tie I Cornell University Law Library. THE GIFT OF J^c.^^. Date ^5"^ / <7 , /^ //;. 9181 KF 914.8957901"'""'''' '■'''^'^^ ®^Ni »,"^lf.S,,°I?, ♦?!?.!?« o' sales of pe 3 1924 018 854 327 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018854327 SELECTED CASES ON THE LAW OF SALES OF PERSONAL PROPERTY. SELECTED CASES OS THE LAW OF SALES OF PERSONAL PROPERTY. . AKEANGED TO ACCOMPANY BURDICK'S LAW OF SALES. c^ BT FRANCIS M.'bURDICK, DWIQHT PE0FES90K OF LAW IK COLUHBIA UNIVEBSITY SCHOOL OF LAW. SECOND EDITION REVISED AND ENLARGED BOSTON: "" LITTLE, BROWN, AND COMPANY. 1901. Copyright, 1897, 1901, Bt Fkancis M. Bubdics. S. J. Farehill &, Co., BosToif, n. s. A. PREFACE TO THE SECOND EDITION. The order in which the supplemental cases in this edition are to be discussed is indicated in two ways : First, The headlines of the pages show the topic, as well as the chapter and section, to which each case belongs. Sgcond, In the Table of Contents, the new cases are grouped, with those'oi the' first edition, under their appropriate topics. A considerable addition has been made to the Appendix by in- serting, after the proposed redraft of § 17 of the English Statute of Frauds, extrjicts from the Statute of Frauds in several States, as well as a number of Factors Acts and cognate provisions from the French and German Codes, and sketches of the history of Factors Acts in England and the United States. Columbia Unitersitt School or Law, AprU, 1901. CONTENTS. CHAPTER I. The Nature and Formalities op the Contract. Paoes § 1. Sale and Contract to Sell 1-8, 633-635 § 3. The Subject Matter op a Sale 9-11 § 4. Existing and Future Goods 12-26, 636-639 § 5. Contract for Sale, or for Labor 26-37, 640-642 § 6. Goods or an Interest in Land 38-45, 643-645 § 7. The Property 46-51, 646-653 § 8. The Price 52-53, 654-655 § 9. Part Payment under the Statute op Frauds .... 53-60 § 10. The Form of the Contract . 60-97 CHAPTER II. Bargain and Sale. § 2. Specific Goods 98-112 § 3. Contract to Sell may become a Sale 112-118 § 4. Contract must be Unconditional ........ 118-129 CHAPTER III. Contract to Sell. § 1. Existing or Specific Goods 130-143 § 2. Unascertained or Future Goods 143-177 § 3. Reservation of Jus Disponendi 178-205, 656-662 § 4. The Risk of the Loss 206-208 CHAPTER IV. Acceptance and Receipt. § 1. At Common Law 209-213, 663-670 S 2. Under Statute of Frauds 214-264 Vm CONTENTS. CHAPTER V, Seller's Duties : Buyer's Rights. Pases § 1. Duties op the Seller 132, 633 § 2. ^. Classification of Conditions 671-674 § 2. B. Mere Conditions - 265-278, 675-676 § 3. A. Seller's Engagement to Confer Title . 279-294, 677-683 § 3. B. To Furnish the Agreed Article 295-362 " Vendor of Provisions 363-367 " Quantity, as an Essential Term 368-371 " Goods not to be Mingled with Others .... 372-379 " Seller Engages for Inspection .... 380-388, 684-693 §4. Warranty 389-400 § 5. Buyer's Eights : Promissory Conditions .... 401-434 § 6. Buyer's Rights : Warranty 435-444 § 7. Seller's Duty to Give Possession . . . 445-471, 694-697 § 7. A. Delivery without Change of Location .... 471-478 § 7. B. Delivery to a Carrier 479, 698 § 7. C. Change of Location without Delivery .... 479-483 § 8. Buyer's Rights against Third Parties . 484-539, 699-700, 709-711 § 8. Fraudulent Possession by Vendor . . . 540-554, 702-713 § 8. Rescission by DefrAuded Vendor 701-708 § 10. Damages for Breach op Essential Term . 555-559, 714-715 § 11. Damages for Breach of Warranty 560-563, 716 § 12. Interest as Damages .... 718-719 CHAPTER VI. Buyer's Duties: Seller's Rights. § 1. Buyer's Duty to Take Title 564-569 § 2. Damages for Non- Acceptance 570-577, 720-728 § 3. Buyer's Duty to Take Possession 578, 729 § 4. The Seller's Lien 579-589 § 5. Stoppage in Transitu 590-623 § 6. Right op Resale 624, 731-734 § 7. Right to Rescind 625-631, 735-747 APPENDIX. Cases under American Factors Acts 749-756 Proposed Redraft of § 17 of Statute of Frauds . . . 757-763 Typical Statute of Frauds Provisions in America . . . 763-764 CONTENTS. IX Pages Continental Legislation •. • • 764-765 The Factors Act, 1889 765-767 The Factors (Scotland) Act, 1890 767 The Earlier Factors Acts in England 768 Factors, Act of New York 769 Factors Act oe Massachusetts 770 Historical Sketch of United States Factors Acts .... 771 English Sale or Goods Act 775-788 *NDEX 789 \. TABLE OF CASES. PAGE Abe Stein Co. v. Robertson ... 676 Acraman v. Morrice 130 Alden v. Hart 385 Aldridge v. Jolinson 109 AlUrd V. Greasert 246 Andrews v. Cheney 149 Atherton v. Newhall 263 Avery v. Burrall 673 Bagby v. Walker 29 Bailey v. Sweeting 88 Baldey v. Parker 53 Bannerman v. Wliite 701 Barker v, Dinsmore 494 Barnard v. Campbell 500 Bartholomew v. Freeman .... 678 Beals V. Olmstead 331 Beaumont v. Brengeri 215 Beatty v. Howe Lumber Co. . . . 694 Becker v. Hallgarten 609 Bement v. Smith 164 Bent V. Hoxie 42 Bentnall v. Burn 242 Bergan v. Magnus 124 Bemdtson v. Strang 593 Bethell & Co. v. Clark & Co. . . . 606 Bianchi v. Nash 112 Bierman v. City Mills Co 341 Bird V. Munroe 60 Bishop V. Shillito 126 Blacktnore v. Fairbank 399 Bloxam v. Sanders 579 Blumenthal v. Stable 559 Bolton V. The Lancashire, &c. By. . 616 Boothby v. Plaisted 383 Boyd V. Bopst 679 Bradford v. Manly 815 Brand v. Focht 248 Brawley v. United States .... 368 Bridgford v. Crocker 629 Briggs V. Hunton 297 V. United States 636 Brigham v. Hibbard 167 Brown v. Whipple 77 Brownfield v. Johnson 375 Bryant v. Isburg 438 Burnby v. BoUett 363 Buswell V. Bieknell 142 Butler V. Butler 566 Buxton V. Bust 89 PAGE Campbell Printing-Press Co. v. Thorp 274 Carleton v. Lombard, Ayers, & Co. . 355 Case (J. I.) Plow Works v. Niles & Scott Co 718 Castle V. Sworder 471 Chalmers v. McAuley .... 207 Chaplin v. Eogers 214 Chapman v. Murch 392 V. Partridge 92 Clark K. Fey 70 Clason V. Bailey 73 Cleveland v. Shoeraan 751 Cole V. Bryant 169 Columbus Buggy Co. v. Turley . . 638 Commercial Bank of Selma v. Hurt 618 Commercial Nat'l Bank v. Gillette . 105 Coplay Iron Co., Limited, u. Pope . 410 Corbett v. Wolford 230 Coyle V. Baum 560 Cresswell Eanch Co. «. Martindale . 464 Crookshank v. Burrell ..... 32 Cundy v. Lindsay 495 Cunliffe u. Harrison 372 Cunningham v. Ashbrook .... 1 Currie v. Anderson 256 Cusack V. Bobinson 219 Davis V. Gilliam 445 V. Page 755 V. Bussell 477 Dexter v. Norton 24 Diem v. Koblitz 617 Dierson v. Petersmeyer 666 Dorr V. Fisher 389 Dorsey r. Pike 2-38 Downs V. Ross 33 Dows V. Nat. Exch. Bank of Mil- waukee 182 Drummond v. Van Ingen .... 811 Drury v. Young 86 Dunlop V. Grote 569 Dunne v. Ferguson . . . . 38 Dustan v. MoAndrew 629 Edan v. Dudfield 235 Edgar v. Breek & Sons 716 Edgerton v. Hodge 56 Edwards v. Harben 550 V. Pearson 679 Edwards & Bradford Lumber Co. v. Bank . . .- 643 Xll TABLE OE CASES. PAGE Eichliolz V. Bannister 279 Elliott V. Thomas 251 Empire State Foundry Co. v. Grant 126 Engelhardt v. Clanton 339 Evans v. Davies 9 Eyers ti. Hadden 440 Eairbank Canning Co. v. Metzger . 418 Falke v. Fletciier 181 Farina v. Home 255 Farmers', etc. Bank v, Logan . . . 194 First National Bank of Cairo v. Crocker 427 Fitzmaurice v. Puterbaugh .... 321 Fletcher v. Livingston . . * . . 4 Fragano v. Long 113 Frank & Co. v. Eltringham ... 85 French v. Osmer 536 Frostburg Mining Co. v. New Eng- land Glass Co 243 Gabarron v. Kreeft 432 Gamraell v. Gunby and Company . 350 Garfield v. Paris 253 Gaylord Manuf. Co. v. Allen . . . 415 Gerli v. Poidebard Silk Mfg. Co. . 461 Gillett V. Hill 98 Giroux 0. Stedman 365 Glyn, Mills, Ciirrie Co. o. E. & W. I. Dock Co 508 Goddard v. Binney ...... 34 Colder v. Ogden 108 Goom V. Aflalo 93 Goss Printing Press Co. v. Jordan . 47 Gould V. Bourgeois ...... 285 V. Stein 308 Graff V. Osborne Co 143 Grantham v. Hawley 12 Gray v. Osborne 705 V. Walton 633 Grebert-Borgnis v. Nugent .... 555 Greenwood v. Law 11 Groat V. Gile 5 Grose v. Hennessy 282 Guinzburg v. H. W. Downs & Co. . 700 Hague V. Porter 163 Hale V. Rawson 675 Hall V. Glass 637 Hamilton v. Ganyard 671 Hanks v. PaUing 21 Hanson v. Busse 332 Harkness v. Russell 524 Harman v. Reeve .....'.. 55 Hayden v. Demets 166 Hayes v. City of Nashville .... 736 Heintz v. Burkhard 640 Herzog v. Heyman 682 HIght V. Bacon 330 Hillstead v. Hostetter 448 Hinuhman v. Lincoln 225 Holmes V. Hoskins 231 Hopkins V. Cowen 659 Hosack V. Weaver 699 Hudson V. Stewart 90 Humble v. Mitchell 9 PASE Hurff V. Hires . 99 Hutchinson v. Hunter 107 Ingalls V. Herrick 473 Ingraham v. Union Co 892 Iron Cliff Co. v. Buhl 378 Jackson v. Tupper 67 Jenner v. Smith 564 Jetton V. Tobey 484 J. I. Case Plow Works v. Niles & Scott Co 718 Jones V. Bright 318 V. Earl 616 V. Padgett 327 Johnson v. Credit Lyonnais Co. . . 643 V. Hibbard 211 V. Hunt 160 V. Laybourn 289 V. Oehmig & Wiehl 283 Johnston v. Trask 261 V. Faxon 714 John V. Farwell Co. u. Hilton . . 703 Joseph V. Lyons 20 Keeler w. Goodwin Ill Kelsea v. Ramsey Co 209 Kemp V. Falk 599 Kenniston v. Ham 273 Kenton v. EatclifE 713 Key V. Cotesworth 178 Kingman v. Denison 613 Kirven v. Pinckney 171 Laidler v. Burlinson 153 Lanfear v. Sumner 540 Lansing v. Turner 206 L'Apostre v. L'Plaistrier .... 678 Lawrence v. Porter 715 Leask v. Scott 507 Lee V. Griffin 26 Lincoln v. Gallagher 380 Lingham i-. Eggleston 118 Loeb V. Peters 691 Low V, Pew 22 Lyon V. Bertram 423 McArthur Co. u. Old Second Nat'l Bank 656 McCarty v. Blevins 13 McConnell v. Hughes 52 McElwee v. Metropolitan Lumber Co 683 M'Lean v. Nicoll 69 McNeal v. Braun 479 Magee v. Billingsley 663 Manly v. Bitzer 14 Marshall v. Green 42 Martin v. Marshall 499 Martindale v. Booth 652 t).' Smith 682 Martineau v. Kitching 132 Marvin v. Wallis 217 Medina v. Stoughton 677 Miller v. Seaman 381 Mitchell V. Le Clair 144 TABLE OF CASES. xm FAQS Moody V. Brown 168 Moore v. Campbell 73 u. McKinlay 353 V. Potter 731 Moors V. Wyman 204 Morley v. Attenborough .... 291 Morris v. Winn 171 Murchie v. Cornell 334 Murphy o. Boese 91 Neis V. O'Brien 680 Nevela v. Kentucky Lumber Co. . 681 Newell V. Radford 83 N. Y. Biscuit Co. v. City of Cam- bridge 11 Nicholson v. Taylor 140 Nightingale v. Eiseman 449 Norrington v. Wright 451 Northwestern Cordage Co. v. Eioe . 407 O'Connor's Adm'x v. Clark . . . 523 Ogg V. Shuter 192 Oliver v. Hunting 80 Page «. Morgan . .• 223 Pape V. Romey 263 Parry v. Libbey 477 Parton v. Crofts 95 Payne v. Rodden 680 Pecord v. Stedman 365 Pembroke Iron Company v. Parsons 371 Philadelpliia and Beading R'y v. Wireman 158 Phillips V. Eeitz 553 Pipkering v. Busk 621 Pitkin V. Noyes 36 Platter w. Acker 174 Pope V. AUis .305 Porter v. Blight 290 V. Wormser . 66 Prentice (H. A.) Co. w. Page . . . 755 Providence Coal Co. v. Coxe . . . 470 Randall v. Newson ...... 321 Restad v. Bngemoen 131 Rice V. Nixon 651 Ridgley v. Mooney 570 RiefEK. Rieff 39 Rochester Distilling Co. v. Rasey . 15 Rodgers v. Niles 335 Roehm v. Horst 720 Roper V. Johnson 575 Ryan v. Wayson 127 Saflord v. McDonough 233 St. Anthony Lumber Co. v. Bard- well-Robinson Co - . 387 Salisbury v. Stainer 295 Saltua V. Everett 486 Sanger u. Waterbury 138 Sattler v. Hallock 646 Sawyer v. Long . 18 Schloss V. Feltus 504 Schofleld V. National Elevator Co. . 46 ScoUans v. Rollins ....... 709 FASB Scott V. Eastern Counties R'y Co . . 250 Seitz V. Brewers' Refrigerating Co. 343 Shaw V. Railroad Company . . . 514 Shepard v. King 258 Shields v. Pettee 265 Simmonds v. Humble 240 Sinclair v. Hathaway 367 Smith V. Edwards 161 Snider v. Thrall 236 Snow V. Terrett 476 Soltau V. Gerdau 752 State V. Stockman 50 Stevens v. Wilson 749 Stewart v. Eddowes 90 Stone V. Browning 226 Straus V. Wessel 192 Street v. Blay 435 Stuart V. Pennis 40 Sturtevant v. Orser 625 Summers v. Hibbard 267 Symns v. Schotten 604 Talbot Paving Co. D. Gorman . . .412 Taylor, In re , 712 Tempest v. Eitzgerald . . . . . 249 Tenn. River Compress Co. v. Leeds &Co 339 Terry v. Wheeler 121 Thompson c. Gardiner 96 Tisdale v. Harris 9 Tompkins v. Sheehan 667 Tripp V. Forsaith Machine Co. . . 729 Tufts V. Griffin 668 V. Sylvester 612 Tyler v. 'City of Augusta . . . . 4S9 Underwood v. Wolf 401 Unexcelled Fire-works Co. v. Polites 173 Upson V. Holmes 141 Vickers v. Viekers 272 Vincent v. Germond 222 Wait V. Baker . 154 Wadhams & Co. v. Balfour ... 684 Walker v. Davis 374 Watson V. Roode 395 Webber v. Davis 635 Weir V. Hudnut 59 Wheelhouse v. Parr 176 Whitcomb v. Whitney 115 White V. Gordon 493 V. Oakes 348 Whitlock V. Hay 256 Wieler v. Schilizzi 299 Wigton V. Bowley 169 Williams v. Burgess 260 Wilson v. Western Fruit Co. . . . 698 Windmuller v. Pope 577 Wiuslow V. Leonard 146 Winsor v. Lombard 351 Wiseman v. Vandeputt 590 Wittkowsky v. Wasson 654 Wolcott V. Mount 300 Wood V. Manley 444 CASES ON SALES. CHAPTER I. § 1. Sale and Conteact to Sell. CUNNINGHAM v. ASHBROOK et al. 20 Mo. 553. 1855. Action for the price of a drove of hogs alleged to have been sold and delivered to defendants. The defendants slaughtered and packed hogs for themselves, and also slaughtered for others. Thej- had an arrangement with McAllister and With Whittaker, packers, that each should have one third of all the hogs slaughtered by them for the safe of the offal. Plaintiffs drove of hogs, 148 in number, was engaged at $4.15 per hundred, net weight, to be delivered at defendants' slaughter-house, and killed and weighed by the buyer, by a man who bought principally for the defendants, but at times for McAllister and Whittaker. On this occasion he. did not say for whom he was buj'ing, but the seller supposed he was buying for defendants. The hogs were delivered at defendants' slaughter-house, and were killed the next morning. Defendants then notified plaintiff to call at McAllister's packing-house the following day and see the hogs weighed, and get his pay. That night the slaughter-house and hogs were burned. The plaintiff was nonsuited, and sued out a writ of error. Glov&r tfc Richardson, (with whom was D. G. Woods,) for plaintiff in error. jr. A. Kasson, for defendants in error. Leonaed, J. The only things essential to a valid sale of personal property at common law were a proper subject, a price, and the consent of the contracting parties, and when these concurred the sale was com- plete, and the title passed without anything more. (2 Black. Com. 447; Bloxam v. Sanders, 4 Barn. & Cres. 941.) The term "sale," however, in its largest sense, may include every agreement for the transferring of ownership, whether immediate or to be completed afterwards ; and goods, in reference to the disposition of them bj' sale, may be considered as existing separately, and ready for immediate 1 2 CUNNINGHAM V. ASHBEOOK. \W.h.Y. 1. deliver^', or as a part of a larger mass from which they must be separated by counting, weighing, or measuring, or as goods to be hereafter pro- cured and supplied to the buyer, or to be manufactured for his use. Goods of the first sort are the only proper subjects of a common law sale, which is strictly- a transaction operating as a present transfer of ownership, and does not include executory contracts for the future sale and delivery of personal property, although there are some apparently anomalous cases in our books in which transactions in reference to goods to be separated from a mass seem to have been treated, where there had been a constructive delivery, as valid sales, producing a present change of property. The general rule, however, is otherwise, and all the different sorts of goods to which we have referred, except the first, are, under our law, the proper subjects onlj' of executory agreements, — contracts for the future sale and delivery of them. . . . Although at common law consent alone was sufficient to constitute a valid sale, the statute of frauds has now intervened, and other formalities are prescribed which must be observed, or what was before a valid transfer of property is now of no validitj-. The statute, beginning where the common law stopped, requires some one of these solemnities to be added to the transaction before it shall be considered as complete, . so as to effect a change of ownership ; and the matter here relied upon as the statute evidence of the completion of the contract was the change of possession. This provision of the statute implies, it is said, a de- livery of the thing sold on the part of the debtor, and an acceptance of it by the buyer, with an intention on the one side to part with, and on the other to accept, the ownership of it ; and it is not enough that the mere natural, actual, corporeal possession should be changed, but there must be a change of the civil possession, which is a holding of the thing Vfith the design of keeping it as owner ; and this brings us to an examination of the instruction complained of, and which resulted in nonsuiting the plaintifi". . . . It is to be remarked that this is the sale of a specific commoditj-, — the whole drove, and not of a part, to be ascertained by counting out the required number, — and therefore the title passed as soon as the bargain was completed by the delivery. It was not a transaction in relation to the sale of part of a mass, which could not take effect as a present sale, immediately changing the property, until -the separation was actually made ; and it is possible some confusion maj' have arisen here by not clearly distinguishing between the sale of a specific com- modity, clearly separated and distinguished from all others, as a specific drove of stock, and of an indefinite commoditj', as a hundred barrels of corn out of the party's crib, or a hundred mules out of his drove, when the seller is bound to separate and identify the particular part sold, before it can pass in property to the purchaser. . . . This, then, was a present agreement between these parties for the Bale of a specific commodity for a price settled between them, so as to § 1.] SALE AND CONTRACT TO SELL. 3 be capable of future ascertainment, without further reference to them- selves, immediately passed the title to the buyer, if the ceremon}' of delivery required by* the statute of frauds was complied with, and there having been a delivery in fact, the whole question was with what intention that delivery was made, — whether merely that the hogs might be weighed, neither party being bound in the mean time hy what had passed between them, or as the formal completion of the bargain to bind the parties and vest the ownership in the purchaser. We come now to an examination of the instruction complained of, the substance of which is, that if the hogs were sold by net weight, to be ascertained by weighing after they were slaughtered and cleaned, then the presumption that the sale was completed by the delivery is met and repelled, and the loss falls on the plaintiff, as owner, unless he shows that the parties intended the sale to be complete upon the delivery. The jury would, no doubt, have so understood the direction when they came to apply it to the case, and such too, we suppose, was the meaning of the court ; but we do not concur in this view of the law. Certainly this circumstance was proper for the jury upon the question of the intention of the parties in changing the actual possession, and might have afforded a very proper topic of comment to counsel in arguing the question of fact before them ; but we do not think any well considered case has gone the length of declaring that it changed the strong natural presump- tion to be derived from" the actual delivery of the property, and imposed upon the other party the necessity of showing that " the parties intended the sale to be absolute and complete before the weighing," and we feel well assured that there is no principle upon which this position can be maintained. We find it frequently repeated in the books, that when anj-thing remains to be done by the seller, sueh as counting, weighing, or measuring, the title does not pass ; and this is certainly correct when this operation is necessary in order to separate the goods from a larger mass of which they are a part ; but that is not this case, and we think that, bj' keeping the distinction between a specific and an indefinite commodity in view, most of the cases upon this subject can be explained, and their apparent conflict reconciled. It is also certainly true that, in determining the question as to the purpose of the parties in changing the actual possession, the fact that the price is to be subsequently ascer- tained by reference to the net weight, and then paid, is proper to go to the jury ; but possession is so much of the essence of propert}-, as it is \ that alone which enables us to enjo}' a tiling as property, and the natu- ral connection between propertj' and possession, especiallj- in movables, is so strong, that the presumption arising from a change of actual pos- session that it was intended also as a change of the propertj' is not, in our view, overcome, as a matter of law, by the fact here relied upon, that the thing bargained for was to be paid for by weight, to be ascer- tained after the delivery. . . . We repeat what we have before said, it is a question for the jury. If the delivery were for the purpose of passing the property, it had that 4 FLETCHER V. LIVINGSTON. [CHAP. L eflfect although tlie price was to be afterwards ascertained and paid according to net weight ; and there is no rule of law that, under such circumstances, the presumption arising from the delivery is met and repelled, and that other evidence becomes necessarj' in order to make out a prima facie case of a present sale. The seller has a right, not- withstanding his bargain, to retain his property till he is paid, unless he agrees to allow the purchaser a credit, (the bargain for an immediate transfer of property implying a present paj'ment of the price,) and hence, when there is no understanding as to the time of payment other than what is implied in the postponement of it until the quantity of the thing sold is ascertained in the manner indicated in the contract, this circumstance is certainly entitled to consideration with the jury in de- termining the character of the delivery, which, if intended to pass the thing in property, deprives the seller of his security upon it for the price, at the same time that it throws upon the buyer the future risk. The judgment is reversed, and the cause remanded. FLETCHER v. LIVINGSTON et al. 153 Mass. 388. 1891. Ik March, 1886, Louisa Fletcher contracted in writing to sell to the plaintiff, her daughter, all the wood and timber standing on a certain piece of land, with one year's time to get it off, and afterwards orally agreed to give to the plaintiff a reasonable time longer within which to remove the wood. Mrs. Fletcher died in December, 1886. The defendant, Crawford, having qualified as administrator of her estate, agreed in writing, with the consent of the other heirs, to extend the time for removal of the wood by the plantiff to Sept. 1, 1887. On Nov. 12, 1887, Crawford, under license of the court and pursuant to statutory provisions, sold and conveyed the land in question to defend- ant Livingston. None of the wood or timber was ever severed by the plaintiff. The judge, who tried the case without a jury, ruled that the plaintiff's right to take off wood or timber expired on Sept. 1, 1887; that the original contract was a sale of only so much of the wood or timber as the vendee might take off in one year ; and found for the defendants. The plaintiff alleged exceptions. J. W. Pettengill, for the defendants. C. Robinson <& G. A. Blaney^ for the plaintiff. Knovtlton, J. It is well settled that a contract like that relied on by the plaintiff does not immediately pass a title to property, and is not a sale or a contract for a sale of an interest in land, but an executory § l.J SALE AND CONTRACT TO SELL. 5 agreement for the sale of chattels, to take effect when the wood and timber are severed from the land, with a license to enter and cut the trees and remove them. Such a contract, if oral, is not within the statute of frauds, and its construction is the same as if it were in writing : Claflin v. Carpenter, 4 Met. 580 ; Giles v. Simonds, 15 Graj', 441 ; Drake v. Wells, 11 Allen, 141 ; Hill v. Hill, 113 Mass. 103, 105 ; United Society v. Brooks, 145 id. 410. The subject was fully con- sidered by Chief Justice Bigelow, in Drake v. Wells, ubi su2}ra, and was discussed in the earlier case of Giles v. Simonds, and it was held that a purchaser of standing wood and timber, after severing the trees from the land, has an irrevocable license to enter and remove them, but that before they are cut his license may at any time be revoked by the landowner, leaving him no remedy but an action to recover damages for the breach of the contract. In the present case the declaration contains three counts. The first two are founded on the plaintiff's alleged ownership of the wood and timber as chattels. But she had no ownership so long as the trees remained attached to the realty, and her action cannot be maintained on either of these two counts. The third is for trespass quare clausum. The plaintiff by her contract acquired no interest in the land, and she was not in possession, and she cannot maintain an action of trespass. It does not appear that there was any breach of contract on the part of either of the defendants ; but if there were, the plaintiff's remedy would be in another form of action. Exceptions overruled. GROAT ET AL. V. GILE. 51 N. Y. 431. 1873. Plaintiffs' appeal from order of General Term, setting aside a ver- dict for plaintiffs and granting a new trial in an action to recover for wool which the defendant had shorn from sheep, to which the plaintiffs claimed title. John M. Reynolds, for appellants. John Qaul, Jr., for respondent. LoTT, C. C. As the verdict of the circuit in favor of the plaintiffs was ordered by the judge who tried the action on the version given by the defendant of the contract or agreement between . the parties, it be- comes necessary to refer to it with particularity for the purpose of ascer- taining whether his conclusion of law based thereon was correct. The defendant, on his direct examination, after stating that the plaintiffs called on him about the 20th of May, 1864, and that he and the plaintiff Groat had some conversation about the purchase of his sheep and lambs, in which he said that he wanted to sell the old sheep 6 GROAT V. GILB. [;CHAP. I. with the lambs, and that he would ask $4 apiece for them, testified as follows : ' ' The^' concluded to go and see the sheep ; I told them where they were ; one flock was near a mile from the house ; they went off together ; went to the further lot first ; when they came back from this lot I told them where the others were ; I told them I did not believe they would like that lot ; they did not look as well as the others, as some of them had lost their wool ; then they went off to see the other lot and came back ; they asked me how many sheep and lambs there were ; I told them I could not tell how many there were ; I did not know myself; I think I said in the neighborhood of so many sheep and so many lambs ; then they inquired about taking the sheep ; it was agreed that they should take the lambs the middle of September and the old sheep the 1st of November, and pay me |4 apiece for sheep and lambs ; this was the contract ; think I told them I would give them a good chance ; something was said about cutting the lambs' tails off; 1 told them I thought it was not prudent ; I tried to dissuade them from having it done ; that they had got too large and might die ; some- thing was said in answer to it, but I don't know just what ; they asked me if the sheep were sound after they had been to see them ; I told them I did not consider them entirely sound ; then they asked that I should doctor the sheep if they needed it ; I told them I would ; after the talk they handed me over twentj'-five dollars to bind the bargain, as they said ; then they went awaj'." On his cross-examination, he said: " When G-roat and Jacobia were there in Ma}-, I had sheep in two lots ; the sheep I ^old them were in the lots mentioned ; I sold them all that were in these lots ; did not know how many sheep I had; had not counted them for some time ; sometimes they die ; told them I did not know how many I had ; that there would be in the neighborhood of ninet3' old sheep ; they were to take all the sheep in the two lots, ex- cept two bucks and a lame ewe ; they got all the sheep in the two lots except two bucks and a lame ewe ; they agreed to give $4 per head ; in the bargain they were to have all the sheep except two bucks and a lame sheep ; I agreed to sell the sheep at that price ; nothing was said about the wool ; they got ninety-two old sheep and seventy-one lambs." And on further re-direct examination he said : " When thej- made the contract for these sheep, there was nothing said about the wool." And also : " Some of the lambs came in March, and so along, and some were only a few days old ; some time in August is the usual and proper time for taking lambs from sheep ; they had not been separated from the sheep on the 19th of May ; the lambs were in no condition to be separated from the sheep at that time without ruining the lambs." The preceding statement of the defendant's evidence contains all that relates to the negotiation and making of the agreement, and fully justifies the construction given to it by the learned judge at the circuit. It is clear that the plaintiffs intended to buy of the defendant, and that it was his intention to sell to them all of the sheep and lambs that were running in the two lots of land, referred to by him (except two bucks § 1.] SALE AND CONTRACT TO SELL. 7 and a lame ewe, as to the identit}' of which there was no question), at $4 per head, and that no further or other designation or selection was contemplated. All the parties understood what particular sheep and lambs were intended to be sold, and there is no doubt that these were sufficient!}- identified. Indeed, that fact does not appear to have been disputed on the trial. Under such circumstances, when the terms of the sale were agreed on, and the paj-ment of $25 was made toi the defendant on account of the purcliase money by the plaintiffs, their liability became fixed for the balance, which was ascertainable by a simple arithmetical calculation based upon a count of the sheep and lambs and the price to be paid per head for them. No delivery of them or other act whatever in relation to them by the defendant was required or intended. The plain- tiffs were to take them without an}' agency in delivering them on the part of the defendant, and thej', from the time the agreement was made, became the owners thereof. The defendant subsequently kept them at the risk of the plaintiffs. Chancellor Kent, in his Commentaries, vol. 2, p. 492, in stating the rule governing sales at common law, says : " "When the terms of sale are agreed on and the bargain is struck, and ever3-thing that the seller has to do with the goods is complete, the con- tract of sale becomes absolute as between the parties without actual payment or delivery, and the propert}' and the risk of accident to the goods vest in the buyer." This rule is modified by our statute of frauds so far as to require in certain cases that a note or memorandum of the contract shall be made in writing and subscribed by the parties to be charged, or that the buyer shall accept and receive a part of the prop- erty sold, or at the time pay some part of the purchase money ; and in such cases he says, at p. 499 : " When the bargain is made and is ren- dered binding by giving earnest, or bj' part payment, or part delivery, or by a compliance with tlie requisition of the statute of frauds, the property, and with it the risk, attach to the purchaser ; but though the seller has parted with the title, he may retain possession until payment." The fact that the number of the sheep and lambs sold was not ascer- tained at the time the terms of sale were agreed on did not prevent the application of the rule referred to in this case. It is true that the same learned jurist, after stating that "it is a fundamental principle, pervading everywhere the doctrine of sales of chattels, that if goods of different values be sold in bulk and not separately and for a single price, or per aversionem, in the language of the civilians, the sale is perfect and the risk with the buyer," adds, "but if they be sold bj' number, weight, or measure, the sale is incomplete, and the risk continues with the seller until the specific property be separated and identified." The present case is not one of the latter class. That rule has reference to a sale, not of specific 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 not apply where the number of the particular articles sold is to be ascertnined for the sole purpose of ascertaining the total value thereof 8 GROAT V. GILE. [CHAP. I. at certain specified rates or a designated fixed price. This distinction is recognized in Crofoot v. Bennett, 2 N. Y. 258 ; Kimberly v. Patchin, 19 id. 330 ; Bradley v. Wheeler, 44 id. 495. The sale in question was in fact of a particular lot of sheep and lambs, and not of a certain undesignated number to be selected and delivered at a future time, and the postponement of the time for taking them awaj' did not prevent the title passing to the plaintiffs. A sale of a specified chattel maj' pass the property therein to the ven- dee and vests the title in him without delivery. See Chitty on Contracts (8th Am. ed.), 332, and Terry v. Wheeler, 25 N. Y. 520. All the parties appear to have understood the transaction, at the time it took place, as a present absolute sale and change of title. What was said about cutting the lambs' tails off and doctoring the sheep, if they needed it, is evidence of such understanding, and there is nothing in what is said to have been the agreement about taking them away inconsistent with it. That gave the plaintiffs the privilege of leaving them in the defendant's pasture till the time specified for taking them away, but did not deprive them of the right to take them Ijefore, if they chose so to do. . . . It follows, from what has been said, that there was no error in the ruling of the judge that the title to the sheep passed to the plaintiffs immediately upon the completion of the contract and the paj-meut of the $25 by them. That necessarily carried with it the right to the wool on them, it being shown that there was no reservation thereof, or anything said about it during the negotiation or at the time the contract was made. It is not a mere presumption, as stated in the prevailing opinion in the Supreme Court, that the parties " intended, in the ab- sence of evidence to the contrary, that the title to the wool should follow the title to the sheep." As was well said bj' Justice Ingalls in his dis- senting opinion, " When the sheep were sold the wool was grown and was a part of the sheep, adding to their value," and there is no reason or principle for saj'ing that such particular part did not pass to the purchaser with the rest of the animals. The sale was of the entire animal, and not of different parts or portions constituting it, or of what it was formed. Assuming then that the legal effect of the agreement of the parties, as testified to by the defendant himself, was to vest the title to the wool in the plaintiffs, it was clearly incompetent to show a custom in Columbia County, where the transaction took place, that the wool of sheep sold, under the circumstances disclosed, does not go to the pur- chaser. See Wheeler v. Newbould, 16 N. Y. 392, 401. • ••••• ■ All concur. Order reversed. § 3. j the subject mattek of a sale. 9^ § 3. The Subject Matter of a Sale. HUMBLE V. MITCHELL. 11 Adol. & E. 205. 1839. Assumpsit by the purchaser of shares in a joint stock company, called the Northern and Central Bank of England, against the vendor for refusing to sign a notice of transfer tendered to him for signature, and to deliver the certificates of the shares, without which the shares could not be transferred. The jury found a verdict for the plaintiff on both issues, subject to a motion to enter a verdict for the defendant. Lord Denman, C.J. With respect to the question arising on .the second plea, we have already disposed of it. The other point is whether the shares in this company are goods, wares, or merchandises, within the meaning of § 17 of the statute of frauds. It appears that no case has been found directly in point ; but it is contended that the decisions upon reputed ownership are applicable, and that there is no material distinction between the words used in the statute of frauds and in the bankrupt act. I think that both the language and the intention of the two acts are distinguishable, and that the decisions upon the latter act cannot be reasonably extended to the statute of frauds. Shares in a joint stock companj' like this are mere choses in action, incapable of deliver^', and not within the scope of the 17th section. A contract in writing was therefore unnecessary.'' Patteson, Williams, and Colekidge, JJ., concurred. Hule discharged. TISDALE V. HARRIS. 20 Hck. (Mass.) 9. 1837. Action to recover three hundred dollars, a dividend on two nundred shares of stock of the Collins Manufacturing Company, alleged to have been sold by defendant to plaintiff. The principal defence was the statute of frauds. Shaw, C. J., delivered the opinion of the court. . . . This statute, which is copied preciselj' from the English statute, is as follows : " No contract for the sale of goods, wares, or merchandise, for the price of ten pounds ($33.33) or more, shall be allowed to be good, except the 1 In Evans v. Davies (1893), 2 Ch. 216, shares in a limited company were held to be goods, within the meaning of that term in the Rules of the Supreme Court of 1883, giving the court power to sell goods during the pendency of an action involv ing them. 10 TISDALE V. HAKKIS. [CHAP. I. pLirehaser shall accept part of the goods so sold, aijy the plaintiffs." It is impossible to construe the finding except as referring to the ice which was the subject of the oral agreement of that date, and as referring to an acceptance thereunder. This relieved the contract from the ban of the statute. No question is presented as to the right of the plaintiffs to the judg- ment recovered, assuming that the contract of February 28, 1880, was validated. The judgment should be affirmed. All concur. § 10.] THE FORM OF THE CONTRACT. 69 M'LEAN V. NICOLL. 7 Jurist, N. 8. 999. 1861. This was an action for goods sold and delivered, and for goods bar- gained and sold, and for the hire of goods by the plaintiff let to hire to the defendant^ and on an account stated. Plea, never indebted. The cause was tried before Bramwell, B. It appeared that on the 18th December, 1860, the defendant called at plaintiff's shop and ordered the goods mentioned in the invoice below. He desired that the goods might be sent to Jersej' to be delivered there, and it was agreed that the glass should be plate-glass of the best quality, and that the plaintiff should insure it from breakage. The plaintiff on shipping the goods sent the defendant an invoice, which contained the names of the par- ties, a description of the goods, and the prices. To this the defendant replied in the following letter : — MiDVALE House, Jekset, January 18, 1861. Sir, — You advise having forwarded a printed list, patterns, and prices: it has not reached. In your account I apprehend there must be some mistake: your charge for loan of cases and packing is equivalent to their value. Please rectify this. Yours truly, Edward Nicoll. Mk. M'Lean, Lokdon. The ship by which the goods were sent was lost, and the goods were rendered useless. On this evidence Bramwell, B., ordered the plaintiff to be nonsuited, for want of a memorandum as required b^- the 17th section of the statute of frauds, with leave to move for a rule to set aside the nonsuit and enter a verdict for £48 10s. Qd., if the court should be of opinion that the documents in evidence constituted a suflicient memorandum. O'Malley having obtained a rule accordingly, Hayes, Serjt., <& Thrupp, showed cause. O'Malley & D. D. Keane, contra. Pollock, C. B. We are all of opinion that the rule must be dis- charged. We all think the memorandum must contain all the terms of the contract. Now the invoice taken with the answer does not contain all the terms of the contract. No doubt cases have decided that an invoice responded to bj' a signed letter may form a memorandum to satisfy the statute of frauds. But in those cases it was held that the memorandum must contain all the terms of the contract ; and the in- voice taken with the answer does not contain all the terms of the con- tract according to the evidence of the plaintiff: one term of the contract, relating to the quality of the glass, is not mentioned in the invoice at all ; and as the memorandum should contain all the terms of the contract, we cannot hold that the statute of frauds has been complied with. 70 CLARK V. FEY. [CHAP. L We are first to inquire what was the real contract, and then whether the invoice and answer together furnish a memorandum of what was " the real contract. It is to be regretted that we should be under the necessit3' of entering upon such frequent instances of non-compliance with the statute. The cases have gone very far in putting the corre- spondence of parties together aud constituting a memorandum to satisfy the statute. But I think we should not be always searching for some- thing equivalent to a memorandum ; and in this case certainly we could not on any principle hold that any had been shown. Maktin, B. ... If the contract be in writing, it is evidence of itself: if it be a verbal contract, the written evidence of it must be sub- sequent to the contract; and the document, if corresponding to the verbal contract and signed, is sufficient. But as my brother Channell has pointed out, the writing in this case does not correspond in every respect to the real contract. Channell, B. I also am of opinion that the rule should be dis- charged. I feel no doubt . . . that an invoice and letter taken together maj' constitute a memorandum to satisf}' the statute. It has often been said that the statute was intended to prevent fraud and perjury by putting an end to contracts unevidenced by writing. The more correct view is that the contract still exists, but that it cannot be put in force. I think that when we inquire whether a verbal contract correspond to the writing we ma}' be letting in the very evils which the statute was meant to avoid. But it is too late to dispute the cases on this subject. I quite agree that it is not necessary to show evei'y individual incident in the contract, but that a substantial contract must be shown. Is the substantial contract here set out in writing ? I think not. The frames were to be fitted with the best glass, which was a material element in the bargain. Suppose there were no question of the statute of frauds, the defendant might have refused to receive anything but the very best glass. The invoice says nothing of this, and therefore the proof fails, and the rule must be discharged. Bule discharged. CLARK ET AL. V. FEY. 121 N. Y. 470. 1890. Finch, J. It is not disputed that the rails which were finally tendered to the vendee, and then sold for his account and risk, pro- ducing a deficiency below the contract price, which deficiency forms the subject of the action, were not the rails which the vendee bought and the vendor sold. By the original written contract, those rails were to be 500 tons, shipped "from the other side, January or February or March, seller's option." It is the settled rule that, in a case like the § 10.] THE FORM OF THE CONTRACT. 71 present, the date of tlie shipment is a material element in the identifica- tion of the property-. Hill v. Blake, 97 N. Y. 216 ; Tobias v. Lissberger, 105 N. Y. 404. It was not 500 tons of rails generall}' that were the subject of the contract, but a specific quantity, shipped from the other side during the three named months, and unless such were tendered the contract was not performed. The offer of other rails would impose no obligation upon the purchaser. It is clear, therefore, that the tender finally made was not of the property specified in the contract, and left no liability upon the vendee resulting from his refusal to accept, unless there is something else about the case. There is something else about the case upon which the vendors rely as entitling them to a recover}- ; and that is an alleged parol modifica- tion of the original contract which made the final tender and the sale founded upon it sufficient. A conversation relative to the existing agreement took place between the vendee and Mr. Post, representing the vendors, on or about the 20th day of April. That was within the permitted time of delivery. Tbe seller might have shipped during the last days of March by sail instead of by steam, and so had an average of from 35 to 45 days for the arrival. The conversation, as detailed by Mr. Post, was thus stated : " Mr. Fe}' came in, and said that, in con- sequence of the price of old rails falling from $45 a ton to practically $23 a ton, it was a very difficult thing for him to take those rails ; that he could not sell them now to anybodj-, and wanted me to be as easy ■with him as I could, and wanted me to carry the rails, and give him some rails later. I told him, on personal considerations, — I had known him for a long time, — that I would do everything I could to accommodate him. I said I would carry the rails for him, and give him some rails a little further on in place of them, and perhaps the price would get better." It is evident that this conversation on the part of Mr. Fe3' was based upon the assumption that the contract rails had arrived, and were ready for delivery, and had been duly tendered. Indeed, Mr. Post was asked, "In that conversation, at that time, did you say anything about your readiness to deliver the iron that he had bought of j-ou ?" and answered, " Perhaps I should have said earlier that that was the basis of having informed him we were ready to do it, and wanting him to pay for it was the reason he wanted us to make it easy for him." Mr. Post was further asked, " You did make such an offer to him at that time?" and replied in the affirmative. And thus the basis of this new negotiation was an understanding on both sides that the contract rails had arrived, were ready for delivery, and that pay- ment was due. By the contract, the purchase price was payable in part upon delivery to the vendee of " order on vessels," and balance " on handing weigh-master's return." No such order or return was tendered in April, and the facts leave it doubtful whether the sellers in the month of April were in possession of or could have tendered either. But assuming that they could have made deliverj- in the mode prescribed by the contract, and that tliey were excused from the formal tender of the 72 CLARK V. FEY. [CHAP. I. papers by the act of Fey, it is yet apparent that one of two things fol- lowed, dependent upon the construction of the parol agreement. That is somewhat ambiguous in its terms, but it could have had only one of two meanings. It must be construed as an agreement, either that the plaintiffs, having set apart and tendered the contract rails which had arrived, and payment for which was due, would " carry them" for the account, and at the risk of Fey, for an indefinite but reasonable period, or that the sale of the contract rails should be mutuallj' abandoned, and instead thereof the sellers should be permitted to deliver, and the buj-er would accept, other and different rails from those specified in the written contract. I do not see how, upon either construction, the plaintiffs could recover. They did not " cany " the contract rails. At the conversation in April, none had been set apart and identified as the property of Fey under the contract, even if we concede that such separation and identi- fication was within the then power of the sellers. The}- had not set apart rails for Fey as his, and as being carried for him. It was not until some time in June that 500 -tons of rails were set apart as the property of Fe}', and that was done upon the requirement of parties interested with the vendors, who " insisted upon it that Mr. Fej' should take those rails so as to make him pay the storage." It is plain that up to that time no specific rails had been set apart or identified as the con- tract propert}' of Fej' upon which he was liable for storage. But the sellers did not carry the contract rails. If thej- ever in anj- manner separated or identified them, thej' sold them to other parties ; for Mr. Post says that he told Fey in June, " We were going to set aside five hundred tons of rails for him, and he said that was all right." The 500 tons thus set apart in the month of June to be carried for Fej-, and upon which, therefore, he was to pay storage, were rails not shipped in the contract months, or not shown to have been so shipped. When ultimately sold, it appears from the bills of lading that some were shipped on the Ivanhoe at Antwerp, April 9, 1880 ; some by the Apotheke Deising at Amsterdam, April 28, 1880 ; and some bj- the Sara Caino, whose date of sailing from the other side is unproved. And it was these rails which the vendee was called upon to accept, and which were sold for his account on his refusal. So that the sellers did not carry for Fey the contract rails, and tender them for final acceptance. The other view of the April conversation dispenses with such tender of contract rails, and permits the carrying and offer of anj- old rails shipped from the other side, irrespective of the date of shipment. But that is a new contract, and not a modification of the old one. It sub- stitutes for the sale of the contract iron a new sale of different iron, which never before had been the subject of a contract. It was not merely a change of the date of delivery and the time of payment, but of the very subject matter of the contract, — of the thing sold on the one hand, and purchased on the other. It touched and altered the con- sideration and substance of the agreement, instead of merely modifying § 10.] THE FORM OF THE CONTBACT. 