant that the machinery would sink them as rapidly and economically as a diamond drill. Such a covenant could be imported into the contract only by an express agreement, and such an agreement was excluded by the fact that the contract is in writing, and by the rule that, where the written contract of the paries is complete in itself, the conclusive legal presumption is that it embodies the entire engage- ment of the parties, and the manner and extent of their obligations, so that parol evidence of other terms is inadmissible to extend, modify, or contradict it. Green v. Chicago & N. W Ry. Co., 35 C. C. A. 68, 71, 92 Fed. 873, 877; McKinley v. Williams, 20 C. C. A. 312, 319, 74 Fed. 94, 101 ; Wilson v. New U. S. Ranch Co., 20 C. C. A. 244, 249, 73 Fed. 994, 999; Union Selling Co. v. Jones, 63 C. C. A. 224, 227, 128 Fed. 672, 675. The judgment is accordingly reversed, and the case is remanded to the court below, with instructions to grant a new trial. '° JAMES DRU]\IMOND & SONS v. E. H. VAN INGEN & CO. (House of Loi-;DmjRST's judgment was as follows: "The Plaintiffs, as the sliipijers of ttie goods in question, would have had a Sec. 2) STOPPAGE IN TRANSITU 487 some degree, an extension of what was supposed to be the right of the consignor. In some of the cases there' were dicta which seemed to shew that by the indorsement of the bill of lading in such a man- ner as to admit of a dealing with it, and by actual dealing with, or actual negotiation of such bill of lading to a bona fide transferee, the vendor's right to stop in transitu would be defeated. That was the great ground of argument in Spalding v. Ruding, 6 Beav. 376, and I mention the case as shewing the extent to which the right has been upheld, and that it is a right entirely distinguished from the right of property in the goods. The Plaintiff in this case sold to Messrs. Langton, who have be- come insolvent, certain timber under a contract of sale, specifying the price, "free on board, payable by buyer's acceptance of seller's drafts at six months from date of bills of lading. Shipment to London." It was also provided that the sellers were to provide ships. A good deal was said about these words "free on board," but as regards the original contract it would be plain enough that there was no intention that the goods should be, at their destination when they were free on board, as not only was London the place of des- tination, but the seller was to find the vessel, and undertook that the goods should be delivered in London. Although the property in the goods might well pass when the bill of lading was handed over in exchange for the accepted bills, still that does not determine the question as to the right to stoppage in transitu, the distinction be- ing well established upon all the authorities, and especially referred to in Van Casteel v. Booker, where during the argument, Mr. (now Baron) Martin, so far conceding against the interest of his client, says (2 Ex. 699) : 'T'he general rule is that if goods are shipped on board a chartered vessel the property vests in the "consignee, subject to the right of stoppage in transitu ; but if the goods are placed on right at law to stop tliera in transitu as against Tliomas, tlie vendee, by rea- son of his insolvency; but by the indorsement of the bills of lading to the Defendant (Ruding) for value, that right was taken away. The question then Is, what right the Defendant had acquired against the vendors by their trans- actions with Thomas. The bill of lading, &c., were transferred to them by Thomas, to secure the repayment of the £1000, the sum advanced to Thomas by means of the Defendant's acceptance. This I consider to be the true con- struction and effect of the memoraudum or letter of the 9th of June, 1841. They had a clear right, therefore, to retain the goods, and to be paid out ot the proceeds to the extent of those advances according to the terms of the agreement. They had both a legal and an equitable right to this extent. In this ^tate of things the vendors attempt, by a notice to the captain, to stop the goods in transitu. This, I think, upon the evidence, was given in time, and though not good in law, by reason of the assignment of the bills ot lading, would, I am of opinion, be valid in equity against both the vendee and the Defendant so as to vest in Plaintiffs a right to the .surplus of the produce of the wheat, after discharging the sum for which it was pledged, ihe .Defend- ant could not, under these circumstances, retain the surplus as against the vendors towards the liquidation of his general balance due to Thomas the vendee. If this view of the case be, as I think it is, correct, it was proper for the decision of a Court of equity, and the appeal must be dismissed with •costs." 488 EIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 board the purchaser's own ship, that is an absolute delivery — the same as if placed in his cart. The shipper may, however, protect himself by taking a bill of lading making the goods deliverable to his own order only; but in that case the property would pass as soon as he indorsed the bill of lading generally." In the same way. Lord Chelmsford, in Schotsmans v. Lancashire and Yorkshire Railway Company, Law Rep. 2 Ch. 337, says in ref- erence to the case of Mitchel v. Ede, 11 Ad. & E. 888: "It appears to me that this case was not decided upon the distinction between a general ship and one sent for the express purpose of receiving the sugar; for if it had been a question of stoppage in transitu upon a sale of the sugar to the D'efendants, and it had been delivered into the Defendants' own vessel, sent out for the purpose, although the property in the goods would have passed, yet the effect of the de- livery would have been restrained by the indorsement of the bill of lading, and the right to stop in transitu would have been pre- served." Much stress has been laid upon those words "free on board," as being an indication of the nature of the contract — that the transitus was at an end when the goods were on board the purchaser's own ship. But those words cannot have any such effect in a contract framed as this was, where the intention, as expressed by the con- tract, was, that there was to be no delivery on board the purchaser's own ship, as the vendor was to find a ship (although at the cost of the purchaser), and send the ship, with the cargo, to London, where the transitus would be at an end. That contract, however, was waived by parol, by the arrangement subsequently made, under which the vendor was no longer to find a ship, but was discharged from that part of his engagement. A ship chartered by the purchaser is sent out from London for the purpose of taking on board this cargo, subject, of course, to the payment of freight when the cargo should be delivered pursuant to the charter party. That being so, the ven- dor takes the additional precaution, notwithstanding the purchaser charters the ship, of taking the bill of lading in this form : "Shipped by him (the vendor), to be delivered at the port of London, unto order or to assigns." The bill of lading having been taken in this form the bills of exchange are drawn and accepted, and while the ship was on her voyage the bill of lading was indorsed in blank — a circumstance \ery strongly relied upon by Mr. Druce — and de- livered to the purchaser in exchange for the accepted bills of ex- change. No doubt the property in the goods would pass, but that does not determine the question whether the transitus was at an end. With the single exception that the bills of lading are made out in the name of the vendor to his order, or assigns, and then by him indorsed in blank, the case does not really differ from Bohtlingk V. Inglis, 3 East, 381, nor from Spalding v. Ruding, 6 Beav. 376, where Sec. 2) STOPPAGE IN TRANSITU 489 the purchaser had the bill of lading handed over to him so as to vest the property in him. //Does, then, the shipping of goods, in the name of the vendor, and 'endorsing over the bill of lading, show an animus on the part of the vendor to/part with his lien and abandon his right of stoppage in transitu ? /l. R. A. 867, 82 Am. St. Eep. 728.) On the 28th of July, 1897, at the city of New York, the plaintiff sold his yacht lola to the defendant for the sum of $2,250, by an executory contract which impliedly provided that the title should not pass until the purchase price should have been fully paid. The de- fendant refused to complete his purchase, whereupon the plaintiff gave him written notice that he should sell the yacht "either by pub- 2 In Moore v. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692 (1898) Martin, J., said: "It is to be observed that in many of the cases cited it has been said that in thus selling the property the vendor acts as the agent of the vendee for that purpose. Clearly, the use of the words 'as agent of the vendee' was not intended as a determination that the relation between the parties was that which ordinarily exists between a principal who owns property and an agent who may be authorized to manage or sell it. But it is a general expression which has been somewhat inaccurately used to define the right of a vendor to make a resale and hold the vendee responsible for his loss. It is quite manifest that a resale made under such circumstances is not made by the vendor strictly as the agent of the vendee, but he acts for himself in disposing of the property for the purpose of ascertaining the actual damages he may sustain. Doubtless in making it the vendor would be bound to sell within a reasonable time, to exercise good faith to effect a sale at the best price he could obtain, to follow any proper instructions the vendee might give as to the time and manner in which it should be made, and to give credit upon the eontrac-t price for the amount received. His duties in making the sale may, in some respects, resemble those of au agent, and thus the expres- sion that he acts 'as the agent of the vendee' has arisen. That he owes the vendee the duty to thus conduct the sale is clear, but that his acts in making it can be properly regarded as the acts of an agent, as that word is generally understood, is quite otherwise. Surely the fact that a vendor might seek this remedy against an insolvent or doubtful vendee, would not confer upon the latter such a title as would enable him to demand and hold the property without complying with the terms of the contract. To say then that the vendor becomes the agent of the vendee in making the sale is not quite correct, and is to be regarded at most as a mere fiction of law, and the bene- ficial title docs not pass to the vendee." Sec. 3) RESALE AND RESCISSION 531 lie sale at auction, or private negotiation, whichever in my judgment will result in obtaining the most favorable price, and in the event of any deficiency in the sum so obtained and the contract price as agreed upon as per contract of July 28th, 1897, namely, $2,250, I shall hold you for such deficiency." The defendant paid no atten- tion to this notice, and had no further communication with the plain- tiff at any time on the subject of selling the yacht. The plaintiff promptly placed the vessel in the hands of an ex- perienced yachtsman for sale, but after due effort no sale could be made, although she was advertised in a prominent New York daily newspaper every Sunday during the months of August and Septem- ber. Thereupon the plaintiff placed her in the hands of a public auctioneer for sale at auction, and on the 29th of September gave the defendant personal notice in writing that she would be sold at auction on the 6th of October, 1897, at 1 o'clock p. m., at the store of the auctioneer, No. 29 Burling Slip, in the city of New York. In the advertisement of the auctioneer she was fully and accurately described, and notice was given that she could be "seen at Atlantic Yacht Club Basin, foot of 55th street, Brooklyn." At the time and place named she was sold at auction in the usual way to an agent of the plaintiff for $1,100, which was the highest, but not the only, bid, as a stranger had run her up to $1,050. The expenses of the sale were $90, of which $40 was for advertising, handbills, and post- age, and $50 was for the services of the auctioneer. The plaintiff credited the net proceeds of the sale upon the pur- chase price, and sued the defendant for the balance, amounting to $1,240. The defendant, in his answer, pleaded a general denial, and also that he was induced to purchase the yacht by certain fraudulent representations made by the plaintiff as to her condition, but on the trial he gave no evidence in support of that allegation or any other. When the plaintiff rested, after proving the foregoing facts, the trial court, upon motion of the defendant, directed a verdict for the plaintiff for nominal damages only, and an exception was duly taken. The jury rendered a verdict for six cents, and, the judgment entered accordingly having been affirmed by the appellate division, the plain- tiff came here. Vann, J. When the vendee of personal property, under an execu- tory contract of sale, refuses to complete his purchase, the vendor may keep the article for him, and sue for the entire purchase price ; or he may keep the property as his own, and sue for the difference between the market value and the contract price ; or he may sell the property for the highest sum he can get, and, after crediting the net amount received, sue for the balance of the purchase money. Moore V. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692; Dustan V. McAndrew, 44 N. Y. 72. While the courts below recognized this rule, they did not apply it; for they held that the sale at auction was no sale at all, because 532 RIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 a man cannot sell to himself. This would be true of an attempt to make a private sale to one's self, but it is not true of a sale at pub- lic auction, fairly conducted by a licensed auctioneer, and made at a reasonable time and place, after adequate opportunity to see the prop- erty, due advertisement to the public, and personal notice to the ven- dee, when the real purpose is to ascertain the value of the property. The law is satisfied with a fair sale, made in good faith, according- to established business methods, with no attempt to take advantage of the vendee. Such, as the jury might have found, was the sale under consideration. The primary object of the sale was not to pass title from the vendor, but to lessen the loss of the vendee. The sub- ject of the sale had no market value, and the amount for which it could be sold depended largely upon taste and fancy. A public com- petitive sale by outcry to the highest bidder, duly advertised and made upon notice to the vendee, is a safer method of measuring the damages than a sale by private negotiation, which has been held suffi- cient. Van Brocklen v. Smeallie, 140 N. Y. 70, 35 N. E. 415. A fair public sale, in the absence of other evidence, is competent evi- dence of value. The plaintiff did not conduct the sale himself, but placed the yacht in the hands of a public auctioneer for sale, without reservation, on account of whom it might concern. While the auctioneer was his agent, he could not lawfully control him so as to prevent an honest sale. The defendant had notice and an opportunity to protect him- self, yet he asked for no postponement, made no request, gave no instructions, and did not even appear at the sale. If the plaintiff's agent had refrained from bidding, the property would have gone to a stranger for a less sum than it finally brought, and yet in that event even, according to the defendant's theory, the sale would have been valid. The fact that the plaintiff outbid all competitors did not render the sale invalid ; for he had a right to bid, provided he took no advantage by trying to prevent others from bidding, or by disregarding any reasonable request of the defendant, or in any other way. If he had acted as auctioneer, or in collusion with the auction- eei% or there was any evidence of furtive effort on his part, or any- thing to challenge the fairness of the sale, the action of the trial court in virtually withdrawing the case from the jury might have been jus- tified ; but the mere fact that he was the highest bidder at a public sale, the fairness of which is not questioned in any other respect, did not warrant the direction for nominal damages only. The ob- ject of the sale was to measure the damages caused by the default of the defendant, and they were diminished, instead of being in- creased, by the action of the plaintiff. We forbear further discussion, because the question is no longer open in this court, as it was involved in a case recently decided by us upon careful consideration after full discussion by counsel. Moore V. Potter, 155 N. Y. 481, 50 N. E. 271, 63 Am. St. Rep. 692. In Sec. 3) RESALE AND EESCISSION 533 that case, as in this, the property was sold at auction to a representa- tive of the vendor, and the point was distinctly made on the argu- ment before us that as the vendor was the real purchaser, "the sale was colorable only, and absolutely without effect upon the rights of the parties." While we did not discuss the question in our opinion, it was necessarily involved, was passed upon in consultation, and decided. Both upon principle and authority we think that the amount for which the yacht was struck off to the vendor at an auction sale fairly conducted, upon notice to the vendee, with no suspicion of fraud or undue advantage, was lawful evidence of the value of the yacht, and presented a case for the consideration of the jury. '' The judgment should therefore be reversed, and a new trial granted, with costs to abide the event. HaighT, J. (dissenting)." The rule of damages for a breach by the buyer of a contract for the sale of personal property is well set- tled. The seller may store the property for the buyer, and sue for the purchase price ; or may sell the property as agent for the vendee, and recover any deficiency resulting; or may keep the property as his own, and recover the difference between the contract price and the market value at the time and place of delivery. If he sells as agent, he may sell either at public or private sale; but it must be a sale made, in good faith, and in such manner as to produce most nearly the full value of the property. Selling as agent, he cannot sell to himself. Selling involves contracting, and a person cannot contract with himself and bind others thereby. If he could sell to himself publicly, he could privately, and thus be able to perpetrate a fraud or an injustice which might be difficult to detect or prove. Van Brocklen v. SmeaUie, 140 N. Y. 70, 75, 35 N. E. 415; Pol- len v. Le Roy, 30 N. Y. 549, 557 ; Dustan v. McAndrew, 44 N. Y. 78; Hayden v. Demets, 53 N. Y. 426; Bain v. Brown, 56 N. Y. 285. * * * I think the judgment should be affirmed. Parkbr, C. J., and BartlETT and Martin, JJ., concur with Vann, J. Gray and Werner, JJ., concur with HaighT, J. Judgment reversed, etc. PRATT V. S. FREEMAN & SONS MFG. CO. (Supreme Court of Wisconsin, 1902. 115 Wis. 6^8, 92 N. W. 368.) The complaint was to the following effect: February 16, 1900, the Central Navigation & Construction Company of the state of Oregon, contracted with defendant, of the city of Racine, Wiscon- sin, for a steam boiler to be manufactured and delivered to such company by May 1st, following, for the sum of $6,000, one third being paid at the date of the contract and the balance to be paid one 21 Part of the dissenting opinion is omitted. 534 RIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 half at the time of the delivery of the boiler and the other in thirty days thereafter. In November, 1900, defendant being in default as to the delivery of the boiler but having it ready therefor, refused the navigation company's demand for the privilege to inspect it pre- liminary to shipment, said company offering at the time of such de- mand to pay the balance due therefor. Subsequent to the date last mentioned, defendant sold the boiler to other parties, pretending to have rescinded the contract with the navigation company. Novem- ber 20, 1900, and before this action was commenced, such company, for value, assigned its right to recover the down-payment of $2,000 to plaintiff. December 6, 1900, plaintiff notified defendant of such assignment and demanded payment of said sum with interest from the time the same came to his hands, which demand was refused. Judgment was asked for $2,000 with interest and costs. Defendant answered admitting the making of the contract as al- leged, and the completion of the boiler for shipment, but alleged that prior to such completion the navigation company became in- solvent; that defendant then exercised its right to hold the boiler for full payment of the purchase money, duly notifying said company of its attitude in the matter ; that thereafter, the navigation company having neglected to pay for the property, defendant exercised its legal right to sell the same for the account of such company, realiz- ing $150 over and above the amount due, which, before the com- mencement of this action, was tendered to plaintiff, who refused to accept the same. The evidence upon the trial was to the effect that the breach of contract by defendant, in failing to complete the boiler for shipment May 1, 1900, was waived; that the navigation company, before the boiler was ready for shipment, became insolvent and was notified that by reason thereof the boiler would not be shipped in advance of full payment therefor; that the boiler was such that there were very few customers for it; that defendant sold it, as alleged in the answer, because of the vendee's insolvency and its neglect to take and pay for the property as required; that $150 was realized over and above the amount due for the boiler, after paying expenses of sale. No complaint was made in the case but that a fair price was obtained for the boiler, but evidence was produced to show that a still better price might have been secured ; that the property was sold for $4,300 cash, and an offer of $4,400, $400 down and $1,000 per month for four months was refused. No complaint was made by evidence in the case as to the manner in which the sale was ef- fected, in that it was at private sale, except that defendant allowed a commission to the person who acted as its agent in the matter, while he also obtained a commission from the purchaser. It appeared, however, that the commission was reasonable except for the fact that the agent took pay from both vendor and purchaser, and further that defendant allowed the commission without knowing Sec. 3) RESALE AND RESCISSION 535 that the agent was getting pay from both sides of the trade. There was evidence to the efifect that the navigation company, about No- vember 1, 1900, made arrangements with a party to take and pay for the boiler, and notified defendant that it was ready and willing to take the property and pay the sum of $3,067 as the balance due, which was considerably less than the real balance; that at the time of such offer such company had knowledge that arrangements had been partially, made to sell the boiler to other parties, that it was on car ready for shipment, and that the true balance due would have to be paid by November 10 or the property would go forward to the proposed purchaser; that upon the day this notice was sent a boiler inspector from Chicago, representing a party in that city, ap- plied for leave to inspect the boiler and was refused because he did not present any evidence of authority in the matter; that several telegrams passed between defendant and the navigation company, but no tender of payment of the balance due was made, nor was any suggestion made that the company, or any one in its behalf was ready to pay the true balance due ; that after the company was noti- fied that the boiler would be held for or in its behalf till November 10, and its apparent insistence upon taking the same without paying the full amount due therefor, and defendant becoming informed, as it supposed, through the telegraphic correspondence with its agent and the navigation company, that the latter's activity was to aid a rival of defendant's proposed purchaser to obtain possession of the boiler, it withdrew the offer to hold the property till November 10, and closed the deal with their customer. Th6 verdict was for plaintiff for $150. Judgment was rendered accordingly. Marshall, J. The view we take of this case renders some of the questions discussed in the briefs of counsel unimportant, if not en- tirely immaterial to the vital question to be solved. By looking at the facts disclosed in the light of the true situation of parties to an executory sale contract, authorizing the vendee to sell the sub- ject thereof to a third person, and the purpose and effect of making such sale, the case will appear to be a very simple one and the as- signments of error require no very lengthy treatment. If a person contracts to sell and deliver property to another on credit, not retaining any lien thereon, specifically, to secure the pur- chase money, the presumption is that he acts upon the belief that the latter is solvent, and on condition that he will so remain. If there is a breach in that regard before control of the property passes to the buyer, the seller may withdraw from the contract the element of credit and insist that it shall stand only as an agreement to sell for cash upon delivery of the property, and that the contract as so modified phall be executed ; and upon the buyer's neglect or refusal to perform, the seller may have a choice of several remedies for the wrong: "The seller may store the property for the buyer and sue 536 EIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 for the purchase price; or may sell the property as agent for the vendee and recover any deficiency resulting; or may keep the prop- erty as his own and recover the difference between the contract price and the market price at the time and place of delivery." Van Brock- len V. Smeallie, 140 N. Y. 70, 75, 35 N. E. 415. In case he elects to take the second remedy mentioned, the sale of the property is but a mere means of determining the precise amount of the damages caused by the breach, while the incidental effect is to satisfy the loss suffered by the vendor so far as the proceeds of the sale will accomplish that result. Every executory contract for the sale of property upon credit is presumed to have embodied in it the features referred to. Mechem, Sales, § 1647. That is elemen tary. It is a mistake to suppose that when an executory contract of the character we are considering has been once rightfully modified by eliminating therefrom the element of credit, such element can be revived merely by subsequent ability of the executory vendee to pay for the property. Notwithstanding such subsequent ability, his rights will remain the same as if the contract had originally con- templated cash payment to the vendor upon delivery of the property. It is also a mistake to suppose that when the modified contract is once breached by the neglect or refusal of the vendee to take the property and pay therefor at the place of delivery, giving the vendor the right to proceed to recover damages for the wrong, he can be debarred from pursuing his remedy by less than an actual tender to him of the amount due upon the contract. Immediately upon the vendee's refusing or neglecting, when required to do so, to comply with the sale contract by paying for the property and accepting de- livery thereof, the cause of action of the vendor becomes complete and his right to enforce the same by such appropriate remedies as he may elect to pursue perfect. If he chooses to liquidate his damages by a sale of the property and incidentally to recover his loss so far as the proceeds of the sale will effect that result, failure to give notice of the intention to sell the property, and failure to do that which is reasonably necessary to secure the best price obtainable therefor, does not give the vendee any right to rescind his contract, but renders the result of the sale not binding on him as to the amount of the vendor's loss by the former's breach, and he will remain liable to the latter for the full market value of the property less his actual damages, independently of the sale. The sale in such circumstances is but a method, as be- fore indicated, of enforcing a right to damages for breach of con- tract, and of making evidence of the precise amount of such dam- ages. The sale, when properly conducted, the executory vendee hav- ing been so notified of the intention to make it as to give him rea- sonable opportunity to prevent it by paying his debt, constitutes a basis, binding on him, for computing the damages for which he is liable. Sec. 3) RESALE AND RESCISSION 537 The rule governing the subject was laid down in T. B. Scott Lum- ber Co. V. Hafner-Lothman Mfg. Co., 91 Wis. 667, 65 N. W. 513, in these words : "If a resale is made and the evidence shows that all reasonable efforts were made to secure the best price obtainable, or that the price obtained was a fair one, it settles the question of the market value, so that the damages become liquidated." The idea is that when the executory vendee of property breaks his agreement to take and pay for the property, the measure of dam- ages is the difference between the market value thereof and the con- tract price ; but the vendor must necessarily establish that as a basis for his claim. If he sues for his damages without selling the prop- erty, or without selling the same with proper regard to the rights of the executory vendee, he takes upon himself the burden of establish- ing the fair market value of the goods at the time of the breach. So it is said that notice to the vendee of the vendor's intention to make the sale, and the sale, with proper regard to the interests of the former, merely create definite and conclusive evidence of such market value. T. B. Scott Lumber Co. v. Hafner-Lothman Mfg. Co., su- pra; Gehl V. Produce Co., 105 Wis. 573, 81 N. W. 666; Davis Sul- phur Ore Co. V. Atlanta Guano Co., 109 Ga. 607, 34 S. E. 1011; Mechem, Sales, §§ 1649, 1650. There is no controversy here but that the Central Navigation & Construction Company, before the boiler was ready for delivery, became hopelessly insolvent. Consequently there can be no con- troversy but that respondent had the right to withdraw from the contract the element of credit. It did so. There is also no controver- sy as to whether, upon that being done, it required the navigation company to comply with the modified agreement by a day named or it would proceed to enforce its legal remedy for the breach by sell- ing the boiler. Manifestly, at that stage in the relations between the parties there was but one way for the navigation company to prevent respondent from treating the contract as broken, viz. : by complying with it; and but one way of doing that, viz.: by seasonably tender- ing to respondent at the place for delivery of the boiler, the balance of the agreed purchase money, being the sum of $4,000. Mere abil- ity to do so, or the making of an arrangement to obtain money there- for, did not affect respondent's rights