73 the terms and manner of performance. The old contract was not to be performed at all. The property which it stipulated about was not to be sold by one party or bought by the other, but instead thereof, and in place of the iron to which it related, a new contract for the sale and purchase of different iron entirely. That new contract was by parol, and void under the statute of frauds ; and so neither view of the new agreement will enable the plaintiffs to recover. The old contract was rescinded ; the new one remained wholly executory on both sides. We discover no ground upon which the judgment can be deemed erroneous, and it should be aflBrmed, with costs. All concur.* CLASON V. BAILEY. 14 Johnson (N. Y.), 484. 1817. The Chancellor. The case struck me upon the argument as being very plain. But as it may have appeared to otjier members of the court in a different or at least in a more serious light, I will very briefly state the reasons why I am of opinion that the judgment of the Supreme Court ought to be affirmed. The contract on which the controversy arises was made in the follow- ing manner. Isaac Clason employed John Townsend to purchase a quantity of rye 1 In Moore v. Campbell, 10 Exch. 323 (1854), Baron Parke said : "Another ques- tion raised by Mr. Hill was as to the effect of the alteration by parol of the written contract to deliver the goods on the quay to be weighed by the landing scales, and substitute a delivery from the warehouse. He contended that this operated as a new contract embodying all the terms of the old one except the delivery on the quay by landing weight, and that such new contract was necessarily a waiver or discharge of the old one, and being made before the breach of the old contract the fourth plea was supported. That plea was, ' that, after the making of the agreement and before breach, the agreement was mutually rescinded by the plaintiff and defendant.' We do not think that this plea was proved by this evidence. The parties never meant to rescind the old agreement absolutely, which this plea, we think, imports. If a new valid agreement substituted for the old one before breach would have supported the plea, we need not inquire, for tlie agreement was void, there being neither note in writing nor part payment, nor delivery nor acceptance of part or all. • This was decided by the cases of Stead v. Dawber, 10 A. & E. 57, and Marshall v. Lynn, 6 M. & W. 109. " A further question may arise on the new trial, considering the old contract to be still in force in all its parts, which must be done ; for instance, whether the plaintiff on his part declared his option and was ready to give his acceptance in due time. The delivery from the warehouse instead of the quay not being authorized by the old contract, the only one in force, the sufficiency of the delivery or transfer order cannot now be a question. If the plaintiff' had already accepted and received the goods in the warehouse, or even the delivery or transfer order in the form offered, as a performance of the contract on the defendant's part, there would have been a good answer by way of accord and satisfaction ; but no such question arises in this case." 74 CLASON V. BAILEY. [CHAP. I. for him. He in pursuance of this authority purchased of Bailej' and Voorhees 3,000 bushels at one dollar per bushel, and at the time of closing the bargain he wrote a memorandum in his memorandum book, in the presence of Bailey and Voorhees, in these words : " February 29th, bought for Isaaac Clason of Bailey and Voorhees 3,000 bushels of good merchantable rye, deliverable from the 5th to the 15th of April next, at one dollar per bushel, and payable on delivery." The terms of the sale and purchase had been previously communi- cated to Clason, and approved of by him; and j'et at the time of deliv- ery he refused to accept and pay for the rye. The objection to the contract on the part of Clason is that it was not a valid contract within the statute of frauds : 1 . Because the contract was not signed by Baile3' and Voorhees. 2. Because it was written with a lead pencil instead of pen and ink. I will examine each of these objections. It is admitted that Clason signed this contract by the insertion of his name by his authorized agent in the body of the memorandum. The counsel for the plaintiff in error do not contend against the position that this was a sufficient subscription on his part. It is a point settled that if the name of a partj' appears in the memorandum, and is appli- cable to the whole substance of the writtng, and is put there by him or by his authority-, it is immaterial in what part of the instrument the name appears, whether at the top, in the middle, or at the bottom. Saun- derson v. Jackson, 2 Bos. & Pull. 238 ; Welford v. Beazely, 3 Atk. 503 ; Stokes V. Moore, cited by Mr. Coxe in a note to 1 P. Wms. 771. Forms are not regarded, and the statute is satisfied if the terms of the contract are in writing and the names of the contracting parties appear. Cla- son's name was inserted in the contract by his authorized agent ; and if it were admitted that the name of the other part3' was not there by their direction, j'et the better opinion is that Clason, the party who is "sought to be charged, is estopped by his name from saj'ing that the contract was not duly signed within the purview of the statute of frauds ; and that it is sufficient if the agreement be signed by the party to be charged. It appears to me that this is the result of the weight of authority both in the courts of law and equity. In Ballard v. Walker, 3 Johns. Cas. 60, decided in the Supreme Court in 1802, it was held that a contract to sell land, signed by the vendor only and accepted by the other party, was binding on the vendor, wlio was the party there sought to be charged. So in Roget V. Merritt, 2 Caines, 117, an agreement concerning goods, signed by the seller and accepted by the buyer, was considered a valid agreement, and binding on the party who signed it. These were decisions here, under both branches of the statute, and the cases in the English courts are to the same effect. In Saunderson v. Jackson, 2 Bos. & Pull. 238, the suit was against the seller for not delivering goods according to a memorandum signed § 10.] THE FORM OF THE CONTRACT. 75 by him only ; and judgment was given for the plaintiff, notwithstand- ing the objection that this was not a sufficient note within the statute. In Champion v. Plummer, 4 Bos. & Pull. 252, the suit was against the seller, who alone had signed the agreement. No objection was made that it was not signed by both parties ; but the memorandum was held defective, because the name of the buyer was not mentioned at all, and consequently there was no certainty in the writing. Again, in Egerton V. Mathews, 6 East, 307, the suit was on a memorandum for the pur- chase of goods, signed only by the defendant, who was the buyer ; and it was held a good agreement within the statute. Lastly, in Allen v. Bennet, 3 Taunton, 169, the seller was sued for the non-delivery of goods in pursuance of an agreement signed by him only ; and judgment was rendered for the plaintiff. In that case, Mansfield, C. J., made the observation that "the cases of Egerton v. Mathews, Saunderson v. Jackson, and Champion v. Plummer suppose a signature by the seller to be sufficient ; and every one knows it is the daily practice of the Court of Chancery to establish contracts signed by one person onlj', and 3'et a court of equity can no more dispense with the statute of frauds than a court of law can." So Lawrence, J., observed that "the statute clearly supposes the probability of there being a signature by one person only." If we pass from the decisions at law to the courts of equity, we meet with the same uniform construction. Indeed, Lord Eldon has said, 18 Vesej', 183, that chancery professes to follow courts of law in the con- struction of the statute of frauds. . . . Clason, who signed the agreement and is the party sought to be charged, is then, according to the authorities, bound bj' the agreement ; and he cannot set up the statute in bar. But I do not deem it abso- lutelj' necessary to place the cause on this ground ; though, as the question was raised and discussed, I thought it would be useful to advert to the most material cases, and to trace the doctrine through' the course of authoritj'. In my opinion the objection itself is not well founded in point of fact. The names of Bailej- and Voorhees are as much in the memorandum as that of Clason. The words are : ' ' Bought for Isaac Clason, of Bailej' and Voorhees, 3,000 bushels," &c. ; and how came their names to be inserted? Most undoubtedly' they were inserted by their direction and consent, and so it appears by the special verdict. The jury find that, when the bargain was closed, Townsend the agent of Clason did at the time and in their presence write the memorandum ; and if so, were not their names inserted b}' theii' consent? Was not Townsend their agent for that purpose? If they had not assented to the memorandum, they should have spoken. But they did assent, for the memorandum was made to reduce the bargain to writing in their presence at the time it was closed. It was therefore as much their memorandum as if tbey had written it themselves. Townsend was so far the acknowledged agent of both parties. The auctioneer who takes down the name of the 76 CLASON V. BAILEY. [OHAP. L buyer when he bids is, quoad hoc, his agent. Emmerson ?)• Heelis, 2 Taunt. 38. The contract was then in judgment of law reduced to writ- ing, and signed bj' both parties ; and it appears to me to be as unjust as it is illegal for Clason or his representatives to get rid of so fair a bargain on so groundless a pretext. 2. The remaining objection is that the memorandum was made with a lead pencil. The statute requires a writing. It does not undertake to define with what instrument or with what material the contract shall be written. It only requires it to be in writing and signed, etc. The verdict here finds that the memorandum was written ; but it proceeds further, and tells us with what instrument it was written, viz., with a lead pencil. But what have we to do with the kind of instrument which the parties employed, when we find all that the statute required, viz., a memo- randum of the contract in writing, together with the names of the parties ? To write is to express one's ideas by letters visible to the eye. The mode or manner of impressing those letters is no part of the substance or definition of writing. A pencil is an instrument with which we write without ink. . . . The common law has gone so far to regulate writ- ings as to make it necessary that a deed should be written on paper or parchment, and not on wood or stone. This was for the sake of du- rabilit}' and safetj- ; and this is all the regulation that the law has prescribed. The instrument or the material by which letters were to be impressed on paper or parchment has never yet been defined. This has been left to be governed by public convenience and usage ; and as far as questions have arisen on this subject, the courts have, with great latitude and liberality, left the parties to their own discretion. It has accordingly been admitted (2 Black. Com. 297 ; 2 Bos. & Pull. 238 ; 3 Esp. Eep. 180) that printing was writing within the statute and (2 Bro. 585) that stamping was equivalent to signing, and (8 Vese}', 175) that making a mark was subscribing within the act. I do not find any case in the courts of common law in which the ^ery point now before us has been decided, viz., whether writing with a lead pencil was suffi- cient ; but there are several cases in which such writings were pro- duced, and no objection taken. The courts have impliedly admitted that writing with suQh an instrument, without the use of any liquid, was valid. Thus in a case in Corhyns's Reports (p. -151) the counsel cited the case of Loveday v. Claridge, in 1730, where Loveday, intend- ing to make his will, pulled a paper out of his pocket, wrote some things down with ink, and some with a pencil, and it was held a good will. But wc have a more full and authentic authority in a late case decided at Doctors Commons (Rymes v. Clarkson, 1 Phillim. Rep. 22), where the verj' question arose on the validitj- of a codicil written with a pencil- It was a point over which the Prerogative Court had complete jurisdiction, and one objection taken to the codicil was the material with which it was written ; but it was contended on the other side that § 10.] THE FORM OF THE CONTRACT. 77 a man might write his will with any material he pleased, quocunque modo velit, quocitnque modo possit ; and it was ruled by Sir John NichoU that a will or codicil written in pencil was valid in law. The statute of frauds, in respect to such contracts as the one before lis, did not require any formal and solemn instrument. It oulj- required a note or memorandum, which imports an informal writing done on the spot, in the moment and hurry and tumult of commercial business. A lead pencil is generally the most accessible and convenient instrument of writing on such occasions ; and I see no good reason why we should wish to put an interdict on all memoranda written with a pencil. I am persuaded it would be attended with much inconvenience, and afford more opportunities and temptations to parties to break faith with each other, than hy allowing the writing with a pencil to stand. It is no doubt very much in use. The courts have frequently seen such papers before them, and have always assumed them to be valid. This is a sanction not to be disregarded. I am accordingly of opinion that the judgment of the Supreme Court ought to be affirmed. This was the opinion of the court. (Elmendorf and Livingston, Senators, dissenting.) It was thereupon ordered, adjudged, and decreed that the judgment of the Supreme Court be in all things affirmed . BROWN V. WHIPPLE. 58 N. H. 229. 1877. Assumpsit, for not accepting lumber. Verdict for the plaintiff : motion of the defendant for a new trial. As evidence of the memoran- dum required by the statute of frauds, the plaintiff introduced, subject to exception, a letter written and signed by the defendant, a memoran- dum written by the defendant, and a letter written and signed by the plaintiff. Lancastek, Dec. 21, 1867. J. B. Brown, Esq. — Dear Sir: Can you get 20 M. feet maple, the best quality, the coming winter, saw it in the spring (or winter), and deliver it at the depot at your place in July next ? If so, how much per M. ? Please call at my place when you. are at Lancaster, and we will talk it over, or write me all the particulars. Respectfully yours, J. M. Whipple. Rock maple, clear, for J. M. Whipple, 15,000 feet; 10,000 feet 2 inches thick; 5,000 feet IJ inches thick. To be delivered at the railroad track Price $20 per M. 78 BROWN V. WHIPPLE. [CHAP. I. May, 1868. John M. Whipple : — The maple lumber which I agreed to get out for you is ready for delivery. Would like to have you call up and take the account of it, as I wish to draw it over to the railroad track. James B. Brown. May, Drew, & Jordan, for the defendant. J. H. Benton, Jr., for the plaintiff. Doe, C. J. When one document refers to another, the latter is, for the purpose of such reference, incorporated with the former. 1 Starkie, Ev. 359 (p. 580 of 4th Eng. ed.) ; Simons v. Steele, 36 N. H. 73, 83 ; Church V. Brown, 21 N. Y. 315, 330-334. A list of taxes may, by annexation and reference, be made a part of a tax-collector's warrant. Bailey v. Ackerman, 54 N. H. 627. In Tallman v. Franklin, 14 N. Y. 584, it was held that a document was made a part of a memorandum by being fastened to it hy a pin before the memorandum was signed, a blank column of the memorandum being headed " Terms of sale," and the annexed document having the same heading, and containing terms of sale. In this case, the letter written by the plaintiff to the defendant is no part of the memorandum required by the statute of frauds, because it is neither signed hy the defendant, nor made, by annexation or refer- ence, a part of a writing signed by Him. 2 Kent, Com. 511 ; Benjamin on Sales, §§ 222-237; Blackburn on Sale, 46-54; authorities cited in Morton v. Dean, 13 Met. 385, and in Browne on Statute of Frauds, §§ 346-348, 371-376; Fitzmaurice v. Bayley, 9 H. L. Gas. 78; Skel- ton V. Cole, 1 DeGex & J. 587. If it was held, in S. F. M. Co. v. Goddard, 14 How. 446, and in Lerned v. Wannemacher, 9 Allen, 412, that, by a writing signed bj'the plaintiff, not signed by the defendant (the party to be charged), and not made a part of a memorandum signed by the defendant, the plain- tiff may prove a fact which the statute requires to be proved by a mem- orandum signed bj- the defendant, those cases are in conflict with a mass of authorit}' too great to be overthrown. The soundness of the contrary doctrine was, in the former case, demonstrated in the dissent- ing opinion of two judges, and was, in the latter case, substantially admitted. In Beckwith v. Talbot, 95 U. S. 289, 292, it was a question of legal construction whether the written agreement, signed by the plaintiff, was sufficiently identified and referred to by the defendant, in his let- ters, to make it a part of a memorandum signed by him. It was held that the general rule is, that collateral papers, adduced to supply the \defect of signature of a written agreement, should on their face suffl- \piently demonstrate their reference to such agreement without the aid ^f parol proof. In what was said of an exception in cases where parol evidence leaves no ground for doubt, we do not concur. Unless the essential terms of the sale can be ascertained from the writing itself, or § 10.] THE FORM OF THE CONTRACT. 79 by reference in it to something else, the writing is not a compliance with the statute ; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mis- chiefs which the statute was intended to prevent. Williams v. Morris, 95 U. S. 444, 456. A defective reference can no more be cured by parol than any other defective part of the memorandum. The writing, called in this case the defendant's memorandum, is in- sufficient, because, if it is signed by the defendant, and if it shows that he bought lumber of some one, it does not show of whom he bought it. The defendant's letter of inquirj- is insufficient, because it does not sliow that he bought or agreed to buj- anything of anybody. If the neces- sarj- memorandum were described in the statute (Gen. St. c. 201, § 14) as a scintilla of proof of the essentials of the bargain, and if the question were whether, in fact, the plaintiff is tlie person with whom the defend- ant contracted, one question of law would be whether the defendant's memorandum and letter (with or without other evidence) are compe- tent for the consideration of a jurj'. But the question is, not whether there is an infinitesimal or other amount of circumstantial evidence from which a jury may find the fact not stated in the writings, but whether the court does find, upon a fair legal construction of the writings, that tlie fact is stated in tbem. Taken together, with all the meaning that is expressed, and all that can be implied, by the- most strained con- struction, in favor of the plaintiff, the defendant's memorandum and letter state, that at some time the defendant agreed to buy of somebody 15,000 feet of clear rock maple boards of certain dimensions, to be de- livered at the railroad track, at $20 a thousand ; and that, on the 21st day of December, 1867, the defendant inquired of the plaintiff, by let- ter, whether he could get, for the defendant, 20,000 feet of the best maple lumber, the coming winter, saw it in the winter or spring, and deliver it at the depot at the plaintiff's place the next July, — and at what price the plaintiff would do this. We do not think the legal im • port of this statement is, that the plaintiff is the person with whom the defendant contracted. A memorandum (consisting of one or more writings) may be read, like other documents, in the light of the circumstances in which it was written, for the explanation of its latent ambiguities, and the applica- tion of its terms to the persons and things sufficiently described in it. But this rule does not admit parol evidence to supplj' an essential part of the contract, the omission of which is patent on the face of the mem- orandum. And the inequitable operation of the statute is not to be avoided by a narrow construction of the law, or a liberal construction of the memorandu-m. Arguments from inconvenience and injustice sometimes tend to show the lawmakers' intention. But there is reason to fear, that in this country as well as in England, the favor with which some statutes, and the dislike with which others, have been re- garded by courts have enlarged the distinction between strict and loose construction, without reference to the legislative intent, and introduced 80 OLIVER V. HUNTING. [CHAP. I. a variable standard that exposes the province of the legislature to judi- cial invasion. Verdict set aside. Foster, J., did not sit. OLIVER V. HUNTING. 44 Ch. Div. 205. 1890. In August, 1888, Emma Oliver, a married woman, possessed of con- siderable separate estate, negotiated with a Mr. Hunting for the purchase of a freehold propertj' known as the Fletton Manor House estate. Eventually she agreed to purchase it for £2,375, and on the 7th of September, 1888, he signed the following document : — " Memorandum of terms of agreement between Mr. Hunting and Mrs. Oliver: Price £2,376. Vendor to make good title. Purchaser to pay for her own conve^'ance. Fixtures included in purchase. Purchase to be settled as soon as possible. Possession on 25th September. Deposit to be paid on the 10th." On the 12th of September, 1888, Mr. Hunting wrote and sent a letter to Mrs. Oliver in the following words : — "I beg to acknowledge receipt of check, value £375, on account of the purchase money for the Fletton Manor House estate." Mr. Hunting having refused to complete, Mrs. Oliver commenced this action against him, claiming specific performance of the contract of the 7th of September, 1888, and alleging in her statement of claim that in pursuance of the said contract she, on the 10th of September, 1888, paid to Mr. Hunting the sum of £375 as a deposit and in part payment of the said purchase money, and submitting that the memorandum of the 7th and the letter of the 12th of September, 1888, formed a valid con- tract and a sufHcient memorandum within the statute of frauds. Mr. Hunting, by his statement of defence, did not admit any of the allegations in the statement of claim, and relied on the statute of frauds. Issue was joined. This was the trial of the action. Mrs. Oliver in her evidence deposed that she sent the check of £375, mentioned in the letter of the 12th of September, on account of the purchase money of the Fletton Manor House estate. It was pai-t of the £2,375. No other money was payable by her to the defendant. The £375 was the balance that Mr. Hunting was to receive, because the £2,000 was to be. paid over to a mortgagee of the property. Her solicitor, Mr. Law, was going to find the £2,000 for her. Neville, Q. C, c6 Dunnivg, for plaintiff. Warminffton, Q. O., d; Svnnfen Midi/, for defendant. Kekewich, J. The elementary proposition about which thei'e is no doubt is this, — the memorandum to be signed by the party sought to be charged, so as to bring a particular case within the statute of frauds, f 10.] THE FORM OF THE CONTRACT. 81 need not be on one piece of paper, nor need it be a complete document, signed by the party at one and the same time. It may be contained in two or moi'e pieces of paper, but they must be so connected that you can read them together, so as to form one memorandum of the contract between the parties. Directly you get beyond that, you get into difficulty. One can illustrate that in a simple manner. An intending purchaser accepts an offer made by a proposing vendor thus: "In reply to your letter of the 14th instant." Can one annex to that reply the letter of the 14th instant? Surely one cannot, without inquiring what letter it is ; unless the purchaser has, with unusual prudence, completed the reference by saying, "In reply to your letter of the 14th instant, a copy of which is on the other side." In the absence of any such complete evidence as that, one must inquire what the letter of the 14th instant was, because non constat it ma}' have been a reference to any one of half a dozen different letters ; and so, from that ver}' simple illustration, one can go through a large variety of more complex ones. It is not for me to say that the old rule was better or worse than the present rule ; but that it was a different .rule, notwithstanding the criti- cisms in the cases which Mr. Neville has given me, I have no doubt. I take the old rule from the original edition of Lord Blackburn, on the Contract of Sale, which is cited — I have not the original work before me— by Williams, J., in Railway Co. v. Peek, E. B. & E. 1001, where, after referring to Hinde v. Whitehouse, 7 East, 558, and Kenworthy v. Schofield, 2 B. & C. 945, he says : "The principle of these cases seems to me to be well stated in the same work by my Brother Blackburn, as follows : ' If the contents of the signed paper themselves make refer- ence to the others so as to show by internal evidence that the papers refer to each other, the}' vaay be all taken together as one memorandum in writing ' " (as in the case which I have mentioned of a letter referring to a previous letter, of which the copy is annexed) ; " 'but if it is necessar}', in order to connect them, to give evidence of the intention of the parties that they should be connected, shown by circumstances not apparent on the face of the writings, the memorandum is not all in writing, for it consists partly of the contents of the writings and partly of the expression of an intention to unite them, and that expression is not in writing.' " The old case of Boydell v. Drummond, 11 East, 142, and some other cases, might be consistent with that rule ; but certainly of late a different rule has been introduced, and it is a rule, to say the least, consistent with the convenience of mankind, because if you were to exclude parol evidence to explain such a doubtful reference as " the letter of the 14th instant,'' or it might be simply "your letter," the result might in a large number of cases be gross injustice. Now I take it to be quite settled that in a case of that kind j'ou may give parol evidence to show what the document referred to was. I take it that you ma}' go further than that, and that if you find a reference to some- thing, which may be a conversation, or may be a written document, you may give evidence to show whether it was a conversation or a written 6 82 OLIVER V. HUNTING. [CHAP. I. document ; and, having proved that it was a written document, you may put that written document in evidence, and so connect it with the one alreadj' admitted or proved. So far there is no diflflculty. Tliat was applied in the case of Ridgway v. Wharton, 6 H. L. C. 238, where the question was on the meaning of instructions which did not bj' any means necessarily point to a written document ; but later the cases have gone further than that, and it seems to me that Long v. Millar, 4 C. P. D. 450, followed by Field, J., in Cave v. Hastings, 7 Q. B. D. 125, does establish a very much larger series of exceptions. In Long v. Millar, I profess myself rather embarrassed by the judgment of Thesiger, L. J., — that is to say, I am unable quite to understand what he means by the passages on p. 456, which seem to me rather inconsistent ; but seeing that I have the judgments of Bramwell and Baggallay, L. JJ., without the slightest doubt or embarrassment, and that Thesiger, L. J., concurred in their judgment, 1 think I may put any difficulty of that kind aside. Bramwell, L. J., gave a judgment which, beyond its refer- ence to the particular case, is exceedingly useful as illustrating this branch of law ; because he gives an illustration which seems to me to go to the root of the matter. The illustration he gives is this (4 C. P. D. 454) : " Suppose that A. writes to B., saying that he will give £1,000 for B.'s estate, and at the same time states the terms in detail, and suppose that B. simplj^ writes back in return, ' I accept j'our offer.' In that case there may be an identification of the docu- ments by parol evidence, and it may be shown that the offer alluded to by B. is that made by A., without infringing the statute of frauds, sec. 4, which requires a note or memorandum in writing." If tliat is sound, which I take it to be, according to other cases, and according to the convictions of judges in older cases which are introduced into the old law, it is difficult perhaps to say where parol evidence is to stop ; but substantiallj' it never stops short of this, that wherever parol evi- dence is required to connept two written documents together, then that parol evidence is admissible. You are entitled to rely upon a written document, wliich requires explanation. Perhaps tlie real principle upon which that is based is, that j'ou are always entitled in regarding the construction and meaning of a written document to inquire into the circumstances under which it was written, not in order to find an inter- pretation by the writer of the language, but to ascertain from the sur- rounding facts and circumstances with reference to what, and with what intent, it must have been written. I think myself that must be the principle on wliich parol evidence of this kind is admitted. Turning to the case before me, I find a letter of the 12th of September, 1888, written by the defendant to Mrs. Oliver ; and in that he says, " I beg to acknowledge receipt of check, value £375, on account of the pur- chase money for the Fletton Manor House estate, for which I thank 3'ou." I have two things here perfectly clear, that there is a property called Fletton Manor House estate, which constitutes the subject of a purchase, and therefore the subject of a sale. I have also that £375 § 10.] THE FORM OF THE CONTRACT. 83 is part of the purchase money for that house ; but, bej-ond that, I have no terms of a contract. I am entitled to consider the circumstances under which the letter was written, in order to give any meaning that I properly can to it, — not to add terms to it, but to find out what the meaning necessarily must be, having regard to the facts and circum- stances, — and, having got the evidence which I have in this case, the conclusion is inevitable that it refers to a previous memorandum of I terms of agreement under which Mrs. Oliver becomes the purchaser of this particular property for the price of £2,375, on account of which the check for £375 was sent. Having got that evidence in, having got the connection between the two documents, I have then enough to enable me to read the two documents together, and, reading them together, I have a distinct memorandum of contract, specifying all the terms, the second one suppl3'ing what the first one omitted to give, namel}-, singularly enough, the property which was intended to be purchased and sold. That being so, the objection that there is no memorandum within the statute of frauds fails. I have not referred to the late case of Studds v. Watson, 28 Ch. D. 305, before Mr. Justice North, because I am not quite sure how far that learned judge intended to go. If I am right in ray view of his judgment, that he only allowed the parol agreement to be proved to see whether it connected the two written documents, and then, having got It in evidence, found that it did, and so was able to connect the two documents, — if that is the right view, which I believe it to be, of what he intended, — then it really follows Long v. Millar, 4 C. P. D. 450, and Cave.w. Hastings, 7 Q. B. D. 125, to both of which he referred in his judgment. Under these circumstances, I think the plaintiff is entitled to judg- ment for specific performance, and, of course, to the costs of the action. NEWELL V. RADFORD. L. R. 3 C. P. 52. 1867. Declaration, for non-delivery of 32 sacks of flour. Plea, non- assumpsit. The case was tried before Kellj', C. B., at Merionethshire summer assizes, when it was proved that the plaintiff was a baker, and the defendant a flour dealer ; and that John Williams, a duly authorized agent of the defendant, had called on the plaintiiT and solicited orders, and had made the following entry in one of the plaintiff's books : — Mr. Newell, 32 sacks culasses at 39s., 280 lbs., to wait orders. June 8. John Williams. The plaintiff subsequently gave orders for the delivery of part of the flour ; but the defendant refused to deliver it. A correspondence was 84 NEWELL V. EADFOED. [CHAP. I. put in, which had taken place subsequently to the purchase between the plaintiff and defendant respecting the delivery of the flour. A verdict was found for the plaintiff for £20, and leave was reserved to the defendant to move to enter a nonsuit or a verdict, on the ground that there was no sufficient memorandum of the contract to satisfy the statute of frauds. X A. Hussell moved for a rule pursuant to the leave reserved. BoviLL, C. J. In this case it is not disputed that the signature of the agent Williams would be sufficient to bind the defendant, but it is contended that the written memorandum does not suflBciently show which of the parties was the buyer. At first sight this indeed might not appear quite clear, except to a man in the trade ; but it has alwaj's been held that you may prove what the parties would have understood to be the meaning of the words used in the memorandum, and that for this purpose parol evidence of the surrounding circumstances is admis- sible ; and the cases of Macdonald v. Longbottom, 1 E. & E. 977, 28 L. J. (Q. B.) 293, and Spicer v. Cooper, 1 Q. B. 424, are authorities to that effect. In this case it was shown that the plaintiff was a baker, and that the defendant was a dealer in flour which the plaintiff would require for his trade ; and looking at the nature of the entry in relation to those facts, I think there can be no reasonable doubt that it was a sale from the defendant to the plaintiff. If however there were any doubt, looking at the entry alone, it is set at rest by the two letters which passed between the plaintiff and defendant, which suflSciently identify the contract, and in which the relative positions of the parties as buyer and seller is distinctly stated. WiLLES, J. I am of the same opinion. If the case of Vandenbergh V. Spooner, Law Rep. 1 Ex. 316, had been in point, we should have granted a rule, and perhaps made it absolute, leaving the parties to take the opinion of the Court of Exchequer Chamber. I think however that case is distinguishable. I own I have considerable diflBculty in understanding that case ; but if I do so rightly, it amounts to this, that a written agreement, " A. agrees to buy B.'s horse for £10," is not sufficient to satisfy the statute of frauds, because it cannot be inferred by reasonable intendment that B. is the seller. I cannot help observing that that seems to be an extreme case. The present however does not come within its authority, because there was a regular entrj' by the de- fendant's agent in the plaintiff's book describing what was to be sold, and the defendant was proved to be a person who sold such goods, and the plaintiff a person who would require to purchase such goods for the purpose of his trade. Taking therefore the entry in connection with those circumstances, I think it sufficiently appears from it who was the buyer and who the seller of the goods. There was, moreover, a cor- respondence which seems to be sufficiently connected with the entry to be available if necessary, and from which the relation of the parties as buyer and seller clearly appears. Hule : 1 Byles and Keating, JJ., delivered brief concurring opinions. § 10.] THE FORM OF THE CONTKACT. 85 FRANK & CO. V. ELTRINGHAM. 65 Miss. 281. 1887. On July 6, 1886, Marcus S. Kahn, the travelling agent of defend- ants, solicited and obtained an order for a bill of goods from the plain- tiff, in the city of Natchez. On August 23, 1886, defendants wrote to plaintiflF, addressing the letter to Waterproof, La., requesting references, as they did not know him, and had never previously had business rela- tions with him. Not receiving a reply, they again wrote him on Sep- tember 16, 1886. Receiving no reply to this letter, they declined to ship the goods at all. Thereupon, on October 18, 1886, Eltringham instituted this action by attachment, the defendants being non- residents. On the trial of the issue as to the liability of defendants, the plaintiff introduced the following as evidence of the coritract of sale. I. Frank & Co., 47 & 49 White Street, N. Y. No. 120. Natchez, Miss. Address A. Eltringham, U. N. I. Landing. [Here follows an inventory of articles of merchandise, with price of each article separately, amounting in the aggregate to $384.75.] Thanks, Sonny Kahn. The jury found for the plaintiff, and assessed the damages at $250. The defendants appealed. Campbell, J. , delivered the opinion of the court. The note or memorandum of the bargain is not sufficient under § 1 295 of the Code. It fails to show who is seller and who is buyer. It is impossible to determine from the writing whether the appellants agreed to buy from the appellee, or vice versa. While the requirement of the statute is that only some note or memorandum of the bargain shall be signed by the party to be charged^ it must show the substantial terms of the bargain, so that it may be seen and understood from the writing, and without the aid of parol testimony ; for to admit that, to supply an essential part of the contract, would defeat the object of the statute. The writing must distinguish between the buj'er and seller. The memorandum in this case would be equally applicable to an action by I. Frank & Co. against Eltring- ham. Heversed and remanded. 85 DEUEY V. YOUNG. [CHAP. I DRURY ET AL. V. YOUNG. 58 Md. 546. 1882. Action bj- Young for breach of contract by Drury and others to de- liver 2500 cases of tomatoes. The contract was oral, but a memoran- dum of it which was held to be sufficient as against the defendants was made by their book-keeper under their directions. The defendants appealed from a judgment in favor of the plaintiff. Orlando F. Bump, for appellants. B. Howard Haman and Edgar H. Qans, for appellee. Stone, J. One of the questions presented for our consideration in this case is, whether the " note or memorandum in writing " required by the seventeenth section of the statute of frauds, must be delivered to' the other partj' thereto. It is apparent from the evidence that the note or memorandum in writing relied on in this case was made by the book-keeper of the appellants by the direction of one of them, and by the book-keeper placed in their safe, among other papers, where it remained from the 27th of August, 1881, the day on which it was writ- ten, until it was produced in court, at the trial of the case in Februarj', 1882. There is no evidence that this note was ever seen by the appellee, or even its existence known to him, until the trial ; and it certainlj' nevei was delivered to him, or went out of the possession of the appellants, until produced in court. It is stronglj- insisted by the appellants that the statute is not satisfied without a delivery of this note or memoran- dum. It must be borne in mind that the statute of frauds was not enacted for cases where the parties have signed a written contract ; for in these cases the common law affords quite a suflBcient guarantee against frauds and perjuries, as is provided by the statute. The intent of the statute was to prevent the enforcement of parol contracts, unless the defendant could be shown to have executed the alleged contract by partial performance, or unless his signature to some written note or memorandum of the bargain, not to the bargain itself, could be shown. The existence of the note or memorandum presupposes an antecedent contract by parol, of which the writing is a note or memorandum. Benjamin on Sales, § 208. Now the statute itself is entirel}' silent on the question of the delivery of the note or memorandum of the bargain, and its literal requirements are fulfilled by the existence of the note or memorandum of the bargain, signed by the party to be charged thereby. The statute itself deals exclusively with the existence, and not with the custody, of the paper. If the non-delivery of the note does not violate the letter of the statute, would it violate its spirit and be liable to any of the mischiefs which the statute was made to prevent ? § 10.] THE FORM OF THE CONTRACT. 87 The statute was passed to prevent fraud practised through the instrumentality of perjurj'. It was passed to prevent the defendant from suffering loss, upon the parol testimony of either a perjured or mistaken witness, speaking of a bargain different from the one in fact made. It made the defendant only liable when a note or memorandum of the bargain signed by himself was produced at the trial. If produced from the defendant's own custody, it guards against the mischief that the statute was passed to prevent, just as well as if pro- duced from the custody- of the plaintiff. The plaintiff is the one likely to suffer by leaving the evidence of his bargain in the hands of the defendant, not the defendant himself. -The statute of frauds is an English statute, and in the absence of any express adjudication of our own court, we naturall3' look to the English courts as the best expounders of their own statute, and gather from them the principles which should guide us in construing it. In the case of Gibson v. Holland, 1 L. R., C. P. 1, the only note or memorandum of the bargain was a letter addressed by the defendant to bis own agent. The court decided that to be sufficient, and Erie, C. J., in delivering his opinion, said : — " But the objection relied on is, that the note or memorandum of that contract was a note passing between the defendant, the party sought to be charged, and his own agent, and not between the one contracting party and the other.'' " The object of the statute of frauds was the prevention of perjury in the setting up of contracts by parol evidence, which is easily fabiicated. With this view, it requires the contract to be proved by the production of some note or memorandum in writing. Now, a note or memoran- dum is eqnallj' corroborauve, whether it passes between the parties to I the contract themselves, or between one of them and his own agent. I Indeed, one would incline to think that a statement made by the party to his own agent would be the more satisfactory evidence of the two." In Johnson v. Dodgson, 2 M. & W. 653, the defendant made the note of the sale in his own book, and got the agent of the plaintiff to sign it, and the defendant retained the book in his own possession. It was lield by the court that the note or memorandum was sufficient, and the plaintiff recovered. No notice appears to have been taken by the court in their opinion of the fact that the memorandum had not been delivered, but had been retained possession of by the defendant. But in the argument of the case counsel of defendant said, " Suppose the defendant had simply made a memorandum in his own book that on such a day the plaintiff sold to him, would that be sufficient?" To which Parke, J., replied, "If he meant it to be a memorandum of a contract between the parties, it would." From these authorities, and the reasons upon which they were I decided, we are of the opinion that delivery is not essential to the | validity of the note or memorandum of sale. . . . Judgment affirmed. 88 BAILEY V. SWEETING. [CHAP. L BAILEY V. SWEETING. 9 C. B. N. 8. 843 : 30 L. J. C. P. 150. 1861. Action to recover £76 14s. 3d. for goods bargained and sold. The defendant paid into court £38 3s. dd., and pleaded never indebted to the rest of the claim. The defendant, at the plaintiffs' manufactory in London, in July, 1859, bought four old gilt chimney-glasses at £28 10s., and a walnut chimney-glass at £G 6s., to be paid for bj' a check on delivery ; and also on the same occasion bought various other articles on certain credit terms. The chimney -glasses formed the first parcel of such goods which were sent to the defendant at Cheltenham. The carrier, however, to whom this parcel was delivered so damaged it during its carriage that the defendant refused to receive it when it arrived, and the plaintiffs were at once informed of such refusal. The other goods were afterwards sent in different parcels to the defendant, and were duly received by him ; and it was admitted at the trial that the value of these was covered b}' the amount which had been paid into court, and the only question was as to the defendant's liability in respect of the first parcel, the price of which, with the cases in which it was packed, amounted to £38 10s. 6d. With reference to the statute of frauds, the plaintiffs contended that the sale of all the articles had been under one contract, and that there had been therefore a part accept- ance ; and they also relied on the following letter from the defendant, written in answer to one from the plaintiffs applying for payment, as a memorandum satisfying the statute : — Cheltenham, December 3, 1859. Gentlemen, — In reply to your letter of the 1st instant, I beg to say that the only parcel of goods selected for ready money was the chimney-glasses, amounting to £38 10s. 6d., which goods I have never received, and have long since declined to have for reasons made known to you at the time ; with re- gard to the other items, viz., £11 4s. 9d., £14 13s , and £13 1.3s., for goods had subsequently (less cases returned), those goods are, I believe, subject to the usual discount of £5 per cent., and I am quite ready to remit you cash for these parcels at once, and on receipt of your reply to this letter will instruct a friend to call on you and settle accordingly. I am yours, &o., Geo. Sweeting. The jury, being of opinion that the chimney-glasses were sold under a separate contract from that under which the other articles were sold, found a verdict for the defendant ; leave being reserved to the plaintiffs to move to set the same aside, and to enter a verdict for them for £38 10s. &d., if the court should be of opinion that the defendant's letter of the 3d of December was suflScient to satisfy the statute of frauds. § lO.J THE FORM OF THE OONTKACT. 89 Hawkins obtained a rule nisi accordingly. Senry James and T. E. Chitty now showed cause. WiLLES, J.^ Assuming there to be a valid contract, the defendant would be bound to pay for these goods ; and not having done so, there would be good cause of action. Now at common law it is clear there would exist in this case a good cause of action ; but it is said that the defendant is not liable by reason of the statute of frauds. I think, however, that the defendant is liable, and I found my opinion on the 17th section of that statute. It appears that there is no authority on the subject in favor of either party, with the exception of the dictum of my Brother Blackburn, and that must be taken in connection with the statute itself. Now it is necessary to look at the words of the statute : they are, that the contract shall not be good unless, amongst other things, " some note or memorandum in writing of the said bar- gain be made and signed by the parties to be charged by such contract." It follows, therefore, from these words that, if there be any note or memorandum in writing of the bargain signed b3' the partj' to be charged, the contract is to be allowed as at common law. Then is there in the present case a memorandum in writing containing the terms of the bargain ? I think that on the true construction of the defendant's letter of the 3d of December there is such a memorandum within the meaning of the statute. It has been argued that there is not, because the state- ment in the letter is accompanied bj* a repudiation of the bargain ; but I think that to hold that such letter is not on that account a note or memorandum of the bargain would be to disregard the word " some " in the statute. There is here a note in writing of the bargain ; and the statute does not saj' that where there is such, the statute is not to be satisfied if there exist also other circumstances.^ Rule absolute to enter verdict for plaintiff. 1 Concurring opinions were delivered by Ekle, C. J., and Williams and Keat- ing, JJ. 2 In Buxton v. Rust, L. R. 7 Exch. 279 (1872), Blackburn, J., said : " I may add, with reference to the statement read from Blackburn on the Contract of Sale, p. 66, to the effect that ' it seems difficult on principle to see how an admission of the terms of a bargain signed for the express purpose of repudiation can be considered a memorandum to make the contract good,' that the point has been clearly settled since the publication of that book by tlie decisions of the Court of Common Pleas, which have been referred to, and from which I do not see any reason to dissent ; the rule they establish is as logical and more convenient than that suggested by myself." 90 STEWAKT V. EDDOWES. HUDSON V. STEWART. [CHAP. L STEWART V. EDDOWES. HUDSON V. STEWAET. L. R. 9 C. P. 311. 1874. Stewart, the plaintiff in the first action and defendant in the second, wlio was a merchant and ship-owner at Liverpool, had entered into negotiations with tlie plaintiffs in the second action for the sale of the ' ' Amsterdam " by the latter to the former. Messrs. Eddowes, the de- fendants in the first action, were ship-brokers at Liverpool, who had acted as agents for the vendors there. The first action was brought to recover a deposit paid upon the purchase-money of the ship to Messrs. Eddowes by Stewart, and the second to recover the balance of the purchase-money. Lord Coleridge, C. J. I am of opinion that there should be nc- rule. The facts of the case appear to have been as follows : A memo- randum of agreement was drawn up in a certain shape, neither party having signed it. Stewart inserts certain interlineations in red ink, and then signs it. He then takes it to the defendant Eddowes, who is the representative of the proposed vendors in the matter. Eddowes tells Stewart that it is useless to send the proposal in that form, as the vendors would never agree to it. The interlineations are then struck out, and the document is sent to Glasgow for acceptance by the vendors. There Hudson makes some further interlineations, and acquiesces in the proposal so altered, and with the former interlineations struck out. It is then sent back to Liverpool to Eddowes, who signs it and takes it to Stewart, and informs him that the proposal, with the interlinea- tions made by him struck out and the others put in it, is the agreement that he, Eddowes, is prepared to accept on behalf of the vendors if Stewart will accept it, and Stewart says that he will. It is now sug- gested that evidence is not admissible to show that Stewart acquiesced in the striking out of the interlineations in red ink or the insertion of the others, on the ground that that would be to vary the contract by parol. This contention appears to me to be a fallacj'. There was no variation of the contract, for there was no contract between the parties until the proposal was submitted to Stewart, and Stewart on meeting Eddowes agreed that his handwriting should operate as a signature to what then became a complete agreement between the parties. There was no evidence to varj' the terras after the agreement became an agreement, but only evidence to show what the agreement was, to which the parties agreed when they signed or acknowledged their signa- tures. When the facts are looked to, it ai)pears that there never was an agreement until the document took the shape in which it now appears. Brett and Denman delivered concurring opinions. Mule refused. § 10.] THE FORM OF THE CONTRACT. 91 MURPHY V. BOESE. L. R. 10 Ex. 126. 1875. Action for not accepting goods sold by plaintiff to the defendant. Defence, statute of frauds. In July, 1874, .the plaintiff's traveller, Dehorter, called on the defet)dant, and obtained from him an order for the supply of French clocks. Dehoi'ter wrote the order in duplicate, upon printed headings, by means of manifold writing process, handing the duplicate to the defendant, and keeping the original, which was on three sheets of paper. The following is the copy of the order : — " Ordered from Brown & Co., 68 Rue de Bondy, Paris, and 30, Knightrider Street. ^^ Date. 14 July, 1874. Name. Bernard Boese. Address. Kid- derminster. " Terms, 2^ % discount for cash in 14 days from date of invoice, or net 3 mo. hill. Cases free. Goods carriage free to London." [Here followed a specification of the articles and thfeir prices.] The words in italics were printed. The plaintiff was nonsuited, but obtained a rule to enter a verdict in his favor on the ground that there was evidence for the jurj' that the contract had been duly signed on behalf of defendant. B. T. Williams showed cause. Finlay, in support of the rule. Bramwell, B. I think this rule should be discharged. It has been argued that the case jcannot be distinguished from Durrell v. Evans, 1 H. & C. 174 ; but I think it may be said on the other side that it cannot be taken out of the express words of the statute of frauds. We are, no doubt, bound by the decision of the Exchequer Chamber in Durrell v. Evans, but this case is distinguishable from it, and when I remember that my Brother Crompton took part in that decision, I should wish to speak of it with the utmost respect. It was held in that case that the factor signed the paper on behalf of the buyer, and that this paper was intended to be a memorandum of the contract. I said in the court below, not that the memorandum was an invoice, but that I could not see how the factor was authorized to sign on behalf of the ' buyer, but the Exchequer Chamber thought that there was evidence that defendant meant the paper to be a memorandum of the contract. What they had to consider was, whether the paper before them had the defendant's name written upon it by an agent on his behalf. And they thought that there was evidence that the factor was the agent of the buj-er, because the buyer took a share in the preparation of the contract, and said, in effect, to the factor, " Write it down in such a way." If that decision is wrong, it is wrong in deciding that what the factor was asked to do made him the agent of the buj-er, whereas 92 CHAPMAN V. PARTRIDGE. [CHAP. L it might be said that the buyer was only suggesting a correction to him, and treating him as the agent of the seller. Upon this subject I will say no more. Now here, after the order had been given by the defendant, Dehorter makes two copies of the order, delivering one to the defendant and keeping the other himself. To my mind the question comes to this : Did Deliorter act as the agent for the plaintiff and the defendant ? Now if anybody, not a lawyer, were asked whether Dehorter acted as agent for any one but his master, he would say, Certainly not ; it is unreason- able to suppose such a thing. Now although we are told that a lawyer's view of what is reasonable is different from that of other people, still I think that the common understanding is a good test of the real mean- ing of the transaction. Now, is there any reason why we should disre- gard the understanding of reasonable persons for the sake of avoiding the operation of the statute? I can see none. I cannot see how this traveller is the authorized agent of the defendant. After he took the memorandum away, the defendant would be at liberty to say, " I am not going to be bound by it." If he was the defendant's agent, when did the agency commence? Was he agent at the time he wrote? This will scarcely be suggested. Did he become agent afterwards by rati- fication ? If so, j'ou would come to this difficult}', that when the agent wrote the paper he did not profess to act for the defendant. Try it another wa}-. Suppose the thing was done in a hurry, and the defend- ant had said, " The contract to which you have put m}- name is inac- curately drawn up, and I will maintain an action against you for your blunder." Would not the agent have been surprised at this? If it be said that the same argument would show that Durrell v. Evans was wronglj'' decided, I say that I do not know that this would be the case, for there they held that the defendant had made himself a party to the terms of the contract by requesting that the paper should be altered. As for the argument that the defendant is bound, because the paper was written in his presence, I can onlj' sa^', suppose he had been blind, or that he could not read, or that the paper had been copied out a week afterwards, and then sent to him, could any agency have been inferred in such circumstances ? These difficulties appear to me insurmountable. I think the rule ought to the discharged. PiGOTT and Pollock, B.B., delivered concurring opinions. Rule discharged. CHAPMAN V. PARTRIDGE. 5 Esp. 256. 1805. This was an action on the case against the defendant for non-per formance of a contract for the sale of a quantity of sumach. § 10.] THE FORM OF THE CONTHAOT. 93 The contract as set up by the plaintiff was stated to have been made by a broker of the name of Aylwin. The defendant was executor to his brotlier, and his widow, Mrs. Partridge, was interested and continued in the business. Aylwin was called. The account he gave of the transaction was, that Mrs. Partridge and the plaintiff, having been in treaty for the sale of this sumach, they had agreed that the witness should be the broker to manage the sale between them ; the sale did not then take place, but some days after. Chapman, the plaintiff, informed him that he had pur- chased the sumach, and informed him of the bargain, and desired him to put down the terms. He made an entry in his book, as desired by Chap- man, and he sent a sale note of the terms to Mrs. Partridge. She did not return the sale note, but in a conversation with him some days after, she said she was very sorry for what she had done, and that Mr. Lawrence Partridge (the defendant) was angry with her. Mansfield, C. J. The note in writing may be received, it is signed by the broker, and the only question is, if it was signed by the authority of the defendant. It is in evidence, that she had con- sented that Aylwin should act as the broker, that authority might be countermandable ; but when he does act as agent to her in making the bargain, and she receives the sale note, she does not refuse it, or send it back, but in two days after expresses her sorrow for having done it. The jury must, therefore, say, if Aylwin had any authority from Mrs. Partridge to make the contrract, or if what passed then was not a recog- nition of his authority, which would be same thing as if she had given him directions to make the contract at first. It was proved, that the defendant refused to perform the contract, and this action was brought to enforce it ; but that could not be done if the note of the bargain, as stated bj' Aylwin, was not complete, which depended upon the fact of his then having authority. Verdict for plaintiff. Shepherd and Bailey, Serjeants, for the plaintiff. Best, Serjeant, for the defendant. GOOM V. AFLALO. 6 B. & C. 117. 1826. Assumpsit brought by the plaintiff against the defendant for refusing to deliver a quantity of Barbary gum, pursuant to a contract of sale alleged to have been entered into with the plaintiff by a Mr. Virgo, as the broker of the plaintiff and defendant. Plea, the general issue. At the trial before Abbott, C. J., a verdict was found for the plaintiff. After- wards, upon a motion for a new trial, the court directed that the facts should be stated for their opinion in the following case : — 94 GOOM V. AFLALO. [CHAI-. I. Mr. Virgo, as the broker of the defendant, and with his authority, agreed with the plaintiff that the defendant should sell and deliver to him 170 serons of Barbary gum at the price of 55s. per ewt. The broker thereupon wrote in his broker's book the terms of the contract. This entrj' in the broker's book was not signed by the broker or any other person. Between nine and ten o'clock at night of the said 23d February the broker sent to the plaintiflf and defendant respectivel}' paper writings commonly called bought and sold notes, copied from the entry in his book, and signed by him. Between nine and ten o'clock in the morning of the 24th February, the defendant objected to and returned the sold note to the broker, and wholly refused to deliver the gum. Whereupon this action was brought. Ziaw, for plaintiff. Chitty, contra. Abbott, C. J. It appears in this case that Virgo the broker was authorized by the defendant to sell the goods in question, that he con- tracted for the sale of them to the plaintiff, entered a memorandum of the bargain in his broker's book, but did not sign that entrj-, and then sent to each of the parties a copj- of the memorandum signed by him- self. The only objection to the validity of the contract is the want of his signature to the memorandum in the book. It is clear that the contract was made in such a manner as to bind the defendant within the reqiysites of the statute of frauds. If there- fore it is to be held invaUd, this can onh- be done on the ground of some usage or custom of merchants which the court is at liberty to recognize as a part of the common law. No such usage has been found or stated as a fact upon the present occasion. There are several cases in the books in which this point has been noticed. They were all quoted in the argument at the bar, and it is unnecessary' to repeat them. A signed entry in the broker's book, and signed notes conformable to each other delivered to the parties, are spoken of as making a valid contract ; the entry in the book has been called the original, and the notes copies ; but there is not any actual decision that a valid contract may not be made by notes duly signed, if the entrj' in the book be unsigned ; and in one case the late Lord Chief Justice Gibbs is reported to have spoken of some supposed decision to that effect as having been overruled. Under such circumstances we cannot say that the rule for which the defendant contends has been adopted b^- the court as part of the law merchant. Strong expressions as to the duty of the broker to sign his book do not go far enough for this purpose, nor does the obligation to do this which a broker is supposed to enter into upon receiving a license to practise in the city of London. Brokers are, I believe, established in the principal commercial towns on the continent under municipal regulations calculated to obtain punctuality and fidel- ity in their dealings ; and tlie signature of their book is certainly one method of insuring these, and may in some cases furnish evidence and § 10.] THE EOEM OF THE CONTRACT. 95 facilitate the proof of a contract. We have no doubt that a broker ought to sign his book, and that everj' punctual broker will do so. But if we were to hold such a signature essential to the validity of the con- tract, we should go further than the courts have hitherto gone, and might possiblj' lay down a rule that would be followed by serious incon- venience, because we should make the validity of the contract to depend upon some private act of which neither of the parties to the contract would be informed, and thereby place it in the power of a negligent or fraudulent man to render the engagement of parties valid or invalid at his pleasure. For these reasons we think the plaintiff is entitled to retain the verdict. PARTON V. CROFTS. 16 C. B. N. S. 11 : 33 L. J. C. P. 189. 1864. Erle, C. J. I am of opinion that the judgment of the count}- court judge was right. The action was for not accepting goods sold bj' the plaintiff to the defendant. It is clear from the facts found by the county court judge that Bentley & Co., the brokers, were employed as such by both the buyer and the seller. The buyer proposed to take the iron, the subject of the action, at a certain price, and that price was accepted by the seller ; and in mj' opinion the broker was the common agent of both parties, and had authority to make and so made the contract between them. The question which we have to determine is, whether the requisites of the statute of frauds have been complied with, — that is to say, whether there has been, as required by that statute, a memorandum in writing of the contract. I am careful in drawing the distinction between making a contract and a memorandum showing that the contract has been made, and which may be made much later than the contract. In the present case the memorandum of the contract which was produced was signed hy the brokers, who were agents for both parties ; and it stated that the iron ( was sold to the defendant, and specifies the price. Mr. Quain saj-s ' that the usual form of handing the bought note to the purchaser and the sold note to the seller was not complied with here by the brokers, and that the only one of the two instruments which was produced was not sufficient to satisfy the statute. I am of opinion that the note produced contained a memorandum of the contract between the parties, signed by their agents lawfully authorized as required by the statute. It is said that the note has only the term " sold," and has not the term " purchased ; " but the relation of buj-er and seller cannot come into existence without there has been a purchase as well as a sale ; and when therefore the memorandum says " sold," it, in effect, says also •^ bought." In Sievewright v. Archibald, 17 Q. B. Rep. 103 ; s. c. 20 Law 36 THOMPSON V. GARDINEB [OHAP. I. J. Eep. (n. s.) Q. B. 529, the bought and sold notes differed, and so the sufHeiency of the memorandum of the contract was defeated ; but here only one of the notes was produced, which therefore distinguishes i this case from that of Sievewright v. Archibald. 1 am of opinion that it is enough for the plaintiff to produce in evidence one of the notes signed by a person acting as agent for both parties, and I think that the county court judge came to a right conclusion.* THOMPSON V. GARDINER. 1 C. P. D. 777. 1876. Brett, J. This was an action for not accepting butter pursuant to contract. It was tried before me, and I directed judgment to be entered for the plaintiff. A motion has been made to enter judgment for the defendant in pursuance of leave reserved by me for that pur- pose, on the ground that there was no evidence of any memorandum of the contract witliin the statute of frauds. The facts were these : The contract was made with a person who must be taken to be a broker, and who was acting for the seller only, and not for the buyer. The defendant agreed upon the terms of sale with the broker. These terms were not disputed. If there was a sufficient memorandum in writing signed hy or on behalf of the party to be charged, the defendant had unjustifiably refused to accept the butter. The broker sent a not* of the contract to the buyer and also to the seller. He signed the note which was sent to the seller, but he did not sign that which he sent to the buyer. He, however, entered in his broker's book both the bought and the sold note, and signed them both. The butter was tendered to the defendant some time after the note was sent to him, he having kept the latter until then without complaint or remonstrance. The reason he assigned for his refusal was, not that he had not entered into the contract, but that the note sent to him was not signed. I decline to enter into the terms of the two notes, as to which was the bought and which was the sold note. The real question upon the notes on this point always turns on the person to whom the note is sent. If the broker is authorized by the buyer to make a contract, the note sent by him to the seller is the note which is intended to be the bargain, and vice versa. The note which was to bind the defendant here, was the sold note. "We are not driven to rely on the notes in the broker's book, because the note delivered to the plaintiff (if the broker had authority to sign the memorandum) binds him. The authorities are conclu-sive to show that the broker, acting for one of the contracting parties, making a contract for the other, is not authorized by both to bind both. But 1 Concurring opinions were delivered by Williams and Willbs, JJ. § 10. J THE FORM OF THE CONTRACT. 97 the broker who makes a contract for one may be authorized by that person to make and sign a memorandum of the contract. That has frequently been held. The question here is whether there was any evidence that the broker was so authorized. The evidence was, that a note of the bargain was sent to the buyer ; and that his only objection was, not that the broker who sent it had no authority to send it, or that no such contract was made, but that the memorandum sent to him was not signed. That was ample evidence for the jury that the defendant ] recognized the authority of the broker to sign for him. Luckily, how- i ever, the broker did sign the note which was to bind the defendant, that is, the sold note. Then, this further fact remains, that the broker kept a book in which both bought and sold notes were entered and signed by him. I therefore think that, even if the signature to the note sent to the seller was not sufficient to bind the buyer, the signature in the broker's book was enough to satisfy the statute. The broker being a broker authorized to make a memorandum of the contract on the defendant's behalf, the entry in his book was sufficient evidence of a memorandum of the bargain signed by a dul3' authorized agent within the meaning of the statute of frauds to bind the defendant. My Brother Grove has doubts, and wishes me to say that, in his judgment, the fact of the defendant keeping the note sent to him with- out objection was not sufficient to show an authority in the broker to bind him. But he thinks that, inasmuch as when the defendant made the objection he confined it to saying, "You did not sign it," he thereby admitted the agency of the broker to make the contract on his behalf. He therefore agrees with me that judgment was righily entered for the plaintiff. My Brother Archibald authorizes me to say that he concurs in the above judgment, and in the reasons I have given. Judgment /or the plaintiff'. CHAPTEE II. §2. Bargain and Sale: Specific Goods. GILLETT V. HILL. 2 Crompt. & M. 530. 1834. Batlbt, B. There is no doubt that there was originally an order signed by Orbell, and addressed to the defendants, requesting them to deliver twenty sacks of flour to the plaintiff. The order does not say twents'^ sacks ex a greater quantity', to be selected by the defendants, but twenty sacks specifically. The defendants knew what quantity of flour belonging to Orbell they had, and they might have indorsed on the back of the order that they had so many only ; and, from the cir- cumstance of there being no indorsement that thej- accepted the order to a limited extent, and to a limited extent only, I should have thought that the jury would act upon a safe principle in believing that the defendants had twenty sacks belonging to Orbell in their possession, and the verdict of the jury therefore appears to me consistent with the evidence. It appears to me, that, looking at the form of the order, trover was the proper form of action, and that the cases which have been cited do not apply to this case. Those cases maj' be divided into two classes : one in which there has been a sale of goods, and something remains to be done hy the vendor, and until that is done the propertj' does not pass to the vendee so as to entitle him to maintain trover. The other class of cases is, where there is a bargain for a certain quantitj' ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks flt ; then the right to them does not pass to the vendee until the vendor has made his selection, and trover is not maintainable before that is done. 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 quantitj' I have agreed to deliver until a selection is made. There is no individuality until it has been divided. But those cases do not apply here. This was an order to deliver twenty sacks of flour, not out of a greater quantity, but twenty sacks specificall3^ ; and when the defendants accept that order without restriction, thej' admit that they have twenty sacks which they will appropriate to that order, and the defendants have no right afterwards to say that they have not twenty sacks unappropriated. The defendants should not have accepted the order generally, unless they meant to be bound by it ; but having accepted the order generally, it seems to me that the property in the flour passed to the plaintiff, and that the verdict is right.'' ' Concurring opinions were delivered by Lord LyNDHnRST, C. B., and VXUGHAN, B. § 2.] BARGAIN AND SALE : SPECIFIC GOODS. 99 HURFF V. HIRES. 40 N. J. L. 581. 1878. HuEFF, the plaintiff in error, in the fall of 1873, purchased of one Heritage two hundred bushels of corn, out of a lot of four or five hun- dred bushels which Heritage had in his crib house. He inspected and approved of the corn before he bought it, and paid cash for it imme- diately on the purchase. The arrangement between Hurff and Heritage was, that the corn should be left where it was until it should get hard enough to keep well in bulk, and then Heritage was to deliver it. In January, 1874, Hires, as sheriff of the county of Salem, by virtue of an execution against Heritage, levied on the entire quantity of the corn as his property. After the levy, Heritage delivered two hundred bushels of the corn to the defendant, whereupon the sheriff brought trover against him. Depue, J. ... The corn was purchased by Hurff, and paid, for in good faith before the execution was issued. It was lying in the bulk, unseparated, when the lev}' was made, and, after levy, was separated from the mass, and delivered hy the vendor. The case was tried in the court below on the theory that, though the purchaser bought the corn and paid the price, the title did not pass to him, be- cause the quantitj- sold was not separated from the original bulk until after levj', and that, therefore, the whole still remained liable to seizure as the property of the vendor. If the property had remained in bulk, the quantity purchased never having been separated from the mass, the purchaser might not have been able to maintain replevin, for the reason that in replevin the plaintiff must be the owner of the specific chattels he sues for, and must describe them in his writ. Scudder v. Worster, 11 Cush. 573. But that does not solve the question involved in this case. May not a party who has bought and paid for a specified quantity or number of articles from a larger mass, identical in kind and uniform in value, maintain trover against a third person who converts the whole, or defend in trover brought bj' an officer levying on the whole as the propert}' of the vendor, when a separation of the quantity he was entitled to under his purchase has been made under levj', and possession thereof has been delivered to him ? The question whether the property has passed under a contract of sale, has generallj' arisen where the right of an unpaid vendor is in issue. Payment of the price is so essential an ingredient of a sale that neither in law nor in morals is the buyer entitled to have the goods until he pays for them. The lien of the vendor is waived where pay- ment is to be made at a future day, or there has been a delivery actual, 100 HUEFF V. HIRES. [CBAP. II. and in some cases merely constructive : hence the inclination of the courts to hold, on slight circumstances, that the contract is so incom- plete that a transfer of title was not intended where the delivery is constructive only, and the insolvency of the buyer has intervened with the contract price unpaid. Prominent, also, among the cases in the same direction, are those in which the right of the purchaser to object to the quality of the article, which is the subject-matter of the contract of sale, is involved. Here, also, there is an inclination to hold the title to be in abeyance, if any well grounded objection to qualitj- is apparent. A contract for the delivery of goods, merely of a particular description, is necessarily executory ; and where it relates to a certain quantity from a large bulk, not uniform in quality or value, the transac- tion is so incomplete that until selection, and not mere sepai'ation, is made, the rights of the parties respectively are undefined. In eases like those mentioned, it is considered, for substantial reasons, that the title does not pass immediately upon the terms of the contract being agreed on ; not that these cases create exceptions to the rule that the property will pass by the contract, if such be the . intention of the parties, but the circumstances are such, and of such weight, that it is presumed that it was not the intention of the parties that the sale should be complete. The case under review is distinguished, bj' marked peculiarities, from those embraced in the foregoing classification. Tlie contract of sale was not obnoxious to the statute of frauds. The price was paid, and, con- sequentl}-, no right of a vendor to have the unpaid purchase money ex- isted. Nothing remained to be ascertained or adjusted to determine what the rights of the parties were. The property had been inspected and approved ; it was left with the vendor for the purchaser's conven- ience, and the mass from which the quantity alone was to be separated, was identical in kind and uniform in value, so that the privilege of selec- tion would not confer any advantage upon either party. Nothing was left undone by the parties, except measuring out the quantit3- purchased from any part of the whole bulk — a ministerial act which might be done by cither party, or by any stranger, as well as by the parties themselves. The tendency of the modern decisions is to give effect to contracts of sale according to the intention of the parties, to a greater extent than is found in the older cases, and to engraft upon the rule that the property passes by the contract of sale, if such be the intention, fewer exceptions, and those only which are founded on substantial considera- tions affecting the interests of parties. At one time, it was held that, under an agreement to purchase an entire bulk at a specified price, the property did not pass if the whole amount of the purchase money de- pended upon an ascertainment by weight or measurement subsequently to be made. Hanson v. Meyer, 6 East, 614. This decision was made in favor of an unpaid vendor, and was afterwards distinguished, on the ground that the weighing was to be done by the seller, and it was held that the property would pass if such was the intention of the parties, § 2.J BARGAIN AND SALE : SPECIFIC GOODS. V X^ '^3^^/ though something was to be done, such as weighing, measurJBg^;*OT testing the goods, to ascertain the contract price, if what remained to be done was to be done by the buyer. Turley v. Bates, 2 H. & C. 200. This distinction was adopted in Boswell v. Green, 1 Dutcher, 390. Still later, the English courts entirely repudiated this distinction, and held in cases where the weighing was to be done by the seller, the property would pass, though the ultimate contract price was to be ascertained by a subsequent weighing, if the parties so intended ; and Chief Justice Cockburn, in his opinion, said that " it is equally clear that, in point of principle and in point of common sense, there is nothing to prevent a man from passing the property to the thing he proposes to sell and the buyer proposes to buy, although the price may remain to be ascertained afterwards." Martineau v. Kitching, L. R. 7 Q. B. 436 ; Castle v. Playford, L. R. 7 Ex. 98. It may now be considered as the law of the English courts, that where the contract price has been paid or advances i made on it, the property will pass to the buyer, according to the inten- I tion of the parties, although something remains to be done by the ) seller to complete the goods, in conformity with the contract, before they are ready to be delivered. Young v. Matthews, L. R. 2 C. P. 127 ; Langton v. Waring, 18 C. B. (n. s.) 315. That the parties contemplated the corn should be measured before it left the vendor's possession, will not, of itself, prevent the property passing. Nor will the fact that the vendor was required to deliver it when the time for delivery arrived, accomplish that result. Where the goods sold have been selected and designated, and the price paid, \ the property will pass bj' the contract of sale, though it was one of the ' terms of the contract that the vendor should transport them to a place named for delivery. Terry v. Wheeler, 25 N. Y. 520. The case, therefore, must stand exclusively on the fact that no separation of the quantit3' sold had been made from the entire bulk before the execution was levied, and the question is, whether there is a rule of law requiring, under the circumstances of this case, a separation of the quantity sold from the larger bulk, before title will pass to the purchaser, so positive in its sanction as to overrule the intention of the parties. It is undoubtedly the doctrine of the English courts that, " where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver which he thinks fit, there the right to them does not pass to the vendee until the vendor has made his selections." Per Bayley, B.,Gillettv. Hill, 2 C. & M. 530. This doctrine is founded on correct principles, where the gross bulk is variable in kind or quality, and the selection from it of that part which shall be delivered is of benefit to the vendor. It has been applied to a sale of a specified quantitj', from a larger bulk of uniform kind and value, where the purchaser had seen the goods in bulk and approved of it. Aldridge v. Johnson, 7 E. & B. 885. In my judgment, this principle should not be applied where the bulk, 102 HURFF V. HIRES. [OHAP. 11. from which the quantity purchased is to be separated, is uniform in kind and qualit}', and has been approved by the purchaser, and the full contract price has been paid. There is a clear and well settled legal distinction between the individual rights of several parties in goods of uniform kind and qualitj', and in those in which there is no uniformity in these respects. It is recognized in cases of co-tenancj' of personal property, readily divisible bj' weight or measurement into portions ab- solutely alike in quality and value. In such cases, either tenant may take his proper proportion, and it will be regarded as a proper sever- ance, so long as he does not take more than his share ; but the rule is otherwise in case of property not severable in this manner. In that event the partition must be by agreement, or proceedings in equity. Tripp V. Riley, 15 Barb. 333; Channon v. Lusk, 2 Lansing, 211; Clark V. Griffith, 24 N. Y. 595 ; Freeman on Co-tenancy, § 252 ; 6 Am. Law Rev. 458. It is also recognized in cases of the intermingling of the goods of several owners, where the whole is indistinguishable in quality and value. In Jackson v. Anderson, 4 Taunt. 24, one F., at Buenos Ayres, consigned to S. & Co. a barrel containing four thousand seven hundred and eighteen Spanish dollars, and advised the plaintiff that one thousand nine hundred and sixty-nine of them were designed for him as a remittance of the next proceeds of sale made by him on plaintiff's account. S. & Co. assigned the bill of lading to the defend- ants, who received the whole value of the four thousand seven hundred and eighteen dollars, and carried it to^the credit of S. & Co. In an action of trover, the plaintiff was allowed to recover, and, consequentljs there was no individualization of the specific dollars he was entitled to. It was contended bj' the defendants that, no separation having been made of the one thousand nine hundred and sixty-nine dollars to enable the plaintiff to designate them as his propertj-, trover was not main- tainable. The objection was overruled, and Chief Justice Mansfield said : " It appears that no separation was ever made from the whole quantitj- of one thousand nine hundred and sixty-nine dollars belonging to the plaintiff, and an objection has been taken on that ground against the form of action ; but we think there is no difficulty in that point ; the defendant has disposed of all the dollars, consequently he has dis- posed of those which belong to the plaintiff ; and, as all are of the same value, it cannot be a question what particular dollars were his. . . . One has a right to a certain number, and the other to the rest. If a man keeps all, and has no right to a part, the action lies for that part which he wrongfully detains." In Gardner v. Dutch, 9 Mass. 427, the plaintiff, in the adjustment of the accounts of a voj'age performed for W. & R., in the schooner " Liberty," became entitled to sevent3'-six bags of coffee, lying in a lot of bags, and not distinguished by marks, or in anj' manner separated from the others. As against an officer levying on the whole, by virtue of an attachment against W. & R., the plaintiff was allowed to maintain replevin for his part, the court sajing, " Though the bags belonging to him had no distinguishing marks, he § 2.] BARGAIN AND SALE : SPECIFIC GOODS. 103 might have taken the number of bags and the quantity of coffee to which he was entitled by his own selection, while they remained in the hands of W. & R., and the defendant, as a deputy-sheriff, could not change the rights of third parties." There are authorities of great weight, that apply this doctrine to con- tracts of sale. (After citing and commenting on Whitehouse v. Frost, 12 East, 614, Woodley v. Coventry, 2 H. & C. 164, Gillett v. Hill, 2 C. & M. 530, Knights v. Wiffen, L. R. 5 Q. B. 660, and Farmeloe v. Bain, 1 C. P. D. 445, the judge continued.) These cases cited, it is true, were against defendants who were treated as mere custodians of the prop- erty, and the right to maintain the action was put on the ground of estoppel. The English courts make a distinction between this class of cases and actions directly between the vendor and purchaser. But, manifestly, this distinction is in semblance onlj-, and not in substance. In each of the cases above cited, except Gillett v. Hill, the defendant was the original vendor, and no separation of the goods had been made as between him and his vendee, and the acceptance of a delivery order created no other conti-act than that in force between him and his vendee, to hold for the benefit of the sub-vendee a certain designated quantity of goods. Acceptance of the deliver}' order might estop a defendant from denying that he had that quantity of goods in his custodj-, subject to tlie order of the person signing the delivery order. But if there be a rule of law which overrules the intention of parties, and forbids property passing under a contract of sale, unless the quantity sold be separated from the larger mass, it is difficult to perceive why it should not produce the same result between the original vendor and the holder of a delivery order, who, in virtue thereof, succeeds only to the rights of the original contract of sale. Nor will the fact that a defendant stands in the position of being regarded as a mere custodian of the property material!}' alter the situation of the parties, for it is well settled that a vendor may become the bailee of his vendee, and the cus- todian for his benefit of the property sold, if the parties so intend. Marvin v. Wallis, 6 E. & B. 726 ; Beaumont v. Brengeri, 5 C. B. 301 ; Castle V. Sworder, 6 H. & N. 828. While the English courts adhere to the rule that, as between vendor and purchaser, separation of the quantity sold from a larger bulk, iden- tical in kind and quality, is necessary before the title will pass, how slight and unimportant a circumstance will take the transaction out of the operation of the rule is shown by Aldridge v. Johnson, supra. There the plaintiff bought of one K. one hundred out of two hundred quarters of barley, which plaintiff had seen in bulk and approved, and he paid part of the price. It was agreed that the plaintiff should send sacks for the barley, and that K. should fill the sacks and take them to a railway station to be forwarded to the plaintiff. The plaintiff sent sacks onlj- for part of the barle}-. K. filled these, but did not deliver them, and in a few days he turned the barley out of the sacks on the heap from which it was taken, so as to be indistinguishable from the rest of 10.4. HUKFF V. HIKES. [OHAP. 11. the heap, and became bankrupt. The plaintiff tendered to the assignee in bankruptcy the balance of the purchase money, and demanded the two hundred quarters of barley, and on a refusal to deliver them, sued him in trover. It was held that he was entitled to recover for the por- tion put in the sacks by K., but for the residue he was without remedy. It did not appear in the case that the plaintiff, in fact, knew that a por- tion of the barley had been put in the sacks, and, therefore, he could not actually have assented to the selection that was made, and the assent of the vendee to the specific appropriation was regarded in Campbell v. Mersey Docks, 14 C. B. (n. s.) 412, as necessary when such an appropriation is needed to transfer the title. Furthermore, when the demand was made on the assignee in bankruptcy, which laid the foundation for the action, the barley lay in .the heap, and the part K. had put in the sacks was not distinguishable from the rest. If, therefore, the defendant had complied with the demand so far as the court held that he should have complied, he could only have done so by separating from the heap as much in quantity as the bankrupt had , measured up, — a process he could have as readily performed in rela- tion to the full quantity of the barley covered by the contract. A comparison of the facts in evidence with the result that was reached, will show that the rights of the parties were disposed of upon a mere formality. In the American courts the cases on this subject are quite conflicting. Many of them are cited and examined by Mr. Holmes in his notes to 2 Kent (12th ed.), 492, 590, and more particularly in his article in 6 Am. Law Review, 450. In Virginia, New York, Connecticut, and Maine, the courts have held the broad doctrine, without qualification, that on a contract of sale of a certain quantity from a larger bulk, uniform in kind and quality, the property will pass, though there be no separation of the quantity sold, if such be the intention of parties, and that no rule of law will overrule such intention if it be otherwise clearly expressed. Pleasants v. Pendleton, 6 Randolph, 473 ; Kimberly v. Patchin, 19 N. Y. 330; Russell v. Carrington, 42 N. Y. 118; Chapman v. Shep- ard, 39 Conn. 413 ; Waldron v. Chase, 37 Maine, 414. . . . The doctrine held in these cases, it seems to me, is founded on good sense and correct legal principles. The rule that the property in goods will pass by the contract of sale, if such be the intention of the parties, is of the utmost importance in the transaction of the business of the country, and it ought not to be qualified by exceptions and restrictions which do not arise from the substantial interests of the parties. In this case the sale, in all material respects, was complete. The corn had been inspected and approved, and the price agreed on and paid. All these things had been done before the levy of execution. The property had been left with the vendor for the purchaser's conven- ience. Nothing was left undone but measuring out the designated quantity from a bulk identical in kind and value, and a delivery to the § 2.] BARGAIN AND SALE : SPECIFIC GOODS, 105 vendee. That was done after the levy and before suit brought ; and there is no pretence that it was unfairly done. The defendant, by his purchase, and the payment of the price, ac- quired equitable rights that ought, if possible, to be protected ; and it is the policy of the law to protect interests acquired for a valuable con- sideration in good faith, against the claims of execution creditors. In trover, property is involved onlj' so far as determines the form of the action and the damages recoverable. The defence was a meritorious one, and no legal principle is in the way of permitting it to be made, if, in fact, the parties intended that the property should pass. That question should have been submitted to the jury, and, for that reason, the judgment should be reversed AM concur for reversal. COMMERCIAL NATIONAL BANK v. GILLETTE. 90 Ind. 268. 1883. Elliott, J. The Elkhart Car Company, by a written contract, sold to the appellant 510 car wheels, constituting a part of 1,100 wheels. At the time of the sale the wheels were in one common mass, and there was no separation nor any designation of the wheels sold to the appellant. After the execution of the contract, the entire lot of wheels was seized upon executions issued at the suit of appellee, and this action was brought for the possession of those sold. The contention of appellee is that appellant acquired no title, because the articles sold were not designated or separated from the common lot of which they formed a part, and this contention prevailed in the court below. There is much strife in the American eases upon this question, but none in the English. The weight of the former is perhaps with the theory of appellant, but the text-writers are, so far as we have exam- ined, all with the English decisions. Our own cases are in harmony with the long established rule of the common law. In the case of Bricker v. Hughes, 4 Ind. 146, the English rule was approved and enforced. In Murphy v. State, 1 Ind. 36.6, the court said : " To render a sale of goods valid, the specific, individual goods must be agreed on by the parties. It is not enough . . . that they are to be taken from some specified larger stock, because there still remains something to be done to designate the portion sold, which portion, before the sale can be completed, must be separated from the mass." This doctrine found approval in Scott v. King, 12 Ind. 203, and there are other cases recognizing it as the correct one, among them Mofflt v. Green, 9 Ind. 198; Indianapolis, &c., R. Co. v. Magnire, 62 Ind. 140; Bertelson V. Bower, 81 Ind. 512 ; Lester v. East, 49 Ind. 588, vide opinion, p. 594. 106 OOMMEKOIAL NATIONAL BANK V. GILLETTE. [cHAP. II. The rule which our court has adopted is upheld by the American cases of Hutchinson v. Hunter, 7 Pa. St. 140; Haldeman v. Duncan, 51 Pa. St. 66 ; Fuller v. Bean, 34 N. H. 290 ; Ockington v. Ritchey, 41 N. H. 275 ; Morrison v. Woodley, 84 111. 192 ; Woods v. McGee, 7 Ohio, 467 ; McLaughlin v. Piatti, 27 Cal. 463 ; Courtright v. Leonard, 11 Iowa, 32 ; Ropes ■y.' Lane, 9 Allen, 502 ; Ferguson v. Northern Bank, 14 Bush, 555 (29 Am. R. 418). In Michigan the rule seems not to be definitely settled ; but in a late case it was said : " To the elaborate argument made for the defence to show that there can be neither a sale nor a pledge of property without in some manner speciall}' distinguishing it, we fully assent, and we have no purpose to qualify or weaken the authoritj- of Anderson v. Brenneman, 44 Mich. 198." Merchants', &c. Bank v. Hibbard, 48 Mich. 118. The civil law rule is the same as that of the common law, and our great lawyers have given it unhesitating approval. 2 Kent, Com. 639 : Story, Sales, § 296. The American cases which have departed from the long settled rule are built on the cases of Kimberly v. Patchin, 19 N. Y. 330, and Pleas- ants V. Pendleton, 6 Rand. 473, and these cases proceed upon the theor\- that commercial interests demand a modification of the rule. In our judgment, commercial interests are best promoted b}' a rigid adherence to the rule which the sages of the law have so long and so strongly ap- proved. The rule secures real transactions and actual sales, and thus checks the wild spirit of speculation. It prevents, in no small measure, the making of mere wagering contracts ; it puts business on a stable basis, and makes it essential that there should be real, and not sham, transfers of property ; it makes titles secure, protects creditors and pur- chasers, and represses fraud. If it were granted that the rule does somewhat interfere with the freedom of business transfers, still the good it produces far outweighs this inconvenience. But we do not believe it does interfere with actual business transfers, for common experience informs us that real sales are seldom, if ever, made without a specific designation of the thing bought. The rule may interfere with dealers in " margins," makers of " corners," and framers of "options," and to affirm that it does do this is to give it no faint praise. In principle the rule is sound, and in practical operation salutary. The efforts made by the courts that have departed from it to make exceptions, to manufacture distinctions and point out differences in order to escape disastrous consequences, afford strong evidence of the wisdom of the rule. The line of decisions in some of the States, where a departure has been taken, is a devious and tortuous one, and this is to be expected when once sound principle is turned from, and new rules sought and adopted which have no support in fundamental principles. We have no disposition to depart from the rule which has so long prevailed in this State and elsewhere. Judgment affirmed. § 2.] BARGAIN AND SALE : SPECIFIC GOODS. 107 HUTCHINSON et al. v. HUNTER. 7 Pa. St. 140. 1847. Rogers, J. . . . The facts, so far as material to this case, are these : R. W. Poindexter, having a lot of about one hundred and twenty bar- rels of molasses in the cellar of his warehouse in the citj- of Pittsburg, made a parol contract of sale of one hundred barrels of the lot to the plaintiff at thirtj' cents a gallon, a few days before the great fire of the 10th of April, 1845. The plaintiff, preferring not to receive immediate and actual deliverj- of the molasses, obtained permission of Poindexter that the molasses might remain in Poindexter's cellar. The parties as- sumed what they believed to be a fair average of the contents of the barrels, being forty gallons per barrel, and the plaintiff gave Poindexter his note for the amount as ascertained, agreeing that it should be cor- rected bj' the gauge of the barrels when they should be separated and delivered to the plaintiff. A few days afterwards, on the 9th April, 1845, the defendants called upon the plaintiff to purchase some molasses. The plaintiff informed them that he had one hundred barrels in Poin- dexter's cellar, which he was willing to sell, and, after a treaty, the parties agreed on a purchase and sale of the one hundred barrels of molasses, at thirty-two cents per gallon. Thereupon the plaintiff said he would go down to Poindexter's and have the molasses turned out, gauged, and delivered. But the defendants replied they would prefer not ; they did not want to remove it ; they had no convenient place to put it, and asked plaintiff to see Poindexter and get his leave that it should remain where it was, and told plaintiff to come to their oflBce and they would give him a check for the amount of the molasses. Tlie next day the molasses was destroyed in the great fire, without having been removed or gauged. After the contract, and before the fire, the plaintiff informed Poindexter that he had sold the molasses, and requested that it might still remain in his cellar for the purchasers, to which Mr. Poindexter consented. The average contents of the bar- rel was usually forty-one to forty-two gallons, some as high as forty-five gallons. ' So far as they were sold by Poindexter, who it seems had sold about one hundred and twenty-five or one hundred and thirt}' barrels, when plaintiff bought, they gauged from thirty-nine to forty-three gallons. This was a sale of one hundred barrels of molasses, of unequal con- tents and unequal value, part of a specified larger stock. The particu- lar one hundred barrels is not designated cither by marks or numbers, nor is it separated from the molasses unsold ; it is therefore wanting in that essential feature to constitute a complete and valid sale. The ■goods sold, as we have seen, must be ascertained, designated, and sep- arated from the stock or quantity with which thej' are mixed before the property can pass. It remains the property of the vendor, notwith- Btanding the contract, until it is identified and individualized. This is 108 GOLDEE V. OGDEN. [CHAP. II. unquestionablj- the law, as is firmly settled by authoritj', and which we have no wish nor authority to alter. It is better to stick to the beaten track rather than try untrodden ground. As Judge Grinke says, it is difficult to answer the inquirj^, On whom would the loss have fallen had part only of the molasses been destroyed? If a person purchases cloth from a merchant for a coat, not to be cut off until the tailor be sent for, and in the intermediate time the store and its contents are burnt bj' Are, there would be but one opinion, tliat the loss must fall on the seller, and not the buyer. But it is impossible to distinguish the case put from the case in hand. An idea seems to have been entertained that the sub-contract differs this case from the cases cited, but in what particular I am at a loss to imagine. So far as regards the identification or separation of the goods sold, it remains precisely as before. It is said that Poindexter became the bailee of Hutchinson & Co. But the question returns, Of what was he the bailee ? Certainly of property which had not been separated from the specified stock. It still remains the property of Poindexter, Hutchinson & Co. taking the place of Hunter. Hunter cannot convey to Hutchinson & Co. a better right than he himself had. Hutchinson & Co. succeeded to his contract, and until the separation of the goods no title passes, because, according to the well settled principles of law, the bargain and sale is not complete. It will be observed that the case is put entirely on the fact that the barrels were of unequal quantities and values, and had not been sep- arated from the molasses still owned by the vendor. That the molasses was not gauged does not enter into the consideration of the court in determining the defendant's liability to the action. Judgment reversed, and judgment on the demurrer for the defendants. GOLDER V. OGDEN. 