in the slightest degree. That answers effectually appellant's first complaint that the trial : court erred in rejecting evidence going to show that at the time of the resale parties stood ready to advance to the company money nec- essary to pay for the boiler; also the second assig-nment of error, that the court should have directed a verdict for plaintiff since there was no right to sell the boiler in the face of the fact that the navi- gation company wa3 able to take and pay therefor. It was given ample notice that the property would be sold unless the full amount of $4,000 was paid. Not only was payment not made as demanded, but notice was sent to respondent that the navigation company was 538 RIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 willing to pay only $3,067, $933 less than the amount due. The sum and substance of its several communications to respondent prior to the resale was that it insisted upon taking the property without fully complying with the modified contract, and that respondent should desist from efforts to liquidate its damages notwithstanding no tender was made of the full amount due for the property. It seems clear that the attitude of appellant's assignor was such that respondent was fully justified in regarding the contract with such assignor broken. It follows that it had the legal right to liquidate its dam- ages by a resale of the property. Timely notice to such assignor of its intention to do so, and the failure of such assignor to respond by tendering the amount due for the boiler, was sufficient to put the latter in default. Notice of the time and place of the sale was not necessary. Mechem, Sales, § 1637. The point is made that the navigation company did not make de- fault, because it had the right to inspect the boiler before paying therefor and that it was not allowed to do so. The conclusive an- swer to that is that, before any demand in that regard was made, the company indicated, as before shown, a willingness to pay only $3,067 as the balance due, while the true balance was $4,000, and that its attitude thenceforward did not change, and that no sum whatever was actually tendered respondent. The further reason is suggested, why a verdict should have been directed for plaintiff, that the navigation company was not given a reasonable time to take the boiler after the element of credit in the executory contract was eliminated; that respondent proceeded with undue haste to disable itself from complying with the modified con- tract. That position seems to be untenable in view of the undis- puted fact, several times alluded to, that respondent did not treat the contract as broken till the company, in response to the former's de- mand for the full payment of the balance of $4,000, assumed an attitude in effect refusing to pay that sum. It is further suggested that respondent breached the contract and gave the navigation company a right to rescind and sue for the down- payment on the boiler because of the sale thereof for $4,300 cash in the face of an offer of $4,400 part cash and the balance on time extending over four months. In that counsel for appellant loses sight of the fact that such a sale is primarily to make evidence of the precise amount of damages suffered by the breach which gives rise to the right to make the sale. Irregularities in procedure to effect the sale do not forfeit the right of sale, but render the result not binding on the parties concerned as evidence. That is all. The rule on the subject was clearly worked out, as it seems, in T. B. Scott Lumber Co. v. Hafner-Lothman Mfg. Co., supra, thus: "In an action for damages for refusal on the part of the vendee to accept goods as agreed in his contract of purchase, the measure of damages is the difference between the market value of such goods Sec. 3) RESALE AND RESCISSION 539 at the time of the breach and the price the vendee agreed to pay ; and when a sale is made within a reasonable time, though made at auc- tion, * * * the price obtained is evidence to be considered on the question of the market value at the time of such breach; and if a resale is made and the evidence shows that all reasonable efforts were made to secure the best price obtainable, or that the price ob- tained was a fair one, it settles the question of the market value so that the damages become liquidated." \ In the light of that the record does not disclose any reasonable ground for complaint in regard to the manner the sale was conducted. There is no controversy but that, in view of the nature of the prop- erty and the limited number of customers therefor, a private sale, through an agent competent to manage such a transaction, was proper ; and there is no evidence that the amount realized was not the fair market value of the boiler. If we should conclude that re- spondent did not proceed in a way reasonably calculated to secure the best price obtainable for the property, the result would still stand as evidence of the market value thereof and warrant the verdict of the jury, since there was no opposing evidence. But we cannot so conclude. The only circumstance pointed to as indicating that the sale was not fairly conducted is that a cash purchaser was accepted, while a customer stood ready to take the property for $100 more, paying part cash and the balance in one, two, three, and four months. That point is hardly worthy of serious consideration. Obviously, the only purpose of the sale being to make evidence of market value binding upon the navigation company, a cash sale was the only one proper. It would be a very novel proceeding to attempt to prove market value of property, as between parties adversely situated, by what the property would sell for on credit. There is a further assignment of error in that the court refused to permit proof that the failure of respondent to comply with its contract on time tended to produce the insolvency of the navigation company and its consequent inability to take and pay for the boiler. The insistence of the navigation company upon taking the property notwithstanding the breach as to time of completing it waived any right it might otherwise have had to rescind the contract. That seems plain. That left it bound to perform the contract with the element of credit removed, not waiving, however, any claim it might have for damages because of respondent's breach. No such claim for damages was suggested upon the trial as an excuse for not paymg the full amount due respondent previous to the sale, nor as having been assigned to appellant, nor as having any existence as a justifica- tion for failure to take the property according to the contract. A person cannot waive his right to rescind a contract because of a breach thereof by the other party thereto, and at the same time, rightfully, himself breach it, giving such other a right to a remedy for his loss occasioned thereby, and then rescind the contract be- 540 EIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 cause such other invokes such remedy. Benj. Sales, § 762. The navigation company having elected to stand by the contract not- withstanding the breach as to time of completing the boiler, the right of respondent vi^as not impaired to enforce it, holding the com- pany liable for damages for any breach on its part, and being liable to the company for any damage caused to it by a violation of its right as regards the time of the completion of the boiler. The doc- trine of election of remedies applies, that one having been chosen, all others are deemed waived. Warren v. Landry, 74 Wis. 144, 42 N. W. 247; Crook v. Bank, 83 Wis. 31, 52 N. W. 1131, 35 Am. St. Rep. 17; Bank of Lodi v. Washburn Electric Light & Power Co., 98 Wis. 547, 74 N. W. 363 ; Carroll v. Fethers, 102 Wis. 436, 78 N. W. 604; Barth v. Loeffelholtz, 108 W^is. 562, 84 N. W. 846; Ful- ler-Warren Co. V. Harter, 110 Wis. 80, 85 N. W. 698, 53 L. R. A. 603, 84 Am. St. Rep. 867; Clausen v. Head, 110 Wis. 405, 85 N. W.. 1028, 84 Am. St. Rep. 933. Complaint is made because the court did not rule that respondent was not entitled to charge the navigation company with $150 paid the agent who sold the boiler, since he also took pay as agent of the purchaser. We apprehend it would be a sufficient answer to that to suggest that if such were the case it could not avail appellants for support of his cause of action for damages based on rescission of the contract ; but no reason whatever is perceived why respond- ent is not entitled, under the circumstances, to charge the amount paid its agent as part of the reasonable expenses of converting the Ijoiler into money. The money was paid in the honest exercise, with due care, of the right to sell the property, and that satisfied respond- ent's duty to the navigation company. It was by no means an in- surer of the company's interests. It was only required to proceed honestly, using all the care that could be reasonably expected under the circumstances, to secure the best price obtainable for the prop- erty. Error is predicated on the refusal of the trial court to give this instruction : "In so selling the defendant must act in good faith and under such circumstances as will be best calculated to produce the fair value of the property. In determining whether such sale was made in good faith you may consider the absence of notice to the Central Navigation & Construction Company of the time and place of sale, which is important, and tends to show a lack of the good faith required." That was properly refused upon several grounds : (1) Notice of the time and place of the sale, to the navigation company, was not essential, in any event, as regards the right of respondent to liquidate its damages. Mechem, Sales, §. 1637. (2) Since it was proper to sell the boiler at private sale (T. B. Scott Lumber Co. v. Hafner- Lothman Mfg. Co., supra), notice of the time and place of sale was obviously impracticable. (3) It is improper to state to a jury that ( Sec. 3) RESALE AND RESCISSION 541 any particular evidentiary circumstance is important as bearing upon the existence or non-existence of some material disputed fact, unless that is so as a matter of law; and such was not the case in the in- stance under discussion. This instruction was given, and error assigned thereon: "If from the conduct of said company the defendant had a right to reasonably believe that said company did not intend to pay said sum, or were unable to pay the same, then you may find that they were acting in good faith in electing to sell to others." That indicates that the trial court did not have a very clear con- ception of the purpose bf the sale, — that the election to make the «ale was a mere indication of an election of remedies for the recov- ■ery of damages for a breach of contract. Since respondent had ai right to treat the contract as broken, it was not bound to consult the! navigation company at all, or to regard its interests in merely choosing j a remedy for the breach. If the instruction be viewed as indicating that respondent was burdened with any condition as regards its right to make a choice of remedies, it was manifestly wrong, but non- prejudicial to appellant. If it be viewed as referring to the action of respondent in treating the contract of the navigation company as troken, then it is free from error, since, as we have seen, after noti- 'fying the company that cash upon delivery of the property would be required and a consummation of the contract in that way insisted ■upon within a time named, the company's attitude was such as to indicate that it refused to do so. The court used language to the jury to the effect that, since re- spondent elected to sell the property, though it was bound in making* the sale to proceed in such a manner as was reasonably calculated to secure the best price obtainable therefor, it was not bound to ac- cept the highest price offered regardless of its own interests, so long as the rejection of such price was consistent with the interests of the navigation company. As applied to the facts to which the court un- doubtedly referred, the instruction was certainly free from error. Moreover, we fail to see any error in it as the statement of an ab- stract proposition of law. Certainly, respondent was not obliged to accept an offer to buy the property on credit. The court might well have gone further and said that respondent was not bound to sell on credit at all. The right to make the sale necessarily included the right to make it so as to convert the property into money, not into mere promises to pay money. We apprehend that if at all points the court had kept definitely in mind that an election to treat the contract as broken was one thing, and choosing and enforcing a remedy for the loss caused by the breach another thing, and that the manner of enforcing it went only to the character of the result as evidence of the amount of the loss caused by the breach, the instructions given to the jury would have been somewhat different. But we fail to perceive any prejudicial 542 RIGHTS OF UNPAID SELLER AGAINST THE GOODS (Ch. 5 error in those we have specially referred to, or any of the others. Justice seems to have been done in the case. The judgment is affirmed.^^ BRIDGFORD v. CROCKER. (Court of Appeals of New York, 1875. 60 N. Y. 627.) This was an action, among other things, upon a check drawn by defendants' firm, and transferred to plaintiff by the payee, upon a contract for the sale, by the former, to Gavin & Kelly, of 500 head of cattle. The check was given to Gavin to purchase cattle for de- fendants. The trial court held, that, under the circumstances, plain- tiff could not recover, unless, upon proof, that defendants assented to the use made of the check; and submitted this question to the jury. The court here held, that the evidence was sufficient to war- rant such submission. Gavin & Kelly received all of the cattle, except 126 head ; they paid plaintiff, including the' check, more than sufficient to pay for the cattle delivered. Plaintiff claimed damages for the refusal to receive the residue, and the court held they were entitled, as dam- ages, to the difference between the market-value, at the time Gavin was to receive them, and the contract-price. It appeared that plain- tiff, after holding them until spring, sold them at an enhanced price. Defendants claimed the benefit of the sale. Held, that the ruling of the court was correct ; that plaintiff had the election either to tender the cattle and recover the contract-price, or to keep the cat- tle as his own, and recover his damages, to be determined in ac- cordance with the rulings of the court (Dustan v. Andrews, 10 Bosw. [N. Y.] 130, questioned) ; and that it mattered not, and could not be taken into consideration what plaintiff received upon a subsequent sale of the cattle ; if the cattle rose in the market, after the failure to perform, the plaintiff, not the defendants, was entitled to the benefit of the enhanced value. GrovER, J., reads for affirmance. All concur. Judgment affirmed. ft 2 2 In Wrigley v. Cornelius, 162 111. 92, 44 N. E. 406 (1896), Craig, J., said: "There may be, and doubtless are, eases where the vendor would be required to give the vendee notice before making a sale. But the conduct of the vendee may be such that notice will be waived. Where, as was the case here, there is an absolute refusal on behalf of the vendee to receive the goods, and the vendor is notified to do what he may choose with them, no notice of re-sale vrill be required." Compare Ridgley v. Mooney, 16 Ind. App. 362, 45 N. E. 348 (1896). And see Williston, Sales, § 548. Ch. 6) EEMEDIES OF THE SELLER ON THE CONTRACT C43 CHAPTER VI REMEDIES OF THE SELLER ON THE CONTRACT SECTION 1.— IN GENERAI. ATKINSON V. BEEL. (Court of King's Bench, 1828. 8 Barn. & C. 277.) See ante, p. 89, for a report of the case. BEMENT V. SMITH. (Supreme Court of New York, 1836. 15 Wend. 493.) This was an action of assumpsit, tried at the Seneca circuit in November, 1834, before the Hon. Daniel Moseley, one of the cir- cuit judges. In March, 1834, the defendant employed the plaintiff, a carriage maker, to build a sulky for him, to be worth ten dollars more than a sulky made for a Mr. Putnam ; for which he promised to pay $80, part in a note against one Joseph Bement, a brother of the plain- tiff, for the sum of ten or eleven dollars, and the residue in his own note, at six or twelve months, or in tlie notes of other persons as good as his own. In June, 1834, the plaintiff took the sulky to the residence of the defendant, and told him that he delivered it to him, and demanded payment, in pursuance of the terms of the contract. The defendant denied having agreed to receive the car- riage. Whereupon the plaintiff told him he would leave it with a Mr. De Wolf, residing in the neighborhood; which he accordingly did, and in July, 1834, commenced this suit. It was proved that the value of the sulky was $80, and that it was worth $10 more than Putnam's. The declaration contained three special counts, sub- stantially alike, setting forth the contract, alleging performance on the part of the plaintiff, by a delivery of the sulky, and stating a refusal to perform, on the part of the defendant. The declaration also contained a general count, for work and labor, and goods sold. The judge, after denying a motion for a nonsuit, made on the assumed grounds of variance between the declaration and proof, charged the jury that the tender of the carriage was substantially a fulfillment of the contract on the part of the plaintiff, and that he was entitled to sustain his action for the price agreed upon be- Mi EBMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 tween the parties. The defendant's counsel requested the judge to charge the jury that the measure of damages was not the value of the sulky, but only the expense of taking it to the residence of the defendant, delay, loss of sale, &c. The judge declined so to charge, and reiterated the instruction that the value of the arti- cle was the measure of damages. The jury found for the plaintiff, with $83.26 damages. The defendant moved for a new trial. The cause was submitted on written arguments. Savagb, C. J. The defendant presents no defence upon the mer- its. His defence is entirely technical, and raises two questions: 1. AMiether the tender of the sulky was equivalent to a delivery, and sustained the averment in the declaration that the sulky was deliv- ered; and 2. Whether the rule of damages should be the value of the sulky, or the particular damages to be proved, resulting from the breach of the contract. There is no question raised here upon the statute of frauds. The contract is therefore admitted to be a valid one ; and relating to something not in solido at the time of the contract, there is no question of its validity. The plaintiff agreed to make and deliver the article in question at a particular time and place, and the defendant agreed to pay for it, on delivery, in a particular manner. The plaintiflE made, and, as far as was in his power, delivered the sulky. He offered it to the defendant at the place and within the time agreed upon. It was not the plaintiff's fault that the delivery was not complete, that was the fault of the defendant. There are many cases in which an offer to perform an executory contract is tantamount to a per- formance. This, I apprehend, is one of them. The case of Towers v. Osborne, 1 Strange, 506, was like this. The question here presented was not raised, but the defendant there sought to screen himself under the statute of frauds. The defend- ant bespoke a chariot, and when it was made, refused to take it; so far the cases are parallel. In an action for the value, it was ob- jected that the contract was not binding, there being no note in writing, nor earnest, nor delivery. The objection was overruled. In that case the action was brought for the value, not for damages for the breach of contract. This case is like it in that particular; this action is brought for the value, that is, for the price agreed on; and it is shown that the sulky was of that value. The case of Crookshank v. Burrell, 18 Johns. 58, 9 Am. Dec. 187, was an action in which the plaintiff declared against the defend- ant on a contract whereby the plaintiff was to make the woodwork of a wagon, for which the defendant was to pay in lambs. The defendant was to come for the wagon. The question was upon the statute of frauds. Spencer, Ch. J., states what had been held in some of the English cases, Clayton v. Andrews, 4 Burr. 2101, and Cooper v. Elston, 7 T. R. 14, that a distinction existed between Sec. 1) IN GENERAL 545 a contract to sell goods then in existence, and an agreement for a thing not yet made. The latter is not a contract for the sale and purchase of goods, but a contract for work and labor merely. The case of Crookshank v. Burrell is much like this, with this exception: there the purchaser was to send for the wagon; here the manufacturer was to take it to him. There it was held that the manufacturer was entitled to recover, on proving that he had made the wagon according to contract : here it is proved that the sulky was made, and taken to the place of delivery according to contract. The merits of the two cases are the same. It seems to. be conceded that an a-verment of a tender of the sulky by the plain-V tiff, and a refusal of the defendant to receive it, would have been' sufficient; and if so, it seems rather technical to turn the plaintiff out of court, when he has proved all that would have been required of him to sustain his action. The plaintiff, in his special counts, does not declare for the sale and delivery, but upon the special contract; and herein this case is distinguishable from several cases cited on the part of the de- fendant, and shows that it was not necessary to have declared for goods bargained and sold. It seems to me, therefore, that the judge was right in refusing the nonsuit, and in holding that the evidence showed substantially a fulfillment of the contract. The variance as to the amount of Joseph Bement's note, I think, is immaterial; but if otherwise, it may be amended. The alleged variance as to the price of the sulky is not sustained by the facts of the case. The only remaining question, therefore, is as to the damages which the plaintiff was entitled to recover. It is true that the plaintiff does not recover directly as for goods sold ; but in the case of Towers v. Osborne the plaintiff recovered the value of the chariot, and in Crookshank v. Burrell the recovery was for the value of the wagon. The amount of damages which ought to be recovered was not the question before the court in either of those cases ; but if the value of the article was not the true measure, we may infer that the point would have been raised. Upon principle, I may ask, what should be the rule? A mechanic makes an article to order, and the customer refuses to receive it : is it not right and just that the mechanic should be paid the price agreed upon, and the customer left to dispose of the article as he may? A contrary rule might be found a great embarrassment to trade. The me-l chanic or merchant, upon a valid contract of sale, may, after re- 1 fusal to receive, sell the article to another, and sue for the difference I between the contract price and the actual sale. Sands & Crump v. Taylor & Lovett, 5 Johns. 395, 410, 411, 4 Am. Dec. 374; Langfort V. Tiler, 1 Salkeld, 113, 6 Modern, 162. In the first of these cases, the plaintiffs sold the defendants a cargo of wheat. The defendants received part, but refused to re- WooDW. Sales — 35 546 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 ceive the remainder. The plaintiffs tendered the remainder, and gave notice that unless it was received and paid for, it would be sold at auction, and the defendants held responsible for any deficiency in the amount of sales. It was held, upon this part of the case, that the subsequent sale of the residue was not a waiver of the contract, the vendor being at liberty to dispose of it bona fide, in consequence of the refusal of the purchaser to accept the wheat. This case shows that where there has been a valid contract of sale, the vendor is entitled to the full price, whether the vendee receive the goods or not. I cannot see why the same principle is not applicable in this case. Here was a valid contract to make and deliver the sulky. The plaintiff per- formed the contract on his part. The defendant refused to receive the sulky. The plaintiff might, upon notice, have sold the sulky at auc- tion, and if it sold for less than $80, the defendant must have paid the balance. The reason given by Kent, Ch. J., 5 Johns. 411, 4 Am. Dec. 374, is that it would be unreasonable to oblige him to let the article perish/ on his hands, and run the risk of the insolvency of the buyer. But' if after tender or notice, whichever may be necessary, the vendor chooses to run that risk and permit the article to perish, or, as in this case, if he deposit it with a third person for the use of the vendee, he certainly must have a right to do so, and prosecute for the whole price. Suppose a tailor makes a garment, or a shoemaker a pair of shoes, to order, and performs his part of the contract, is he not entitled to the price of the article furnished? I think he is, and that the plaintiff in this case was entitled to his verdict. The question upon the action being prematurely brought before the expiration of the credit which was to have been given, cannot prop- erly arise in this case, as the plaintiff recovers upon the special con- tract, and not upon a count for goods sold and delivered. New trial denied.^ GORDON v. NORRIS et al. (Supreme Judicial Court of New Hampsliire, 1870. 49 N. H. 376.) Assumpsit, by Nathaniel Gordon against John L. Norris and George B. Neal, on account annexed, and for goods sold and delivered and goods bargained and sold, with a special count for not taking and paying for a quantity of hay alleged to have been sold by the plain- tiff to the defendants, on June 5, 1867, at $38 per ton. The suit was brought January 30, 1868, to recover the price of twenty-seven tons and six hundred pounds of hay sold, after deducting the siftn of $500, advanced towards it by the defendants. * * * a 1 See also Hayden v. Demets, 53 N. Y. 426 (1873). " Part of the statement of faots and ]iart of the opinion are omitted. Sec. 1) IN GENERAL 547 SargsnT, J. * * * The remaining question is as to the rule of damages that the referee should have adopted, whether in finding upon the special contract as we assume he did, he should have allowed the plaintiff as damages the whole of the contract price, or only the difference between the contract price, and the market price at the time the contract was broken. Sedgwick, in his work on damages (Sth Ed.) page 312, says: "When the vendee is sued for nonperformance of the contract on his part, in not paying the contract price, if the goods have been de- livered, the measure of damages is of course the price named in the agreement. But if their possession has not been changed, it has been doubted whether the rule of damages is the price itself, or only the difference between the contract price and the value of the article at the time fixed for its delivery. It seems to be well settled in such cases, that the vendor can resell them if he see fit, and charge the vendee with the difference between the contract price and that real- ized at the sale. "But if the vendor does not pursue this course, and without re- selling the goods, sues the vendee for his breach of contract, the ques- " tion arises, which we have already stated, whether the vendor can recover the contract price or only the difference between that price and the value of the goods which remain in the vendor's hands, and / the rule appears to be that the vendor can recover the contract price ' in full." He cites as an authority, Graham v. Jackson, 14 East, 498; which was upon a special contract to purchase three hundred tons of Cam- peachy log wood at £35. per ton, to be of real merchantable quality, and such as might be determined to be otherwise by impartial judges to be rejected. Under this contract the plaintiff, the vendor, had shipped the three hundred tons of log wood from New York and tendered it to the purchaser in- England. It was held that under that contract and the circumstances of the case, the vendee was bound to take so much of the wood tendered as turned out to be of the sort described, at the contract price, though it turned out upon examina- tion that sixteen out of the three hundred tons, was of a different and inferior quality. But this was a construction given to that par- ticular contract, and not the statement of any general principle, to be applied to all cases. He then says: "The question has been considered in New York and decided in the same way." He cites Bement v. Smith, 15 Wend. 493. But an examination of that case shows, that the decision is put upon the express grounds that what the plaintiff did in the case amounted to a delivery of the property. The declaration was f6r work and labor and goods sold, and also upon special counts, set- ting forth the contract and alleging a delivery of the goods by plain- tiff. This cannot be an authority for the doctrine claimed. 