15 Pa. St. 528. 1850. Action of trespass by Ogden, assignee of Longstreth & Son, against Golder, for taking one thousand pieces of wall-paper. Golder claimed title to the paper under a contract made some months prior to the taking with Longstreth & Son for two thousand pieces of wall-paper for $666, for which sum he gave his promissory notes. He received one thousand pieces of the paper, and it was agreed that the other one thousand should remain in the seller's store until Golder should call for them. These notes were negotiated by Longstreth & Son, and paid by Golder. After Longstreth & Son's assignment to Ogden, Golder replevied the one thousand pieces in question. Sharswood, J., directed a verdict for the plaintiff. § 2.] BARGAIN AND SALE : SPECIFIC GOODS. 109 G. Mallery, for plaintiff in error. F. B. Totonsend, for defendant in error. Gibson, C. J. Had the paper been sold in a separate lot, the owner- ship would have passed, though it contained a few pieces more than the number. The buyer would have taken the whole as a lot sold to him in gross. Or had the pieces been separated from the rest, and pointed out to him as his two thousand, a small excess would not have vitiated the sale. So if the bargain had been that they were to be counted before they were taken away. Such is the principle of Dennis v. Alex- ander, 3 Barr, 50 ; Scott v. Wells, 6 W. & S. 359 ; and Hutchinson v. Hunter, 7 Barr, 140, which are less stringent than the English cases. But there was no evidence that the bargain had regard to a lot in gross, or any particular pieces. The only thing at all like it is the testimony of the salesman, who swore it was considered that the buyer was to have his paper out of the lot in the cellar, and that the paper there was intended for him ; but the witness did not know that the buyer had selected it, or that, the identical pieces had been set apart for him. Without separation, however, intention is nothing. The vendor might have changed it before delivery, and have taken other pieces of the proper sort from anj- other part of the store. Whether there were such, or from what part they took the pieces previously delivered, did not appear ; but even had there been no other pieces on hand than those in the cellar, and no more than the exact number, they would not have passed without a specific act of appropriation, equivalent to a delivery in contemplation of law. Judgment affirmed. ALDRIDGE v. JOHNSON. 7 E. & B. 885. 1857. Action for wrongful conversion of a quantity of barley. Plaintiflf contracted with J. W. Knights for one hundred quarters of barley (at £2 3s. per quarter) from a large heap containing about two hundred quarters, which he inspected and sampled, in exchange for thirty-two bullocks at £6 apiece, the difference to be paid in cash. Plaintiff was to send his own sacks, and Knights was to fill them with the barlej- and deliver them on board railway trucks at Ipswich for carriage to plaintiff. The bullocks were delivered to Knights. Sacks were sent, and a part' of them were filled with about seventy-eight quarters of the barley under Knights' directions. Knights was unable to secure trucks promptly, and never delivered any part of the barley at the railway. Plaintifi' repeatedly directed him to forward the barley, which Knights promised repeated^ to do. A notice in bankruptcy was served on Knights, and defendant was made his official assignee. Before the ad- judication. Knights had the barley emptied from the sacks into the heap 110 ALDEIDGE V. JOHNSON. [CHAP. II. from which it had been taken. Plaintiff tendered to defendant the difference between the barley and the price of the bulloclis, and de- manded the barlej-, which was refused, and this action brought. Lord Campbell, C. J. ... 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 sitnilar articles belonging to another. That is a wrongful act by the owner, for which he is pun- ished bj' 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 property of the bankrupt. He therefore has converted the plaintiff's propertj'. Erle, J. I also am clearly of opinion that the property in what was put into the sacks passed to the plaintiff. It is clear that, where there is an agreement for the sale and purchase of a particular chattel, the chattel passes at once. If the thing sold is not ascertained, and something is to be done before it is ascertained, it does not pass till it is ascertained. 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 b}' sending the goods by the railway.; and in such case the property would not pass till the goods were despatched. But it might also be shown "by other acts. Here was an ascertained bulk, of which the plaintiff agreed to .buy about half. It was left to the bankrupt to decide what portion should be delivered under that contract. As soon as he does that, his election has been indicated ; the decisive act was putting the portion into the sacks. If it were necessary to rest the decision on the assent of the vendee in addition to this, I am of opinion that there is abundant evidence of such assent ; for the vendee demanded, over and over again, the portion which had been put into the sacks. I think Mr. Blackburn has expressed the law with great clearness and accuracy. He first takes the case where one party appropriates and the other assents, and then the case where, by virtue of the original agreement, the authority to appropriate is in one party onl^'. 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' /or the part put into the sacks: as to the residue, Judc/ment for the defendant.^ 1 Concurring opinions were delivered by Coleridge and Crompton, JJ. § 2.] BARGAIN AND SALE : SPECIFIC GOODS. lH KEELER V. GOODWIN. Ill Mass. 490. 1873. Tort for conversion of 1,000 bushels of corn. At ths crial in the Superior Court, before Lord, J., the following facts appeared: — On September 29, 1870, Wesley P. Balch bought 1,000 bushels of corn from the defendants, to be paid for in cash in ten daj's, and the defendants gave him an order on the warehouse where the corn was stored, being then parcel of a larger quantity lying in bulk. On October 1, Balch indorsed and delivered the order to the plaintiff as securit}' for a loan. The plaintiff did not then know that the corn had not been paid for ; but Balch never paid for the corn, and, within ten days from September 29, became insolvent. About fifteen days after receipt of the order, the plaintiff presented it to the warehouseman and demanded the corn. Deli^erj' was refused for the reason that the order had been countermanded b}- the defendants ; and before this suit was brought the defendants took the corn away. The order was never presented to the warehouseman except as above stated. The plaintiff offered evidence tending to prove a usage in the grain trade to treat an order on a warehouse as a deliver}-. The judge ruled that the action could not be supported, and directed a verdict for the defendants, which was returned. The judge reported the case for the determination of this court ; if the ruling was correct, judgment to be entered for the defendants, unless the plaintiff could maintain his action by an amendment ; if the ruling was erroneous, the verdict to be set aside and a new trial ordered. S. J. Thomas, for the plaintiff. A. Churchill & J. E. Hudson, for the defendants. Wells, J. There are two fatal difficulties in the way of recovery by the plaintiff. To maintain an action of trover, in favor of one who has never had possession, there must be proof both of title and right of present possession. Fairbank v. Phelps, 22 Pick. 535 ; Winship v. Neale, 10 Gray, 382 ; Landon v. Emmons, 97 Mass. 37. Here was a contract of sale of 1.000 bushels of corn, "parcel of a larger quantitj' lying in bulk." Until separation in some form, no title could pass. Young v. Austin, 6 Pick. 280 ; Merrill y. Hunnewell, 13 Pick. 213 ; Scudder v. Worster, 11 Gush. 573 ; Weld v. Cutler, 2 Gray, 195; Ropes v. Lane, 9 Allen, 502, 510; s. c. 11 Allen, 591. That it was on storage with a third party, as warehouseman, would make no difference in this respect. Delivery of the order upon the warehouseman authorized him to make the separation or appropriation necessary to complete the sale, by giv- ing to the contract its intended effect upon the specific propertj' covered by it. If that had been accomplished, either by actual separation, or 112 BIANCHI V. NASH. [CHAP. II. by appropriation to the use or credit of the purchaser, in the usual mode of transacting the business of the warehouse, he would have acquired title, right of possession, and constructive possession of the grain so purchased. Gushing v. Breed, 14 Allen, 376.^ But until some act takes place by which the relations of the ware- houseman, in respect to the propertj' in his custody, are modified in accordance with the contract of sale, so that he may be considered as bailee for the seller and purchaser respectively^, according to their sev- eral interests, and thus released, />ro tanto, from his original liability to the seller alone, there is no such appropriation of the grain sold as will ripen the interc st of the purchaser into title and right to the posses- sion of any specific portion of the bulk. Whether the assent of the warehouseman is necessary to the imposition of this twofold relation upon him, or whether presentation of the order alone, or notice of the sale would be sufficient, we need not now determine, because there was neither in this case, until after the authority of the warehouseman to make the appropriation had been revoked. The purchaser, therefore, never acquired any title or right of possession, and co'ald transfer none, and consequently' no right of action to the plaintiff. . . . Judgme.'itfor defendants. % 3. CONTKAOT TO SELL MAY BECOME A SALE. BIANCHI V. NASH, 1 M. & W. 545. 1836. Debt for goods sold and delivered. Plea, nunquam indebitatus. At the trial, before the under-sheriff of Middlesex, it appeared that the plaintiff was a dealer in musical snuff-boxes ; that the defendant applied 1 In this case it was said by Chapman, J., " The use of elevators for the storage of grain. has introduced some new methods of dealing, but tlie rights of parties who adopt these methods must be determined by tlie principles of the common law. The proprietors of the elevator are tlie agents of the various parties for whom they act. When several parties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they must be deemed to havo assented, they are tenants in common of the grain. Each is entitled to such a pro- portion as the quantity placed there by him bears to the whole mass. When one of them sells a certain number of bushels, it is a sale of property owned by him in common. It is not necessary to take it away in order to complete the purchase. If the vendor gives an order on the agents to deliver it to the vendee, and the agents accept the order, and agree with the vendee to store the property for him, and give him a receipt therefor, the delivery is thereby complete, and the property belongs to the vendee. The vendor has nothing more to do to complete the sale, nor has he any further dominion over the property. The agent holds it as the property of the vendee, owned by him in common with the other grain in the elevator." Cf. State V. Stockman, supra, p. 50. §3.] CONTKACT TO SELL MAY BECOME A SALE. 113 to him to let (or lend) him a musical snuff-box, and the plaintiff agreed to do so, on the understanding that the defendant was to have it and pay for it if it were damaged ; and the sum of £3 10«. was to be taken as its value. The defendant received the snuff-box on this understanding ; it was damaged while in his possession ; and the plaintiff, in conse- quence, refused to receive it back, and brought this action for the price. The under-sheriff left it to the jurj' to say whether the agreement was, that, in the event of the box being damaged, it was to be a sale ; and they found that that was the agreement, and gave a verdict for the plaintiff, damages £3 10s. F. V. Lee obtained a rule nisi for a new trial, on the ground that this was a mere bailment, which ought to have been declared on specially, and that there was no evidence to support the count for goods sold and delivered. Chandless showed cause. Lord Abingee, C. B. I think there is no question at all on the general principle applicable to this case ; when goods are sold on con- dition, and the condition is performed, the sale becomes absolute. And there is as little doubt on the evidence, that this was a conditional sale, and that the condition was performed. The defendant agrees to pay the price of the box for it, in case he damages it. Parke, B. There was clearly evidence for the jury that thi.? was a contract for a conditional sale ; and it was a very reasonable contract. Then there is no doubt that the value was recoverable under the count for goods sold and delivered. As soon as the condition is performed, it is an absolute sale. The other Barons concurred. Rule discharged. FEAGANO V. LONG. 4 B. & C. 219. 1825. Assumpsit against defendant as owner of the brig or vessel " James and Theresa," for negligence in shipping a cask of hardware. At the trial before Hullock, B., at the Lancaster summer assizes, 1824, the following facts appeared in evidence. Mason & Sons, hardwaremen at Birmingham, in April, 1822, received an order from the plaintiff, resid- ing at Naples, of which the following is a translation : — Naples, March 28, 1822. Order transmitted by G. Fragano, of this city, to Mason & Sons of Bir- mingham, through Mr. F. L., for the following merchandise, to be despatched on insurance being effected. Terms to be three months' credit from the time of arrival. The order then specified the goods. In pursuance of this order, the cask of hardware in question marked with the plaintiff's initials was 114 FRAGA.NO V. ,LONG. [CHAP. II. ' Bent by the canal from Birmingham, hy Mason & Sons, to Messrs. Stokes, their shipping agents at Liverpool, with directions to forward the same to Naples. An insurance was effected, and the interest de- clared to be in Fragano. On the 3d of July, Messrs. Stokes received a notice of the arrival of the goods from the canal carrier, and sent their porter, who received the goods from the carrier, and took them in a cart to the quay where the " James and Theresa" was l3ing, and delivered them on the quay to the mate of that vessel, who gave following receipt : — Received ia good order and condition on board the " James and Theresa," for Naples, one cask of hardware. G. F. Samuel Smith, Mate. From W. & J. Stokes. The goods were left in the custody of the mate, and before they were actually put on board, by some accident, the cask fell into the water, by which the injury complained of was sustained. Upon this evidence the jury, under the direction of the learned judge, found a verdict for the plaintiff. In Michaelmas Term, a rule nisi for a new trial was obtained, on the ground, first, that no bill of lading having been made out, the property in the goods was never vested in the plaintiff ; secondly, that by the terms of the order, the goods were not to be at the plaintiff's risk until after their arrival at Naples. F. Pollock was now called upon to support the rule. Crompton, contra. HoLEOTD, J. I also think that the verdict found for the plaintiff was right. It has been argued that neither the mate nor the owner of the vessel was liable to any one but Stokes & Co., from whom the goods were received. But it is a principle of law, that the real owner of the goods, for whom Stokes & Co. were agents, may sue for the loss, although the defendant was not informed of his existence. Then it has been urged that Fragano had no interest in the goods, and the terms of the order have been adverted to in support of that argument; but I think that the goods became his property as soon as they were sent off by Mason & Co. When goods are to be delivered at a distance from the vendor, and no charge is made by him for the carriage, they be- come the property of the buyer as soon as thej' are sent off. It was next contended that Fragano was not liable to the vendor unless the goods arrived ; but the order for insurance is decisive as to that. The policy was to protect Fragano, and shows that he considered he should be the sufferer if the goods were lost on the voyage, which he could not have been, had the arrival of the goods been a condition precedent to his liability to the vendors. The expir.ation of three months was to be the time of payment if the goods arrived ; if they did not arrive, the law would imply a promise to pay in a reasonable time. LiTTLEDALE, J., concurrcd.^ Hule discharged, 1 The opinion of Batlet, J., is omitted. § 3.J CONTEACT TO SELL MAY BECOME A SA~LE. 115 WHITCOMB V. WHITNEY. 24 Mich. 486. 1872. Cqolet, J. The main facts in this case are undisputed. On the sixteenth day of March, 1871, the parties roade a contract evidenced by the following writing : — Detkoit, March 16, 1871. Received of D. Whitney, Jr., five hundred dollars on account for all the upper qualities aud select common and cutting up or fine common lumber that I make at Kock Falls in town of Sand Beach, Michigan, this season, at fair price, what said Whitney can afford to pay; the lumber is to be delivered on rail of vessel when lumber is ready to ship, or when vessel is ready to send for it. (Signed) Hiram Whitcomb. The defendant from time to time advanced moneys upon this agree, ment, and received one cargo of lumber, in respect to which no ques- tion arises. On September 22, 1871, plaintiff wrote defendant as fol- lows : " I have all my logs now sawed ; lumber ready to ship. The sooner you send a vessel the better I would like it. I think there will be seventy M. or more." On the receipt of this letter defendant sent an inspector to Rock Falls, who arrived there about the fourth of October, and inspected and approved of about sixty-four M. feet of the lumber, acting for both parties in so doing. The lumber when inspected was at plaintiff's mill, but as fast as the inspection proceeded, it was hauled on the dock, some forty rods, to be ready for delivery on the vessel when one should be sent for it. The inspection was completed on the sixth of October, and defendant was notified thereof on the eleventh of the same month. Two days before the time last mentioned, however, the lumber was destroyed b}' fire, without anj' fault, neglect, or carelessness on the part of the plaintiff, and when this fact came to the knowledge of defendant, he refused to pay for the lumber, and this suit is brought for the value. The declaration contains a count for goods sold and delivered, and also a special count setting out the facts ; averring plaintiffs readiness and willingness to deliver the lumber on the rail of the vessel when one should be sent for it, but that before defendant sent any vessel to take it, though he had ample time to do so, and to load and take away the same, the lumber was destroyed by fire without thie fault, neglect, or carelessness of plaintiff, by means whereof the defendant became liable to paj- a fair price therefor, etc. It does not seem to be necessary to set forth the various requests to charge which were made in the court below, nor the charges given ; the question in this court is simply this, whether, under the facts stated, the lumber at the time it was accidentally destroyed had or had not become the property of the defendant so as to be at his risk. Thg cir- cuit judge in effect held that it had not. In support of the ruling of the circuit judge we are referred to several 116 WHITCOMB V. WHITNEY. [CHAP. 11. decisions, some of which present questions arising under the statute of frauds, and obviously have no application here. Others were decisions upon contracts for the manufacture and delivery of specific articles, under which no title could pass until the specific thing was completed and delivered, or in some manner identified and set apart by the act of the parties. Johnson v. Hunt, 11 Wend. 137, presented the question whether lumber which was being got ready by a builder to put into a house which he had contracted to put up for another, became the property of his employer before it was actnallj' built into the house ; and the court held that it did not. This was clearly correct, as up to that time the contractor had an undoubted right to use it for any other purpose if he pleased. Comfort v. Kiersted, 26 Barb. 472, was the case of a contract for shingles to be manufactured, and which by the terms of the contract were to be the property of the vendees, at eighteen shillings a thousand, on the vendor's premises as fast as manufactured ; he, however, agreeing to deliver them at the store of the vendees, and to be paid three dollars a thousand at that place. The contract fixed the amount to be delivered at 100 M., but with the privilege, on the part of the vendees, to increase it to 150 M. The court held that the shingles did not become the property of the vendees until in some way designated and set apart so as to be capable of being identified as their property. The sale was not of all the partj' might make, but only of a specified quantity ; and the court illustrate their view of the contract by saying, the vendor might have made preciselj' such a contract with another person, in which case the shingles "would have become the property of the one or the other of the parties to whom he had agreed to sell them, according to their designation." This case difiers from Comfort V. Kiersted in two important particulars : First, the purchaser here was to have all the lumber of certain kinds which should be cut ; and, second, the lumber coming within the terms of the contract was particularly identified and designated bj- the act of inspection. Andrews V. Durant, 11 N. Y. 35, presented the question, whether, under a con- tract for the building of a vessel of certain specified dimensions, to be delivered complete by a day named, for a certain price, to be paid as the work progressed, any property in the vessel passed before the vessel was completed ; and it was held it did not. That case also has very little bearing upon the one now under consideration. "What is the case here? The contract is for the purchase of all the lumber of certain grades that plaintiff shall manufacture at Rock Falls during the season. The plaintiff could not have sold a foot of it to any other person without a distinct violation of his contract obligations. From the time of its manufacture nothing would need to be done to determine the right to the defendant in any particular parcel, but to have it properly settled that it fell within one of the grades contracted for. An agent duly authorized had determined that as to all the lumber in question, and had done what amounted to an acceptance of it on the part of the defendant. It had then been set apart and stored in a § 3. J CONTRACT TO SELL MAY BECOME A SALE. 117 proper place for the defendant, and was subject to his order. Nothing remained to be done by the plaintiff except to deliver it on the rail of the vessel ; and that he could not do until the vessel was sent. Every- thing now depended on the action of the defendant, which might be expedited or delayed as should suit his own convenience. Had this been a contract for the completion of a carriage from specified materials, to be delivered when sent for, and had it been fully completed and accepted, so that nothing remained to be done except to make the manual delivery when it should be called for, the setting apart of the property under the contract could not have been more complete and un- questionable than it was here. Where the case is not within the statute of frauds, manual delivery of the article sold is not essential to the passing of the title unless made so by the understanding of the parties. They may agree when and on what conditions the property in the subject of such a contract shall pass to the prospective owner. — Denio, J., in Andrews v. Durant, 11 N. Y. 42. Their intention must be the governing consideration in every case. — Channell, B., in Turley v. Bates, 2 H. & C. 211. The title may pass notwithstanding the price is yet to be determined. — Turley v. Bates, supra; Valpy v. Gibson, 4 M. G. & S. 837. In Olj'phant v. Baker, 5 Denio, 382, it is said to be " a general rule of the common law, that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser." And of the numerous cases in which the expression is used, that if anything remains to be done by the seller the title does not pass, Selden, J., in Terry v. Wheeler, 25 N. Y. 525, says they only go to the length of showing, that where something is to be done by the seller to ascertain the identity, quantity, or quality of the thing sold, or to put it in the condition which the terms of the contract require, the title does not pass. And he, therefore, holds with the approval of the whole court, that an agreement by the vendor of lumber to transport it to the cars and deliver it free of charge, did not prevent the title pass- ing immediately where what was sold was selected and designated. Suppose this lumber had not been destroyed, and the defendant's Vessel had called at the dock for it ; could the plaintiff have refused to allow him to take the lumber away, and maintained replevin for it if he had done so? If the title had not passed, he could ; if it had, he could not. If it was still his property and at his risk, he might have sold and conveyed a good title to a third person in the very presence of the defendant after his vessel had arrived to take it away ; subjecting him- self only to a liability to damages on his contract for a failure to perform it. But we think if he had attempted this, the defendant would not have hesitated to say : " This property is mine : it has been set apart specif- ically for me, by contract, by inspection-, and by designation ; by every act, in short, which the circumstances admitted of being done ; the vendor owes a service to me in putting it on the rail of the vessel, which 118 LINGHAM V. EGGLESTON. [CHAP. II. he can either perform or be liable for the value of; but if he performs it, it will be in respect to propertj- previously identified as mine, and not at all by way of designation or measurement. "Whoever bu^'s this lumber of him, buys what has not only been previouslj' bought by me, but what has been set apart for me and placed at my disposal by the most unequivocal acts ; and I have therefore become vested with a title which I shall maintain and enforce." This is what he would have been lilcely to say had the unfortunate fire not occurred ; and this the law would have justified him in saying. It follows that the plaintiff is justified in demanding payment from him on the purchase. The judgment of the circuit court must be reversed, and a new trial ordered. Chkistiancy, C. J., and Campbell, J., concurred. Graves, J., did not sit in this case. § 4. Contract must be Unconditional. LINGHAM V. EGGLESTON. 27 Mich. 324. 1873. CooLEY, J. The contest in this case relates to a sale of lumber by Eggleston to Lingham and Osborne, and the question involved is, whether the contract between the parties amounted to a sale inpresenti and passed the title, or merely to an executory contract of sale. The lumber, subsequent to the contract, and before actual deliverj' to the purchasers, was accidentally destroyed bj* fire, and the purchasers now refuse to pay for it, on the ground that it never became their property. The action was brought by Eggleston for goods bargained and sold, and in the court below he recovered judgment. There appears to be very little dispute about the facts. The lumber was piled in Eggleston's mill yard at Birch Run. In September, 1871, he sold his mill to a Mr. Thayer, reserving the right to leave the lumber in the yard until he disposed of it. To most of the lumber the plaintiff had an exclusive title ; but there were four or five piles which he owned jointly with one Robinson. The whole amount was from 200,000 to 250,000, excluding Robinson's share in the four or five piles. The de- fendants went to the mill, yard September 23, 1871, and proposed to buy the lumber. Plaintiff went through the yard with them, pointed out the several piles, and designated those in which Robinson had an undivided interest, and also some piles of shingles which they proposed to take with the lumber. After examining the whole to their satisfac- tion, the defendants agreed upon a purchase, and the following written contract was entered into : — § 4.J CONTEACT MUST BE UNCONDITIONAL. . 119 Flint, September 23, 1871. Lingham and Osborne bought from C. Eggleslon this day, all. the pine lum- ber ou his yard at Birch Run at the following prices: For all common, eleven dollars, .and to include all better at the same price; and for all culls, five dollars and fifty cents per M., to be paid for as follows: five hundred dollars to-day, and five hundred dollars on the 10th of October next; the balance, one half on the 1st day of January, a. d. 1872, and the rest on the 1st day of February following; said lumber to be delivered by said Eggleston on board of cars when requested by said Lingham and Osborne, which shall not be later than 10th of November next. Also some shingles at two dollars per M. for No. 2, and four dollars for No. 1. .(Signed) Lingham & Osborne. Chauncey Eggleston, Jr. The 1500 mentioned in this contract to be paid at the time of its execution was paid. A few daj^s later defendants went to the mill j-ard in plaintiff's absence and loaded two cars with the lumber. He returned before they had taken them away, and helped them count the pieces on the cars, but left them to measure them afterwards. At this time the lumber in the piles had not been assorted, inspected, or measured. There was disagreement betwe'en the parties as to whether they had fixed upon a person to inspect the lumber, — the defendants claiming that such was the fact. On the 9th day of October, 1871, Lingham met plaintiff on the cars at Flint, and told him the fires were raging near Birch Run ; that the lumber yard was safe yet, but that there were eight cars standing on the side track, and he had better go up to Birch Run and load what were there, and get what lumber he could away ; plaintiff took the first train for the purpose, and while on the train the train boy gave him the following note from Lingham : — HOllt. Mr. Eggleston: You may load, say ten thousand, if you think best, on each car, and we can have it inspected as it is unloaded. I will try and come up to-morrow. When plaintiff reached Birch Run the fire was raging all about the mill, and that, with all the lumber in the yard, was soon totally destroyed by fire. Such are the undisputed facts in the case ; and upon these the jury were instructed in substance that a completed contract of sale was made out, and the plaintiff was entitled to recover the purchase price. Where no question arises under the statute of frauds, and the rights of creditors do not intervene, the question whether a sale is completed or only executory, must usuallj- be determined upon the intent of the parties to be ascertained from their contr-act, the situation of the thing sold, and the circumstances surrounding the sale. The parties may settle this by the express words of their contract, but if they fail to do so, we must determine from their acts whether the sale is complete. If the goods sold are sufficiently designated so that no question can arise as to the thing intended, it is not absolutely essential that there should 120 LINGHAM V. EGGLESTON. [CHAP. 11. be a delivery, or that the goods should be in deliverable condition, or that the quantity or_ quality, when the price depends upon either or both, should be determined. All these are circumstances having an important bearing when we are seeking to arrive at the inten- tion of the parties, but no one of them, nor all combined, are conclusive. . . . Upon this general principle there is no diflSculty in reconciling most of the reported decisions. And even without express words to that eflfect, a contract has often been held to be a completed sale, where many circumstances were wanting and many things to be done bj' one or both the parties to fix conclusively the sum to be paid or to deter- mine some other fact material to their respective rights. The most important fact indicative of an intent that title shall pass is generally that of delivery. If the goods be completelj- delivered to the purchaser, it is usuall3' very strong, if not conclusive, evidence of intent that the property shall vest in him and be at his risif, notwithstanding weighing, measuring, inspection, or some other act is to be done after- wards. A striliing case in illustration is that of Young v. Mathews, Law R., 2 Exeh. 127, where a large quantity of briclfs was purchased in kilns. Only a part of them were burned, and none of them were counted out from the rest ; but they were paid for, and such delivery as in the nature of the case was practicable was made. The court held that the question was one of intention merely, and that it was evident the parties intended the title to pass. To the same effect are Woods v. Russell, 5 B. & Aid. 942 ; Riddle v. Varnum, 20 Pick. 280 ; Bates v. Conklin, 10 Wend. 389; Olyphant v. Baker, 5 Denio, 379; Bogy V. Rhodes, 4 Greene (Iowa), 133 ; Crofoot v. Bennett, 2 N. Y. 258 ; Cunningham v. Ashbrook, 20 Mo. 553. So, if the goods are specified, and all that was to be done by the vendor in respect thereto has been done, the title maj' pass, though the quantity and qualitj-, and consequentlj' the price to be paid, are still to be determined by the vendee. Turley v. Bates, 2 H. & C. 200 ; Kohl V. Lindlej', 39 111. 195. And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for instance, ta load the goods u^pon a vessel for transportation, the property may pass by the contract of sale notwithstanding. Whitcomb v. Whitnej', 24 Mich. 486 ; Terry v. Wheeler, 25 N. Y. 520. ' But the authorities are too numerous and too uniform to justif}' citation, which hold that where anything is to be done by the vendor, or by the mutual concurrence of both parties, for the purpose of ascer- taining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods, the performance of those things is to be deemed presumptively a condition precedent to the transfer of the property, although the indi- vidual goods be ascertained, and they are in the state in which they maj!^ and ought to be accepted. . . . § 4.] CONTRACT MUST BE UNCONDITIONAL. 121 What, then, are the facts in this case from which the intent of the parties is to be inferred? The himber was specificall)' designated, so that no question of identity could arise. It was not delivered, and the vendor was to place it on board the cars, if desired to do so, within a time specified ; but as in any event the vendees were to take it at Birch Run, and it was optional with them to load it on the cars themselves or to have the vendor do it for them, and thej- had no right to require that he should do so after the daj' named, we think the circumstance that actual delivery was not made is not one of very much importance in the present discussion. What is of more importance is, that neither the quality nor the quantit}^ was determined ; and the evidence in the case shows that as to these there might verj' well be, and actually were, great differences of opinion. The price to be paid was consequently not ascertained, and could not be until the qualities were separated and measurement had. It will be observed that the contract did not provide how or bj' whom the inspection and measurement should be made. It was certainly not the right of either party to bind the other party by an inspection and measurement of his own ; it was the right of both to participate, and we must suppose such was the intent, unless something clearly appears in the case to show the contrarj'. Nothing of that nature appears in the record except the disputed evidence of defendants, that a person was agreed upon for the purpose. The note sent bj' Lingham to Eggleston, proposing that the eight cars be loaded and that the vendees make the proper inspection, was a mei-e proposition, and never acted upon. It is very evident Eggleston was under no obligation to trust this impor- tant transaction exclusively to the vendees, and we have no right to infer that he would have done so. It follows that something of high importance remained to.be done by the vendor to ascertain the price to be paid ; and as this, under all the authorities, was presumptively a condition precedent to the transference of the title, — nothing" to the contrar'y appearing, — the court should have so instructed the jury. The instructions given were in substance directly to the contrary. It follows that the judgment must be reversed, with costs, and a new trial ordered. The other justices concurred. TERRY V. WHEELER. 25 N. Y. 520. 1862. Action to recover the purchase price of lumber which had been paid by plaintiff's assignor to defendant. The lumber was sold by de- fendant to plaintiff's assignor upon the terms stated in the following writing : — 122 TEERY V. WHEELEE. [CHAP. II. " Troy, N. Y., August 24, 1854. Mr. Lewis Elmore, Bought of E. B. Wheeler. (Terms — Three months from date of sale.) 4,160 feet clear pine, $34 $141.44 4,779 " 4 " 24 114.69 7,319 " box " 20 146.88 ^ Inspection 2.03 600 pieces boards, 17c 102.00 $506.54 Cr. By deduction for cash $5.00 Aug. 25. By cash 250.00 Your note due Nov. 28 251.54 $506.54 " Rec'd payment as above, E. B. Wheeler, Per Wm. A. Craig. To be de- livered to the cars free of charge. E. B. Wheeler, XDraig." The memorandum as to deliverj' was added after the sale vpas made. On the da}- of sale and before delivery the lumber was destroyed by fire without defendant's fault. From a judgment for plaintiff, which was affirmed at general term, defendant appealed. William A. Beach, for appellant. William i. Learned, for respondent. Selden, J. . . . The point which is made upon the contradic- tory character of the evidence in relation to the contract to deliver the lumber on the cars, and its sufficiency to establish such contract, presents only a question of fact which this court cannot review. . . . But in the view which I take of the remaining question, it becomes immaterial whether there was a contract to deliver at the cars or not. The lumber had not been actually delivered, but remained in the possession of the vendor. In the absence of any express contract to deliver, there was an implied one to deliver at the yard of the vendor, when called for. In either case the lumber did not remain at the risk of the vendor, if the title did not remain in him. The risk attends upon the title, not upon the possession where there is no special agreement upon the subject. Tarling v. Baxter, 6 Barn." & Cress. 360 ; Willis v. Willis, 6 Dana, 49 ; Hinde y. Whitehouse, 7 East, 558; Joyce v. Adams, 8 N. Y. 296; 2 Kent Com. 492, 496; Noy's Maxims, 88. I entertain no doubt that upon the facts found in this case, the title was in the vendee. The lumber was selected by both parties and designated as the lumber sold to Elmore, except the six hundred pieces which were selected by the parties, and the precise pieces sold designated with as much precision as if the purchaser had marked every piece with his name ; that which was sold by measure- ment was inspected and measured, and the quantity ascertained ; the price for the whole was agreed upon and paid and a bill of parcels receipted and delivered to the purchaser. These facts, I think, vested the title in the purchaser, notwithstanding the agreement of the seller to deliver the lumber free of charge, at the cars. " The sale of a § 4.J COlfTKAOT MUST BE UNCONDITIONAL. 123 specific chattel passes the property therein to the vendee without delivery." Chitty Contr. (8th Am. ed.) 332. " It is a general rule of the common law that a mere contract for the sale of goods, where nothing remains to be done by the seller before making delivery, transfers the right of property, although the price has not been paid, nor the thing sold delivered to the purchaser." Olyphant v. Baker, 5 Den. 382. The authorities are numerous, where the expression is used that if anything remains to be done by the seller, the title does not pass ; but the cases which are referred to to sustain that position, only go the length of showing that where something is to be done by the seller to ascertain the identity, quantity, or quality of the article sold, or to put it in the condition which the terms of the contract require, the title does not pass. 2 Kent Com. 496 ; Hanson v. Meyer, 6 East, 614; Simmons v. Swift, 5 Barn. & Cress. 857; Joj-ce v. Adams, 8 N. Y. 291 ; Field v. Moore, Lalor's Sup. 418. The list of cases to this effect might be indefinitely increased ; but no case has been referred to by counsel, nor have I discovered anj', in which, where the article sold was perfectly identified and paid for, it was held that a stipulation of the seller to deliver at a particular place prevented the title from passing. If the payment was to be made on or after deliverj', at a particular place, it might fairl3' be inferred that the contract was executory, until such delivery ; but where the sale appears to be abso- lute, the identity of the thing fixed, and the price for it paid, I see no room for an inference that the propertj' remains the seller's merely because he has engaged to transport it to a given point. I think inj such cases the property passes at the time of the contract, and that, in earrj-ing it, the seller acts as bailee, and not as owner. The ques- tions which arise in such cases, as to sales, are questions of intention, such as arise in all other cases of the interpretation of contracts ; and when the facts are ascertained, either by the written agreement of the parties or by the findings of a court, as they are here, thej' are ques- tions of law. That the parties to the contract in this case intended to pass the title to the lumber immediatelj', appears very clear ; nor do I suppose that any one would question it, were it not for the apparent hardship of the case to the purchaser. If the property-, instead of /being lumber, had been sheep or cows, capable of increase (which follows the ownersliip), and there had been a sudden, and large in- crease to the flock or drove, before they could be delivered at the point agreed upon, 1 think no one would have said that the defendant could have discharged his obligation to deliver, and yet retained the increase. .Such, however, must be the conclusion, if the plaintiffs position is maintained. The judgment should be reversed, and a new trial granted. All concur. 124 BERGAN V. MAGNUS. [CHAP. IL BEEGAN V. MAGNUS. 25 S. E. (Ga.) 570. 1896. Lumpkin, J. An attachment in favor of Bergan against Allen was levied on a barrel of whiskej', a claim to which was interposed by Magnus & Co. The plaintiff's theory was that the whiskey had been sold b^' the claimants to Allen, and that the title had passed into the latter before the attachment was levied. On the other hand, the con- tention of the claimants was that, under the terms of the contract be- tween themselves and Allen, the sale had never become complete, and that be had never acquired title. . . . The evidence fully and amply warranted the trial judge in reaching the conclusion that the sale from Magnus & Co. to Allen was for cash, which the latter was to paj' upon deliverj- of the whiskej', and that prepayment of the price was a condi- tion precedent to the sale. There was no pretence that Allen had paid the price. This being so, even if Allen had in fact obtained possession, the title did not pass to him under the contract, for the reason that he failed to comply with the condition upon which the sale depended. " If the sale be for money to be immediatel}- paid, or to be paid upon delivery, paj-ment of the price is a precedent condition of the sale, which suspends the completion of the contract until the condition is performed, and pre- vents the right of property from passing to the vendee, unless the vendor chooses to trust to the personal credit of the vendee." The foregoing is an extract from the opinion of Washington, J., delivered in the case of Copland v. Bosquet, 4 Wash. C. C. 588, Fed. Cas. No. 3,212, cited in 1 Benj. Sales, § 336. To the same effect, see Tied. Sales, § 206. In Dows v. Dennistoun, 28 Barb. 393, it appeared that certain flour had been sold for cash on delivery ; that is, the cash was to be paid within ten days. Upon these facts, Davies, P. J., remarked : "The very terms and import of tliis arrangement are that there was to be a qualified delivery, which was to precede the payment ; and it is apparent from the facts in this case that the possession of the goods was intrusted to the vendee for the purpose of enabling him to realize upon them, and thus provide means for the payment of the price. Such an understanding, arrangement, or custom cannot, we think, be con- strued into an absolute transfer of the title to the property, as between the original parties to it or those who have no greater equities than the original parties." The same doctrine was recognized in Harding v. Metz, 1 Tenn. Ch. 610, in which it was held that " if personal chattels be sold upon the express condition that they are to be paid for on de- livery, and they are delivered upon the faith that the condition will be immediately performed, and performance is refused upon demand in a reasonfible time, no title passes to the buj-er." And «ee Armour v. Pecker, 123 Mass. 143; Salomon v. Hathaway, 126 Mass. 482; Mathewson v. Mills Co., 76 Ga. 357. Judgment affirmed. § 4.] CONTEACT MUST BE UNCONDITIONAL. 125 BISHOP V. SHILLITO. 2 B. & Aid. 329, Note (a). 1819. Tkovek for iron. The iron was to be delivered under a contract that certain bills outstanding against the plaintiff should be taken out of circulation. After a part of the iron had been delivered, and no bills had been taken out of circulation, the plaintiff stopped the further deliverj', and brought trover for what had been delivered. Scarlett, for defendant, contended that trover would not lie, and that the only remedy for the plaintiff was to bring an action for the breach of the contract by the defendant. But the court held that this was only a conditional deliver}', and the condition being broken, the plaintiff might bring trover. Abbott,, C. J., said he had left it to the jury to say whether the delivery of the iron and the redelivery of the bills were to be contemporarj', and that the jury found that fact in the affirmative ; and Batlet, J. , added, that if a tradesman sold goods to be paid for on delivery, and his servant by mistake delivers them without receiving the monej', he may, after demand and refusal to deliver or pay, bring trover for his goods against the purchaser. EMPIRE STATE FOUNDRY CO. v. GRANT. 114 N. Y. 40. 1869. Pakker, J. lu March, 1886, the plaintiff, by its president, agreed ■to sell to one Guj' Tremelling two printing presses, with the necessary shafting, together with a quantity of type and other printers' supplies, for the sum of $1,100.95, payment to be made as follows: $500 to be paid in cash, and a chattel mortgage, embracing all the property sold, to be given by Tremelling for the balance. The plaintiff at once com- menced to put up tlie shafting, set the presses, and deliver the type and other materials. When the work was about half done, the clerk of the plaintiff was sent to Tremelling to collect the cash agreed to be paid. Tremelling paid $250, and the plaintiff went on with the work of put- ting the presses in working order, transferring the tj'pe and other mate- rials, in which work the plaintiff was engaged between 15 and 16 days. Immediately after the materials had been put in and work completed, the president of the plaintiff went to the office of Tremelling to receive the paj'ment agreed upon, and there learned that Tremelling had absconded. On the same day, or the day following, the defendant, as sheriff of the city and county of New York, under and by virtue of a warrant of attachment regularly issued against Jtie property of Tremell- 126 EMPIRE STATE FOUNDRY CO. V. GRANT. [OHAP. 11. ing, levied upon the effects in question. The plaintiff thereupon com- menced this action to recover possession of the propert}'. At the close of' the plaintiff's case, the defendant moved the court to direct a verdict for the defendant. The plaintiff asked that the case be sub- mitted to the jury. The court denied the plaintiff's request, and directed a verdict for the defendant, the plaintiff duly excepting. "We think that the facts proven did not warrant the trial court in holding as a matter of law that the title to the property had passed from the plain- tiff to Tremelling, and therefore the disposition made of the case was error. It is too well settled to require the citation of authoritj-, that, where a sale of personal propertj* is made upon condition that the stipu- lated price shall be paid upon delivery, title does not pass until pay- ment made, unless the vendor waive the condition. Under such a contract, deliver^' and payment are simultaneous or concurrent acts by the seller and buj'er, and although the articles may have been actually delivered into the possession of the vendee, the delivery is held to be conditional, and not absolute, provided the vendor has not, by subse- quent act, waived the condition of payment. If, then, the agreement between the plaintiff and Tremelling had provided in express terms that payment be made on delivery (no proof having been offered tend- ing to show a subsequent waiver of such condition), it would have been the dutj* of the court to hold as a matter of law that the title to the chattels still remained in the plaintiff. The agreement, however, did not provide in express terms that pay- ment should be made on delivery. Neither did it provide that payment and deliver}' should not be concurrent. The rule in such case is that the intent of the parties must control. If it can be inferred from the acts of the parties and the circumstances surrounding the transaction that it was the intent that delivery and payment should be concurrent acts, the title will be deemed to have remained in the vendor until the condition of payment is complied with. 1 Benj. Sales (Amer. Ed.), *- § 330, and notes ; Leven v. Smith, 1 Denio, 571 ; Hammett t>. Linne- man, 48 N. Y. 399 ; Smith v. Lynes, 5 N. Y. 41 ; Parker v. Baxter, 86 N. Y. 586 ; Russell v. Minor, 22 Wend. 659. The question of intent is one of fact, not of law. It is for the jury, not the court, to pass upon. Hall v. Stevens, 40 Hun, 578 ; Hammett v. Linneman, 48 N. Y. 399. It appears that the defendant stipulated to pay for the materials sold, 1500 in cash, and give a chattel mortgage on all of the property for the balance; that while the materials were being delivered the plaintiff demanded and received $250 on account of the cash payment ; that, im- mediately after the plaintiff had performed his part of the contract, its president went to Tremelling's office to receive payment, and found that he had absconded, and that the next day the plaintiff's president asserted to the attaching creditor that he had not parted with the possession of the goods. These facts, together with all the circum- stances surrounding the transaction, under the authorities cited, should have been submitted to the jury under proper instructions, to enable § 4.] CONTRACT MUST BE UNCONDITIONAL. , 127 them to determine whether the title passed to Tremelling or remained in the plaintiff. It is suggested in one of the opinions of the court below that Tremelling had acquired an interest to the extent of $250 in the prop- erty which was subject to sale under the attachment. We do not con- cur in that view. If it be determined that the title to the property remains in the plaintiff, the case falls within the established rule that where a vendor of chattels, when the period of performance arrives, is ready and offers to perform on his part, and the purchaser neglects and refuses to perform for any reason, he cannot recover back the par- tial payments he has made. Munroe v. Reynolds, 47 Barb. 574 ; Humeston v. Cherry, 23 Hun, 141. The .judgment of the general term and of the circuit should be reversed, and a new trial ordered : costs to abide the event. All concur. RYAN V. WAYSON. 66 N. W. (Mich.) 370. 1896. Hooker, J. It appears from the undisputed facts that on the 14th day of September, 1893, the defendant purchased from the plaintiff a stock of goods in the city of Detroit for an agreed consideration of $2,525. At the time of the purchase defendant paid all but $1,200 of the pur- chase price, the balance of which was to be paid at the rate of $100 per month, with interest at 7 per cent, per annum, the first payment to be made on the 14th daj- of October, 1893 ; but none of the balance of $1,200 was paid hy defendant. At the time of the purchase a written contract of sale was drawn up and executed b3"_the parties. Defend- ant failed to keep up his payments, and after several interviews between the parties an arrangement was made that one Ziegler should be placed in the store to look after plaintiff's interests, and to see that the stocit was not allowed to be depreciated below the sum of $2,000, as provided in the contract. A few da^s after Ziegler was put into the store, plain- tiff went there while the defendant and his other clerks were at dinner, and, together with Ziegler, took possession of the stock, and looked up the store, keeping defendant and liis employees out of the store. That night Mr. Wayson's clerks again obtained possession of the store, and on the following morning, January 13, 1894, plaintiff sued out a writ of replevin, and took the goods. The case was tried before a jury, and thej' rendered a verdict, in which they found that the value of the stock at the time it was replevied was $2,272 ; that the plaintiff had a claim against said stock for unpaid purchase money of $1,200 and interest, amounting to $1,272; and that the defendant had an interest in the property of $1,000. Upon this verdict a judgment was rendered find- ing that the defendant unlawfully detained the goods, that the plaintiff 128 EYAN V. WAYSON. [CHAP. II. had a lien upon the goods for the sum of $1,272, and that defendant had a special property in the goods in the amount of $1,000 ; also find- ing that the plaintiff had recovered the goods on his writ, and adjudging that the plaintiff recover from the defendant the sum of six cents damages and costs to be taxed, and that defendant recover fron plain- tiff the sum of $1,000, the amount of his special property as found by the jury. The plaintiff and defendant joined in settling the bill of ex- ceptions, and writs of error were taken out by each. It will be observed that the effect of this is to cancel the defendant's debt, and create one of $1,000 against the plaintiff. The contract made by the parties contained the following provisions: "And it is further especially agreed between the parties hereto that the title of said stock of hardware and fixtures shall be and remain in the said Hugh E. Ryan until the whole of said purchase price is paid, as herein provided. It is further agreed that the said Samuel W. AYaj'son shall have the right of possession of said stock of hardware and fixtures, and may sell the same at ordinary retail price ; provided that said stock and fixtures shall not at anj' time be reduced below the sum of two thousand dol- lars." The defendant contended that the plaintiff had no right to the possession of the goods, for the reason that the contract gave the right of possession to the defendant, and contained no provision that the plaintiff might take them into his custody. The circuit judge held otherwise, and in this, we think, he was right. The defendant was in arrears $300, and by the terms of the contract the title to the stock was in the plaintiff until the whole purchase price should be paid. The right of possession was given to the defendant ; but this must be held to be limited to the period that he should not be in default. I A failure to pay according to the terms of the contract, or a reduction \of the stock below $2,000 in value, would justify the plaintiff in taking possession. Wiggins v. Snow, 89 Mich. 477. We find nothing in the record showing a waiver of this right or an extension of the time of payment. Ziegler was put in the store bj? agreement, to see that the stock was not unduly reduced ; but there was nothing to impl3' that the plaintiff relinquished his right to take possession in case of a breach of the contract bj' the defendant. We think, therefore, that the defendant has no reason to complain of the judgment. The plaintiff was the owner of these goods, and under the facts found by the jury was en- titled to the possession of them at the time they were replevied. The circuit judge permitted the jury to find that both the vendor and vendee bad special interests in or liens upon the goods, and, as the plaintiff had taken possession, the amount of the interest of each was fixed by deducting the amount of the defendant's debt remaining unpaid from the value of the goods as found by the jury, and gave the defendant a judgment against the plaintiff for the remainder ; in other words, per- mitted the defendant to sell the goods to the plaintiff for such price as the jury might see fit to give him, by applying § 8342 of Howell's An- notated Statutes. There is nothing to indicate that the defendant had § 4.] CONTRACT MUST BE UNCONDITIONAL. 129 a special interest in or lien upon those goods. He had a right to pur- chase them by making payment according to the contract. If, as seems to be claimed, he had a right to treat the contract as rescinded, he would certainly have no interest in the property, and at most might have a personal claim against the plaintiff for amount paid. If there viras anj- opportunity to find that the defendant was general owner of the goods, subject to plaintiff's lien, the latter ought not to be compelled to take the goods at a value to be fixed, and submit to a judgment in de- fendant's favor for the remainder, after deducting the amount of the unpaid purchase money. Thirlby v. Rainbow, 93 Mich. 164 ; Olin v. Lockwood, 102 Mich. 444 ; Farrah v. Bursley, 100 Mich. 547 ; Tufts v. D'Arcambal, 85 Mich. 185. Upon the undisputed facts and the findings of the jury the court should have entered a judgment for the plaintiff, with damages assessed at six cents. The cause will be remanded, with direction to vacate the judgment heretofore entered, and to enter a new judgment as above stated. The plaintiff wiU recover costs. The other justices concurred. CHAPTEE III. § 1. Contract to sell Specific Goods. ACRAMAN V. MORRICE. 8 C. B. 449 : 19 L. J. C. P. 57. 1849. Teovee by the assignees of Thomas Swift, a bankrupt, for the con- version of 1000 pieces of oak timber. Pleas, first, not guilty ; second, not possessed. At the trial before Coleridge, J., it appeared that the course of busi- ness between the parties was this : After Swift had felled the trees which he wished to dispose of, the defendant's agent selected those which were fit for the defendant's purpose, and marked out certain portions of the trunks as the subjects of the purchase. After this was done, it was the duty of Swift to lop and top the trees, cut off the sidings, and square the trunks, and then at his own expense convey the trunks which had been marked out to the defendant's wharf at Chepstow, and deliver them there. In the beginning of the year 1848, the defendant's agent had selected and marked out a number of trees felled bj' Swift, being the subject of a contract entered into between him and the defendant, which was not reduced to writing so as to satisfj' the statute of frauds. On the 15th of April, 1849, a flat in bankruptcy was issued against Swift; and at that time twenty-five of the trees which had been selected and marked had been removed by him to a wharf of his at Hadnock, for the purpose of transmission, but had iTot yet been topped, lopped, or sided, the marked parts remaining unsevered from the bodies of the trees. In the month of May, the messenger of the Court of Bankruptcy' took possession of the unsevered timber, and a few days afterwards the defendant's agent sent men to Hadnock who severed the trees, and carried away the por- tions which had been marked out. For these pieces of timber the assignees of the bankrupt brought the present action, and recovered a. verdict. A rule nisi having been obtained accordingly, — £utt, Minglake, Serjeant, and Montague Smith now showed cause. Cockburn (Barstow was with him), in support of the rule. Maule, J. The trees vested in the assignees, unless there was a change of possession by what had been done bj' the vendee. The way in which the defendant seeks to show that the plaintiff was out of pos- session, and that he was in possession, is this : He sets up a contract for certain portions of the trees, which were to be severed by the bank- rupt and conveyed at his expense to the defendant's wharf. The right § l.J CONTRACT TO SELL SPECIFIC GOODS. 131 of the defendant is the creature of that contract. His right, under the contract, was to insist that particular trees sliould be dealt with in a particular manner, and that the portions selected should be delivered to him. Subject to that contract, the interest of the bankrupt passed ; to his assignees, and thej' had the right to keep the trees, subject to the defendant's claim. The defendant could not have insisted on taking away the trees before the bankruptcy, because the contract did not give ' him a right to present possession. "Williams, J. I am entirely of the same opinion. If the statute of frauds had never passed, or this property had been of a price under £10, the rights of the parties would have been the same. Talpourd, J., concurred.'' RESTAL V. ENGEMOEN. 67 N. W. (Minn.) lUB. 1896. Canty, J. This action was brought to recover $38.41, the price of a cow and steer which plaintiff alleges he sold to defendant. Plaintiff had a verdict, and from the judgment entered thereon defendant appeals. Plaintiff testified that about March 1, 1892, defendant came to his farm, looked at the cow and the steer, and agreed to give him 2 cents per pound for the cow and 2.35 cents per pound for the steer, paid him $1 on the cow and $1 on the steer, and asked him to keep them, and feed them corn and potatoes, until April 26lh following, and then to deliver them to defendant at Pelican Rapids, a town some distance from the farm ; that plaintiff did so keep, feed, and deliver them, but that de- fendant refused to receive them. Thereupon plaintiff weighed them, and thereb}' ascertained the amount of the purchase price. Defendant testified that he told plaintiff that he would take the cattle at the price specified, if plaintiff would " feed them up to beef." Said the witness : " I told him I could not handle cows at all unless they were fed up to beef. . , . The}- were verj- poor. I could not take them because thes* were not fed up to beef." Plaintiff testified that defendant merely told him to feed " them a little potatoes and corn, but don't give them too much any of the time," and denies that he agreed to fatten them. We are of the opinion that tiie evidence does not sustain the verdict and judgment. In Martin v. Hurlbut, 9 Minn. 142 (Gil. 132) the Following extract is quoted with approval from Joj-ce v. Adams, 8 N. Y. 291 : '-It is a general rule of law that, where a contract is made for the purchase of goods, and nothing is said about pa3'ment or delivery, the property passes immediatel}', so as to cast upon the purchaser all future risk, if nothing further remains to be done to the goods, although he cannot 1 Tlie cnneurriiig opinion of Wilde, C. J., is omitted. 132 MARTINEAU V. KITCHING. [CHAP. III. take them away without paying the price. But if anything remains to be done on the part of the seller, as between him and the buyer, such as weighing, measuring, or counting out a common parcel, before the goods purchased are to be delivered, until that is done the rio-ht of property has not attached in the buyer." . See also Rail v. Lumber Co., 47 Miun. 422. ... In the present case there were altogether too many things to be done by the vendor to the chattels before delivery, and too few circumstances indicating an intention to vest title immediately, so that a finding that such intention existed cannot be sustained. Plaintiff's remedy was an action for damages for a breach of the executory contract. Judgment reversed and a new trial granted. MARTINEAU v. KITCHING. L. R., 7 Q. B. 436. 1872. The plaintiffs, sugar refiners, were in the habit of selling to brokers the whole of each filling of sugar, consisting of from 200 to 300 loaves or " titlers " 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 sub-vendees, being weighed on their removal, each .titler weighing from thirtj'-eight to forty-two pounds. If the whole of the lots contained in one sale- note had not (which was frequently the case) been taken awaj- on the "prompt" day, payment was made by the purchaser (by bill or cash) at an appi'oximate sum calculated on the 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 plaintiffs' pi-em- ises after the expiration of the two months from the dates of sale to the defendant, destroying the whole contents of the warehouses. At 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 thej' had no agreement or understanding with their customers as to any insurance ; and the amount insured, which the plaintiflfs received from the underwriters, was not suflBcient to cover the loss of their own goods, exclusive of the titlers, undelivered, which they had sold to the defendant.* 1 This is the reporter's condensed statement of facti. § l.J CONTRACT TO SELL SPECIFIC GOODS. 133 CocKBURN, C. J. This is an action brought to recover tte price of certain sugar alleged to have been sold by the plaintiffs to the defend- ant. The sugar perished by fire while it was still upon the premises of the sellers, and the defence raised is twofold : first, that the property in the sugar had not passed from the plaintiffs, the sellers, to the de- fendant, the buyer, and consequently the loss must fall upon the sellers ; secondly, that, even supposing that were decided against the defendant, inasmuch as these goods were covered by an insurance effected by the plaintiffs, and the plaintiffs had received the amount insured with respect to these goods, the defendant is entitled to have what the plaintiffs have so received in respect of the goods set off in his favor against the price. The first question is, whether at the time these goods perished by fire they were the property of the sellers, the plaintiffs, or the property of the buyer, the defendant. In order to decide that, as well as to de- cide the second question in dispute, we must look to see what was the course of dealing which existed between these parties. [The Lord Chief Justice stated the facts.] Now, that being the state of things existing between these parties, the first question is, whether, the contract between them being in con- formity with the general course of dealing to which I have adverted, when these goods perished by fire the propertj- had passed from the sellers to the buyer. In my opinion it had, both upon general prin- ciples and more especially with reference to the particular facts of this case and the terms of the contract between the parties. In dealing with the case of a contract we must bear in mind that the seller en- gages to do two main things, first, to pass the property in the thing sold ; secondly, to deliver possession of it. The buyer engages to take the thing which he has contracted to bu}-, and to pny the price ; and, undoubtedlj', in such a contract, one of the essential elements to con- stitute a contract of sale is that the price shall be agreed upon. But there is nothing, as it seems to me, to prevent the parties from agreeing that the property shall pass, and that the price shall afterwards be ascer- tained, that which is capable of being reduced to a certainty being for practical purposes a thing already certain or ascertained. Now the question here is, whether the propertj' passed. It appears that the price had not been finally adjusted, but it is equallj' clear that the parties had agreed upon a price estimated between them as the sum to be taken provisionally as the price for the goods. The question which presents itself to my mind is whether, independently of the ques- tion how far, when the price is still to be ascertained on the sale of a specific chattel, the property passes, the parties having agreed that provisionally a given sum shall be taken as the price, that does not show a clear intention on the part of both buyer and seller that the property shall pass. It is very true, as has been ably contended by Mr. Brown, that there are authorities for saying that, where the price remains to be ascer- 134 MARTINEAU V. KITCHING. [OHAP. III. tained, the property will not pass. But I think it is equally clear, upon the authorities, that, according to the view now taken of this branch of the law, the question is one of intention between the parties. I take it now to be perfectly clear, especially after the case of Turley v. Bates, 2 H. & C. 200, 33 L. J. (Ex.) 43, that the real question in all these cases is, whether the parties did intend that the propertj' should pass ; and I take it that in this respect no fault can be found with the law of England if a distinction exists between our law and the civil law in this respect. It is perfectly true that where anj-thing remains to be done with a view to the appropriation of the thing agreed to be sold by the seller to the buyer, it is plain that the property will not have been in- tended by him to pass to the buyer, and the property will not have passed. But it is equall3' clear that, in point of principle, and in point of common sense and practical wisdom, there is nothing to prevent a man from passing the property in the thing which he proposes to sell and the buyer proposes to buy, although the price may remain to be ascertained afterwards. We are dealing with the case of a specific chat- tel. I agree to sell to a man a specific thing — say a stack of hay, or a stack of corn. I agree to, sell him that specific thing, and he agrees to buy it ; the price undoubtedly remains an element of the contract, but we agree, instead of fixing upon a precise sum, that the sum shall be ascertained by a subsequent measurement. What is there to pre- vent the parties from agreeing that the propertj' shall pass from one to the other, although the price is afterwards to be ascertained by measure- ment. I take it that is the broad substantial distinction. If, with a view to the appropriation of the thing, the measurement is to be made as well as the price ascertained, the passing of the property being a ques- tion of intention between the parties, it did not pass because the parties did not intend it to pass. But if you can gather from the whole circum- stances of the transaction that thej' intended that the property- should pass, and the price should afterwards be ascertained, what is there in principle, what is there in common sense or practical convenience, which should prevent that intention from having effect ? I protest I can see none, and unless there are authorities absolutely conclusive upon the point, I will not give way to a rule which appears to me to militate against principle, and to be inconsistent with common sense and con- venience. In this particular case it is not necessary to say what would be the law applicable, if we had now to consider, for the first time, or as a court of error, which we are not, the question in the case of Simmons V. Swift, 5 B. & C. 857. But this ease, I think, is plainly distinguish- able from Simmons v. Swift, by reason of more than one circum- stance. The first to which I shall advert is, that the price is agreed upon between the parties provisionally according to their estimate of the quantity which the titlers contain. Can it be said that after that price has been paid at the prompt, although there is a further term in the contract between the parties that they shall eventually ascertain by an accurate weighing whether more or less than the price which the § l.J CONTRACT TO SELL SPECIFIC GOODS. 135 parties intended has been paid, — can it be said that it was intended after the price provisionally'^ agreed upon has been paid at the prompt, that the property is still to remain in the sellers, and not to be trans- ferred to the buyer? I do not think it is possible to hold anything which would be so inconsistent with what is obviously the intention of the parties. All that they intended to do by the final weighing was to see whether thej' had accurately- ascertained the amount which, accord- ing to the terms of the contract, they intended that the one party should pay and the other should receive. Then there is a further circumstance which appears to me of importance in this case, and which brings it clearly within the principle, as I think, of the case of Castle v. Playford, L. R. 7 Ex. 98, the recent case in the Exchequer Chamber, — that is, that by the terms of this contract the goods, while thej' remained in their possession, or in their custody is the more proper term, in their warehouse during the two months, were to be at the risk of the sellers, the plaintiffs. As I pointed out in tbe course of the argument, what would be the necessit3', what would be the object or purpose, of such a stipulation that the goods should be at their risk during the two months if the property still remained in them? Of course it would then be at their risk. Moreover, according to the course of dealing between the parties, at the expiration of the two months, notice is given to the buj-er, which notice the buyer accepts, and which notice the present defendant in his dealings with the plaintiffs had invariably accepted without remonstrance or objection, that upon the expiration of the two months the goods, though still remaining in the custody of the plaintiffs, should stand at the buyer's risk. That brings the case at once within the principle of the decision in Castle v. Plaj-ford, L. R. 7 Ex. 98, and shows that at that time, at all events, the property in the goods was intended by common consent of both buyer and sellers to be in the defendant, the bu}-er. I think, therefore, looking at all the circumstances of the case, it is impossible to doubt that the true intention of the parties, as well as by contemplation and effect of the law, was that the property was in the buyer and no longer in the sellers at the time of the fire, and therefore the thing, having perished, perishes to the dominus, namely, the buyer, and not to the sellers, who had ceased to have anything to do with it. Blackbuen, J. I am also of opinion that our judgment must be in favor of the plaintiffs. The case arises in this way. [The learned judge referred to paragraph 21, and stated the facts.] The difficulty which is raised is, that these goods had perished before they were actually weighed ; and two points were made by Mr. Brown : he con- tended that because they had not been weighed the property had not passed, and that it therefore followed, as an inexorable 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 136 MAETIKEAU V. KITCHING. [CHAP. III. maxim, is a maxim of our law ; and when you can show that the prop- erty passed, the risk of the loss, prima facie, is in the person in whom the property is. If, on the other hand, j-ou go beyond that, and show that the risk attached to the one person or the other, it is a ver}' strong argument for showing tliat the propertj^ was meant to be in him. But the two are not inseparable. 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 buj-er had, from his 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 buyer, who had paid the approximate price, would be obliged to come in and prove, and get so many shillings in the pound as he 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 property had passed to the buj-er as soon as he had made the payment. If the question arose in such a case as that, I am rather inclined to think it would be necessarj' to look care- fullj- 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 iinivs est exclusio aUerius. I cannot construe that stipulation, except 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 buj-er 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 buj-er'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 paj' the price I will deliver the goods to you, but the property shall not be yours, thej' 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 § 1.] CONTRACT TO SELL SPECIFIC GOODS. 137 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 reductio ad absur- dum / and that is really what the argument amounts to. If the parties have stipulated that, if after the two months the goods remain in the sellers' warehouse, they shall, nevertheless, remain there at the buyer's risk, it would be a manifest absurdity to say that he is not to pay for them; and I think the case of Castle u. Playford, L. R. 7 Ex. 98, is a clear authority of the Court of Exchequer Chambei-, that where the parties have stipulated that the risk shall be on one side, it mat- ters 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. 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 man}- 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 recent case of Castle v. Playford, L. R. 7 Ex. 98, in the Exchequer Cham- ber, — which all go to show that where the price is not ascertained, 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 ascertain the price, and to have it paid to the last farthing. It may be for the mutual con- venience 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 post- poned for a time. Therefore it is in consequence of his delay that the weighing does not take place. Now by the civil law it always was considered that, if there was any weighing, or anything of the sort which prevented the contract being perfecta emptio, whenever that was occasioned by one of the parties being in mora, and it was his default, though the emptio is not perfecta, yet if it is clearly shown 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, though it is not necessarj' to the decision of the present case, that, when the weighing is delayed in consequence of the interference of the buj-er, so that the property did not pass, even if there were no express stipulation about risk, j-et be- cause the non-completion of the bargain and sale, which would absolutely transfer the property, was owing to the delay of the purchaser, the pur- chaser should bear the risk just as much as if the property had passed. 138 SANGER V. WATEEBURY. [CHAP. III. The inclination of mj opinion is, as I have said, that the property is in the purchaser ; but we need not decide that at all to-day, and it might lequire some consideration to see how far the case of Simmons v. Swift, 5 B. & C. 857, really governs the case. . . . Judgment for the plaintiffs. SANGER V. WATEEBURY, 116 N. Y. 371. 1889. Appeal from judgment of the general term of the supreme court, in the second judicial department, entered upon an order made December 14, 1886, which aflSrmed a judgment in favor of the defendants, entered upon a verdict directed by the court. This was an action of replevin brought to recover the possession of 238 bags of coffee identified and described in the complaint as follows: "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. L. 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 bj- the plaintiffs to the defendants, John K. Huston and James E. Huston, ... on the credit of sixty daj-s for one-half thereof, and of ninety daj's for the balance thereof." It ap- peared 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 Philadel- phia. That firm, on the 24th day of July, upon the security of the cof- fee thus purchased, borrowed from the defendants, Waterbury & Force, $2,300, and then transferred the coffee to them. On July 27th follow- ing, said firm failed, making a general assignment. On the next daj-, the plaintiffs commenced this action, by means of which the coffee was taken from the possession of Waterbur}' & Force. The coffee then was, as it had been from the time of the purchase by the plaintiffs, actually deposited in the warehouse of E. B. Bartlett & Co., and had not as yet been weighed. William W. Ooodrich, for appellants. Edward N. Shepard, for respondents. Parker, J. The appellant contends that the tifle to the coffee in controversy did not pass to J. K. Huston & Co., and that therefore the transfer to Waterbury & Force did not vest in them the title or the possession. The sale is admitted ; but as the coffee had to be weighed, § 1.] CONTKACT TO SELL SPECIFIC GOODS. 139 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 appellant cites a number of authorities which, he urges, 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 quantit^s 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 ascertained 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 ; Kimberly v. Patchin, 19 N. Y. 330 ; 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 as- certain what would be the price of the whole at a rate agreed upon be- tween the parties, the title will pass." ' This expression of the court is cited with approval in Burrows v. Whitaker, 71 N. Y. 291, 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 identifj' the goods sold ; because while, out of a larger lot, 238 bags of coffee were disposed of, nevertheless, as appears from the complaint and the testimony adduced, the bags were so marked that there was no diffi- culty 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 appellants, but, in- stead, is governed bj' 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's are without title upon which to found the right to maintain an action. The judgment appealed from should be affirmed. All concur. 140 NICHOLSON V. TAYLOR. [CHAP. IIL NICHOLSON V. TAYLOR. 31 Penn. St. 128. 1858. Action on the case to recover the vahie of a load of lumber alleged to have been sold by defendants to plaintiffs, but which they subse- quently refused to deliver. tT. Cook Longstreth, for the plaintiffs in error. Parsons, for the defendants in error. Thompson, J. . . . If parties choose to deli%'er 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 neighbourhood of 5,000 feet of plank, at $15.50 and expenses, take a note at months, with interest. T. B. Taylor & Co. " 8th. Mo. nth." A Pine Creek load of lumber, it would appear, contains about 5,000 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 defendants below refused to deliver the lumber, alleging that thej' were mistaken in the amount of the plank contained in it — that in place of 5,000 there were 10,000 feet, and which thej' charged that plaintiffs knew; but they offered to deliver the load, or the amount of it, with 5,000 feet of plank in it. The plaintiffs refused to take it. This being the situation of things between the parties, and the plaintiffs claiming that the propertj' 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 $1,050.50, its entire value. Afterwards the court entered 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 alreadj' 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 remain 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 con- sequent only on the former ; all showing that the contract was but § 1.] CONTRACT TO SKLL SPECIFIC GOODS. 141 executory In fact and intention. Tiie 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 tliem to do so. Thej' were at no time debarred from suing for damages for a breach of the contract, if any such occurred. We think the court below were right in their decision, and this judgment must be affirmed. Judgment affirmed. UPSON V. HOLMES. 51 Conn. 500. 1883. Carpenter, J. The defendants purchased of the plaintiff all the wood standing upon a certain lot, estimated to be about fifteen hundred cords, at $1.60 per cord. They at the same time contracted with one Carter to cut and haul the wood. The plaintiff had been in the habit of purchasing wood for them and of superintending the cutting and haul- ing. On this occasion he declined to cut and haul the wood, or be responsible for it, as he had been in the habit of doing ; but the defendants' agent said to the plaintiff that he wanted the payments for the cutting and hauling to be made in the usual manner, through the plaintiff, by orders from him on the defendants. The plaintiff con- sented to ascertain from time to time how much was cut and hauled by Carter, and to act for the defendants in making paj'ment therefor. This arrangement was made solely as a matter of convenience to the defendants in keeping accounts. The wood was to be measured in the defendants' yard and paid for after measurement. But the delivery of the wood there and its measurement were not a part of the contract between the plaintiff and defendants, unless made so as matter of law from the facts found. Carter cut, piled, and measured fifteen hundred and fifteen cords of wood. He delivered at the defendants' yard about one hundred and ninety-seven cords. The balance of the wood, except about one hun- dred cords, was destroyed by an accidental fire. The small quantity not destroyed was afterwards delivered to the defendants. Before the fire the defendants paid Carter for all the cutting, and for hauling the wood actually placed in their yard. The plaintiff has been paid nothing for the wood. This action is brought to recover the value of the wood so sold. The defendants claimed that they were liable only for the amount of wood actually measured in their yard. The court overruled this claim and rendered judgment for the whole amount, and the defendants appealed. • The court below evidently construed the contract as a sale of wood standing, and not as a sale of wood to be delivered by the vendor at the 142 BUSWELL V. BICKNELL. [OHAP. III. yard of the purchaser. In this there was no error. The defendants by the terms of the contract were to cut and haul the wood at their own expense. The plaintiff, except as he acted to a limited extent as the agent of the defendants in paying for the cutting and drawing, had nothing to do with it. The contract gave the defendants an implied license to enter the premises and sever the wood from the stump. This was done and the wood piled up. Then certainly, if not before, there was a complete delivery to the purchaser. The fact that the wood was on the plaintiff's land does not prevent a legal delivery ; for there was an implied license not only to cut and pile the wood, but also to draw it off. For this purpose they had a reasonable time. The wood was subject to the control of the defendants and not of the plaintiff; it was in fact in their possession. It is reasonable that it should be at the risk of the party controlling it, and who might at his pleasure delay or facilitate its removal. The circumstance that the wood was to be measured and paid for after it was delivered at the defendants' j-ard is unimportant. That relates to the time and manner of payment, and not to the change of title. Where goods are sold and delivered to be paid for on the happening of a certain event, the vendor will not be deprived of his right to recover merely because the event on which paj-ment is to be made has bj' accident become impossible. Upon the same principle, when the quantity is to be ascertained bj' measurement at a particular time or place, or in a particular manner, if such measurement becomes impossible, nevertheless the quantity' may be ascertained in some other manner. The suggestion that the plaintiff cannot recover on this complaint, because standing trees are not goods and merchandise, is not tenable. The substance of the transaction was a sale of wood. The parties con- templated a severance from the realty ; and when it was in fact severed it became personal property. The contract therefore should be treated as a sale of personal chattel. There is no error. In this opinion the other judges concurred. BUSWELL V. BICKNELL. 17 Me 344. 1840. Weston, C. J. The plaintiff received a cow from the defendant, for which she was to pay, by the 4th of April following, $16, or to return the cow and to pay $4 for her use. The question is, whether the prop- erty in the cow passed to the plaintiff, or whether it remained in the defendant, the plaintiff being merely bailee. Sir William Jones, in his treatise on bailments, 143, says: " There § 2.] OONTEACT TO SELL UNASCEETAINED GOODS. 143 is a distinction between an obligation to restore the specific things, and a power or necessity of returning others equal in value. In the first case, it is a regular bailment ; in the second, it becomes a debt." Story on Bailments, c. 6, § 439, says : " The distinction between the obligation to restore the specific things and a power of returning other things equal in value, holds in cases of hiring, as well as in cases of deposits and gratuitous loans. In the former case, that is, the obli- gation to restore the specific thing, it is a regular bailment ; in the latter, viz., where there is a power of returning other things equal in value, it becomes a debt." This doctrine is recognized in Hurd v. West, 7 Cowen, 752, and is further illustrated in a note to that case. The cases to which this principle is usually applied are, where the article received is to be re- turned in. kind, or in the alternative, either specifically or by an article of the same kind, either in the same condition or in a manufactured state. In all such cases the property passes to him, who would other- wise be merely a bailee. Seymour v. Brown, 19 Johns. 47, may seem in its application to be an exception to this principle ; but Chancellor Kent sa3's that this decision was not in conformity to the true and settled doctrine. 2 Kent, 589. Whether the alternative is, to return specifically or in kind, or specifically or to paj' a certain sum, the prin- ciple is the same. The property in the thing delivered passes, and the remedy of the former owner rests in contract. It is the option con- ceded to the party receiving which produces this effect. He may do what he will with the article received. If he pays, he fulfils his con- tract ; if he neither paj's nor returns, he is liable to an action. In Holbrook v. Armstrong, 1 Fairf. 31, where cows were delivered, to be returned at the end of two years, or their value in money, the doctrine was verj' fully gone into by Parris, J., who delivered the opinion of the court ; and it was held not to be a bailment but a sale. The same rule was applied to a similar case in Dearborn v. Turner, 16 Maine Rep. 17. The case is not to be distinguished from the one before us. New trial granted. § 2. CONTEACT TO SELL UNASCEETAINED GOODS. GRAFF V. OSBORNE CO. 56 Kansas, 162. 1895. Action by Osborne & Co. against Graff for the price of binding twine alleged to have been sold and delivered. Defence, that the plain- tiflTs agreed to furnish first-class binding twine, but that a large part, for which suit was brought, was not according to contract, and that defendant was entitled to damages. A verdict was directed for the 144 MITCHELL V. LE CLAIE. [OHAP. IH. plaintiff for the sum claimed, and from the judgment entered thereoBi defendant appealed. W. W. Schewinn and Tom George, for plaintiff in error. C. E. Elliott and S. L. Woods, for defendant in error. Allen, J. The view we take of this case renders it unnecessary to consider the subject of implied warranties, so fully and ably discussed in the briefs. The rights of the parties were fixed by the written con- tract and the two letters read in evidence. If the description of the article sold were to be taken solely from the contract of March 27th, the plaintiFf might find it somewhat diflacult to prove that it had ever delivered silver binding twine. Of course none of the parties to the agreement understood that there was to be any silver in the twine. This is made clear by the letter written by Mr. Terpenning, the plaintiff's manager at St. Louis, under date "4-5-89." This letter, while denying the authority of Wilson to guaranty, and insisting on an erasure of the clause written on the margin by him, makes the direct statement and representation, " We deal in nothing but first-class twine." The defendant, by his letter of the 8th, put the plaintiff directly on notice that he relied on the declaration contay:ed in Terpenning's letter. As the defendant could not possiblj^ inspect the twine before it was purchased, he had a right to rely on the statement in the letter of the plaintiff's manager as to the quality of the goods to be furnished. If the plaintiff failed to \ furnish first-class twine as represented, he had a right to a reasonable time after receipt of the twine in which to inspect it, rescind the whole contract, and return the goods received, or, if he so elected, he had the right to retain the inferior article, and recoup the damages sustained by reason of the failure of the plaintiff to furnish goods of the proper ' quality. The judgment is reversed, and a new trial ordered. All the justices concurring. MITCHELL V. LE CLAIR. 43 N. E. 117: 165 Mass. 308. 1896. Action for the purchase price of sixty tubs of butter. The last in- struction requested by the defendant and refused by the court was, " that the plaintiffs had failed to make out their case, in that there was no evidence that the butter selected, set aside, and marked as aforesaid, was of the kind and quality ordered." D. D. Corcoran, for plaintiffs. Geo. H. Towle, for defendant. Knowlton, J. The principal question in this case is whether there was a suflScient delivery of the butter to pass the title as between the parties. There is no dispute that there was a good contract of sale, § 2.] CONTRACT TO SELL UNASCEETAINED GOODS. 145 and no question arises iindei- the statute of frauds. The defendant ac- cepted by telegram the plaintiffs' offer to sell him sixty tubs of butter of a specified quality at 27 cents per pound. The plaintiffs had in their storehouse a large quantity of butter. Upon the receipt of the defend- ant's telegram accepting their offer, they were impliedly- autliorized, as tlie defendant^ s agents, to set apart and appropriate to him the goods called for by the contract. This they immediately did, weighing the butter, setting it apart, and marking each tub for the purpose of desig- nating it as the defendant's propertj'. Thej' then at once sent him a bill of all of it, marked, " Cash on demand." This completed the sale, and passed the title. Morse v. Sherman, 106 Mass. 430 ; Marble v. Moore, 102 Mass. 443 ; Arnold v. Delano, 4 Cush. 33-38 ; Ropes v. Lane, 9 Allen, 502-510 ; Bank v. Bangs, 102 Mass. 291-295 ; Safford V. McDonough, 120 Mass. 290 ; Gilmour v. Supple, 11 Moore, P. C. 551-556 ; Tarling v. Baxter, 6 Barn. & C. 360 ; Benj. Sales (6th Am. Ed.), 294-298, and cases cited in the note. If the contract is not in such form as to be binding under the statute of frauds, such an appropriation does not constitute an acceptance under that statute, nor does it change the possession, and thereby de- prive the vendor of his lien for the price. Safford v. McDonough, 120 Mass. 290. But if the vendee in such a case afterwards refuses to take the goods, and pay for them, the vendor may recover the price, if he keeps them in readiness for delivery to the purchaser. Under a con- tract of sale, when the goods have been so appropriated and set apart, the vendor has done that which by the terms of the agreement makes the whole consideration payable ; and so long as he remains ready to do whatever else is to be done to give the vendee the benefit of his purchase, he is entitled to receive the agreed price without deduction on account of his retention of liis lien upon the propertj'. White v. Solomon, 164 Mass. 516 ; Morse v. Sherman, 106 Mass. 430 ; Putnam V. Glidden, 159 Mass. 47. There was sufficient evidence to warrant the judge in finding that the butter answered the requirements of the contract. The plaintiffs ap- propriated it to the defendant as butter of the quality called for. Their conduct then and afterwards was equivalent to a declaration that it conformed to the agreement of the parties. Afterwards shipments were made from time to time of a part of it, amounting to fortj' tubs in all, which were accepted and paid for by the defendant without objec- tion. This was an admission by the defendant that the quality of the forty tubs was such as he expected. The bill sent to the defendant in the first place gave the separate weight and tare of each tub of butter. The defendant directed the shipping to him of the remaining twenty tubs, and the only dispute between the parties at that time was in re- gard to the terms of payment ; the plaintiffs asserting that the property was to b.e paid for on demand, before parting with the possession, and the defendant contending that he was entitled to receive it, and to have three months from the time of sale in which to make payment. While 10 146 WINSLOW V. LEONAKD. [CHAP. III. these facts do not make it certain that the twenty tubs remaining in the possession of the plaintiffs were of good quality, they warrant an inference in favor of the plaintiffs' contention, in the absence of anything to show the contrarj'. The last instruction requested was therefore rightly refused. Mcceptions overruled. WINSLOW V. LEONARD. 24 Penn. St. 14. 1854. WiNSLOW, Lanier, & Co. brought replevin against Leonard for eightj-- two tons of pig metal. On May 22, 1851, D. B. Long & Co. signed and delivered to plaintiffs the following writing : ' ' We have this day sold to Winslow, Lanier, & Co. four hundred tons of pig metal, now at our landing at Washington Furnace, or that will soon be delivered there, and we hereby direct Mr. McClure (clerk at the furnace) to give them possession thereof."- This sale was in payment of a debt due to plaintiffs from one of the firm of Long & Co. Plaintiffs sent an agent to the furnace to get possession of the metal ; but before his arrival the metal in litigation had been loaded into Brenneman's boats, and fortj!