548 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 But there is a distinction between that case, and the ordinary cases of goods sold and delivered, which is alluded to in the opinion viz., the distinction between a contract to sell goods, then in existence, and an agreement to furnish materials and manufacture an article in a particular way, and according to order, which is not yet in existence. The latter is said not to be so much a contract for the sale and pur- chase of goods, as a contract for work and labor merely, and it is held that in that class of cases the statute of frauds does not apply, when there is nothing paid and no actual delivery. In a large class of cases of that kind, where the plaintiff has made surgical instruments of a particular kind, and according to order, for the defendartt who had patented the same, and which would of course be worthless in the hands of the plaintiff, or where a tailor had made a suit of clothes to order, of a particular description, and for a par- ticular measure, or a shoemaker had made boots or shoes to order and of a particular size and pattern, or the carriage maker had made a carriage in the same way, of a particular style and pattern, or the artist has painted a portrait of an individual to order, or an engineer has constructed an engine according to order for a particular use, &c., though the mechanic or artist may sell the goods, if he choose, and recover of the defendant, the difference between the contract price, and the price for which the article was sold, yet it is held that he may if he choose, when he has fully performed his part of the contract and tendered the article thus manufactured to the defend- ant, or offered it at the place appointed, recover the full value of the article and leave the defendant to sell or use or dispose of the article at his pleasure, and for the reason, in addition to that already stated that the article thus manufactured for a particular person, or accord- ing to a particular pattern, or for a particular use, may be of com- parativety little value to any body else, or for any other use or pur- pose, but this class of cases are recognized as exceptions to the gen- eral rule, which is to be applied in the sale of ordinary goods or mer- chandise which have a fixed market value. Allen v, Jarvis, 20 Conn. 38; Bement v. Smith, IS Wend. (N. Y.) 493, and cases; Ballantine v. Robinson, 46 Pa. 177. Mr. Sedgwick also cites a case from Massachusetts as sustaining his view. Thompson v. Alger, 12 Mete. 428. But an examination of the case shows that it was a contract for the purchase and sale of railway shares and that there had been a part payment for the same, and that while the contract was in force, the plaintiff had actually transferred the stock on the books of the company to the vendee, so that the plaintiff had actually lost his title to the shares, and upon this special ground the court held that plaintiff was entitled to re- cover the contract price. But in that case it is stated distinctly that the general rule in that state, is, that in contracts for the sale of per- sonal property, the defendant would be liable to pay the difference Sec. 1) IN GENERAL 549 between the agreed price and the market value of the goods on the day of deHvery. Dewey, J., in the opinion, 12 Mete. (Mass.) 443, says, that in or- dinary cases this rule would do entire justice to the vendor. He would retain the property as fully in his hands as before, and a payment of the difference between the market price and the price stipulated, would fully indemnify him. And that in that case, if the defendant had repudiated the contract before any transfer of stock had been made to him on the books of the corporation, that rule might have been properly applied here. This case then stands upon special grounds, but it states fully and plainly what the general rule is under- stood to be in that state, and is by no means an authority for the doctrine which the author seeks to establish. Mr. Sedgwick admits that where the plaintiff has not the goods that he agrees to sell, but makes a side contract with another to fur- nish them, he will only be allowed to recover the difference between the original contract price and the market price at the time of the offer with interest. He then cites some authorities where goods were sold and delivered, to be paid for by bill or note payable at a future day, and the bill or note is not given. There though the vendor can- not maintain assumpsit for the goods sold and delivered, until the term of credit has expired, yet he may sue immediately for the breach of the special agreement, and may recover as damages the whole value of the goods. But that does not militate against the general rule, be- cause it comes under another general rule, that when the goods are sold and delivered, the contract price is the measure of damages. We have seen that the general rule in Massachusetts, in actions for the non-acceptance of property sold or contracted for, is the differ- i ence between the price agreed to be paid for it and its real value, or | market price. Thompson v. Alger, 12 Mete. 428, 443. Such is distinctly stated to be the general rule in Connecticut, in Allen v. Jarvis, 20 Conn. 38; and in Pennsylvania, Girard v. Tag- gart, 5 Serg. & R. 19; Ballentine v. Robinson, 46 Pa. 177; and in Wisconsin, Ganson v. Madigan, 13 Wis. 67 ; and in New York, Dana V. Fiedler, 12 N. Y. 41, 62 Am. Dec. 130; Orr v. Bigelow, 14 N. Y. 556; Dey v. Dox, 9 Wend. 129, 24 Am. Dec. 137; Davis v. Shields, 24 Wend. 322; Stanton v. Small, 3 Sandf. 230; Mallory v. Lord, 29 Barb. 454, 465 ; and in Missouri, Whitmore v. Coates, 14 Mo. 9 ; also, in Kentucky, Williams v. Jones, 1 Bush, 621, 627, in which Hardin, J., delivering the opinion says: "The true measure of damages for' the failure to receive and pay for property contracted for is not the contract price, but it is the difference between the contract price and the actual value of the property, when it should have been received under the contract." So in a contract for the sale of railway shares. The rule of dam- ages, which either party is entitled to recover, is the difference be- 550 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 tween the contract price and the market price at the time of delivery. Red. on Rail. (Ed. of 1858) 54; 1 Red. on Rail. 132, and cases cited. There is some diversity prevailing in regard to the rule of damages for breach of a contract for the sale and purchase of lands. In New York, it is held that in an action against the purchaser for not receiv- ing a deed and paying for lands bargained for, the damages are the whole value of the land, though the purchaser gets no title to it. Rich- ards V. Edick, 17 Barb. 260. But such is not the rule in the English courts. Laird v. Prince, 7 Mees. & W. 474, and cases cited. Neither is such the rule in Massa- chusetts ; for though there are dicta favoring the New York rule, — in Sears v. Boston, 16 Pick. 357; in Gill v. Bicknell, 2 Cush. 358; and in Jacobs v. Railroad, 8 Cush. 223, — yet the question is directly raised, considered and decided in Old Colony Railroad v. Evans, 6 Gray, 25, 66 Am. Dec. 394, in which it is held that "upon more full considera- tion of the question of the measure of damages in an action at law, when the defendant has refused to receive the deed tendered him, the court are of opinion that the proper rule of damages in such a case is, the difference between the .price agreed to be paid for the land, and the salable value of the land at the time the contract was broken." In this state we find it settled in Stevens v. Lyford, 7 N. H. 360, that upon a breach of a contract for the delivery of lumber, the pur- chaser was entitled to recover the difference between the value of the lumber at the place where it was to be delivered, and the sum to be paid. And in Rand v. Railroad, 40 N. H. 79, it is assumed that the same rule would apply to the vendor, and that the proper rule of damages in case the subscriber of railroad stock refuses to pay for and receive the same, when no certificate of the stock has been is- sued, would be the difference between the price at which he agreed to take the stock, and its actual or market value at the date of the breach of the contract. And in McKean v. Turner, 45 N. H. 203, 205, Bellows, J., in com- menting upon Rand v. Railroad, supra, says: "There the claim was upon the contract of the trustee to take and pay for some shares in the capital stock of the corporation, which shares had never been de- livered or accepted. The measure of damages, therefore, was the dif- ference between the contract price and the actual value of the stock at the time of the breach of the contract, and ordinarily the market value of stock can readily be determined." In the case before us, we understand from the case that the referee found that the property had not passed to the defendant. It was not a specific article of property that had been manufactured to order for the defendant, but the property in question was hay, which had a market value easily ascertainable. Upon the finding of the referee, as we understand it, this property remained not only in the possession of the plaintiff but his property. Sec. 1) IN GENERAL 551 We think in such a case, it would be in accordance with the great weight of authority, besides being reasonable and just in itself, to hold that the rule in assessing plaintiff's damages, would be to give him the difference between the contract price of the hay and its market value, at the time when the defendant should have received and paid for it ; taking into account, of course, the fact that by the contract the plaintiff was to draw the hay to the depot to be delivered, which was included in the contract price. According to the provisions of the case, the report is set aside and the cause recommitted to the referee. TUFTS- v. GREWER. (Supreme Judicial Court of Maine, 1891. S3 Me. 407, 22 Atl. 382.) Peters, C. J. It becomes immaterial whether the writing signed by the parties in this case be considered a contract of sale or a con- tract to manufacture an article upon the order of the defendant, in- asmuch as we feel convinced that the rule of damages would be the same in this state whether it be the one or the other kind of contract. The defendant ordered a soda-fountain of the plaintiff, which was manufactured and tendered to him, and the price demanded. It is admitted that the plaintiff performed all the requirements of the con- tract resting on him, and that the defendant without legal excuse failed to perform his part of the obligation, utterly refusing to pay for or accept the property. The action is special, reciting that, although the plaintiff has performed his promise, the defendant refuses to perform his, the plaintiff claiming to recover for the breach the full contract price of the article sold. The general rule is familiar that for the vendee's failure to receive and pay for the goods he has contracted for the vendor may recover the difference between the market value at the time and place stipu- lated for delivery and the contract price, together with the expenses of reselling the property. The general rule is not questioned, but the plaintiff contends that a special and more equitable rule governs when a vendor has manufactured the article after a particular pattern upon the order of the vendee, who refuses without excuse to accept the same. The plaintiff says: "I have done all I bargained to do, and now the defendant should be compelled to do what he bargained to do, namely, to pay the contract price." We feel that there is force in the plaintiff's position, supported as it is by considerable authority ; but we are inclined to believe that there should be but one rule of damages in cases where a vendee refuses to accept goods which he has agreed to purchase, whether the article to be delivered to the vendee is already in existence or is to be manu- factured on his account. Wherein does the general rule fail to fur- 552 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 nish an efficacious remedy? The vendor was to receive in this case money and notes. While the law fully recognizes the obligation of the vendee, and cannot require specific performance, it undertakes to make full reparation by allowing recovery for all the damages sus- tained. What difference, practically, can there be between a seller receiving the consideration wholly from the vendee or partly from him and the balance from some one else ? The law in its own way obtains for the vendor an equivalent for full execution of the contract. There are courts which have held that, in all cases where a vendee refuses to accept the goods contracted for by him, the vendor may re- cover the contract price as damages. There is a stronger leaning among judges towards the distinction set up in the present case, in fa- vor of applying such a principle only when the contract calls for an article to be manufactured especially for the vendee. The ground upon which this doctrine is defended by its advocates is that the pe- culiarly manufactured article is of little value to any one besides the vendee, if of any marketable value whatever. The answer to this posi- tion is, of course, that the less the goods are worth to sell in the market the more the plaintiff recovers, and, if they are worth noth- ing at all, then he recovers the full contract price. But such a re- sult is just as logically attainable under the application of the general as by any special rule. The great ground of objection to the rule in- voked by the plaintiff is that, where there has been no acceptance of the property, the title still remains in the vendor, liable to be taken for his debts, or pass to his assignee in bankruptcy, or be sold by him to another purchaser. A tender does not, in our law, transfer the title to the vendee. The facts show that the plaintiff was to retain title to the fountain until the price should be paid. But the defendant refused to make the partial cash payment called for by the terms of sale, or to accept any possession or control of the property, so that even an equitable Htle to the property did not pass to him. The rule invoked here has not been much noticed in the English law, but finds its principal support in this country, and still even here it will be found, we think, to be in contradiction of most of the authorities. The first case in this country sustaining this special rule was Bement V. Smith, 15 Wend. (N. Y.) 493. In Dustan v. Mc Andrew, 44 N. Y. 72, although the case called for no such classification, the opinion formulates the law on the point in question in the following manner: (1) The vendor may store or retain the property for the vendee, and sue him for the entire purchase price ; (2) or he may sell the prop- erty, acting as agent of the vendee, and recover the difference between the contract price and the price obtained on such resale; (3) or he may keep the property as his own, and recover the difference between market price and the contract price. This formulary seems to have crept into several text-books, receiving more or less approbation from the authors. The special rule was approved in Massachusetts, as lim- ited to cases where the article to be sold was stock in a corporation. Sec. 1) IN GENERAL 555 the vendor having tendered the certificate made out in the name of the vendee. Thompson v. Alger, 12 Mete. (Mass.) 428. The court there said, in response to a suggestion that the general rule, should ap- ply : "Such would be the general rule as to contracts for the sale of personal property, and such rule would do entire justice to the ven- dor. He would retain the property as fully in his own hands as be- fore, and a payment of the difference between the market price and that stipulated would fully indemnify him." The most exhaustive case cited in plaintiff's behalf is Shawhan v. Van Nest, 25 Ohio St. 490, 18 Am. Rep. 313, reported also with a lengthy editorial note in 15 Amer. Law Reg. (N. S.) 153. The opin- ion relies for support largely on the case of Bement v. Smith, supra, and Ballentine v. Robinson, 46 Pa. 177. The author of the note re- ferred to, after quoting from Laubach v. Laubach, 73 Pa. 392, as hold- ing a doctrine at variance with the preceding Pennsylvania case, closes his observations with the following: "It must be admitted that Ballen- tine V. Robinson, and Bement v. Smith, and the principal case, can only be reconciled with what appears to be the general line of the au- thorities, by saying that in them tender by the vendor, or conduct amounting to an acceptance upon the part of the vendee, was consid- ered to have passed the property in the goods to the latter. In the contract upon which "the principal case was brought, the plaintiff's shop was fixed as the place of delivery, and it might be argued that the completion of the carriage at the time and place appointed amounted to delivery. But the unqualified position laid down in the rule that, when the vendee refuses to receive the goods upon tender, the vendor may store or retain them, and sue for the contract price, though adopt- ed by Sedgwick and Parsons, does not seem borne out by the author- ities." Since this note was written, the editors of the seventh edition of Sedgwick on Damages say in note, (volume 1, p. 596:) "We do not think the distinction taken in Shawhan v. Van Nest can be sup- ported." It is also said in note on same page : "This [the doctrine of the text] now is held to be the proper rule only where the title has passed." See numerous cases cited in note, Benj. Sales, (7th Ed.) § 758. A formidable barrier against the plaintiff's recovery upon the theory of damages claimed by him is that the question has been vir- tually decided in this state against such theory. In Atwood v. Lucas, 53 Me. 508, 89 Am. Dec. 713, it was held that an action of assumpsit for goods sold and delivered cannot be sustained where the goods have not been accepted by the vendee. In Moody v. Brown, 34 Me. 107, 56 Am. Dec. 640, it was held that such an action would not lie, although the articles claimed to be sold were manufactured after a peculiar pattern for the special use of the vendee, who refused to ac- cept them when tendered to him. In the latter case the action did not, as the present action does, allege a claim against the defendant for damages for not accepting and paying for the goods, but went upon 554 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 the theory of goods sold and title passed. But no question of pleading was discussed in the case, and the opinion, taking no objection to the declaration, determines that upon the facts in proof no more damages were recoverable than the difference between contract price and market value. The case was decided on the legitimate effect of the facts, and not upon the form of the action. The court dissents from the doctrine of the case of Bement v. Smith, 15 Wend. (N. Y.) 493, before cited, as wrong in principle, and contradictory "to the result of the best con- sidered cases." But then we are confronted with the case of Oatman v. \\'alker, 33 Me. 67, where the plaintiff was allowed to recover against the defend- ants the contract price of land which they had agreed to purchase of the plaintiff, afterwards repudiating their contract. The facts do not appear to be fully reported, but it looks like a case where the defend- ants were to repurchase a parcel of land they had conveyed to the plaintiff, thereby rescinding a former contract. Such a case may be an exception to the general rule. Laubach v. Laubach, 73 Pa. 387, be- fore cited. The opinion in a few words merely follows the case of Alna v. Plummer, 4 Me. (4 Greenl.) 