- tons been transferred to him by D. B. Long in payment of a debt due to him from Long & Co., while the balance was to be appropriated by him to the payment of debts due to Long & Miller and to Bolton. Brenneman delivered the metal to Leonard as bailee, who refused to surrender it to plaintiffs ; and the latter brought this suit. Plaintiffs recovered forty-two tons, being all the metal except the forty tons intended to paj' Brenneman's debt. Knox, for plaintiffs. "Woods & Hampton, for defendants. LowRiE, J. To maintain replevin the plaintiffs must show that the title had vested in them. Have they done so? That there is much confusion of ideas aiid many conflicting decisions as to the vesting of the title on a sale of personal propertj^ is readily discoverable, and much of this arises from the misleading influence of unsuitable analogies. We shall refer to some of them here, in order that we may show the propriety of setting such decisions aside or using them cautiousl}\ The class of cases which have tended most powerfully to embarrass this question, are those wherein the real question was not, Has the title vested in the vendee? but. Has it so absolutely vested as to take awaj' the lien of the vendor for unpaid purchase monej-, or his right to stop in transitu? Yet to this class belong most of the older cases which are usually referred to as leading cases on the present question, though ■Jhey had nothing to do with it, for it is very plain that the title may § 2.] CONTEACT TO SELL UNASCERTAINED GOODS. 147 vest even while the vendor has such remaining control over the goods as entitles him to arrest their full delivery in default of paj-ment, or on the failure of the vendee. A perfect sale implies specific articles, and it passes the title to them ; but the vendor has a lien until the condi- tions of sale are performed, or until full delivery. The principle that, so long as anything remains to be done to ascertain the price, quantity, or quality of the thing sold, the title does not pass, has its origin almost entirely in the sense of justice that protects unpaid vendors against the fraud or failure of their vendees ; and very slight circum- stances, showing any remaining control in the vendor, will be allowed to prevail in such cases. The meaning is that, so long as an^- of these things remain to be done, an unpaid vendor, who is in danger of losing the price, ma}- rescind the sale: 8 East, 614; 12 Id. 614; 13 Id. 522 ; 5 Taunt. 176 ; 2 M. & S. 397 ; 2 Barn. & C. 540 ; 6 Man. & Gr. 963 ; 7 Id. 360 ; 7 Wend. 404 ; 17 Id. 504 ; 6 Pick. 280 ; 20 Id. 280; 10 Id. 522; 15 Johns. 349. And the same sense of justice operates in favor of a purchaser who has paid, and thus reverses the result when the other circumstances are the same : 13 Pick. 175 ; 16 Id. 25 ; 5 Johns. 335 ; 3 W. & Serg. 14. 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 ; but this is not essential to such a sale, and therefore not conclusive one waj' or the other, except when it is necessarj' in order to define the subject-matter. Articles are very often transferred without any sort of measurement, and on the trial for their value, the want of it is supplied by approximate estimation : 3 State Rep. 50 ; 6 W. & Serg. 357. The cases of delivery under the English statute of frauds are quite as unsuitable analog}' ; for in those cases delivery is necessary to the validity of the contract rather than to the passing of the title. That the contract maj' be valid, without writing, there must be an uncon- ditional delivery of the thing sold : 2 Barn. & C. 511. But if the con- tract be in writing or otherwise valid, delivery is not at all necessary to its perfect or executed character. That the bargain is by words in past or present time is not conclu- sive evidence of a perfect sale ; for if it appear in the contract or ab extra that the vendor did not then own the article contracted for, or that it was not then in existence, or not j'et manufactured, or not selected out of a lot of similar articles, then the subject-matter of the contract remains undefined and unspecified, at least to some degree, and it is incompatible with the very nature of things to call it a perfect sale : 14 Wend. 31 ; 3 Johns. 399 ; 6 Cowen, 250 ; 7 Id. 85 ; 4 Rawle, 260 ; 4 Watts, 121 ; 6 Id. 29 ; 1 Taunt. 318. There can be no doubt that a man may sell any kind of articles in bulk so as to pass the title : 5 Met. 452 ; 5 Johns. 395 ; 2 Barn. & C. 540. He may pass the title to an absent or a present thing without delivery ; for, as between vendor and vendee, it is specification and not delivery that is necessary 148 WINSLOW V. LEONARD. [CHAP. III. to the vesting of the title : 17 Ser. & R. 99 ; 5 Watts, 201. This is and alwa3-s has been the law, except in cases where other forms have been prescribed by statute. Where the lawful form of contracting is pursued, the vesting of the title always depends upon the intention of the parties, to be derived from the contract and its circumstances ; and actual delivery, weighing and setting aside the goods, are only circumstances from which the intention may be inferred as matter of fact : 12 Pick. 76 ; 20 Id. 280 ; 3 W. & Serg. 14. And this is the principle of numerous cases wherein the title has been held to vest even where there has been no measurement: 13 Pick. 175; 5 Met. 452 ; 5 Johns. 395 ; 1 East, 192 ; 2 Barn. & C. 540 ; 6 W. & Serg. 357 ; 6 Rand. 473 ; 1 Denio, 48 ; 4 Com- mon B. R. 864. Of course the intention must be ineffectual where the vendor has no title ; and it cannot be inferred, unless it appears that the contract has a distinct subject-matter, defined by itself, and not merely as one of a class. Let us apply these principles to the present case. The words in the contract, " we have this day sold," would seem to indicate a perfect sale, and not merely a contract to sell, and therefore a vested title to specific metal. But the metal is described as " now at our landing, or that will soon be delivered there." This raises a doubt whether an3' ' specific metal was sold, and seems to indicate only a contract to sell, it does not as j"et appear that there was any at the landing, or where it was to come from. For aught that appears, anj' four hundred tons will answer the description. It may be that the vendors had not any or so much on hand. If they had any and it had been stolen or de- stroj'ed an hour after the contract, we have as j-et no evidence that would throw the loss on the vendees. We discover no definition of the subject-matter except as pig metal. The true reading of the contract would therefore seem to be, "we have bargained with Winslow, Lanier, & Co. , to deliver to them at our landing four hundred tons of pig metal." Still we do not say that there can be no evidence that there was a defined lot of metal in the intention of the parties. We see none on this record. And especiallj- we do not see how this metal, which was on its way to Pittsburgh, can, without other evidence, be embraced by the contract. . It follows therefore that the evidence does not show a passing of the title from D. B. Long & Co. to Winslow, Lanier, & Co., and the court, when requested, ought so to have instructed the jury. It follows further that any one of the firm of D. B. Long & Co. could transfer the metal to Brenneman, subject to answer in damages to Winslow, Lanier, & Co., if that act should occasion a breach of the contract with them. The other points raised we may dispose of briefly. As to Brenne- man's title, the learned judge charged, that where the same thing is sold to two different persons, by contract equally valid, and the second vendee is without notice of the first sale, he who first obtains posses- sion is entitled to the property, and this is correct : 17 Mass. 110 ; 12 § 2.] CONTRACT TO SELL UNASCERTAINED GOODS. 149 Id. 54 ; 17 Ser. & E. 99 ; 2 Aik. 115 ; 2 Shepley, 116. "We do not see how the delivery to Brenneman could, of itself, avail Bolton and others, as against the sale to these plaintiffs ; but if the plaintiffs have no title, that transaction may have become good, as against Long & Co., by subsequent circumstances. All the other points of the cause were rightly decided. Judgment reversed and a new trial awarded. ANDREWS V. CHENEY. 62 N. H. 404. 1882. Assumpsit, to recover money paid for goods. Facts found by a referee. October 28, 1879, the plaintiff bought goods of the defendant and paid for them. The defendant did not have in stock the goods wanted, and the plaintiff selected the kind and quality desired from samples. The defendant agreed to have the goods at his store within two weeks, at which time the plaintiff was to call for them ; if they were ready before that time the defendant agreed to notify him. "Within the stipulated time the defendant got the goods into his store, set them apart by themselves, and marked them with the plaintiff's name. The goods, together with the store, were destroyed by Are November 21, 1879, the plaintiff not having called for them. The court ordered judgment for the defendant, and the plaintiff excepted. J. H. Albin, for the plaintiff. A. P- Davis, for the defendant. Carpenter, J. The property in the goods did not pass to the plaintiff by virtue of the contract, for they were not then ascertained, and may not have been in existence. The agreement on the part of the defendant was executorj-. He agreed to furnish goods correspond- ing to the samples selected by the plaintiff. If the goods subsequently procured and set apart by the defendant, did not conform to the sam- ples, the plaintiff had a right to reject them. It does not appear that he waived that right. The defendant was not concluded by his selec- tion ; he might have sold or otherwise disposed of the particular arti- cles set apart by him, and substituted others in their place. A con- tract of sale is not complete until the specific goods on which it is to operate are agreed upon. Until that is done the contract is not a sale, but an agreement to sell goods of a particular description. It is per- formed on the part of the vendor by furnishing goods which answer the description. If, as in the case of a sale by sample, the specific goods are not ascertained by the agreement, the propertj' does not pass until an appropriation of specific goods to the contract is made with the assent of both parties. Bog Lead Mining Co. v. Montague, 10 C. B. N. s. 489 ; Jenner v. Smith, L. R. 4 C. P. 270 ; Hielbutt v. Hickson, 150 JOHNSON V. HUNT. [CHAP. IIL L. E. 7 C. p. 438 ; Merchant's N. Bank v. Bangs, 102 Mass. 291 ; Black. Sales, 122, 127 ; Benj. Sales, § 358. If the plaintiff authorized the defendant to make the selection, the propei'ty immediatelj- on the selection vested in the plaintiff. Aldridge v. Johnson, 7 E. & B. 885. It not appearing that the plaintiff gave such authoritj-, the goods at the time of the fire were the property of the defendant, and their de- struction was his loss. By the terras of the contract the defendant was to have the goods at his store within two weeks, at the end of which time, or sooner if noti- fied that they were ready, the plaintiff was to call for them, and the defendant was to deliver them. Within the stipulated time the defend- ant procured the goods and had them read}' for deliver}-. This was all the agreement required him to do, and all that he could do until the plaintiff came for them. The plaintiff's call, being a condition prece- ■ dent to the defendant's obligation to deliver, must be shown in order to entitle the plaintiff to treat the contract as rescinded and recover back the purchase-monej'. It may be that the trial before the referee proceeded upon the mis- taken theory that the rights of the parties were concluded by the de- struction by fire of the particular goods selected by the defendant, and that the onlj' question was upon whom the loss of those goods should fall. The plaintiff did not call for the goods before the fire ; but whether he did after the fire does not appear, and maj' have been con- sidered immaterial. The rights of the parties under the agreement were not affected by the destruction of the goods. If they were set apart without authority from the plaintiff, he still had the right to call for the goods he bargained for, and the defendant was bound to deliver them. Upon the defendant's neglect or refusal to deliver them upon request as well after as before the fire, the plaintiff might at his elec- tion rescind the contract and recover the purchase-money, or affirm it and recover for the breach. Drew v. Claggett, 39 N. H^ 431 ; Weeks v. Robie, 42 N. H. 316 ; Swazy v. Company, 48 N. H. 200. The case may be recommitted to the referee, if the plaintiff desires it, for the purpose of showing a call for the goods after the fire. If recommitted, it will be open to the defendant to show that he was authorized by the plaintiff to select the goods. As the ease stands, the exceptions are overruled. Exceptions overruled. JOHNSON V. HUNT. 11 Wendell (N. Y.), 135. 1834. On the 21st August, 1829, the defendant agreed to build a house for the plaintiff, finding the materials for the woodwork, and doing the work, and engaging to complete the job by the 1st Maj', 1830. The § 2.j CONTKACT TO SELL UNASCERTAINED GOODS. 151 plaintiff engaged to pay for the same $1525, in manner following Wlien timber should be delivered on the ground for framing, f 100 when the frame should be raised, $200 ; on the first of December, $150 the like sum on the first day of each of the four succeeding months " provided the work shall advance according to the payments made ; ' making $1050 to be paid by the first day of April, and the remainder, viz., $475, when the house should be finished. After the house was enclosed, the defendant worked plank belonging to him into eight columns for piazzas, one-half of which were intended for the house building for the plaintiff, and the other half for a house which the defendant was then building for a Mr. Earl. These columns were worked in the house building for the plaintiff, and to make room for the masons to do their work, the columns were removed to the store of a Mr. Burrows. The defendant also procured and deposited in the same store four carved capitals and three bases for the columns, and six carved window and door caps. After a barn was enclosed, which the defendant was building for the plaintiff on the same lot on which the house was erected, the columns and other materials were removed thereto, and subsequently four of the columns were taken therefrom and used in the erection of Earl's house. The other columns and the carved work remained in the barn until June or Jul}', 1830, when the defendant broke open the barn and took and carried them awa3^ For this prop- erty the action was brought. The plaintiff proved payments made by him to the defendant, to the amount of $1700, and that the defendant, about two weeks previous to taking the property from the barn, aban- doned the job he had undertaken, saying he would not work any more at it, unless the plaintiff would pay him more money. It was proved on the part of the defendant, in pursuance of a notice attached to his plea, that on the 5th May, 1830, while the property in question remained in the store of Burrows, it was levied upon by a deputy of the sheriff of Albany, by virtue of an execution against the defendant for the sum of $556, who left the same in the possession of the defendant. The value of the property- was testified to. The judge ruled that the plank from which the columns were worked, though purchased by the defend- ant, became the property of the plaintiff when the same were delivered upon the plaintiff's lot; and though the lumber used in preparing the columns in question had not been separated from that used in preparing the columns for Earl's house at the time of the levy, yet that it was subsequently separated, and that it was reasonable to presume that the defendant intended it for the house of the plaintiff; and as to the carved work, that, though it had not been delivered .upon the premises of the plaintiff at the time of the levy, still it had been procured for the plaintiff's house, and immediately upon its being so procured, and before a delivery upon the premises of the plaintiff, it became the property of the plaintiff. To which decision the defendant excepted. The jury, under the charge of the judge, found a verdict for the plaintiff, which khe defendant now moved to set aside. 152 JOHNSON V. HUNT. [CHAP. in. J. Paine, for the defendant. M. T. Reynolds, for plaintiff. By tiie court, Savage, C.J. By the contract, the defendant was to procure the materials and build the house for the plaintiff. The mate- rials were purchased by the defendant, were his own, and at his risk. The fact-that such materials were intended for the plaintiff's house did not change the property. Had the defendant acted as the plaintiff's agent in purchasing the materials, then indeed the property would have been the plaintiff's. The contract, however, does not give countenance to any such idea, nor was such a construction contended for. The judge at the circuit held that the property was vested in the plaintiff by the act of the defendant in purchasing it, intending to work it into the plaintiff's house. In this the judge certainly erred. "When the defend- ant purchased the property, it became his own ; he might sell it again, and purchase other materials to use in the plaintiff's house ; and if he procured such as the contract required, the plaintiff could not complain. Suppose he had purchased plank which were rotten and totally unfit for the use, but still intending them for the plaintiff's house, the plaintiff would not be bound to receive them. Or suppose the plank were pur- chased in Troy or Albany, or at the mill where manufactured, and before they were removed a fire had destroj-ed them, would the plain- tiff say the loss was his? If the property was ever in the defendant, when was it changed ? As personal property, clearly it did not p^s until delivery, and there is no evidence in the Case of a delivery by the defendant, or the receipt of it by the plaintiff. It was not intended by the contract that it should pass as personal property ; it was to become the property of the plaintiff when it was worked into his house, and not before. The mere act of bringing the plank upon the plaintiff's lot, for the purpose of working it into columns, did not change the property ; nor did the act of working the plank into pieces to put up have that effect, for we see the same defendant, at the same time and place, working up other plank of the same lot into materials for columns foi- Earl's house. If the act of working the plank in the plaintiff's house made them his property, then he owned the whole ; but that is not pre- tended. If the working them with intent to put them up in the plaintiff's house made them his, then the intent changed the property, without any act by either of the contracting parties. That would be a very unsafe rule of property. The property of one man does not be- come the property of another, unless by some act indicating a delivery by one and an acceptance by the other. Had the property in question been burned when in Burrows's store, and had the defendant been per- fectly solvent, I presume the plaintiff would not have considered the loss his own ; surely the law would not so have adjudged it. Where anything remains to be done by the vendor before the article is to be delivered, the right of property does not pass. 7 Wendell, 406, and cases there cited. Here the columns were to be put together and erected before they became the plaintiff's. In the case of Mucklow v. § 2.] CONTRACT TO SELL UNASCERTAINED GOODS. 153 Mangles, 1 Taunt. 319, a boat-builder contracted to build a barge for one Pocock, and received paj'ment in advance. He finished the barge and painted Pocock's name on the stern ; but before delivery It was levied on by the sheriff, under an execution against the boat-builder. It was held that the property had not passed to Pocock. Heath, J., says it comes within the cases which have been held to be executory. He adds, " A tradesman often finishes goods which he is making in pursuance of an order given by one person, and sells them to another ; yet the person giving the order could not bring trover." The case of Merritt v. Johnson, 7 Johns. R. 473, was a stronger case than Mucklow V. Mangles. One Travis agreed to build a sloop for E. Merritt, and to furnish the timber for the same. Travis partly finished the sloop, furnishing the greater part of the materials ; but D. Merritt, the plain- tiff, to whom the contract was assigned by E. Merritt, also furnished part of the materials and advanced money to Travis on the contract. When the vessel was about one-third finished, it was levied on under an execution against Travis. The plaintiff brought an action of trover for the vessel ; bat the court said that his right of action rested on the contract with Travis, and that the sloop did not become his until finished and delivered. The court take notice of the fact that the sloop was built upon ground hired by Travis; but had the fact been difierent, I do not see how the result would have been varied under the contract in that case, by which Merritt was to pay as the work progressed, leaving one-third to be paid when the whole of the work was finished. In this case there could not be a formal delivery of the house after it was finished ; the house, standing on the plaintiff's ground, became his as fast as the pkrts added to it became attached, so as to become part of the freehold ; but with that diflerence, the case of the sloop is not distinguishable in principle. The sloop was personal propertj^ and therefore the property was not changed until delivery.^ The house iu 1 In Laidler v. Burlinson, 2 M. & W. 602 (1837), Parke, B., said : " The whole case resolves itself into a construction of the contract. Was it a present bargain and sale of the materials of the ship lying there 1 If a man bargain for a specific chattel, though it is not delivered, the property passes, and an action lies for the non-delivery, or of trover. Langfort v. Tiler, 1 Salkeld, 113. But it is equally clear that a chattel which is to be delivered infuturo does not pass by the contract. Two questions arise : First, is this an article which would correspond with the terms of the contract ? Secondly, is it a contract for an article to be finished ? In the latter case, the article must be finished before the property vests. In the first, an action would lie at once for the non-delivery. The contract describes all the several particulars to be sup- plied, and then it concludes, ' We, the undersigned, agree to take shares in the before- mentioned vessel.' The plaintiff is a purchaser of one-fourth. It is clear that he was not to pay for the materials as then existing ; and also that many other parties, according to the stipulations, were to have an interest in the ship when finished. It is most like the case of Mucklow v. Mangles, 1 Taunt. 318. There is no sum here which can be said to be the price of the chattel in its then state. In Woods v. Russell there were three ingredients, on which the judgment of the court was founded. First, a sum was paid, which appropriated the work as then finished ; secondly, a super- intendent was employed ; thirdly, there was the certificate of registry. In Clarke v. 154 WAIT V. BAKEK. [CHAP. III. question was real property, but the materials of which it was composed were personal property, and did not pass to the plaintiff until delivery, or until they became affixed to the freehold ; at the time of the levy, they were the property of Hunt, the defendant. The plaintiff, therefore, had no title, and could not recover upon the evidence before the court. New trial granted: costs to abide the event. WAIT V. BAKER. 2 Exchequer, 1. 1848. Trover for 500 quarters of barley. Pleas, not guilty, and not pos- sessed ; upon which issue was joined. At the trial, the following facts appeared : The defendant, a corn- factor at Bristol, had occasional dealings with a person of the name of Lethbridge, who was also a corn-factor at Plymouth, and on the 5th of December, 1846, wrote to him the following letter: "1 hear that the crop of barley in the south of Hampshire is good this j'ear, and that at Kingsbridge the price is low, compared with the markets further east- ward, if j'ou 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 trans- action. Let me hear from you in due course. Send me sample in letter, describing weight, &c." On the 14th Lethbridge wrote the following letter to the defendant : " I herewith hand you samples of common and chevalier barley of the neighborhood of Kingsbridge, and will engage to sell j'ou from 400 to 500 quarters f o. b. barley at Kingsbridge, or neighboring port, at 40s. per quarter common, and 42s. per quarter chevalier, in equal quantities, for cash, on handing bills of lading, or acceptance at two months' date, adding interest at the rate of £5 per cent per annum, subject to your reply by course of post." On the 16th the defendant returned a reply, accepting Lethbridge's order. On the 18th Lethbridge wrote the defendant asking if he were to take up a vessel for the barlej-. 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 Spence two of these circumstances concurred. Tlie paj'meiit by instalments was evidence of appropriation of tlie work as tlie instalments were paid. But here there is no sum which can by any possibility be considered as the price of the materials then put together. It was an entire contract to purchase the ship when finished, auj no property passed till then." § 2.] CONTRACT TO SELL UNASCEETAINED GOODS. lo5 fully equal to sample. A party who will take part of it is extremely particular in these matters ; and the samples are sealed and held in the custody of a 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 correctlj'." Lethbridge engaged a vessel and notified defendant. The vessel was loaded with common and chevalier barley ; and on the 7th of Jauuarj', 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 daj', Lethbridge called again upon the defendant, when the defendant laised some objec- tions to the qualitj' of the cargo, and asserted that it was inferior to the samples ; he also threatened he would take the cargo, but sue Leth- bridge for eight shillings a quarter difference. After some further dispute upon the matter, the defendant offered Lethbridge the amount of the cargo in money, and said that he accepted the cargo. Leth- bridge, however, refused to accept the monej- and to indorse the bill of lading to the defendant ; but took the bill of lading from the counter and immediately proceeded to the plaintiffs', who were corn-factors, and had a house of business in the neighborhood, and indorsed the bill of lading to them, and received an advance upon it. The market at that time had risen considerably. The "Emerald" arrived on the 16th, and on the 18th the defendant proceeded on board and claimed the cargo as the owner, and unshipped 1,240 bushels-of the barlej', 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 Leth- bridge was not an agent intrusted with the bill of lading by the defend- ant. 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. A rule to show cause having been obtained, Crowder, Barstow, c6 Greenwood appeared to show cause, but were stopped by the court, who called upon Butt S Montague Smith, in support of the rule. Parke, B.' I am of opinion that the rule in the present case ought to be discharged. It is perfectly clear that the original contract between the parties was not for a specific chattel. That conti-act would be satisfied bj- the delivery of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be delivered. B3' the original contract, therefore, no property passed ; and that matter admits of no doubt whatever. In order, therefore, to deprive the 156 WAIT V. BAKER. [CHAP. III. original owner of the property, it must be shown in this form of action — the action being for the recovery of the property — that, at some subsequent time the property passed. It may be admitted, that if goods are ordered by a person, although they are to be selected by the vendor, and to be delivered to a common carrier to be sent to the per- son 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 vendee, 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 subsequentlj- by part acceptance, then there is no doubt that the property passes by such delivery to tlie carrier. It is necessary, of course, that the goods should agree with the contract. In this i-ase, it is said that the delivery of the goods on shipboard 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 captain of the vessel, to be carried und^r 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 b}' the master of the vessel for and on account of Lethbridge, to be deUvered 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 carr3-ing them on behalf of Lethbridge. There is no breach of duty on the parb of Lethbridge, as he stipulates under the original contract that the price is to be paid on the deliverj' of the bill of lading. It is clearly con- templated by the original contract, that, by the bill of lading, Lethbridge should retain control over the property. It seems to me to follow that the delivery of the 500 quarters to the captain, to be delivered to Leth- bridge, is not the same as a delivery of 500 quarters to a common carrier by order of the consignee. The act of deliverj', therefore, in the present case, did not pass the propertJ^ Then, what subsequent act do we find which had that effect? It is admitted 'by the learned counsel for the defendant, that the property does not pass, unless there is a subsequent appropriation of the goods. The word appropriation may be understood in different senses. It may mean a selection on the part of the vendor, where he has the right to choose the article which he has to supply in performance of his contract ; and the contract will show when the word is used in that sense. Or the word may mean that both parties have agreed that a certain article 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 suppose that, at some period subsequent to the order, a further § 2.] CONTRACT TO SELL UNASCEETAINED GOODS. 157 bargain is entered into between this party and the coach-builder, by which it is agreed that a particular carriage shall be delivered. It would depend upon circumstances whether the 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 carriage, — which, in the Roman law, was called obligatio certi corporis, where a person is bound to deliver a particular chattel, but where the property does not pass, as it never did by the Roman law, until actual deliverj' ; 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 inten- tion of the parties to the bargain ,^ was necessary to ti'ansfer the property in it. " Appropriation " maj' also be used in another sense, and is the one in which Mr. Butt uses it on the present occasion ; viz., where both parties agree upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it. It is contended in this case that something of that sort subsequently took place. I must own that I think the delivery on board the vessel could not be an appropriation in that sense of the word. It is an 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 afterwards amount to an agree- ment by both parties that the property in those 500 quarters should pass. I think it is perfectlj- clear that there is no pretence for saying that Leth- bridge agreed that the propert}' in that corn should pass. It is clear that his object was to have the contract repudiated, and therebj- to free himself from all obligation to deliver the cargo. On the other hand, as has been observed, the defendant wished to obtain the cargo, and also to have the power of bringing an action if the corn did not agree with the sample. It seems evident to me that, at the time when the unin- dorsed bill of lading was left, there was no agreement between the two parties that that 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 con- tract to deliver a cargo on board, and probabl}- for an assignment of that cargo bj' indorsing the bill of lading to the defendant ; but there was nothing which amounted to an appropriation, in the sense of that terra which alone would pass the property. The result is, that, in this j action of trover, the plaintiffs, claiming under Lethbridge by the in- \ dorsement of the bill of lading, are entitled to the property ; and then ' Mr. Baker has his remed}- against him for the non-fulfilment of his contract, which he certainly has not fulfilled. Alderson, B., Rolfe, B., and Platt, B., concurred. Rule discharged. 158 PHILADELPHIA AND KEADING E'Y V. WIREMAN. [CHAP. IIL PHILADELPHIA AND READING R'Y v. WIREMAN. 88 Pa. St. 264. 1879. Sterrett, J. The plaintiff's claim, as appears by the bill of partic- ulars, was based on the unauthorized deliver}' of the goods consigned to the defendant Wireman. Hence, the main question was, whether the latter had a right to receive them at the time they were delivered to him by the plaintiff's agent. To show that he had not, the plaintiff mainly relied on the qualification and direction contained in its way bill, to ' ' deliver only on the order of H. C. Spaulding & Son, of El- raira." Resting upon this alone, the delivery to Wireman, without the order of Spaulding & Son, would have been unauthorized ; but the testimonj' adduced by the defendant tended stronglj' to prove that Fisler had purchased the goods from Spaulding & Son, to be delivered at Elmira, consigned to Wireman, and to be paid for in the negotiable paper of the consignee, indorsed by Fisler ; that, pursuant to agree- ment, the goods were delivered at Elmira to the Lehigh Valley Rail- road Companj', whose receipt, for their delivery to Wireman at Phila- delphia, without any qualification or restriction, was taken by Spaulding & Son, and immediately sent by them to Fisler in a letter, advising him of the shipment and enclosing draft for the amount to be accepted by Wireman, indorsed bj' Fisler and remitted to the consignors ; and that on the arrival of the goods in Philadelphia, Wireman, who had agreed to purchase them from Fisler, presented the receipt of the Lehigh Valley Railroad Company, paid the freight, and received the goods. If these facts were found by the jurj-, as they doubtless were, from the testimonj' submitted to them, they constituted a complete answer to the alleged want of authority in Wireman to demand and receive the consignment. The learned judge was therefore clearlj' right in receiving the testimony and submitting it, as he did, to the jury. The testimony fairly justified the inference that after Spaulding & Son had taken the receipt of the Lehigh Valley Railroad Company, and mailed it to Fisler, they doubted the solvency of Wireman and Fisler, and induced the company to restrict the delivery to the con- signee, by adding to the bill of lading the words above quoted ; and when the goods were transferred to the plaintiff company, at Allentown .Junction, the same direction was inserted in its way hill. But neither Fisler nor Wireman was a party to this change in the terms of ship- ment, and were not bound by it. If the goods were purchased and dehvered at Elmira, as contended by the defendant, the title had passed from Spaulding & Son and vested in the purchaser. After an unquali- fied delivery to the carrier at Elmira, thej' were no longer at the risk or under the control of Spaulding & Son, and they had no right to say that, on reaching their destination, they should not be delivered to the § 2.] OONTEA.CT TO SELL UNASCERTAINED GOODS. 159 consignee without their order. If the plaintiff company had refused to deliver the goods on presentation of the receipt and tender of the freight by the consignee, he could have sustained replevin by proving the facts which the jury must have found under the instructions of the court in this case. There may be apparent hardship in the failure of the plaintiff to recover,' after having been sued by the consignors, in the State of New York, for misdelivery of the goods, and compelled to pay the value thereof; but with this we have nothing to do. It maj' be that the right of the consignee to receive the goods was not urged or sustained in that case as it was in this. In the present case, as we have seen, the action was based exclusively on the ground that the consignee had no right to receive the goods without the order of the consignors, a position which the plaintiff failed to maintain. Perhaps the result might have been different if the action had been in the name of the consignors to the use of the railroad company. As it was, however, the case hinged on the question of Wireman's authority to receive the goods. The facts were for the jury, and the testimony, submitted to them with appropriate instructions, fully justified the verdict. Judgment affirmed. WIGTON V. BOWLEY. c 130 Mass. 252. 1882. Tort for the conversion of 112 barrels of flour. Answer, a general denial. The case was submitted the Superior Court, and after judg- ment for the defendants, to this court, on appeal, upon agreed facts, in substance as follows : — _ The plaintiffs are proprietors of flouring mills in Hart, Michigan ; and, on October 18, 1878, they received from Henry Fenno, who was then doing business in Boston, a letter asking for the price per car- load of their flour delivered on board the cars. On October 28, the plaintiff sent to Fenno the figures requested; and, on October 31, Fenno ordered of the plaintiffs a car-load of the flour at the price named, authorized them to draw on him for the amount at ten days' sight, and referred them to persons with whom he had dealt. The plaintiffs, having obtained satisfactory information from the persons indicated as to Fenno's pecuniarj' standing, on November 13, 1878, loaded a car with the flour ordered, directed and consigned to Fenno at Boston ; and, at the same time, they drew on Fenno as directed. The draft and the bill of lading for the flour, in which Fenno was named as consignee, were sent to a bank in Boston, with the instruction to deliver the bill of lading to Fenno, if the draft was accepted. The draft was never accepted, and the bill of lading was never delivei-etS 160 WIGTON V. BOWLBY. [OHAP. III. There is no evidence to show that it was ever presented to Fenno for acceptance. On December 5, 1878, Fenno executed to the defendants an order on the freight agent of the Boston and Albanj' Railroad Compan}' to deliver to the defendants the flour in question ; and the defendants paid the full purchase price of the flour to Fenno. The defendants presented the order to the freight agent of said company, and he delivered the flour to them, according to the usage of that and other railroad corporations, without exacting the production of the bill of lading. On December 9, 1878, the bill of lading and the draft were returned to the plaintiffs by the bank. The flour so delivered to the defendants is the same flour' which the plaintiff's had consigned to Fenno. The plaintiffs have never received anything in payment or part payment thereof. Fenno failed immediately after he executed the order to the defendants, and his testimony cannot be procured bj' either party. If, upon the above facts and such inferences as a jury would be authorized to draw, the plaintiffs were entitled to recover, judgment was to be entered for them for $518.56, and interest from the date of the writ ; otherwise, judgment for the defendants. F. W. Griffin and S. T. Harris, for the plaintiffs. H. Carter, for the defendants. Colt, J. Upon the agreed facts, the court below was justified in finding that the property in the flour was transferred to Fenno, the purchaser, when it was delivered for transportation to the railroad companj' in Michigan. It appears that Fenno, having obtained from the plaintiffs the price asked for their flour delivered on board the cars, ordered a car-load at the price named, and authorized the plaintiffs to draw on him for the amount at ten days' sight, at the same time giving references to other parties as to his pecuniary standing. The plaintiffs took time to satisfy themselves as to his responsibility, and then delivered the flour on board the cars, directed to Fenno at Boston, and consigned to him. The receipt given by the railroad, sometimes called the shipping receipt or bill of lading, was taken in his name. These facts sufficiently show that the plaintiffs did not intend to retain their hold on the property', after it was taken by the carrier, as security for the payment of the price. In the sale of specific chattels, an unconditional delivery to the biiyer or his agent, or to a common carrier consigned to him, whether a bill of lading is taken or not, is sufficient to pass the title, if there is nothing to control the effect of it. If the bill of lading or written evi- dence of the delivery to a carrier be taken in the name of the consignee, or be transferred to him by indorsement, the strongest proof is afforded of the intention to transfer the property to the vendee. Merchants' National Bank v. Bangs, 102 Mass. 291. If the vendor intends to retain the right to dispose of the goods while they are in course § 2.J CONTRACT TO SELL UNASCERTAINED GOODS. 161 of transportation, he must manifest tliat intention at the time of their delivery to the carrier. It is not the secret purpose, but the intention as disclosed by the vendor's acts and declarations at the time, which governs. Fosters. Ropes, 111 Mass. 10; Upton «. Sturbridge Mills, 111 Mass. 44.6. Where there is conflicting evidence as to intention, the question is for the jury. It cannot be disposed of as matter of law, unless the evidence will justify a finding but one way. National Bank of Cairo v. Crocker, 111 Mass. 163 ; National Bank of Chicago V. Bailey, 115 Mass. 228; Alderman v. Eastern Kailroad, 115 Mass. 233. In the case at bar, the fact that the shipping receipt was not deliv- ered to Fenno, but was sent with the draft to a bank in Boston, is not conclusive evidence, as against the rights of the consignee, that the plaintiffs intended not to part with the title. It was no -part of the contract of sale. It was given in the name of Fenno, and could not be transferred by the plaintiffs so as to change title in the property without his indorsement. What passed between the plaintiffs and the bank in Boston, not communicated to Fenno, cannot affect his rights. It is not shown that the acceptance or payment of the draft was a condition precedent to a change of title ; and the finding of the court below cannot be disturbed. Judgment affirmed. SMITH V. EDWARDS. 156 Mass. 221. 1892. W. F. ElmbaU, for the plaintiffs. C. F. Choate, Jr., for the trustee. 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 most 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' travelling 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 under 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 delivered to the defendants. This mode of forwarding undoubtedly was authorized by the contract. The defendants accepted the buff shoes, but refused to 11 162 SMITH V. EDWAKDS. [CHAP. III. accept the calf shoes, and shipped the latter back to the plaintiffs by the same railroad. The plaintiffs refused to accept them, sued the de- fendants for the price of the shoes, and trusteed the railroad companj-. The calf shoes mentioned are the goods for which the railroad company was charged. It is argued for the trustee that, altliough 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, thej' did not be- come 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 defendants without their consent. But in the present state of the law it does not need argument to show that a contract can be made in such a waj- as subsequently to pass the title, as between the parties, to goods unas- certained at the time when the contract is made, without a subsequent acceptance b}- the buyer, if the contract commits the buyer in advance to the acceptance of goods determined b}' other marks. Middlesex Co. V. Osgood, 4 Graj-, 447, 449 ; Nichols v. Morse, 100 Mass. 523 ; Brewer v. Housatonic Railroad, 104 Mass. 593, 595 ; Rodman v. Guilfoi-d, 112 Mass. 405, 407 ; Goddard v. Binnej', 115 Mass. 450 ; Blanchard v. Cooke, 114 Mass. 207, 227; Aldridge v. Johnson, 7 El. & Bl. 885, 899. In the case of goods to be manufactured, the seller, as he has to tender them, generally has the right to appropriate goods to the con- tract so far that, if he tenders goods conformable to it, the buyer's re- fusal to accept them is a breach. The buyer cannot saj- that he would have accepted some other goods had they been tendered. "When goods are to be manufactured and forwarded hy a carrier to a buyer at a dis- tance, the seller's deliverj- of such goods to the carrier as bailee for the purchaser passes the title. The seller cannot forward them until they are specified. The delivery is an overt dealing with the goods as those to which the contract applies, and puts them into a possession adverse to the seller. Although not strictlj' a deliverj-, it is an act having the legal effect of a true deliverj-, which in common legal language it is said to be. Orcutt u Nelson, 1 Gray, 536, 543 ; Merchant v. Chap- man, 4 Allen, 362, 364 ; Kline v. Baker, 99 Mass. 253, 254; Hallgar- ten V. Oldham, 136 Mass. 1, 9. The act is required of the seller bj'^ the terras of the contract, and thus is assented to in advance by the buyer, on the condition that, as supposed, the goods answer the require- / ments of the contract. Therefore it is a binding appropriation of the goods to the contract, and passes the title as we have said. Putnam V. Tillotson, 13 Met. 517, 520; Merchant v. Chapman, 4 Allen, 362, 364 ; Odell v. Boston & Maine Railroad, 109 Mass. 50 ; Wigton v. Bowley, 130 Mass. 252, 254 ; Fragano v. Long, 4 B. & 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 wo can see, the judge who' § 2. j CONTKACT TO SELL UNASOEETAINED GOODS. 163 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 question always is, what intent the parties have expressed, ly^ either in terms or by reasonable implication. Anderson v. Morice, 1 App. Cas. 713 ; Calcutta & Burmah Steam Navigation Co. v. De Mattos, 32 L. J. Q. B. 322, 328 ; s. c. 33 L. J. Q. B. 214. Exceptions overruled. HAGUE ET AL. V. PORTER. 3 Hill (N. Y.), 141. 1842. Action for the price of one hundred lamps alleged to have been sold and delivered. Defendant, a New York merchant, bought, received, and paid for two dozen lamps, and at the same time gave plaintiffs, who did business in Newark, N. J., an order for one hundred more lamps of the same kind, to be manufactured and delivered as soon a^ practicable. Later, an alteration in 'the lamps was suggested by the defendant ; the}' were made to conform to the suggestion, and were sent by plaintiffs to defendant's store. He refused to receive the lamps, and they were left on the sidewalk. The court below directed a non- suit, on the ground that there was no proof of delivery. K. N. Morrison, for plaintiffs in error. C. W. Van Vborhis, for defendant in error. CowEN, J. Here was no actual delivery and acceptance by the de- fendant below. The contract was executorj-, and he refused to receive. It was scarcely a case of goods bargained and sold. The count should, I apprehend, have been special, for refusing to accept. All the cases on this point were considered in Atkinson v. Bell, 2 M. & R. 292, 8 B. & C. 277, and the subject entirely exhausted. Indeed the case it- self is directlj' against the plaintiff in error. The contract for the two dozen lamps was distinct, and the delivery of these bore no relation to the one hundred in question. Thompson v. Maceroni, 3 B. & C. 1. The case of Downer v. Thompson, 2 Hill, 137, or rather the dictum cited from that case, went on the assumption that there had been a de- livery to and acceptance by the carrier with the assent of the vendee. That is a constructive deliver^' to the vendee himself, and satisfies a count for goods sold and delivered, the same as a personal deliverj- to and acceptance bj' him. If he order goods to be sent b}- a carrier, though he do not name him, and they are sent accordinglj', that is a delivery. Dutton v. Solomonson, 3 Bos. & Pull. 582. Such direction may certainh- be implied from the course of trade ; but -I do not see here anj' direction so to send, either express or implied. The practice 164 BEMENT V. SMITH. [CHAP. III. , between Newark and New York is not shown. There was no dispute in the cases cited that the goods were to be sent by a carrier, nor that they were so sent pursuant to order. Judgment affirmed. BEMENT V. SMITH, 15 Wend. 493. 1836. W. It. Smith, for the defendant. O. H. Piatt & J. F. Stevens, for plaintiff. By the court, Savage, C. J. The defendant presents no defence upon tlie merits. His defence is entirely technical, and raises two questions: 1. Whether the tender of the sulkj' was equivalent to a deliver^', and sustained the averment in the declaration that the sulky was delivered ; and 2. Whether the rule of damages should be the value of the sulky, or the particular damages to be proved, resulting from the breach of the contract. There is no question raised here upon the statute of frauds. The contract is therefore admitted to be a valid one ; and relating to something not in solido at the time of the contract, there is no question of its validity. The plaintiff agreed to make and deliver the article in question at a particular time and place, and the defendant agreed to pay for it, on deliverj', in a particular manner. The plaintiff made, and, as far as was in his power, delivered the sulky. He offered it to the defendant at the place and within the time agreed upon. It was not the plaintiff's fault that the delivery was not complete, that was the fault of the defendant. There are many cases in which an offer to perform an executorj- contract is tantamount to a performance. This, I appre- hend, 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 defendant bespoke a chariot, and when it was made, refused to take it ; so far the cases are parallel. In an action for the value, it was objected that the contract was not binding, there being no note in writing, nor earnest, nor deliver}'. 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. R. 58, was an action in which the plaintiff declared against the defendant 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. Spencee, C. J., states what had § 2.] ' CONTRACT TO SELL UNASCERTAINED GOODS. 