258, where the same rule was adopted without argument or explanation, and barely with words from either counsel or court. In both cases the decision was an assumption merely. The case of Railroad Co. v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394, strongly antagonizes those cases, the opinion in the case citing a long list of authorities in support of a contrary doctrine. Exceptions sustained.^ Walton, Virgin, Libbby, Haskell, and WhitbhousE, ]]., con-, curred. PUTNAM V. GLIDDEN. (Supreme .Tudicial Court of Massachuselt.-::, 189.3. 159 Mass. 47, .34 N. E. 81, 38 Am. .St, Rep. 394.) Contract to recover for the keeping, care, etc., of one pair of horses, from June 16, 1890, to October 17, 1891. The case was submitted to the Superior Court, and, after judgment for the plaintiff, to this court, on appeal, on agreed facts, in substance as follows. On June 16, 1890, the plaintiff, who was then the owner of the horses, had negotiations with the defendant in relation to a sale of them, by which they were delivered by the plaintiff at the defendant's stable in Lowell. The plaintiff contended that the negotiations so made, and the de- livery, amounted to an absolute sale. The defendant contended that the sale was subject to the approval 3A recent good case in support of the same view, is Trinidad Asphalt Mfg. Co. V. BuckstafC Bros. Mfg. Co., 86 Neb. 623, 126 N. W. 293, 136 Am. St. Rep. 710 (1910). Sec. 1) IN GENERAL 555 of his veterinary surgeon, who was to examine the horses and report whether or not they were sound. On June 17 the defendant returned the horses to the plaintiff's sta- ble, contending that his veterinary surgeon reported one of the horses to be unsound, and that he had a right to return them under the con- tract. The plaintiff on the next day delivered to the defendant the following notice in writing: "You are hereby notified that the pair of horses sold by me to you on Monday, the 16th day of June current, and on that day delivered to you, for the sum of eight hundred dollars, and which were returned by you to my stable on Tuesday, the 17th day of June current, are still at my stable, but as your property and not as my own ; that said horses are subject to your order and control; that any expense I am at in keeping said horses and for medical attendance on one of them on account of an injury received by it after they were delivered to you and while in your possession, I shall charge to you and seek to recover the same of you in addition to the agreed price of eight hun- dred dollars. "You are further requested to remove said horses from my prem- ises, and are hereby notified that the same are at my stable at your risk, and that I shall not be responsible for any accident or injury to them." The plaintiff brought an action of contract against the defendant for the purchase price of the horses under the sale referred to, on June 21, 1890, and the cause came to trial in the Superior Court for the County of Middlesex, at the September term, 1891, when a ver- dict and judgment were rendered for the plaintiff for the contract price, and the defendant paid the amount of said judgment and costs ; and on said October 17 the defendant called for the horses at the plain- tiff's stable, and the plaintiff delivered them to the defendant. The action above mentioned was solely to recover the contract price, and during the time the plaintiff kept the horses they were not used by him. If upon the above facts the plaintiff was entitled to recover for keep- ing the horses during the above mentioned period, then judgment was to be entered for the sum of five hundred and thirty-two dollars. If the plaintiff was entitled to recover for the care and keeping durmg such time only as would enable the plaintiff to resell the horses to ad- vantage, then it was agreed that twenty-one days from and after June 17, 1890, would give the plaintiff a reasonable time in which to make the sale, and judgment was to be entered for the sum of thirty-five dollars ; otherwise, judgment was to be entered for the defendant. KnowlTon, J. On the agreed statement of facts in this case, the question is whether the law implies a contract on the part of the de- fendant to pay for the keeping of the horses. The burden of proof is on the plaintiff, and no inferences of fact can be drawn m his favor. Railroad Co. v. Wilder, 137 Mass. 536. 556 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. G It has been said that when a vendee returns or declines to receive property sold him the vendor has his choice "of either one of three methods to indemnify himself : First, he may store or retain the property for the vendee, and sue him 4-0 ^ the entire purchase price; second, he may sell the property, acting as an agent for this purpose of the vendee, and recover the difference between the contract price and the price obtained on such resale ; or, third, he may keep the prop- erty as his own, and recover the difference between the market price at the time and place of delivery and the contract price." Dustan v. McAndrew, 44 X. Y. 72, 78; Haines v. Tucker, 50 N. H. 313; Gir- ard V. Taggart, 5 Serg. & R. (Pa.) 19, 9 Am. Dec. 327 ; Rosenbaum v. Weeden, 59 Va. 785, 98 Am. Dec. 737; Holland v. Rea, 48 Mich. 218, 224, 12 N. W. 167; Cook v. Brandeis, 3 Mete. (Ky.) 555; Bag- ley. v. Findlay, 82 111. 524. t Where the vendee contends that the property is not his, and treat.s it as belonging to the vendor, and the vendor elects to keep it for the vendee, and sue for the entire contract price, there is no implied con- tract on the part of the vendee to pay the vendor the expense of keep- ing it. Whiting v. Sullivan, 7 Mass. 107; Earle v. Coburn, 130 ]\Iass. 596. In such cases, when there is a controversy about the title, the election of the vendor to take care of the property is often more for his own benefit, in view of the risk that the main question in dispute may be decided against him, than for the benefit of the vendee, and the attitude of the vendee is equivalent to an express prohibition of the keeping on his account and at his expense. If the vendor wishes to avoid the expense of keeping, and at the same time to avail him- self of the value of the property, he may sell under an implied agency for the vendee, and sue for the balance above what he obtains after paying the reasonable expenses. In the present case the plaintiff elected to sue for the entire con- tract price, and in the opinion of a majority of the court there is no principle of law which permits him now to maintain a second suit for the expense of keeping the horses, either during the whole time while the litigation was pending, or for that part of it which would have been required to enable him properly to dispose of the horses if he had chosen to sell them on the defendant's account, and, after apply- ing the proceeds, to sue for the balance due him. Judgment for the defendant." ■i See criticism of this case in Williston, Sales, § 559. Sec. 2) IN "conditional sales" 557 SECTION 2.— IN "CONDITIONAL SALES" WHITE et al. v. SOLOMON. (Supreme Judicial Court of Massachusetts, 1895. 164 Mass 516 42 N E 104 30 L. R. A. 537.) ' • • - Holmes, J.° This is an action upon the following contract: "White's Physiological Manikin. "Place and date : 75 Court Street, Boston, Mass., June 7, 1889. "Messrs. J. T. White & Co., Publishers, New York— Gentlemen : Please deliver, according to shipping directions given below, one White's Physiological Manikin, Medical Edition, price $35.00. In consideration of its delivery for me, freight prepaid, at the express office specified below, I promise to pay the sum of $35.00, as follows: $10.00 upon delivery at the express office, and the balance in monthly payments of $5.00, each payable on the first of each and every month thereafter, until the whole amount is paid, for which the publishers are authorized to draw when due. "It is expressly hereby agreed that, in case of the failure to pay any one of the said installments after maturity thereof, all of said install- ments remaining unpaid shall immediately become due and payable, and the said James T. White & Co. may take, or cause to be taken, the said manikin from the possession of the said [subscriber] or their representatives, to whom he may have delivered the same, without re- course against said James T. White & Co. for any money paid on ac- count thereof ; it being expressly agreed that the money paid on ac- count shall be for the use and wear of said manikin. "Shipping directions (to be filled out by the agent) : "To whom sent, J. M. Solomon, 75 Court Street. "Town, Boston. County of Suffolk. "State, Massachusetts. "James M. Solomon, 75 Court Street. "Agent, W. F. Byrd." There was evidence, and we must assume the judge who tried the case to have found, that the manikin was delivered, as agreed, to the express company, freight prepaid; that the defendant refused to re- ceive it ; that, in consequence, the express company, after a time, left the manikin at the plaintiffs' place of business, in pursuance of a rule of the company, and without the plaintiffs' assent; and that it is held subject to the defendant's order. There had been no repudiation of the contract by the defendant before the delivery of the manikin at the express office. 5 Part of the opinion is omitted. 558 REMEDIES OP THE SELLER ON THE CONTRACT (Ch. 6 The main question is whether the judge who tried the case ought to have ruled that "the plaintiffs are not entitled to recover the price of the article in question, but must offer evidence to the court upon the question of damages for the alleged breach of said contract.'' A majority of the court are of opinion that this ruling properly was re- fused. We assume in favor of the defendant, but without decid- ing, that the title to the manikin did not pass by delivery at the ex- press ofSce; but that assumption does not dispose of the case. In an ordinary contract of sale, the payment and the transfer of the goods are to be concurrent acts; and if the buyer refuses to accept the goods, even wrongfully, he cannot be sued for the price, because the event on which he undertook to pay the price has not happened; and, although the fact that it has not happened is due to his own wrong, still he has not promised to pay the price in the present situa- tion, but must be sued for his breach of contract in preventing the event on which the price would be due from coming to pass. The damages for such a breach necessarily would be diminished by the fact that the vendor still had the title to the goods. But in the case at bar the buyer has said in terms that although the title does not pass by the delivery to the express company, if it does not, delivery shall be the whole consideration for an immediate debt (partly solvendum in futuro), of the whole value of the irianikin, and that the passing of the title shall come as a future advantage to him when he has paid the whole. The words "in consideration of its delivery" are not accidental or insignificant. The contract is care- fully drawn, so far as to make clear that the vendors intend to re- serve unusual advantages and to impose unusual burdens. We are not to construe equities into the contract, but to carry it out as the parties were content to make it. If a man is willing to contract that he shall be liable for the whole value of a chattel before the title passes, there is nothing to prevent his doing so, and thereby binding himself to pay the whole sum. See the observations of Blackburn, J., in Martineau v. Kitching, L. R. 7 Q. B. 436, 455. Benj. Sales (4th Ed.) 716, 717. When, as here, all the conditions have been com- plied with the performance of which by the terms of the contract en- titles the vendors to the whole sum, if the vendors afterwards have not either broken the contract or done any act diminishing the rights given them in express words, the buyer cannot, by an act of his own repudiating the title, gain a right of recoupment, or otherwise dimin- ish his obligation to pay the whole sum which he has promised. See Smith V. Bergengren, 153 Mass. 236, 238, 26 N. E. 690, 10 E. R. A. 768. If the first payment of $10 upon delivery were to be made upon de- livery to the buyer, it well may be that, if the buyer refused to ac- cept the manikin or to pay the $10, the sellers' only remedy would be for a breach, and that they could not leave the manikin at his house, Sec. 2) IN "conditional sales" 559 and waive the payment against his will, with the result of making the whole sum due. But here the delivery is to be to an express company and the provision for payment of $10 "upon delivery at the express office" must mean after the delivery ; so that the delivery is the first act, and by itself, without more, fixes the rights of the vendors to the price, just as the transfer of the stock did in Thompson v. Alger, 12 Mete. 428, 444. Our decision is in accord with the following cases (we know of no decisions to the contrary) : Safe Co. v. Emanuel, 21 Abb. N. C. (N. Y.) 181; Brewer v. Ford, 54 Hun, 116, 120, 7 n' Y Supp. 244; Id., 59 Hun, 17, 19, 12 N. Y. Supp. 619; Id., 126 N. Y. 643, 27 N. E. 852; Carnahan v. Hughes, 108 Ind. 225, 9 N. E. 79. See, further, Burnley v. Tufts, 66 Miss. 48, 5 South. 627, 14 Am. St. Rep. 540; Tufts v. Griffin, 107 N. C. 47, 12 S. E. 68, 10 L. R. A. 526, 22 Am. St. Rep. 863. But compare Tufts v. Grewer, 83 Me. 407, 22 Atl. 382; Swallow v. Emery, 111 Mass. 355, 357. * * * Exceptions overruled." BAILEY V. HERVEY et al. (Supreme Judicial Court of Massachusetts, 1S83. 