165 been held in some of the English cases, 4 Burr. 2101, and 7 T. R. 14, that a distinction existed between a contract to sell goods then in existence, and an agreement for a thing not j-et 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 mucli 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 the contract ; here it is proved that the sulky was made, and taken to the place of deliverj- according to contract. The merits of the two cases are the same. It seems to be conceded that an averment of a tender of the sulky b\- the plaintiff,! 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 defendant, and shows that it was not necessary to have declared for goods bar- gained and sold. It seems to me, therefore, that the judge was right in refusing the nonsuit, and in holding that the evidence showed sub- stantially a fulfilment of the contract. The variance as to the amount of Joseph Bement's note, I think, is immaterial ; but if otherwise, it may be amended. The alleged variance as to the price of the sulky is not sustained by the facts of the case. The only remaining question, therefore, is as to damages which the plaintiff was entitled to recover. It is true that the plaintiff does not recover directly as for goods sold ; but in the case of Towers v. Osborne the plaintiff recovered the value of the chariot, and in Crook- shank V. Burrell the recovery was for the value of the wagon. The amount of damages which ought to be recovered was not the question before the court in either of those cases ; but if the value of the article 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 re- ceive it : Is it not right and just that the mechanic should be paid the price agreed upon, and the customer left to dispose of the article as he may? A contrary rule might be found a great embarrassment to trade. The mechanic or merchant, upon a valid contract of sale, may, after refusal to receive, sell the article to another, and sue for the difference between the contract price and the actual sale. Sands and Crump v. Taylor and Lovett, 5 Johns. R 395, 410, 411 ; 1 Salkeld, 113, 6 Modern, 162. In the first of these cases, the plaintiffs sold the defendants a targo of wheat. The defendants received part, but refused to receive the remainder. The plaintiffs tendered the remainder, and gave notice that unless it was received and paid for. It would be sold at auction, and the defendants held responsible for any deflciencj' in the amount of 166 BEMBNT V. SMITH. [CHAP. III. 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 i^ 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 whj- the same principle is not applicable in this case. Here was a valid con- tract to make and deliver the sulky. The plaintiff performed the con- ti'act on his part. The defendant refused to receive the sulk^-. The plaintiff might, upon notice, have sold the sulky at auction, and if it sold for less than $80, the defendant must have paid the balance. The reason given by Kent, C. J., 5 Johns. R. 411, is that it would be un- reasonable 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 ? 1 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 properly arise in this case, as the plaintiff recovers upon the special contract, and not upon a count for goods sold and delivered. New trial denied} 1 In Hay den v. Demets, 53 N. Y. 426, 431, it is said, "Upon a valid sale of specific chattels when nothing remains to be done by the vendor except delivery, whether conditioned upon payment or not, the right of property passes to the vendee, at whose risk it is retained by the vendor. The same consequence as to title results from a valid tender, upon an executory contract. Upon refusal of the vendee to accept and pay the price, the vendor, upon proper notice, may sell the property and recover the difference, or he may sue for the difference between the contract and actual price, in which case lie elects to retain the property as his own, or he may recover the con- tract price, in which case he holds the property as trustee for the vendee, and is bound to deliver it, whenever demanded, upon receiving payment of the price. In selling the property after tender and refusal, the vendor acts as the agent and trustee of the vendee, to whom the title is deemed to have passed by the tender. The right of the vendor to recover the price of the goods if he chooses to risk the solvency of the vpndee, necessarily results." (44 N. Y. 72 ; Bement v. Smith, 16 Wend. 492 ; Slingerland v. Morse, 8 J. R. 473 ; Lamb u. Lathrop, 13 Wend. 95 ; 2 Kent's Com. 492, 495, 496 ; Story on Sales, § 300-317.) § 2.j CONTEACT TO SELL UNASCEKTAINED GOODS. 167 BRIGHAM V. HIBBARD. 43 Pac. (Or.) 383. 1896. Bean, C. J. This is an action brought bj' a manufacturer of boots and shoes iu Boston, Mass., to recover for goods sold and delivered to the defendant. The defendant admits the delivery of the goods, but denies the sale, claiming that he gave an order for certain goods, to be manufactured and shipped from Boston, to one Wetmore, — an agent to solicit orders for plaintiff, — for which he was to pay $503 ; but that the goods sent did not correspond with the order ; that he examined them immediately after their receipt, and, finding that they did not conform to the order, notified Wetmore, who was in Portland at the time, that he would not accept the goods, and that, by an agieement between him and Wetmore, he retained the possession of them, to be sold on plaintiflf's account. Judgment of the court below was in favor of plaintiff, and defendant appeals. There are numerous assignments of error in the record, but, for con- venience, they may be grouped under two principal heads : First, error of the court in ruling — both in admitting testimony and instructing the jury — that, if the goods delivered to the defendant were of the kind and quality ordered, plaintiff could recover without proof of an actual acceptance b}' tlie defendant ; second, error in refusing to allow defendant to detail the entire conversation between him and Wetmore at the time, or soon after, the goods were examined. The first assignment of error is based on the contention that, in an action for goods sold and delivered, the plaintiff must not onl3- prove a sale and delivery, but an actual acceptance by the vendee. We do not so understand the law. When it is sought to give validity to a con- tract void under the statute of frauds, there must not only be a de- liverj', but an actual receipt and acceptance of the goods by the buj'er. Caulkins v. Hellman, 47 N. Y. 449 ; Eemick v. Sandford, 120 Mass. 309. But, where the contract itself is valid, a deliver}', pursuant to its terms, at the place and in the manner agreed upon, if the goods conform to the contract, will sustain an action for goods sold and delivered, without any formal acceptance by the buyer. Schneider u Railroad Co., 20 Or. 172, 25 Pac. 391 ; Ozark Lumber Co. v. Chicago Lumber Co., 51 Mo. App. 555 ; Nichols v. Morse, 100 Mass. 523 ; Kelsea v. Manufacturing Co., 55 N. J. Law, 320, 26 Atl. 907 ; Diversy v. Kellogg, 44 111. 114; Krulder v. Ellison, 47 N. Y. 36 ; Pacific Iron Works v. Long Island R. Co., 62 N. Y. 272; Benj. Sales (6th Ed.), §§ 699, 765; Tied. Sales, § 112. The buyer has a reasonable time after the delivery in which to examine the goods, and, if they are not of a kind and quality ordered, he may then refuse to accept them, and thereby rescind the contract; but this right does not prevent the title from passing, nor a recovery by the seller in an action for goods sold and delivered, if in fact they do conform to the terms of the contract. Tied. Sales, § 112. . . . Judgment affirmed. 168 MOODY V. BEOWN. [CHAP. III. MOODY V. BROWN. 34 Me. 107. 1852. Assumpsit, on account for materials and labor furnished, and one on an account for articles sold and delivered. The account was for stereo- tj'pe plates, $18 ; alteration of same, $4 ; and some interest and ex- pressage, making in all $25.04. A witness for the plaintiff testified that in behalf of the plaintiff he presented the bill and requested payment, to which the defendant replied that he had ordered the plates, but did not feel able to take them ; that there was a mistake in them, which the plaintiff was to correct at his own expense ; that he afterwards carried the plates to the store of the defendant, who refused to take them ; that he left them there, against the remonstrance of the defendant ; that the defendant afterwards offered to pay $20 for the whole bill ; that at a still subse- quent period, the witness asked the defendant when he would paj- the $20, who replied that he would do it in a few days ; and that the defendant afterwards repeatedly said he would pay the $20. The judge instructed the jury, that, if defendant contracted for the plates to be made for him, and refused to accept them when made, although he might be liable to plaintiff in an action for damages for not fulfilling his contract, yet he would not be liable in this action for their value, as for goods sold and delivered ; that if thej' were left at defendant's store against his consent and remonstrance, such a pro- ceeding on the part of plaintiff could have no effect to vary the liabilities of defendant. But if afterwards defendant offered to pay the $20 in full for the bill, and if that offer was accepted, the plaintiff would be entitled to recover the $20 and interest thereon from the time such offer was accepted, but that defendant would not be bound by that offer, unless it was accepted. J. M Godfrey, for plaintiff. Simpson, for the defendant. Shepley, C. J. There is not a perfect agi-eement of the decided cases upon the question presented by the exceptions. The law appears to be entirely settled in England in accordance with the instructions. Atkinson v. Bell, 8 B. & C. 277 ; Elliott v. Pybus, 10 Bing. 512 ; Clarke v. Spence, 4 Ad. & El. 448. The case of Bement v. Smith, 15 Wend. 493, decides the law to be otherwise in the State of New York. The case of Towers v. Osborne, Stra. 506, was referred to as an authority for it. The plaintiff in that case does appear to have recovered for the value of a chariot which the defendant had refused to take. No question appears to have been made respecting his right to do so, if he was entitled to maintain an action. The only question decided was, whether the case was within the statute of frauds. § 2.] CONTRACT TO SELL UNASCEETAIKED GOODS. 169 In the case of Bement v. Smith, Savage, C. J., appears to have con- sidered the plaintiff entitled upon principle to recover for the value of an article manufactured according to order and tendered to a customer refusing to receive it. This can only be correct upon the ground that by a tender the property passes from the manufacturer to the customer against his will. This is not the ordinary effect of a tender. If the property does not pass, and the manufacturer may commence an action and recover for its value, while his action is pending it may be seized and sold by one of his creditors, and his legal rights be thereby varied, or he may receive benefit of its value twice, while the customer loses the value. The correct principle appears to have been stated Toy Tindal, C. J., in the case of Elliott v. Pybus, that the manufacturer's right to recover for the value depends upon the question, whether the property has passed from him to the customer. The value should not be recovered of the customer, unless he has become the owner of the property, and can protect it against any assignee or creditor of the manufacturer. To effect a change in the property there must be an assent of both parties. It is admitted that the mere order given for the manufacture of the article does not affect the title. It will continue to be the property of the manufacturer until completed and tendered. There is no assent of the other partj' to a change of the title exhibited by a tender and refusal. There must be proof of an acceptance or of acts or words respecting it, from which an acceptance maj' be inferred, to pass the property. This appears to be the result of the best considered cases. There is a particular class of cases to which this rule does not apply, where the customer employs a superintendent and pays for the property manufactured by instalments as the work is performed. Exceptions overruled. COLE V. BRYANT. 18 So. 655 : 73 Miss. 297. 1895. H. B. HoETON entered into the following contract with J. O, Bryant, on the 12th day of August, 1893 : " In consideration of one dollar in hand paid, receipt of which is acknowledged, I hereby bargain and sell, convey, and warrant title to J. O. Bryant to, all the staves I now have on hand, or may make or cause to be made for the following twelve months from above date, for the sum of one hundred dollars per 1,200 pieces of extra heavy pipe staves, or their equivalent of other class, such as lights or culls, as is generallj-. . . . Said staves are to be delivered at Okalona, on side track of M. & O. R. R.. as they are made. Said staves are then and there to be inspected and culled by 170 COLE V. BEYANT. [CHAP. IIL J. 0. Bryant. The said J. O. Bryant, in consideration of above sale, does agree to furnish me $25 per thousand on staves at stump, the remainder to be paid when staves are counted and inspected on R. R." After the delivery of the staves in controversy at the agreed place, and before Bryant had inspected or culled them, Horton executed a bill of sale of ;them to Cole, to whom he was indebted in the sum of about $300. Bryant thereafter took possession of the staves, and Cole brought this action of replevin. Horton testified that having delivered the staves at the agreed place, and not being able to find Bryant and obtain from him the purchase monej', he gave the bill of sale to Cole, in order to keep his other creditors from attaching the staves until Bryant came ; and that the bill of sale was a sham, and not intended to pass title to Cole. The third instruction given for defendant is as follows : " (3) The court instructs the jury that if, from the evidence, they believe there was a contract conveying title upon delivery, for the sale of staves, to be delivered at the Mobile & Ohio Railroad depot at Okalona, between Horton and Bryant, and that, in accordance with said contract, Horton did deliver the staves in controversy at said depot, then the very moment they were so delivered the title to said staves passed absolutely to said Bryant, and said Horton lost all right to dispose of same." T. J. Buchanan, Jr., for appellant. Lacey <& Stockett, for appellee. CooPEK, C. J. The third instruction for the defendant should not have been given. There is no evidence in the record showing a delivery of the staves bj- Horton to Bryant before the contract between Cole and Horton (whatever ' may have been its nature) was entered into. True, Horton saj's he had delivered the staves to Bryant under his contract with him, but he states precisely what was done, and what was done did not constitute deliverj-. He carried the staves, it is true, to the place where delivery was to be made ; but this was no deliver}', for the staves were not received or accepted by Bryant, who, under his contract of purchase, had the right to "inspect and cull" them. He went to Okalona to inspect, cull, and receive them, and when he got there he found that the contract with Cole had already been made. Neither possession nor title passed under the executory contract between Horton and Bryant when the staves were put " on the side track of the Mobile & Ohio Railroad at Okalona." That was the place they were to be put for delivery, but putting them there was not delivery under the contract. Berry v. Waterman, 71 Miss. 497. Meversed and remanded. § 2.] CONTRACT TO SELL UNASCERTAINED GOODS. 171 MORRIS ET AL. V. WINN ET AL. 25 S. E, (Ga.) 562. 1896. Lumpkin, J. This case was before this court at the March term, 1894. It appears that Winu bought a mule from Morris & Cathcart, ia Atlanta, paid them for it $70, and also $1.80 more to deliver the mule at Watson's stable, in Douglasville, which they agreed to do. The mule was never delivered at that stable, but at another in the same town, where it died without ever having been received by Winn. He brought his action against the sellers for the money paid. A verdict was rendered in their favor, and this court reversed tlie judgment of the trial court, denying the plaintiff a new trial. 94 Ga. 452. The official report there appearing does not fully set forth the evidence ; but the record then before us showed plainly and unequivocally that the con- tract or sale between Winn and Morris & Cathcart embraced as a part thereof an express stipulation for the delivery of the mule at Watson's stable, in Douglasville, and that this was a vital and essential feature in the contract of purchase. With that evidence before the court, we held, in effect, that the sellers ought to have been adjudged liable to the purchaser for the breach of their contract. The case was tried again, and the judge below directed a verdict for the plaintiff. Had the evi- dence been the same as on the former trial, this action by the judge would have been sustained ; but the evidence introduced upon the last trial, and which comes up to us in the present record, is essentially different from that offered at the first trial. In the brief of evidence now before us, there was evidence for the defence which (if true) tended to show that the contract of sale was complete, and the mule was actu- ally delivered to Winn in Atlanta, and that this complete and distinct contract was followed by a supplemental agreement on the part of Morris & Cathcart to send the mule, for Winn, to Douglasville. There was also evidence in behalf of Winn tending to prove what we have already stated unequivocally appeared at the first trial. We do not, of course, undertake to say what the real truth of the matter is ; but we feel sure iXr was not a case for the direction of a verdict, and should have been submitted to the jury for determination. Judgment reversed. KIRVEN V. PINCKNEY et al. 25 S. E. (S. C.) 202. 1896. Pope, J. This action was commenced ... to recover a mare and colt alleged to have been wrongfully detained from the plaintiff by the defendants, and for damages. . . . 172 KIKVEN V. PINCKNEY. [CHAP. III. The plaintiff made tlie following written contract with Mr. Henry Tupper of Charleston : — This is to certify that J. N. Kirven and Henry Tupper have traded the fol- lowing mares, Brown Girl and Daisy. J. N. Kirven to give H. Tupper Brown Girl and 8:25.00 for Daisy. J. N. Kirven to pay freight on both mares. H. Tupper to raise the colt that Brown Gii'l is with, to the age of six months, and then give said colt to J. N. Kirven ; and, if the colt is not sound at that time, H. Tupper is to pay J. N. Kirven $100.00. Brown Girl is by Highland Red out of Worth by Black Chief. Brown Girl is in foal by Melville Chief (2353), due to foal on or about 7th March, 1895. In witness whereof, I have hereunto set my hand and seal, this 4th day of Sept., 1894. Henky Tupper. [L. S.] On the 8th da^' of October, 1894, this plaintiff shipped bj- rail Brown Girl to the order of Henry Tupper, and advised Tupper to send to him Daisy on the night of the same day. A letter from Tupper to Kirven, dated 8th October, 1894, admits the receipt from Kirven of a telegram to this effect on that same day, and expresses his regret at not being able to ship Daisy on that night, explaining Ms inability by reason of the mare being up town, but stating she should be shipped the next daj'. On the 9th day of October, 1894, when Tupper sent to the rail- road authorities for the mare Brown Girl, his messenger returned with the information that she was sick. Thereupon he employed a veteri- nary surgeon to do what he could for her ; but she died while in the car at Charleston. Mr. Tupper promptly notified Mr. Kirven of his loss, and advised Kirven to bring suit against the railroad for damages. Mr. Kirven, however, sent him a check for the $25, dated 8th October, 1894, and insisted that Brown Girl was Mr. Tupper's loss. Mr. Tup- per, however, denied this, and returned the check to Mr. Kirven. Mr. Tupper sold the mare Daisy to the defendant Henry L. Pinckney, Jr. ; and Mr. Pinckney placed her in the keeping of the defendant Manly Boykin. Mr. Kirven brings his suit for claim and delivery against Mr. Pinckney and Mr. Boykin for both the mare Daisy and her colt ; but Mr. Tupper is not made a party to this suit. . . . We cannot regard this as a sale of the marc Daisy to Mr. Kirven. The contract shows that it was to be an exchange of one mare for the other, with $25 as " boot." This exchange was never consummated. If the contract was breached by Tupper, Kirven had his remedy by bringing his action against Tupi)er for such breach of his contract. We cannot view this contract as executed by its terms, so that Brown Girl was Tupper's property, and Daisj' was the propertj- of Kirven. Each had to deliver his mare to the other, respectively, before the rights of third parties could be affected. Whatever remedy Mr. Kirven has is against Mr. Tupper. The defendant, by his second request to charge, made this point ; and the circuit judge refused to so charge. This was error. The defendant, on the same ground, sought a nonsuit. This was refused by the circuit judge, and thereby the circuit judge was § 2.] CONTBAOT TO SELL UNASCERTAINED GOODS. 173 again in error. We must therefore reverse the judgment, and direct that the complaint be dismissed. It is the judgment of this court that the judgment of the circuit court be reversed, and the cause be remitted to the circuit court, with directions to that court to dismiss the complaint. UNEXCELLED FIRE-WORKS CO. v. POLITES. 130 Pa. St. 536. 1889. Clark, J. This is an action of assumpsit, brought July 20, 1888, to recover the price of a certain lot of flre-worlvs and celebration goods, ordered by the defendant, George Polites, from the Unexcelled Fire- Works Company, of New York, in Februarj', 1888. The first order, which was for his store in New Castle, was given through the plaintiffs agent, Alexander Morrison, and amounted to $208.53 ; the second, sent directly to the plaintiff, was for the defendant's store in Washington, Pa., and amounted to $123.83. These orders were in writing, and were signed by the defendant. They specified not only the particular kind and quality of the articles ordered, but contained also a schedule of the prices to be paid therefor. The goods were to be shipped in Maj-, and were to be paid for on the 10th day of July thereafter. Upon re- ceipt of these orders, the plaintiff transmitted by letter a formal accept- ance of them. A contract was thus created, the obligation of which attached to both parties, and which neither of them, without the agree- ment or assent of the other, could rescind. On the 5th day of April, 1888, the defendant, by letter, informed the plaintiff that he did not want the goods, and notified the plaintiff not to ship them, as he could do better with another company. The plaintiff replied that it had accepted the orders, and had placed them in good faith, and that the goods would be shipped in due time, according to the agreement. The goods were shipped within the time agreed upon, — the first lot to New Castle, and the second lot to Washington, according to contract ; but on the arrival the defendant declined to receive them. The carrier notified the shipper that, owing to the dangerous and explosive quality of the goods, they would not retain them in their possession. The plaintiflf thereupon received them back from the carriers, and placed them on storage, subject to the defendant's order. The plaintiff alleges that it is a manufacturer and .importer of such fire-works as are used in the 4th of July celebrations throughout the country; that it is not profitable to carry these goods over from one season to another, and that therefore the quantity manufactured and imported depends upon the extent of the orders received ; that the de- fendant's orders entered into its estimates of goods to be made up and imported for the season of 1888, and that the goods ordered by the de- 174 PLATTER V. AOKEE. [CHAP. III. fendant were actually made up before the order was countermanded. The defendant testifies, however, that Mr. Morrison, the plaintiffs agent, informed him, at the time he gave the first order, that the plaintiff had some, at least, of the articles in stock, and that he did not order any either to be manufactured or imported on his account ; that the transac- tion was simply a bargain and sale of goods, and not an order for goods to be manufactured or imported ; and the evidence does not seem to conflict with this view of the case. It is plain that the notice given to the plaintiff by the defendant not to ship the goods was a repudiation of the contract. It was not a rescission, for it was not in the power of anyone of the parties to rescind ; but it was a refusal to receive the goods, not only in advance of the delivery, but before thej' were separated from the bulk and set apart to the defendant. The direction not to ship was a revocation of the carrier's agencj- to receive, and the plaintiff thereby had notice of the revocation. The deliver}' of the goods to the carrier, therefore, was unauthorized, and the carrier's receipt would not charge the defendant. The plaintiff itself made the carrier its agent for delivery ; but the goods were in fact not delivered. A delivery was tendered by the carrier when the goods arrived at their destination, but they were not received. The action, therefore, could not be for the price, but for special damages for a refusal to receive the goods when the delivery was tendered. We think the statement was sufHcient to justify a recovery of such damages, as the words of the statement were clearly to this effect ; but there was no evidence given of the market value of the goods as compared with the price. It does not appear that the plaintiff had suffered anj' damage. For anything that was shown, the goods were worth the price agreed upon in the open market. While the manifest tendency' of the cases in the American courts now is to the doctrine that when the vendor stands in the position of a complete per- formance on his part he is entitled to recover the contj'act price as his measure of damages, in the case of an executorj- contract for the sale of goods not specific the rule undoubtedly is that the measure of dam- ages for a refusal to receive the goods is the difference between the price agreed upon and the market value on the day appointed for delivery. Judgment affirmed. PLATTER V. ACKER. 41 N. E. (Ind. App.) 832. 1895. Gavin, J. The appellee recovered judgment in replevin for the pos« session of a stock of merchandise and fixtures. His sole claim thereto, taking that view of the evidence most favorable to him, rests upon the fact that appellant had entered into a contract for the sale of the goods to appellee which appellant refused to consummate, although appellee § 2.] CONTRACT TO SELL UNASCERTAINED GOODS. 175 had made full tender of performance upon his part. The contract was clearly executor^-. It reads as follows : " This contract and agreement, made and entered into this 26th da}- of February, 1894, between Peter Platter of the first part, and William H. Acker of the second part, both of the county of Jackson, and State of Indiana, witnesseth : That the said partj' of the first part has this day sold and conveyed to the said part}' of the. second part all his stock of goods, wares, and merchandise and fixtures now located in the storeroom in the Duhme Building in the city of Seymour, Indiana, consisting of books, stationery, etc., and such shelving and such other goods and fixtures as belong to the said party of the first part, and located in said room. The party of the second part hereby agrees to make the following payments on said goods, viz. : one note for $900, drawing 6 per cent, interest, payable annually. Said note is made bj' Eosa L. Rottger, dated March 29, 1893, due four years from date, to be indorsed by said Acker ; and the bal- ance'is to be paid in two equal instalments, at three months and six months from date, to be evidenced by note signed by the party of the second part, and his father as surety. It is agreed by the parties that the goods are to be invoiced at cost, such as are in good, salable condi- tion, and have not depreciated in value since purchased. All shelfwoiu goods and damaged goods to be invoiced at such price as the part}' of the first part and a man selected by the party of the second part to represent him may agree upon as being a fair price ; and if thej' cannot agree, then some other disinterested person shall be selected to set the price, which shall be final ; and the same agreement is made in regard to show-cases and other fixtures. One show-case of Herbert Platter not to be invoiced ; also one broken show-ease not to be invoiced. Said Peter Platter also guarantees said show-case to be free from executions, judgments, liens, and chattel mortgages." There is little in this con- tract to indicate that it was intended to be an executed contract of sale except the use of the words, " has this day sold and conve3'ed." This phraseology imports, indeed, a present transfer ; but when all the terms of the agreement are considered, they cannot be deemed controlling. The appellant remained in possession of the goods until replevied. We , are well satisfied that the right of possession and title were not to vest in the purchaser at the time of making this contract, but that these were to be postponed until the consummation of the contract by the invoic- ing and ascertainment of the amount and quality of the goods, and the price thereof, and the delivery of the notes provided for. Dixon v. Duke, 85 Ind. 434 ; Lester v. East, 49 Ind. 588 ; Straus v. Ross, 25 Ind. 300 ; Williams v. Smith, 7 Ind. 559 ; Olson v. Ma3-er, 56 Wis. 551 ; Thompson v. Libby, 35 Minn. 443 ; Sherwini;. Mudge, 127 Mass. 547 ; Lingham v. Eggleston, 27 Mich. 324 ; Nicholson v. Taj'lor, 31 Pa. St. 128; Anderson v. Read, 106 N. Y. 333. As a general rule, replevin will not lie where there is an executory and unexecuted con- tract of sale, although there may have been a tender of performance in strict compliance with the contract ; the parties, in such cases, being 176 WHEELHOUSE V. PAER. [OHAP. III. left to their action for the breach of the agreement. Morgan v. East, 126 Ind. 42 ; Boutell v. Warne, 62 Mo. 350. Judgment reversed, with instructions to the trial court to grant a new trial. WHEELHOUSE v. PARR. 141 Mass. 593. 1886. Action for the purchase price of leather sold to the defendant. From a judgment in favor of the plaintiff, the defendant appealed. I^. W. Qua and F. P. Marble, for plaintiff. Wm. H. Anderson, for defendant. Devens, J. When goods ordered and contracted for are not directly delivered to the purchaser, but are to be sent to him by the vendor, and the vendor delivers them to the carrier, to be transported in the mode agreed on by the parties, or directed by the purchaser ; or when no agreement is made, or direction given, to be transported in the usual mode ; or when the purchaser, being informed of the mode of transportation, assents to it ; or when there have been previous sales of other goods to the transportation of which, in a similar manner, the purchaser has not objected, — the goods, when delivered to the carrier, are at the risk of the purchaser, and the property is deemed to be vested in him, subject to the vendor's right of stoppage in transitu. This proposition assumes that proper directions and information are given to the carrier as to forwarding the goods. Whiting v. Farrand, 1 Conn. 60 ; Quimby v. Carr, 7 Allen, 417 ; Finn v. Clark, 10 Allen, 484 ; Finn v. Clark, 'l2 Allen, 522 ; Downer v. Thompson, 2 Hill, 137 ; Foster v. Rockwell, 104 Mass. 170 ; Odell v. Boston & M. R. R., 109 Mass. 60 ; Wigton v. Bowley, 130 Mass. 252. The defendant had made a purchase of leather in November, pre- viously to the purchase of that the price of which is in controversy, under a direction to the plaintiff to " ship to care of D. & C. Mclver, shipping merchants, Liverpool, as soon as possible, for their next steamer to Boston, direct." This shipment was made as ordered, and on December 16, 1884, the defendant sent a further order saying: "As regards the shipping of the leather just received, you have done every- thing satisfactor}'. Ship this order in like manner." The directions bj' which the plaintiff was to be controlled must bo interpreted as requiring him to forward the goods to D. & C. Mclver, to be transported by them by the Cunard line, of which they were managers and agents. The words "their next steamer" could not have meant any steamer which would accept freight from D. & C. -^ifelver. Cases may be readilj' imagined where these words would be of the mghMt importance ; as if the defendant had an open policy of in- § 2.] CONTRACT TO SELL UNASCEKTAINED GOODS. 177 surance protecting his goods which might be sent by the Cunard line. It might also be true that the defendant would not deem a policy of in- surance necessary when goods were sent by a well-established pas- senger line, where greater precautions might probably be taken for safety, which he would deem necessary, than when they were sent by a purely freighting steamer. The goods were actually forwarded to D. & C. Mclver, with instructions in conformity with the directions of the defendant, and, had the matter ended there, so far as any directions to D. & C. Mclver is concerned, the plaintiff would be entitled to treat them as delivered to the defendant, and to require him to pay the pur- chase money. If, on the other hand, while the goods were yet in the hands of the carrier, and before transportation of them had commenced, the plaintiff changed the dii-ections given to him by the defendant, or authorized the carrier to transport tbem in a different mode from that directed by the defendant, and loss has thereby occurred, he cannot contend that they were delivered to the defendant by him. By con- tinuing to exercise dominion over them, and b3' giving a new direction, impliedly withdrawing the directions previously given, he cannot be allowed to assert that he had made a complete delivery by his original act, if a loss has occurred by reason of that which he has subsequently done or directed. The change in the directions given relates back to and qualifies the original delivery. The plaintiff, in answer to a letter from D. & C. Mclver, after the goods had reached them, inquiring whether thej' were to keep the goods " for our steamer, 14th inst., or 'ship by the ' Glamorgan,' " ordered them to be shipped by the steamer arriving out first, presumably the steamer which D. & C. Mclver believed would be the first to arrive. The "Glamorgan" was not a steamer of any line of which D. & C. Mclver were owners or agents, and in no way answers the description of "their steamer" as applied to D. & C. Mclver. By neglecting to limit the authority of D. & C. Mclver to send by a steamer which could be thus described, and by directing them to send by the steamer which would first arrive, the plaintiff had failed to complj^ with the orders of the defendant as to the shipment of goods ; and if correct di- rections had originally been given, had withdrawn them, and substi- tuted others. When, therefore, exercising the authority thus given by the plaintiff, D. & C. Mclver send by the " Glamorgan," as being, in their judgment, the steamer likely to arrive first, and a loss occurs, it should not be borne by the defendant, whose directions have not been followed. Judgment for the defendant. U 178 KEY V. COTESWOETH. [CHAP, IIL § 3. Eeseevation of Jus Disponendi. KEY V. COTESWOETH. 7 Exch. 595. 1852. Assumpsit for money received by defendants for the use of plaintiflfs. Plea, non assumpserunt. Defendants, merchants in London, opened a credit with plaintiffs, merchants in Madras, to the extent of £1,500 in favor of Kilgour & Leith of Glasgow, to be applied to the execution of an order for Madras handkerchiefs. Bills for the cost were to be drawn on defendants, on forwarding bills of lading to their order. The order was executed, and bills to the extent of £1,500 drawn by plaintiffs on defendants were accepted and paid. Later Kilgour & Leith sent another order for handkerchiefs to plain- tiffs, directing the latter to " draw for cost and consign bills as before." On Aug. 21, 1847, the plaintiffs wrote to the defendants as follows : — " By the desire of our mutual friends, Messrs. Kilgour & Leith, of Glasgow, we beg to hand you herewith invoice and bill of lading for nine cases Madras handkerchiefs, shipped on the ' Providence,' Captain S. Hicks, to your ad- dress, and against which we have as usual drawn upon you at six months for the equivalent of the amount of invoice, in £369 2s. Id., being at the current exchange of 2s. per rupee, and which will no doubt be duly protected. These goods have been placed in a cabin to prevent the chance of their sustaining injury from the cargo, and as they have not been insured, we trust you will cover the risk on your side.'' The bill of lading and invoice mentioned in this letter were enclosed, and the letter and its contents received b}- the defendants on the 26th of October in due course. By the bill of lading, which bore date the 21st of August, the goods were deliverable at London to the defendants or their assigns, they paying freight, etc. The invoice, which was also dated August 21, stated that the goods were consigned to the defend- ants, " on account and risk of Messrs. Kilgour & Leith, Glasgow." The goods by the ' ' Essex " were shipped on the 9th of October. A bill of lading, indorsed in blank by the plaintiffs, and an invoice sub- stantially in the same form as the above, were enclosed in a letter from the plaintiffs to the defendants, dated the 12th of October, and which was received by the defendants on the 22d of November. This letter was as follows : — " By desire of our mutual friends, Messrs. Kilgour & Leith, of Glasgow, we have the pleasure to hand you herewith invoice and bill of lading for eight cases VentapoUam handkerchiefs, shipped in the ' Essex,' Captain W. N. Howard, to your care; and we have as usual drawn upon you at six months y*^ § 3.] EESEEVATION OF JUS DISPONENDI. 179 for the equivalent of the amount of invoice in £302 13s. 8d., being at the cur- rent exchange of Is. ll^d. per rupee, and which will doubtless meet due honor. We leave the insurance to be effected on your side." On the 27th of October, Messrs. Kilgour & Leith stopped payment. The goods by the "Providence" arrived in London on the 21st of October, the goods by the "Essex" on the 3d of March, 1848. Both parcels were received bj- the defendants under the bills of lading, and both were sold by them, and the proceeds, amounting to £671 15s. 9d., sought to be recovered in this action, received bj^ the defendants. Messrs. Kilgour & Leith were before and at the time, and still are, in- debted to the defendants on a balance of account in a larger sum. On the 21st of October, Scott, Bell, & Co., the plaintiffs' correspond- ents in London, having received the bill drawn against the goods by the " Providence," caused it to be presented for acceptance to the de- fendants, who ultimately refused to accept it. The second bill was also presented for acceptance on the 22d of November, and dishonored, and both bills were duly protested. Upon the foregoing evidence, the learned judge was of opinion that there was no question for the jury, and nonsuited the plaintiffs. JEhotoles and Willes showed cause. The Attorney-General (Montague Smith with him), in support of the rule. Parke, B. It was contended at the trial, on behalf of the plaintiffs, that the sale of the handkerchiefs was a sale on a condition, either pre- cedent or subsequent, that the defendants should accept the bills drawn on them in respect of the handkerchiefs ; that, upon their refusal to accept, the condition precedent was never performed, and the property in the handkerchiefs never passed out of the plaintiffs, and that they were therefore entitled to them or their proceeds ; and that, if this were not so, at all events it was subject to the condition subsequent, that the defendants should accept the bills, and, if not, the property should revert, which condition was broken ; so that therebj- the plain- tiffs became entitled to the goods or their proceeds ; and whether the sale was on a condition or not, was a question for the jury, and ought to have been left to them. On the other hand it was contended, on behalf of the defendants, that it was not a sale upon a condition at all ; that it was an absolute sale by the plaintiffs to Messrs. Kilgour & Leith ; and that, upon the shipment of the goods by the plaintiffs on account and risk of Messrs. Kilgour & Leith, followed up by the transmis- sion of the bills of lading to the defendants, — one bill of lading making them the consignees, and the other the indorsees, — the property and possession absolutely vested in Kilgour & Leith, and these goods there- bj' became theirs, and were at their sole risk, and they alone were en- titled to them and their proceeds ; and that, if the plaintiffs had any right of action against the defendants, which on their part was denied, it was upon a contract to accept the bills, to be implied from the accep- 180 KEY V. COTESWOETH. [CHAP. III. tance of the goods, with notice of the contents of the letters of the 21st of August and 12th of October; and that, whether it was a sale upon a condition or not, was a question of law for the judge, and not one of fact for the jurj ; the entire case, so far as related to the contract of sale, being contained in written documents, and the parties never hav- ing had anj' personal communication with each other. The learned judge was of opinion that there was no question for the jury in this case, and that it was for him to decide what the contract was ; and he thought the sale to Messrs. Kilgour & Leith was an absolute, not a conditional one ; that the property vested in them upon the delivery on board the ship, and the transmission of the bills of lading to the defend- ants ; and that the plaintiffs could not maintain the present action against the defendants, who have received the goods and disposed of them under the authority of Kilgour & Leith, and could not bring an action for the proceeds ; and, hy his direction, the plaintiffs were nonsuited. We are of opinion that the ruling of the learned judge was correct. We think that the question, what was the contract between the parties, was, in this case, entirely one of law for the judge to decide upon ; nor was there any evidence of usage to which the letters refer, which would be matter, to be left to the jury. Looking at the written documents alone, the learned judge was quite right in the view he took at the trial, that the property vested b^' the transmission of the bills of lading in the manner described to the defendants, with the invoices at the same time. If it had been the intent of the vendors to preserve their right in that propertj' until the bill drawn against it was accepted, they ought to have transmitted tlie bills of lading indorsed in blank to an agent, to be delivered over only in case the acceptance took place. Having de- livered them without that qualification, the property vested in Kilgour & Leith, or the defendants as their agents. Our judgment in this case is in conformity with that of the Court of Exchequer Chamber in the ease of Wilmshurst v. Bowker, 7 M. & Gr. 882 ; but there is a passage in the judgment of Lord Abinger which was much relied on bj' the learned counsel for the plaintiffs. The circumstances of the two cases are very similar ; and Lord Abinger stated, that if the facts had been before a jury, he was not prepared to say that they might not have drawn the inference that the remitting of the banker's draft, the mode of payment agreed on in that case, was a condition precedent to the vesting of the property. In that case there may have been some par- ticular facts to go to the jurj-, but at all events it was only the obiter dictum of Lord Abinger. It is sufficient to say, for the reasons before given, we think that in this case there was no question of fact as to the contract to be submitted to the jury. Several other cases were cited on collateral points, to which it is unnecessary to refer. The rule is therefore discharged. Bule discharged. § 3.] EESEKVATION OF JUS DISPONENDI. 181 FALKE V. FLETCHER. 18 C. B. N. s. 403 : 34 L. J. C. P. 146. 1865. This was an action tried before Blackburn, J. It was brought for the conversion of 1,000 tons of salt. The defendant pleaded not guilty, and that the salt was not the property of the plaintiff. It appeared at the trial that the plaintiff was a salt merchant, carry- ing on business at Liverpool, and that the defendant was the owner of a vessel called the " Savoir Faire." In the month of November, 1863, one De Mattos, a merchant in London, through the plaintiff, chartered the " Savoir Faire " to load a complete cargo of salt and proceed there- with to Calcutta ; the captain to applj' to the plaintiff for cargo and custom-house business. It was proved that De Mattos was frequently in the habit of employ- ing the plaintiff to charter vessels for the convej'ance of salt, and that the course of business was for the plaintiff to purchase the cargo, and to load it in his own lighters and at his own expense. That in the course of doing so he took the mate's receipts, which were made out in his own name, and, when the whole cargo was loaded, he took bills of lading in his own name. These he sent to De Mattos, with invoices of the price of the salt, and received in exchange De Mattos's acceptances for the amount. The plaintiff charged no commission to De Mattos, but charged such a price for the salt as would remunerate him for his trouble. This course was followed in the present instance, until about 1,000 tons of salt were loaded, when the plaintiff, having heard that De Mattos had stopped payment, declined to load any more. The defend- ant thereupon filled up the ship on his own account. The plaintiff demanded of the captain bills of lading in his own name for the salt on board in exchange for the mate's receipts. These the defendant re- fused to permit him to give, and the plaintiff thereupon sent the mate's receipts to his agents at Calcutta, with directions to them to claim the Salt on its arrival. This was done, but the captain refused to deliver up the salt. The learned judge directed the jury that, if the property in the salt remained in the plaintiff, the sailing away from Liverpool after the de- mand and refusal of the bills of lading, was a conversion by the defend- ant ; and that, if the plaintiff did not intend to part with the property in the salt when he placed it on board, it remained in him as against De Mattos and also as against the defendant. The jur3' found a verdict for the plaintiff, with damages, £582 19s. 6c?., the damages being estimated on the assumption that there had been, in accordance with the direction of the learned judge, a conversion at Liverpool. Edward James now moved for a new trial. 182 DOWS V. NAT. EXCH. BANK OF MILWAUKEE. [CHAP. JII. WiLLES, J. I am also of opiuion that the learned judge left the proper question to the jury ; namely, whether, looking at all the cir- cumstances, there was an intention by the plaintiff to appropriate the salt to De Mattos and to pass the property to him when he put it on board the vessel. Looking to the course of dealing between the parties, I think it is clear that the jury were right. The practice of sending the bill of lading together with the invoice direct to the principal produced great hardships in Key v. Coteswort, 7 Exch. 535, the goods hating got into the hands of a bankrupt consignee. That eventually led to a prac- tice being adopted similar to that in Turner v. The Trustees of the Liverpool Docks, 6 Exch. 543, namely, for the merchant to ship the goods on board on his own account. That was the course of business adopted in previous transactions between the plaintiff and De Mattos, and there is every reason to suppose that in this case also he meant to retain that security. With respect to the argument that has been used, that the plaintiff put the goods on board as agent for De Mattos, that appears to me to be onlj' one circumstance in the case, and not a con^ elusive one. In one sense, no doubt, he was the agent of De Mattos ; but for the purpose of considering this question he must be treated as a vendor, as was done in Feise v. Wray, 3 East, 98. With respect to the conversion, I am satisfied that the learned judge was right in his direction to the jury. Keating, J., concurred.^ Hide refused. DOWS V. NAT. EXCH. BANK OF MILWAUKEE. 91 U. S. 618. 1875. Action of trover bj' the National Exchange Bank of Milwaukee to re- cover damages for the alleged conversion of 22,341 bushels of wheat. The wheat was purchased in Milwaukee, Wis., by McLaren & Co., in the month of September, 1869, upon orders received from Smith & Co. of Oswego, N. Y., who requested that the drafts on account thereof be drawn on them through the Merchants' Bank of Watertown, N. Y. McLaren & Co. paid for the wheat, and to reimburse themselves shipped it on three vessels, the "Kate Kell^'," "Grenada," and " Corsican," and received from the captains of said vessels triplicate bills of lading, with McLaren & Co. as shipj^ers, and making the wheat deliverable to the account of W. G. Fitch, cashiey, care Merchants' Bank, Watertown, N. Y. McLaren & Co. presented drafts drawn on Smith & Co., with the original bills of lading attached thereto, to the National Exchange Bank of Milwaukee. It discounted them, placed the proceeds to the credit of McLaren & Co., and retained the bills of lading. 1 The opinions of Eble, C. J., and Williams, J., are omitted. § 3.] EESERVATION OP JUS DISPONENDI. 