135 Mass. 172.) Tort, against William H. Hervey and Charles H. Pray, copartners doing business under the firm name of William H. Hervey & Com- pany, for the conversion of certain personal property. The case was, submitted to the Superior Court, and, after judgment for the de- fendants, to this court, on appeal, upon an agreed statement of facts, in substance as follows : On or about May 25, 1877, the plaintiff and the defendant Her- vey, who was then doing business under the name of W. H. Hervey & Company, entered into a written contract, altered, added to and re-executed on September 10, 1878, which recited that the plaintiff had "hired and received" from said firm certain goods enumerated, for which he agreed to pay them certain sums of money as "rent" at stated times, and "the balance," at a certain rate per month, "un- til paid;" that, upon default in making such payments, his right to retain said goods should cease; and that no title to the property should vest in him until he had performed all the conditions of the agreement, upon the performance of which the title should so vest. The goods and chattels described in said contract were delivered to the plaintiff; and from the time of such delivery he continued to use the same until they were taken from him, as hereinafter stated. The plaintiff made sundry payments on account of said contract,, amounting in the whole to $128, for each of which a receipt was given, acknowledging payment of the amount stated therein "on ac- count of goods leased." Field, C. J., wrote a dissenting opinion, In which Allen and Morton, JJ., concurred. 560 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 After demands by Hervey for further payment, and neglect by the plaintiff to pay, Hervey brought an action on said contract against the plaintiff, by writ dated January 13, 1880, and made returnable to the following April term of the Superior Court for the county of Suffolk. In that action the Boston and Maine Railroad was sum- moned as trustee. The defendant Bailey did not enter an appear- ance, and was defaulted at the return term of the writ. At the fol- lowing October term of said court, namely, on November 17, 1880, Hervey recovered judgment therein against the defendant, in the sum of $100.71, debt or damage, and $23.44 costs of suit, and execu- tion issued on November 27, 1880; on which was received from the trustee by the attorneys of Hervey the sum of $5.07, of the fund at- tached in said suit, the receipt of which they acknowledged on the back of said execution, in part satisfaction thereof. The declaration in that action alleged the making of the contract, and its breach, and that the defendant owed the plaintiff $95.76, for "rent and in- terest," under the contract. Said judgment and execution remain wholly unsatisfied, except as to said $5.07. On October 13, 1880, the defendants in this action, by their serv- ants, acting or claiming to act by virtue of the contract, and under the license and power contained in the contract in case of the plain- tiff's default as to payments to be made by him as provided in the contract, entered the plaintiff's house and premises, and took all of the articles enumerated in the contract which they could find, and being the same mentioned in the plaintiff's declaration, and carried them away, against the will and without the consent of the plaintiff, and converted the same to their own use. After the contract was made, the defendant Pray became copart- ner of the defendant Hervey, and so was interested in the contract and in its performance, and was such copartner when the goods were taken. li, upon these facts, the plaintiff was entitled to maintain his ac- tion, judgment was to be entered for him in the sum of $100 and costs; otherwise, judgment for the defendants. C. Allen, J. By the terms of the written agreement, the plaintiff was bound at all events to pay to the defendants the full amount at which the goods were valued, and upon such payment the title was to vest in him. This payment, therefore, constitutes the agreed price of the goods, and it is a misnomer to call it rent. The de- fendants would have no right to exact payment in full of the money, and also to reclaim the goods. When the plaintiff discontinued his payments on account, what was the legal position of the defendants? If it be assumed that they might, at their option, either reclaim the goods as their own property, without any obligation to account for their proceeds or value to the plaintiff, or that they might collect the price in full, it is plain that they were not entitled to do both. They could not treat the transaction as a valid sale and an invalid one at Sec. 2) IN "conditional sales" 561 the same time. If they reclaimed their property, it must be on the ground that they elected to treat the transaction as no sale. If they brought an action for the price, they would thereby affirm it as a sale. Two inconsistent courses being open to them, they must elect which they would pursue ; and, electing one, they are debarred from the other. Reclaiming the goods would show an election to forego the right to recover the price. But, instead of reclaiming the goods in the first instance, they brought an action against Bailey for the price, made an attachment of his property by trustee process, en- tered their action in court, and he was defaulted. They were there- upon entitled to judgment against him. Under this state of things, the action was continued to a later term of court, and after the lapse of several months, and after the commencement of the second sub- sequent term of court, the defendants, without discontinuing their action, or giving any notice to Bailey of an intention to abandon that remedy, took possession of the goods ; and, after this had been done, they proceeded in their action to judgment, and took out execution, upon which they collected a small sum from the trustee. They had thus made a decisive election to treat the transaction as a sale, be- fore reclaiming the goods; and, under such an election, the- title passed to Bailey. Butler v. Hildreth, 5 Mete. 49; Arnold v. Rich- mond Iron Works, 1 Gray, 434, 440 ; Herryf ord v. Davis, 102 U. S. 235, 246, 26 L. Ed. 160. For these reasons, a majority of the court is of opinion that there must be judgment for the plaintiff. HAYNES et al. v. TEMPLE. (Supreme Judicial Court of Massachusetts, 1908. 198 Mass. 372, 84 N. B. 467.) Tort for the conversion of two horses. Writ in the Superior Court for the county of Middlesex, dated December 10, 1906. There was a trial before Lawton, J. It appeared that posses- sion of the horses in question had been delivered to the plaintiffs by the defendant under the agreement of conditional sale described in the opinion, that the plaintiffs had defauUed in the payment of the first two of the three notes given by them to the defendant, that the defendant had recovered judgment thereon, which had been sat- isfied, and then, the plaintiffs not paying the third note, had taken possession of the horses, which was the conversion complained of. The presiding judge refused to direct a verdict for the defend- ant but ruled "that the defendant was liable on the evidence and that the only thing for the jury to do was to assess the damages." There was a verdict accordingly for the plaintiffs, and, the defend- Woo D w. Sales — 36 562 REMEDIES OF THE SELLER ON THE CONTRACl (Ch. 6 ant excepting, the presiding judge by agreement of the parties re- ported the case for consideration by this court. Hammond, J. The price to be paid for the horses was $400, of which $200 was to be paid in one month, $100 in two months, and $100 in three months from August 22, 1904; and three notes for these respective sums were given. To each note was attached a statement that the horses were "to be and remain the entire and ab- solute property of * * * [the defendant] * * * yj^^-jj g^jj] note is fully paid, * * * with interest." It is argued by the plaintiffs that upon the payment of either of these notes the title to the horses was to pass to the plaintiffs. But this position is untenable. The delivery of the horses by the seller and the giving of the notes by the buyer were all one transaction ; and it is too plain for argument that the intention of the parties, as shown by the papers, was that the title was not to pass until all of the notes were paid, and such was the legal effect of the transac- tion. Before the third note became due the defendant brought suit on the two which were overdue, and, having recovered judgment, col- lected the amounts due thereon by a levy upon real estate of the plaintiffs. The question on this branch of the case is whether his action in doing this is inconsistent with his right to insist that the title to the horses still remains in him. Plainly it is not inconsistent. This is not a case where the seller having, by reason of fraud or otherwise, a right either to take back the goods or sue for the entire price which is due and payable only, upon the theory that the title has passed to the buyer, elects to consider the transaction a complete sale and sues for the price. In such a case, the suit for the entire price be- ing inconsistent with the theory that the sale is not absolute, the seller is estopped to set up the claim that the goods remain his prop- erty. He cannot have both the price and the goods, and having made his election he must stand by it. Butler v. Hildreth, 5 Mete. 49. Whitney v. Abbott, 191 Mass. 59, 77 N. E. 524. See, also, the opin- ion delivered by Wells, J., in Connihan v. Thompson, HI Mass. 270. But this principle is not applicable to the facts shown in the case at bar. Under the contract the defendant at the end of the first month was to receive $200, and at the end of the second month $100 additional, making $300 in all. And these sums he was entitled to receive whether the title to the goods passed to the plaintiffs or not. Even if the plaintiffs had voluntarily paid these two notes at matu- rity, still the title to the horses would not thereby have become vested in them but would have remained in the defendant until the payment of the third note.//His conduct therefore in enforcing by an action at law the paymei/t of the two notes was not inconsistent with the position that the title to the horses was not yet in the plaintiffs. It was his right under the terms of the contract to have the $300 and still to keep his title until the last note was paid. His act in bring- Sec. 2) IN "conditional sales" 563 ing the suit was not an election between two inconsistent remedies, but was an act perfectly consistent with his claim to reitain his title, and all in strict compliance with the contract. He still holds the third note unpaid, and hence by the very terms of the contract he still is the owner of the hordes; and, the note being overdue, he has the right of possession^^n'he judge erred in refusing to rule as requested by the defendant and also in directing the jury that the defendant was liable. Coggill v. Hartford & New Haven R. Co., 3 Gray, 545, and cases therein cited. Verdict set aside. THOMASON et al. v. LEWIS. (Supreme Court of Alabama, 1894. 103 Ala. 426, 15 South. 830.) Coleman, J.' The action is in trover, and was brought by E. M. Lewis for the use of Matthews & Whiteside. The defendants in- terposed a demurrer to the complaint, and, the demurrer having been overruled, pleaded substantially the following facts, by special pleas in defense of the action: E. M. Lewis sold conditionally to Ellis & Strong the personal property the subject of the present liti- gation. Ellis & Strong mortgaged the same, and upon its fore- closure the appellants became the purchaser. Ellis & Strong exe- cuted their several promissory notes to E. M. Lewis for the pur- chase money, the vendor retaining the legal title in himself until the payment of the purchase money. E. M. Lewis, the vendor, trans- ferred the unpaid notes to Matthews & Whiteside, he agreeing to retain the title to the property for their benefit and protection. Mat- thews & Whiteside sued the notes to judgment, but the judgment has not been paid. Thomason et al. refused to surrender the property, and the present action was instituted by Lewis for the use of Mat- thews & Whiteside. Upon demurrer the pleas were held insufficient. The case is brought up under the special act establishing the An- niston city court. The proposition of law asserted by the appellants is that the trans- fer of the notes to Matthews & Whiteside, and their suit upon the notes, converted the conditional sale into an absolute sale of the property to Ellis & Strong; that Lewis had the election, upon a failure to pay the notes at maturity, to retake possession of the prop-_ erty, or to pursue the collection of the debt, but could not pursue" both remedies, and, having elected one, he thereby waived or lost the right to pursue the other. We do not understand this to be the law in regard to conditional sales of the character of the one under consideration. No doubt, if the plaintiffs recover in the present ac- tion, the title to the property will vest in the purchaser, and the debt contracted for the purchase money will be thereby extinguished; 7 The statement of facts Is omitted. 564 REMEDIES OP THE SELLER ON THE CONTRACT (Ch. G and it is equally true that, if the purchase money for the property had been paid, the vendor's title would have passed to the purchas- ers, and this whether voluntarily paid, or forced by legal process. It is also the law, as applicable to the present case, and the re- spective rights of the parties, that if the plaintiffs, by attachment or execution on their judgment, had levied upon the property in ques- tion as the property of the defendant debtor, or by any other un- equivocal act had recognized the property as belonging to the debtor, such conduct would amount to an election to abandon or waive their claim as the legal owners, and to proceed against it as the property of the vendee. The law will not permit a vendor who retains the legal title to property to have it sold as the property of the debtor, and get the benefit of such sale, and then claim it as his own. Such claims are inconsistent and unjust. These are the principles declared by this court, and they have gone no further. Lehman, Durr & Co. V. Van Winkle, 92 Ala. 443, 8 South. 870 ; Engine Co. v. Hall, 89 Ala. 628, 7 South. 187; Dowdell v. Lumber Co., 84 Ala. 316, 4 South. 31; Iron Works v. Smith, 98 Ala. 644, 13 South. 525. It does not appear from the complaint, neither is any fact averred in the pleas which tends to show a waiver on the part of the vendor or his transferees of the legal title reserved at the time of the sale. The mortgage executed by Ellis & Strong conveyed no greater inter- est than they owned, and the purchaser under the mortgage bought the property subject to plaintiff's legal title. Weinstein v. Freyer, 93 Ala. 257, 9 South. 285, 12 L. R. A. 700. There is no error in the record. Affirmed. MINNEAPOLIS HARVESTER WORKS v. RALLY. (Supreme Court of Minnesota, 1881. 27 Minn. 495, 8 N. W. 507.) Berry, J." This action is brought upon the following instrument: "$240. Belle Plaine, Minn., October 5, 1878. "On or before the first day of September, 1879, for value received in two M. L. reapers, I promise to pay, to the order of the Minneapolis Harvester Works, $240, at the office of Minneapolis Harvester Works, in Minneapolis, Minnesota, with interest at the rate of 12 per cent, per annum from date until paid; agreed, that if paid at maturity, (or within 30 days thereafter,) then the interest shall be nothing. And I further agree, in consideration of the credit herein given, that if this note is not paid when due, and suit is brought thereon, I will pay five dollars additional on the amount then due for attorney's fees, and the same may be included in the judgment. And I further agree to pay all other reasonable expenses incurred in collecting this note. "The express condition of the sale and purchase of the machine for " The statement of facts is omitted. Sec. 2) IN "conditional sales" 565 which this note is given is such that the title, ownership, or right of possession does not pass from the said MinneapoHs Harvester Works until this note and interest is paid in full. And the said Minneapolis Harvester Works, or their authorized agents, are hereby fully author- ized and empowered to proceed to collect the same at any time they may reasonably deem themselves insecure, even before the maturity thereof, and may take possession of said machine, sell the same, and apply the proceeds towards the payment of this note, after paying all costs and necessary expenses ; also this note to become due upon the removal of its maker from the county wherein he now resides. This note may be paid in good farmers' notes, taken and indorsed according to contract. M. Hally. "P. O., Belle Plaine, County of Scott, State of Minn. "Witness : P. B. Nettleton." The expressed consideration of the instrument is "value received in two M. Iv. reapers." It is expressly conditioned in the same "that the title, ownership, or right of possession" of the machines "does not pass from the said Minneapolis Harvester Works until this note and interest is paid in full." It appears from undisputed evidence on both sides that the machines have been taken from the possession of the defendant by the plaintifif and sold. This fact we understand to be also substantially alleged in the complaint. The result is that there is a total failure of the consideration expressed in the instrument. The case is one of a conditional sale ; that is to say, of a transaction which was to take effect as a sale, so as to pass the title of the reapers and the right of possession upon payment therefor, and not otherwise. The defendant not only never acquired any "title, ownership, or right of possession of the machines," but he has by the act of the plaintiff been deprived of the power of acc[uiring any by paying the price specified in the instrument. The case is similar to Third Nat. Bank v. Armstrong, 25 Minn. 530, where it is said that "the promise of payment and the implied obliga- tion to transfer the title were mutual, and as each was the sole con- sideration for the other, and both were to be performed at the same time, they were concurrent conditions of the same agreement, in the nature of mutual conditions precedent, so that inability or refusal to perform the one would excuse performance as to the other." What- ever remedy, therefore, the plaintiffs may have in the premises, this action, which is brought upon the instrument mentioned to recover the price thereon agreed to be paid by the defendant for the machines, cannot be maintained. The verdict was, therefore, right, and the order denying a new trial is accordingly affirmed." » In Anltman & Co. v. OLson, 43 Minn. 409, 45 N. W. 8.52 (1890), Mitchell, J., said: "The lustrnments declared on are not, in legal import, distinguish- able from the one considered in Minneapolis Harvester Works v. Hally, /.i Minn. 495, 8 N. W. 597 (1881), in which it was held that, the property which 566 REMEDIES OF THE SELLER ON THE CONTRACT (Ch. 6 DEDERICK V. WOLFE. (Supreme Court of Mississippi, 1891. 68 Miss. 500, 9 South. .350, 24 Am. St. Rep. 283.) Appeal from circuit court, Hinds county ; J. B. Chrisman, Judge. Dederick sold to Wolfe a hay-press for the sum of $450, taking in payment therefor three notes, of $150 each, payable at several future dates, the title to the press being retained in Dederick till all notes were paid. Two of the notes were paid, but default was made as to the last note, when under the contract of sale the press was ad- vertised and sold, and Dederick became the purchaser, but at a price that still left a balance due on the last note, on which he brings this suit against Wolfe, the maker, for such balance. Judgment was ren- dered in favor of Wolfe, from which Dederick appealed. Campbell, J. By the writing sued on the makers obligated them- selves to pay the sum stipulated, absolutely and at all events, and were to have the possession and use of the article named until full payment of the price, or until deprived of it by the act of Dederick for his own. security, the title remaining in him until full payment of tlie,J.greed price ; and any payment made before resumption of possession should . be considered as payment for use, but nothing "shall constitute a de- fense or offset, or delay prompt payment of this note in full at ma- turity." The manifest purpose of the parties was to secure the press to the buyer, and the stipulated price to the seller, and hence the trans- fer for use of the press, and the retention of title in the seller until paid for.\ The transaction was plainly a sale, with reservation of title as security^ for the price, and resorting to the press as means of se- was the expressed consideration for the instrument having been t^ken from the possession of the defendant by the plaintiff and sold, there was a total failure of consideration, and therefore an action on the instrument for the price of the property could not be maintained. This proceeded upon the theo- ry that the contract was a mere conditional sale, or rather an executory con- tract for a sale on condition, and that, the plaintiff having elected to take back the property and treat his title as unconditional, the defendants could not be required to pay for it. It seems to have been considered that the case was analogous to, if not controlled by, that of Third Nat. Bank v. Armstrong, • 25 Minn. 530 (187'.)). A comparison of the instruments in the two cases, how- ever, will show tliat there was room for a distinction, and for argument that, while one constituted a conditional sale, the other was a mortgage. But, even if there be doubt as to the correctness of the decision in Minneapolis Har- • vester Works v. Hally, we are not now inclined to overrule"it. It has become, in a sense, a rule of property, and is supported by authority elsewhere." Compare.. Brooks v. Beirnstein, 1 K. B. 98 (1909), where it was held that, under a contract of hiring with an option of purchase the owner, by retaking possession upon the hirer's default, had not abandoned the right to sue for arrears of rent. "If," said Bigham, J., "the agreement is nothing but an ^ agreement for hiring plus an option to purchase, how has the accrued right of action for the rent been got rid of? If it could be said that by taking away the goods the owners had deprived the hirer of all consideration for the rent, then I could understand that the accrued cause of action would be gone. But in truth the hirer has enjoyed the use of the furniture which was the con- ' sideration for the rent, and I can see no reason why he should not be liable to pay the arrears claimed." Sec. 2) IN "conditional sales" 567 curing payment of the note was in pursuance of the contract, and did not preclude a recovery on the note, which, by its terms and the super- added stipulations, was to be paid at all events, and without any de- fense. \ The case of Bailey v. Hervey, 135 Mass. 172, relied on by counsel for the appellees, rests on the assumption that the seller was not en- titled to the goods sold and full pay for them ;• and, as he had seized the things sold and converted them to his own use, he had made an election between inconsistent things, and was bound by this election. In the case before us the seller merely resorted to the thing sold to make it available as a security for the note due and unpaid. He did not claim the right to the press, and the money too, but to make what he could by a sale of the press at public outcry after due notice, and hold the makers of the contract to pay the balance. Dederick did not, by his course, elect to abandon his right to recover on the promise to pay, nor did he do anything inconsistent with a claim for the per- formance of that promise. The title was retained by the seller for the very purpose of being made available to the payment- of the money promised, and it would be a strange result if the exercise of his un- doubted right by the seller, as stipulated for by the buyer, should pre- clude a recovery on the promise, which by its. terms was to admit of no defense. It is true it was stipulated that any payment made should be con- sidered as "payment for use," but it was also stipulated that no "cause shall constitute a defense" of the promise to pay the money ; and the proposition that Dederick, by taking possession of the press to make it available as security, surrendered or abandoned or lost his right to go for the money still due, is not maintainable. It rests on the view that the contract was really a mere hiring for use, and that the seller could end it by taking possession of the press at any time, and treat any payment he had received as hire or rent ; and this view would be main- tainable, if regard be had to a single stipulation of the contract ; but, "in determining the real character of a contract, courts will always look to its purpose, rather than to the name given to it by the parties." Hervey v. Locomotive Works, 93 U. S. 664, 23 L. Ed. 1003; and see Heryford v. Davis, 102 U. S. 235, 26 h. Ed. 160, in which latter case the court dealt with a contract substantially like the one before us, and took the same view of its effect as we do of this. The cases supporting our view are numerous. Many are referred to in 3 Amer. & Eng. Enc. Law, 426. Our own are decisive in its favor. Duke v. Shackleford, 56 Miss. 552; Burnley v. Tufts, 66 Miss. 48, 5 South. 627, 14 Am. St. Rep. 540. It would be a most unreasonable interpretation of the contract to hold that Dederick's tak- ing possession of the press was an abandonment of his claim to be paid what had been promised, and not paid. There is no express provision to that effect, and to give such effect to Dederick's act is to cause a forfeiture of his right to be paid in full, at all events, as 568 REMEDIES OP THE SELLER ON THE CONTRACT (Ch. C promised by the buyet^ while the other view does justice to, both par- ties, according to their contract, by allowing the seller what he was promised, and the buyer what was purchased<^nd treating the press, as it was intended to be, as a security for the^payment of the stipulated price. Reversed and remanded for a new trial. MII^LER et al. v. STEEN et al. (Supreme Court of California, 1866. 30 Cal. 402, 89 Am. Dec. 124.) Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. The defendants entered into the following contract with the plain- tiffs: "This indenture, made the eighteenth day of June, in the year of our Lord eighteen hundred and sixty-three, between Edward T. Steen, of the City of San Francisco, State of California, party of rhe fTrst part, and J. F. Miller , W. C. Coley and George H. Harrison, of the City of San Fraiicisco, State of California, party hereunto of the sec- ond part, Witnesseth : That the said party of the first part does here- by lease, demise and let unto the said party of the second part the following described property, goods, and chattels, being the property of Edward 'l'. Steeri7~6f San i^'rancisco. State of California, now situate, lying, and being in the shop occupied by said Steen, at No. 35 Fre- mont street, in the City of San Francisco, in the County of San Fran- cisco ; that is to say, one steam engine, 8 inches bore by 16 inches stroke, with link motion, fly wheel, shaft, etc., complete; one steam boiler three feet diameter by eighteen 8-12 feet long, with two twelve- inch flues, chimney, grate bars, fire front, cocks, valves, Giffard's in- jector and all the appurtenances belonging therewith; one hoisting drum, gears and shaft complete ; two shrieves for rope to run over in hoisting from shaft ; ten of the largest pieces of said machinery being stamped "E. T. Steen." Said machinery shall not be removed more than twelve miles from the City Hall in San Francisco, without the written consent of the first party or his assigns, and shall not be made a part of the realty of any party or person whatever. "To have and to hold the pranises above described unto the said party oT^ffie second part, their executors and administrators, for the term of four months from the 27th day of June, 1863, to the 27tira'ay of T)cEoberPl8637yTelding and payingtherefor_the_r£at in advance of one thousand ($1,000) dollars for the first month, two hundrea~($200) dollafriFoiTEe~secona~month, two hundred and fifty ($250) dollars for the third month, two hundred and sixty-five ($265) dollars for the fourth month, and three hundred and thirty-five ($335) dollars for the fifth month, all payable in United States gold coin. Sec. 2) IN "conditional sales" 569 "And the said party of the second part does for their executors and administrators, covenant, promise and agree to and with the said party of the first part, his executors, administrators and assigns, in manner and form following : That is to say, that they will well and truly pay the said rent in the manner and at the time above provided, and will surrender and deliver the said goods and chattels to the lessor, or his attorney, peaceably and quietly, at the end of the term, in as good or- der and condition (reasonable use and wearing thereof excepted) as the same are now or may be put into ; and to pay the rent as above stated during the term specifiied, and not make or suffer any waste thereof, nor lease, nor underlet, nor permit any other person or per- sons to occupy or use the same, or make or suffer to be made any al- teration therein, but with the approbation of the lessor or his assigns thereto in writing having been first obtained, and that the lessor or his assigns, may enter the house or premises where the same at any time are, to view the same, and if the lessee shall fail to p ay the rent as aforesaid, or make or suffe r ^liy mju Q^or waste thereof^ or fail to deliver the same to the lessee at the" end of the term, the lessor, or his agent, attorney or assigns may enter any place where said pro perty is andjake p_ossessibn _ of the "sam e and-remove it usin'g^alTsuch force as is necessary for the purpose without being liable to any action therefor. And should default be made in the payment of any portion of said rent when due and should the same remain unpaid for three days thereafter, the said lessor, his agent, attorney or assigns may enter into any place or store where said goods and chattels are and with such force as aforesaid, take possession thereof, and at option ter- minate this lease, which is hereby made assignable by the first party. "It is stipulated and agreed that if the above described_rents are fully paid~as specifiedT^^ Unitea States gol d com, ^1 the macbiuery, boiler,~etc:7therein described, orThTany way belonging, or connected therewith, shall be and become the property of the second party wit h- out further considerationor payment__tojheJirst^^art^^ "In witnesi'^whereof, the parfieTto these presents have hereunto in- terchangeably set their hands and seals the day and year first above written." The commencement of the lease was subsequently changed to the 3d of July, 1863, thus making it expire November 3, 1863. The_£lain- tiffs took the engine_to ^n Mateo county, and usedjtjri_mining. ABouTthnsFof October, 1863, the d efendan ts jvent to the mine and took avra)rtEe~eHgmerana~carried it to San i