183 Its cashier wrote a special indorsement on tlie back of each bill of lad- ing. The indorsement on that of the " Grenada,'' reads as follows : " On payment of two drafts drawn by McLaren & Co. on Smith Co., Oswego, N. Y., to my order, dated Sept. 13, 1869, — one draft at thirty days' date, for $8,000, and the other at forty-five days' date, for $8,000, both drafts being payable at the Merchants' Bank, Watertown, N. Y., — you will sur- render the within-mentioned wheat to Smith & Co. or order. Should drafts above mentioned not be promptly paid, hold the wheat for my account, with- out recourse. W. G. Fitch, Cashier. Milwaukee, 13th September, 1869. To Merchants' Bank, Watertown, N. Y." A similar indorsement, except as to the amounts and dates of the drafts, was made on the bills of lading of the " Kate Kelly," and the " Corsican." McLaren & Co. insured the cargoes from Milwaukee to Oswego, and transferred the insurance certificates to the bank. After making the indorsements on the bills of lading, the cashier enclosed the drafts, bills of lading, and certificates of insurance, to the Mer- chants' Bank, Watertown, N. Y. The letter as to the " Kate Kelly " is as follows : — " Sept. 2. To Cashier Merchants' Bank, Watertown, N. Y. : — I hand you for coHection and remittance to Mercantile National Bank, New York, for my credit, — [here follows a description of the drafts.] " I consign this wheat to you, to be held as per indorsed bill of lading, and surrender only on payment of the drafts drawn against it, holding you responsible for the same in case of non-payment of the drafts. Will you re- ceive consignments in this way, charging reasonably for the same ? Yours truly, W. G. Fitch, Cashier." On the sixth of September, 1869, J. F. Moffatt, cashier of the Mer- chants' Bank, acknowledged the receipt of the letter and its enclosures, and later wrote that he would receive consignments on the conditions named, charging | per cent, commissions for so doing. Like letters were written to the cashier of the Merchants' Bank, en- closing the drafts, bills of lading, and certificates of insurance, of the cargoes of the "Grenada" and "Corsican." The cashier of the Merchants' Bank, upon receipt of the drafts and bill of ladino- of the " Kate Kelly," wrote three letters, — one to Smith & Co., dated Watertown, N. Y., gept. 6, 1869, as follows : — " Please find enclosed for acceptance, and return the following ; to wit: McLaren & Co., on your st $4,080.81 and exg. " " Oct. 5 7,500.00 " " " Oct. 20 7,500.00 " " Also irispeotion certificate." Another bearing the same date, as follows : — "Proprietors of Corn Exchange Elevator, Oswego, N. Y. : Please find enclosed an order for cargo schooner ' Kate Kelly ' for 8,727 bushels of Amber Milwaukee wheat, and 5,527|f bushels of No. 1 Amber Milwaukee wheat, to 184 DOWS V. NAT. EXCH. BANK OF MILWAUKEE. [cHAP. III. be delivered to you ; and you will please hold the same subject to, and deliver the grain only on payment of, the following drafts ; to wit : — McLaren & Co., on Smith & Co., st. . . 14,080.81 and exg. McLaren & Co., Oct. 5 7,500.00 " Oct. 20 7,500.00 " And the third, of the same date, as follows : — " Merchants' Bank, Watertown, N. Y., Sept. 6, 1869. Robert Hayes, Esq., Master schr. ' Kate Kelly,' Oswego, N. Y. : — Please deliver to the Corn Ex- change Elevator, Oswego, N. Y., your cargo, 8,727 bushels of Amber Mil- waukee wheat, and 5,527|| bushels of No. 1 Amber Milwaukee wheat, consigned to us by W. G. Fitch, Esq., cashier." Like letters were written in relation to the cargoes of the " Gre- nada" and "Corsican," except that in the case of the " Corsican" the letter enclosing the order to the master of that vessel to deliver her cargo was addressed to " Smith & Co., Proprietors Corn Exchange Elevator." Smith & Co., on receipt of the letters, paid each of the I sight drafts, and returned the time drafts, accepted, to the Merchants' y Bank, without objection. . . . The sight drafts were paid, and the time drafts accepted, several days before the arrival of the cargoes at Oswego. McLaren & Co. forwarded to Smith & Co. invoices of the purchases, with statement of account for disbursements and commissions. The invoice of the "Kate Kelly" is headed, "Account purchase of 14,250|J bushels of wheat, bought for account, and by order of Smith & Co., Oswego, N. Y., through McLaren & Co." Those of the "Grenada" and of the "Corsican" differ onlj' in the number of bushels. No bills of lading were sent to Smith & Co. The "Kate Kelly" arrived in Oswego, Sept. 16, 1869. Her cargo was discharged into the Corn Exchange Elevator . . . and a bill of lading, dated Sept. 18, 1869, signed by G. A. Bennett, was delivered to Smith & Co. Part of the wheat was shipped by canal boat and arrived in New York, October 9, 1869. Smith & Co. paid the time draft of 17,500, drawn at thirty days. The time draft of $7,500,. drawn at forty-flve days, was unpaid at the date of this shipment. The "Grenada" arrived on the twentj'-fourth day of September, 1869. Paft of her cargo was shipped by a canal boat by Smith & Co., and a bill of lading of that date, signed by G. A. Bennett, was delivered to them. This canal boat arrived in New York, Oct. 27, 1869. The two time drafts drawn on the cargo of the "Grenada" were unpaid at the date of this shipment. The "Corsican'' arrived on the 8th October, 1869; and on the same day Smith & Co. shipped its cargo by two canal boats. These canal boats arrived in New York on the 4th November, 1869. The time drafts drawn on the cargo of the "Corsican" were not paid at the time of these shipments. The drawees of the drafts were the pre prie'tors of the Corn Exchange Elevator. § 3.] EESERVATION OF JUS DISPONENDI. 185 The captains of the three vessels, on their arrival at Oswego, called at the office of the Corn Exchange Elevator and there received from Smith & Co., before delivering their cargoes, the orders in the letters of the cashier of the Merchants' Bank to the "Proprietors Corn Exchange Elevator," and to " Smith & Co., Proprietors Corn Exchange Elevator." The latter paid the freight on the cargoes, and receipted therefor on the back of the bills of lading retained by the captains. The shipments by Smith & Co. wore made without the knowledge or consent of the officers of the Merchants' Bank. There was no mixture in the elevator of the cargoes of the " Kate Kelly," " Grenada," or " Corsican." Smith & Co., on receiving the canal boat bills of lading, sent the same with drafts attached, through banks in New York city, to Dows & Co., defendants. They paid the drafts, and received the bills of lading. All of the time drafts drawn by McLaren & Co. on Smith & Co. (except the thirty-day draft on the cargo of the " Kate Kelly "), being unpaid, were, with the original bills of lading and certificates of insur- ance, returned by the Merchants' Bank to the Milwaukee bank. The latter having been advised in October that the wheat had been shipped by Smith & Co., William P. McLaren, a member of the firm of McLaren & Co., went to Oswego to look after it. He was there from about the 20th to the 25th of that month, and, on examination, found no wheat in the elevator. Having ascertained on the 22d that por- tions of the cargoes had been shipped to Dows & Co., a telegram was sent to and received by them on that daj', notif3ing them that the wheat shipped on the canal boats was the propertj' of the National Exchange Bank of Milwaukee. The following daj^, parties interested in the wheat called on Dows & Co., who agreed, that, if no attempt was made to stop the wheat on the canal, it should, on its arrival in New York, be kept separate ; that the Milwaukee bank should be notified of its arrival ; and that they (Dows & Co.) would identify it as the wheat coming out of the said canal boats, and would require proof of the identity of the wheat in the canal boats at Oswego. On the arrival of the wheat, a formal demand in writing therefor was made on Dows & Co. by the Milwaukee bank. They refused to deliver it unless they were reimbursed the amount of their advances to Smith & Co. and freight and charges, and unless the Milwaukee bank would take care of an order given by Smith & Co. to Norris Winslow on them for any margins in their hands due Smith & Co. The jury found a verdict in favor of the "plaintiff for $31,111.51. Mr. C. Van Santvoord, for plaintiffs in error. Mr. H. M. Finch, for defendant in error. Mk. Justice Strong delivered the opinion of the court. The verdict of the jury having estaijlished that the wheat came to the possession of the defendants below (now plaintiffs in error), and that there was a conversion, there is really no controversy respecting ' any other fact in this case than whether the ownership of the plaintiff / 186 DOWS V. NAT. EXCH. BANK OF MILWAUKEE. [CHAP. III. had been divested before the conversion. The evidence bearing upon the transmission of the title was contained mainly in written instru- ments, the legal effect of which was for the court ; and, so far as there was evidence outside of these instruments, it was either uncontradicted, or it had no bearing upon the construction to be given to them. "We have, therefore, only to inquire to whom the wheat belonged when it came to the hands of the defendants, and when they refused to surrender it at the demand of the plaintiff. It is not open to question that McLaren & Co., having purchased it at Milwaukee and paid for it with their own monej-, became its owners. Though they had received orders from Smith & Co. to buj' wheat for them, and to ship it, they had not been supplied with funds for the pur- pose, nor had they assumed to contract with those from whom they purchased on behalf of their correspondents. They were under no obligation to give up their title or the possession on any terms other than such as they might dictate. If, after their purchase, the^- had sold the wheat to any person living in Milwaukee, or elsewhere, other than Smith & Co., no doubt their vendee would have succeeded to the ownership. Nothing in any agency for Smith & Co. would have pre- vented it. This we do not understand to be controverted. Having, then, acquired the absolute ownership, McLaren & Co. had the complete power of disposition ; and there is no pretence that thej- directly trans- mitted their ownership to Smith & Co. Thej- doubtless expected that firm to become purchasers from them. They bought from their vendors with that expectation. Accordingly, they drew drafts for the price ; but the}' never agreed to deliver the wheat to the drawees, unless upon the condition that the drafts should be accepted and paid. They shipped it; but they did not consign it to Smith & Co., and they sent to that firm no bills of lading : on the contrary-, they consigned the wheat to the cashier of the Milwaukee bank, and handed over to that bank the bills of lading as a security' for the drafts drawn against it, — drafts which the bank purchased. It is true, they sent invoices. That, however, is of no significance by itself. The position taken on behalf of the defendants, that the transmission of the invoices passed the propertv in the wheat without the acceptance and payment of the drafts drawn against it, is utterly untenable. An invoice is not a bill of sale, nor is it evidence of a sale. It is a mere detailed statement of the nature, qnantit}-, and cost or price of the things invoiced, and it is as appropriate to a bailment as it is to a sale. It does not of itself necessarily indicate to whom the things are sent, or even that they have been sent at all. Hence, standing alone, it is never regarded as evidence of title. It seems unnecessary to refer to authorities to sus- tain this position. Reference may, however, be made to Shepherd v. Harrison, Law. Rep. 5 H. L. 116, and Newcomb v. Boston & Lowell R. R. Co., 115 Mass. 230. In these and in manj' other cases it has been regarded as of no importance that an invoice was sent by the shipper to the drawee of the drafts drawn against the shipment, even when the § 3.] KESERVATION OF JUS DISPONENDI. 187 goods were described as bought and shipped on account of and at the risk of the drawee. It follows that McLaren & Co. remained the owners of the wheat,! notwithstanding their transmission of the invoices to Smith & Co. As) owners, then, they had a right to transfer it to the plaintiff as a security for the acceptance and payment of their drafts drawn against it. This they did by taking bills of lading deliverable to the cashier of the plain- tiff, and handing them over' with the drafts when the latter were dis- counted. These bills of lading unexplained are almost conclusive proof of an intention to reserve to the shipper the jus disponendi, and prevent the propertj' in the wheat from passing to- the drawees of the drafts. Such is the rule of interpretation as stated in Benjamin on Sales, 306 ; and in support of it he cites numerous authorities, to only one of which we make special reference, — Jenkyns v. Brown, 14 Q. B. 496. There it appeared that the plaintiff was a commission merchant, living in London, and employing Klingender & Co. as his agents at New Orleans. The agents purchased for the plaintiff a cargo of corn, paying for it with their own monej'. They then drew upon him at thirty days' sight, stating in the body of the drafts that they were to be placed to the account of the corn. These drafts they sold, handing over to the pur- chaser with them the bills of lading, which were made deliverable to the order of Klingender & Co., the agents ; and they sent invoices and a letter of advice to the plaintiff, informing him that the cargo was bought and shipped on his account. On this state of facts, the court ruled that the property did not pass to the plaintiff; that the taking of a bill of lading bj- Klingender & Co., deliverable to their own order, was nearly conclusive evidence that they did not intend to pass the property in the corn ; and that, by indorsing the bills of lading to the buyer of the bills of exchange, they had conveyed to him a special property in the cargo, so that the plaintiff's right to the corn could not arise until the bills of exchange were paid hy him. That such is the legal effect of a bill of lading taken deliverable to the shipper's own order, that it is inconsistent with an intention to pass the ownership of the cargo to the person on whose account it may have been purchased, ' even when the shipment has been made in the vessel of the drawee of the drafts against the cargo, has been repeatedly decided. Turner v. \ The Trustees of the Liverpool Docks, 6 Exch. 543 ; Schotsmans v. Railway Co., Law Rep. 2 Ch. Ap. 336 ; Ellershaw v. Magniac, 6 Exch. 570. In the present case the wheat was not shipped on the vessels of Smith & Co., and the bills of lading stipulated for deliveries to the cashier of the Milwaukee bank. When, therefore, the drafts against the wheat were discounted by that bank, and the bills of lading were handed over with the drafts as security, the bank became the owner of the wheat, and had a complete right to maintain it until payment. The ownership of McLaren & Co. was transmitted to it, and it succeeded to " their power of disposition. That the bank never consented to part with its ownership thus acquired, so long as the drafts it had discounted 188 DOWS V. NAT. EXCH. BANK OF MILWAUKEE. [CHAP. Ill remained unpaid, is i-endered certain bj- the uncontradicted written evi- dence. It sent the drafts, with the bills of lading attached, to the Merchants' Bank, Watertown, accompanied with the most positive in- structions, by letter and by indorsement on the bills, to hold the wheat until the drafts were paid ; and when, subsequently, the Merchants' Bank sent orders to the masters of the carrying vessels to deliver it to the "Corn Exchange Elevator, Oswego, N. Y.," the^' accompanied the orders with letters to Smith & Co., the proprietors of the elevator, con- taining clear instructions to hold the grain, and "deliver" it onlj' on payment of the drafts. To these instructions Smith & Co. made no objection. Now, as it is certain that whether the propertj- in the wheat passed to Smith & Co. or not depends upon the answer which must be given to the question whether it was intended by McLaren & Co., or by the Milwaukee bank, their successors in ownership, that it should pass before payment of the drafts, where can there be anj- room for doubt? What is there upon which to base an inference that it was intended Smith & Co. should become immediate owners of the wheat, and be clothed with a right to dispose of it at once? Such an inference is for- bidden, as we have already said, by the bills of lading made deliverable to W. G. Fitch, cashier of the Milwaukee bank ; and it is inadmissible, in view of the express orders given bj' that bank to their special agents, the Merchants' Bank at Watertown, directing them to hold the wheat subject to the paj-ment of the drafts drawn against it. No intent to vest immediate ownership in the drawees of the drafts can be implied in the face of these express arrangements and positive orders to the contrary. It is true that Smith & Co. were the proprietors of the Corn Exchange Elevator, and that the wheat was handed over to the " custody of the elevator " at the direction of the Merchants' Bank ; but it cannot be claimed that that was a delivery to the drawees under and in pur- suance of their contract to purchase. The Merchants' Bank, having been only special agents of the owners, had no power to make such a delivery as would divest the ownership of their principals. StoUenwerck et al. V. Thacher, 115 Mass. 124. And they made no attempt to divest that ownership. They guardedly- retained the jus disponendi. Con- currently with their directions that the wheat should be delivered to the elevator, in the very orders for the deliver^-, they stated that the car- goes were for the account of W. G. Fitch, cashier, and were to be held subject to their order. By accompanying letters to the proprietors of the elevator, they stated that the cargoes were delivered to them "to be held subject to and delivered only on payment of the drafts drawn by McLaren & Co." All this contemplated a subsequent delivery, — \A^mevy after the receipt of the grain in the elevator, and when the 'drafts should be paid. It negatives directly the possibility that the de- livery into the elevator was intended as a consummation of the purchase, or as giving title to the purchasers. It was a clear case of bailment, utterly inconsistent with the idea of ownership in the bailees. A man cannot hold as bailee for himself. By the act of accepting goods in § 3.] RESERVATION OF JUS DISPONENDI. 189 bailment, he acknowledges a right or title in the bailor. When, there- fore, as was said in the court below, " the proprietors of the Corn Exchange Elevator, or Smith & Co., received the wheat under the instructions of the Merchants' Bank, they received it with the knowl- edge that the deliver}' to them was not absolute ; that it was not placed in their hands as owners, and that they were not thereby to acquire title." They were informed that the holders of the drafts, and bills of lading, had no intention to let go their ownership so long as the drafts remained unpaid. The possession they had, therefore, was not their possession. It belonged to their bailors ; and they were mere ware- housemen, and not vendees. We agree, that where a bill of lading has been taken containing a stipulation that the goods shipped shall be delivered to the order of the shipper, or to some person designated bj' him other than the one on whose account they have been shipped, the inference that it was not intended the property in the goods should pass, except by subsequent order of the person holding the bill, may be rebutted, though it is held to be almost conclusive ; and we agree, that where there are circum- stances pointing both ways, some indicating an intent to pass the ownership immediately, notwithstanding the bill of lading, in other words, where there is anything to rebut the effect of the bill, it becomes a question for the jury whether the property has passed. Such was the case of Ogg v. vShuter, 10 Law Rep. C. P. 159. There the ordinary effect of a bill of lading deliverable to the shipper's order was held to be rebutted by the court sitting with power to draw inferences of fact. The delivery to the carrier was " free on board," and the bill of lading was sent to the consignor's agent. The goods were also delivered into the purchasers' bags, and there was a part payment. But in this case there are no circumstances to rebut the intent to retain ownership exhib- ited in the bills of lading, and confirmed throughout by the indorsements on the bills, and by the written instructions to hold the wheat till pay- ment of the drafts. Nothing in the evidence received or offered tended to show anj' other intent. Hence there was no necessity of submitting to the jury the qu'estion, whether there was a change of ownership. That would have been an invitation to find a fact of whieli there was no evidence. The circumstances as relied upon by the plaintiffs in error as tending to show that the propertj' vested in Smith & Co., cannot have the significance attributed to them. It is certainly immaterial that the wheat was consigned to W. G. Fitch, cashier, care of the Merchants' Bank, Watertown, and that it was thus consigned at the request of Smith & Co. , made to McLaren & Co. Had it been consigned directly to that bank, and had there been no reservation of the jus disponendi accompanying the consignment, the case might have been diflTerent. Then an intent to deliver to the pur- chasers might possibly have been presumed ; but, as the case was, no room was left for such a presumption. The express direction to hold the wheat for the payment of the drafts, and to deliver it only on pay- ^ 190 DOWS V. NAT. EXOH. BANK OF MILWAUKEE. [CHAP. III. J merit, removes the possibility of any presumed intent to deliver it while the drafts remained unpaid. A shipment on the purchaser's own vessel is ordinarily held to pass the property to the purchaser, but not so if the bill of lading exhibits a contrary intent, — if thereby the' shipper reserves to himself or to his assigns the dominion over the goods shipped. Turner v. The Trustees of the Liverpool Docks, supra. There are many such decisions. A strong case maj- be found in the Court of Queen's Bench, decided in 1840. It is Mitchel v. Ede, 11 Ad. & E. 888. A Jamaica planter, being the owner of sugars, and indebted to the defendant, residing in London, for more than their value, shipped them at Jamaica, on the 4th or April, on a ship belong- ing to the defendant which was in the habit of carrying supplies to Jamaica to the owner of the sugars, and others, and taking back con- signments from him and others. On the same day he took a bill of lading, hy which the goods were stipulated to be delivered to the defend- ant at London, he paying freight. Two days afterwards (April 6) the shipper made an indorsement on the bill that the sugars were to be de- livered to the defendant only on condition of his giving securitj- for certain payments, but otherwise to the plaintiff's agent. He also drew drafts on the defendant. At the same time he indorsed the bill of lading, and delivered it to the plaintiff, to whom he was indebted. The bill was never in the defendant's hands. The sugars arrived in London ; and the defendant paid the drafts drawn by the shipper, but did not comply with the conditions of the indorsement of April 6. On this state of facts, it was held by the court that the plaintiff was entitled to the sugars ; that the shipper had not parted with the property bj- de- livering it on board the defendant's ship, employed as it was, nor by accepting the bill of lading as drawn on the 4th of April ; and that he was entitled to change the destination of the sugars till he had delivered them or the bill. In the case now in hand, there never was an instant, after the purchase of the wheat by McLaren & Co., when there was not an express reservation of the right to withhold the deliver}- from Smith & Co., and also an avowed purpose to withhold it until the drafts should be paid. Consent to consign the wheat to W. G. Fitch, cashier, care of Merchants' Bank, amounts, therefore, to no evidence of con- sent that it should pass into the control and ownership of the purchasers. It has been argued on behalf of the plaintiffs in error that the corre- spondence between Smith & Co. and McLaren & Co. shows that the wheat was wanted by the former to supply their immediate need ; and that, therefore, it was a legitimate inference that both parties to the correspondence intended an immediate delivery. If this were so, it was still in the power of the vendors to change the destination of the property until delivery was actually, or at least symbolically, made ; and that the intention, if anj' ever existed, was never carried out, the bills of lading prove. It may be that Smith & Co. expected to secure early possession of the wheat by obtaining discounts from the Water- § 3.] EESEEVATION OF JUS DISPONENDI. 191 town bank, and then bj- taking up the drafts. If so, it would .account for their request that the drafts and bills of lading might be sent through that bank ; but that has no tendency to show an assent by either McLaren & Co. or the Milwaukee bank to an unconditional delivery of the property before payment of the drafts. Nor does the fact that any engagement to hold themselves responsible for the safe keeping of the wheat for the plaintiff, and subject to its orders until the drafts drawn against it should be paid, was exacted from the Watertown bank, have any tendency to prove such an assent. This was an additional protection to the continued ownership of the plaintiff ; and the words of the engagement plainlj' negative an^- consent to a divestiture of that ownership. Without reference, therefore, to the testimony of McLaren, — which was, in substance, that, before the shipments, the agent of Smith & Co. was informed, that while the shipping firm would agree to send their time drafts through any bank he might designate, and consign the property to anj' responsible bank Smith & Co. might designate, they would adhere to their positive business rule in such" cases, and on no account consent that any property so shipped should pass out of the control of the banks in whose care it had been placed until all drafts made against it had been paid, — without reference to this, we think it clear that the ownership of the wheat, for the conversion of which the defendants were sued, never vested in Smith & Co., never passed out' of the plaintiff. This is a conclusion necessarily drawn from the written and uncontra- dicted evidence ; and there is nothing in anj' evidence received, or offered by the defendants and overruled by the court, which has any tendency to resist the conclusion. It is unnecessarj', therefore, to ex- amine in detail the numerous assignments of error in the admission and rejection of evidence. None of the rulings have injured the defendants. If, then, the Exchange Bank of Milwaukee was the owner of the wheat when Smith & Co. undertook to ship it to the defendants, an when the defendants received it and converted it to their use, the right of the bank to recover in this action is incontrovertible. Smith & Co. were incapable of divesting that ownership. The defendants could acquire no title, or even lien, from a tortious possessor. However inno- cent thej' may have been (and they were undoubtedly innocent of any attempt to do wrong), they could not obtain ownership of the wheat from anj' other than the owner. The owner of personal property can- not be divested of his ownership without his consent, except by process of law. It is not claimed, and it could not be, that the defendants were deceived or misled bj^ any act of the plaintiff. They are the victims of a gross fraud perpetrated bj' Smith & Co. ; and, however unfortunate their ease may be, they cannot be relieved by casting the loss upon the plaintiff, who is at least equally innocent with themselves, and who has used the extremest precaution to protect its title. le ■A 192 STKAUS V. WESSEL. [CHAP. III. It is sufficient to add, that, in our opinion, there is no just reason for complaint against the instruction given by the circuit judge to the jury, and his rulings upon the subject of damages and interest. Judgment affirmed.^ STRAUS V. WESSEL. 30 Ohio St. 211. 1876. H. H. Wessel & Co., of Cincinnati, advanced to Stephens & Bro., pork packers in Indiana, $5,000, the latter agreeing to ship all the pork they would cut during the season to be sold by H. H. Wessel & Co. , on com- mission, the proceeds, after paying freight and commissions, to be ap- plied on the indebtedness, and any balance to be paid to Stephens & Bro. They made several shipments to H. H. Wessel & Co., but did not send hills of lading. The consignee obtained the goods on their arrival in Cincinnati. March 24, 1870, Stephens & Bro. made a shipment to H. H. Wessel & Co., retaining the bill of lading, but sending the follow- ing letter of advice, which was received March 26, 1870 : — Shoals, Ind., March 24, 1870. Messrs. H. H. Wessel Co. : Gents, — Shipped to-day car No. 761. [Here follows a description of the articles.] The balance of meat we will ship whenever you order. We think it best to hold the lard. I send you two kinds of hogs' heads, — one with fat on, the other skinned, which notice. We deliver you this load on our indebtedness. Do the best you can. Yours truly, Stephens & Brother. 1 Ogg V. Sliuter, referred to in the foregoing opinion, was reversed in the Court of Appeal, 1 C. P. D. 47 (1875). Lord Chancellor Cairns' opinion is as follows: "In this case it appears, from the judgments below, that the Court of Common Fleas drew the inference of fact that the plaintiffs were not in default in refusing to accept the draft for i34 which was tendered to them for acceptance along with the bill of lading. We have been unable to reconcile this finding with the statements in the case, more particularly with the statement in paragraph 13, which seems to us to show that the plaintiffs were in default. Taking this fact, as we understand it, we think that the judgment in favor of the plaintiffs is erroneous, and should be reversed. The transactions in which merchants shipping goods on the orders of others protect themselves by taking a bill of lading, making the goods deliverable to the shipper's order, involve property of immense value, and we are unwilling to decide more than is required by the particular case. But we think this much is clear, that where the shipper takes and keeps in his own or his agent's hands a bill of lading in this form to protect himself, this is effectual so far as to preserve to him a hold over the goods until the bill of lading is handed over on the conditions being fulfilled, or at least until the consignee is ready and willing and offers to fulfil these conditions, and de- mands the bill of lading. And we think that such a hold retained under the bill of lading is not merely a right to retain possession till those conditions are fulfilled, but involves in it a power to dispose of the goods on the vendee's default, so long, at least, as the vendee continues in default. It is not necessary in this case to consider what would be the effect of an offer by the plaintiffs to accept the draft and pay the money before the sale, for no such offer in this case was ever made." § 3.] EESEKVATION OF JUS DISPONENDI. 193 On March 28, 1870, while in the possession of the railroad company at Cincinnati, it was attached by J. P. Straus & Co., on a claim against Stephens & Bro. H. H. Wessel & Co. paid the freight bill in the usual ■way, and brought replevin against the sheriff and J. P. Straus & Co., and recovered judgment. Defendants bring error. Stallo & Kittredge, for plaintiffs in error. John Johnson, for defendant in error. Scott, J. It is clear that the rights and interests of the plaintiffs in error in the property which they, as creditors of Stephens & Bro., caused to be attached, can be no greater than those of their alleged debtor, Stephens & Bro. They could attach only the interest of their debtors in the property, and in this controversj' must stand in their shoes. Now, for whom was the pork in question held by the carrier at the time of the levy of the attachment? It had been delivered by Stephens & Bro. to the carrier for transportation to Cincinnati and delivery to the consignee, H. H. Wessel & Co. By the express terms of their bill of lading, it was the dut}' of the carrier to deliver it only to the consignee named therein. By the invoice and letter of advice sent to the con- signees immediately before the shipment, it is very clear that the con- signors had appropriated the pork shipped and the net proceeds of its sale to the partial discharge of their indebtedness to the consignees for cash previously advanced. They expressly say, " We deliver you this load on our indebtedness." The consignors of this shipment had not only the right, but, under their contract with the consignees, it was their duty so to appro- priate it. ^ The relation of the parties to this shipmept differed in no substantial respect from that of the ease in which goods are shipped by a vendor to a purchaser who has previously ordered and paid for them. And in such a case it is well settled that the delivery of goods to a common carrier for conveyance to the purchaser is equivalent to a delivery to the purchaser himself. The carrier is in that case, in contemplation of law, the bailee of the person to whom, not by whom, the goods are sent ; the latter, in employing the carrier, being considered as the agent of the former for that purpose. Benj. on Sales, § 181, and the numer- ous authorities there cited. By the terms of the letter of advice in this ease, there can be no doubt that Stephens & Bro., by delivering the pork to the carrier, intended thereby to invest the consignees, Wessel & Co., with the full and rightful possession, and the absolute /ms dispO' nendi of the property, for the purposes of their contract. They intended to retain no interest even in the proceeds of its sale, other than the right to have the net amount applied in partial satisfac- tion of their indebtedness to the consignees. And to this intention a controlling effect must be given. Emery's Sons v. Irving National Bank, 25 Ohio St. 360. It is claimed, however, by counsel for plaintiff in error that, irrespec- tive of the intention of Stephens & Bro., in their shipment of the pork, 13 194 farmers' bank v. LOGAN. [chap. III. by taking the bill of lading in their own name, and retaining its possession, they reserved for themselves the power to dispose of the property, and vest the title thereto in any bona fide purchaser by a simple delivery of the bill of lading, and that thej- therefore ;-emained the owners of the propertj-, in contemplation of law, until it came to the actual possession of the consignees. But we think this ■^ position cannot be maintained. A bill of lading, though transferable by deliverj', like commercial paper, " is unlike commercial paper in this : I the assignee cannot acquire a better title to the propertj- thus sjmboli- I cally delivered than his assignor had at the time of assignment." Emery's Sons v. Irving National Bank, supra, p. 368 ; Benj. on Sales, § 864. Hence, as Stephens & Bro., under the circumstances of this case, had parted with all right of control over the property in question, thej^ could confer no such right on another by a transfer of the bill of lading. We think the evidence in the case shows that at the time of the levy of the attachment the property in question was constructively in the possession of defendant in error, who had the full and sole power of disposition over it, and the right to retain the proceeds of its sale. The authorities cited by counsel for defendant in error fullj- sus- tain these views, and justify us in saj'ing that the judgment of the court below must be affirmed. Jvdgment affirmed. FARMERS' ETC. BANK v. LOGAN et ai. 74 N. Y. 568. 1878. FoLGER, J. This is an action brought bj- 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 bj" the defendants and converted to their own use. The plaintiff recovered judgment against all of the defendants. The defendants Logan & Preston have appealed, and they contest the recovery. They did, in fact, take the wheat and ship it abroad for their own purposes and benefit. They bought it from the defendant 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 merchants at that place. They acted, in the purchase of wheat for him, as correspon* § 3.] EESEKVATION OF JUS DISPONENDI. 195 dents and agents there of the defendant Brown, who resided and did business in New York Citj-. At this time they had an order from him to buy two boat-loads of wheat. To fill that order, the^- 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 appear further on. They took a bill of sale from Perot, which ran in their own name, to themselves. Perot knew not Brown in the transaction. The money, with which the wheat was paid for to Perot, was got by them in this wa}-. 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 b^' 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 plain- tiff's cashier. That draft arid the bill of lading, with a certificate of insurance of the wheat, were given to the plaintifiF, which, with notice of all the facts at that time existing, on the strength and secarity 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 certifi- cate of insurance were pinned to the draft. There was stamped upon the draft a direction to the correspondent bank to deliver the bill of lad- ing 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 1 use, until the draft was paid ; and that upon his accepting and paying I the draft, the claim of the plaintiff would cease. The papers were sent to ' the correspondent bank, in New York City, with instructions in conform- ity 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 suflScient 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 what- 196 FAEMEES' BANK V. LOGA^. [CHAP. IIL ever may turn out to be inflrmities ia 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 prevail 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 indefea- sible title. By a de facto contract is meant one which has purported to pass the property- from the owner to another. See Cundy v. Lindsay, L. R. 3 Appeal Cases, 459. In the case in hand, there was not a purchase b}- the appellants in market overt, for such place and effect of sale is not recognized in this State. Wheelwright v. Depeyster, 1 J. E. 471-480 ; Mowrey v. "Walsh, 8 Cow. 238. The title set up by the appellants cannot prevail then, unless they purchased in good faith from the real owner, or from one to whom the real owner had parted with the goods on a (fe/ac^o contract. The difference between the parties arises, when the question is put, to whom did Perot, the acknowledged real 'owner at first, part with it thereby ^ to Brown, or to Sears & 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 possession of it in Brown, it lost its lien, as against a bona fide purchaser from him. So that the important inquiry is, who did, upon all the facts of the case, become the owner of the wheat, by the transaction with Perot? It is conceded to be the vital point in the case of the appellants, that Brown, from whom they purchased, had a title of his own in the goods, which, subject to the lien of the plaintiff, he could transfer, and that the voluntary surrender of the possession to him by the plaintiff enabled him to make an effectual transfer of it, free from that lien. It will not have escaped an observation 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 thej' would pay for it. Nor was the draft discounted bj- the plaintiff on the credit of Brown. The bill of lading 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-pur chase 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 anj- act of Perot, or of Sears & Daw, in dealing with the wheat, which, of itself, passed the title to it to Brown. The Mechanics' and Traders' Bank of Buffalo v. The Farmers' and Mechanics' National Bank of Buffalo, 60 N. Y. 40. The bill of 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, § 3.] RESERVATION OF JUS DISPOKENDI. 197 point to Brown as the principal or consignee ; and when understood, in knowledge of all the facts, does not declare 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 contrar}*, does show ownership in Sears & Daw transferred tono one, save it be the plaintiff. And the facts given by the oral testimony show the purpose to bar Brown from the right to control or dispose of the wheat, until he paid the draft. K The case of Turner v. The Trustees of the Liverpool Docks, 6 Exch. [Welsby, Hurl. & Gordon], 543, is pertinent. Merchants in Liverpool sent orders to merchants in Charleston, to ship cotton on account of the former, in their vessel, for her voj'age to Liverpool. They in Charleston bought cotton, and shipped it in that vessel. The^' 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 hank, and used the avails to pay for the cotton, or to reimburse 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, not- withstanding the delivery of it on board their ship to their servant, the master ; but that they in Charleston, by the terms of thg bill of lading, had reserved to themselves a, jus disponendi of the cotton, and that they had not divested themselves of their propertj- 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 paj-ment was made for it by the men in Liverpool. See in ace. The Frances, 9 Cranch, 183. There are facts in the case cited (6 Exch., siqjra) 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 Cham- ber, after elaborate argument and full consideration. It has been since recognized and approved as sound and authoritative. See Mii-abita 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 point we are now considering. When commercial correspondents, on the order of a principal, make a purchase of property ultimately for him, but on their own credit, or with funds furnished or raised bj' them, and such course is contemplated when the order is given, they may retain the title in themselves, until thej' are reimbursed. One of the means by which this may be done, is by takitig the bill of sale in their own names, and when the property is shipped, by taking from the carrier a bill of lading in such terms as to show that they retain the power of control and disposition of it. This results necessaril}- from the nature of the transaction. It is not, at once, an irrevocable appropriation of tlje property to the principal. It rests, for all of its eflSciency and prospect of performance, upon the intention 198 FAKMEES' BANK V. LOGAN. [CHAP. III. to withhold and the withholding the right to the property, so that that right maj- be used to prouure the mone^- with which to paj'. It contem- plates no title in the principal, until he has reimbursed to his corre- spondents the price paid hy them, or to the person with whom tliey 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 monej' with which to paj- 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. 1/ Although such correspondents act as agents, and are set in motion 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 pa^-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 converso, that case is relied Upon in L. R. .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, a property or power which enables him to con- fer a title on a pledgee or vendee, though in breach of his contract with his first vendee ; and tliat, 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- ertj', and consequently there is no final appropriation, and the property does not, on shipment, pass to the purchaser. Id. So, if the vendor r deals with or claims to retain the bill of lading in order to secure the I contract price, as when he sends it forward with a draft attached, and I with directions that it is not to be delivered to the purchaser until pay- I ment of the draft, the appropriation is not absolute, and until payment I or tender of the price, is conditional only, and until then the property of the goods does not pass to the purchaser, Id. ; and to this Turner v. Trustees, supra, is cited. We see no principle which distinguishes the case of a vendor and vendee, in this respect, from that of a corre- spondent or agent, buying for another, yet paj-ing the price from his own means, or from moneys bj' agreement raised upon the property, or upon his own credit, and holding the property as securitj-, until the principal has made reimbursement. 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, the3' 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 determined, when it eontained some special clause or notation, or had upon it an indorsement § 3.] EESERVATION OF JDS DISPONENDI. 199 which pointed out a particular person, as the one on whose account the property named in it was to be carried and delivered. Bank of Roches- ter V. Jones, 4 N. Y. 497 ; Dows v. Perrin, 16 Id. 325 ; Mechanics' and Traders' Bank v. Farmers' and Mechanics' Bank, 60 Id. 40 ; First National Bank of Toledo v. Shaw, 61 Id. 283 ; s. c. on second appeal, 69 Id. 624 ; Marine Bank of Buffalo v. Fiske, 71 Id. 353 ; Bank of Commerce v. Bissell, 72 Id. 615. The bill of lading of goods, thus affected, prima facie confers upon the person in whose favor it is issued, or to whom it is transferred, the legal title to them. 4 N. Y., supra. That result is, though the transaction is not intended to give the permanent ownership, but to furnish a security for advances of money or discount of commercial paper, made upon the faith of it. Third per4 sons, dealing with property thus shipped, though acting in good faith, in I the regular course of business, and paying value, are affected by the I terms of the bill of lading, are bound to look into it, and are chargeable I with a constructive notice of the contents of it. In the case in hand, had the appellants asked for the bill of lading, 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 con- dition attached to that possession. City Bank v. R. W. and O. R. R. Co., 44 N. Y. 136. And as they were chargeable with a constructive /^ 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 adjudications. 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 bill 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 possession ; that being in his posses- sion vvith its consents, 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 content. There is a subsidiar3' position, that the plaintiff, having only a special propertj' in the wheat, as a pledgee, could not commit it to the possession of Brown, as he was the general owner and pledgor of it, without losing that special propertj' 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 existence 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 witli the rules of law declared in like or analogous cases. To be sure, b}- his order to 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 200 FAEMERS' BANK V. LOGAN. [CHAP. IIL had the power over the wheat of a general owner. There was never a time that he liad 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 burden 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 the profit have been Brown's, had the wheat advanced in value, and the loss his, had it declined, or if it had been destroyed by fire? To which the ready answer is, whatever had chanced to it, it would not have been his, as between him and Sears & Daw and the plaintiff, until he complied with the conditions on which it was bought for him, that is to saj', had accepted and paid the draft. As soon as he paid the draft, it would have been his, with whatever en- hancement 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 ser- vices and for their expenses, and to the plaintiff, first, on his promise to accept the draft, and after acceptance, on that obligation to pay it. This position is noticed in Mirabita v. Imp. Ottoman Bank, supra/ and while holding that the shipper may retain a power over the goods, i^ it is declared that the vendee has an interest in them, that the}- 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 Bos. & Puller, 563. There, property was shipped b}- the owners of it, and the bill of lading, indorsed in blank, and the invoice \tere sent to a mercantile house, under a pre- vious agreement 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 likelj- to be in- debted. The point was there made that the risk was upon the con- signors, 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 reason 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 purpose only of applying the proceeds by way of indemnity, the circumstances 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, notwithstand- ing the change of property, and the consignors mnst suffer or be bene- fited by the loss or profit upon the sale. It would seem that the § 3.] RESERVATION OF JUS DISPONENDI. 201 principle thus announced is equally applicable to the facts in the case in hand, though they differ in some particulars. Here, the wheat is bought bj' 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 propertj- 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 plaintiff 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 theory 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 plaintiff." Bank of Toledo v. Shaw, 61 N. Y., supra. Had Seal's & Daw advanced the monej- 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 outset, as one of the first steps in the process, the legal title was lodged in the plaintiff, not to leave it until the paj'ment hy Brown of the draft. Thus the case is kept out of the law governing the relations of pledgor and pledgee. The plaintiff was not a pledgee of the property of Brown. It had a right to it, not the qualified and special propert}- of one hold- ing, as a securitj-, a chattel belonging to another. It had the legal title, under an agreement to transfer it on payment being made ; it " held the title in trust for" Brown, " after its own claim was satis- fled," 61 N. Y., supra. Nor does this conflict with Williams v. Little- fleld, 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 accord with previous understanding. Such, it seems to us, is the result of the adjudications in this eountr}-. The basis of the opinion in 61 N. Y., supra, is that the legal title to the property was in the bank, as assignee of the bill of lading. It is well to notice here a distinction, that is attempted to be made, between 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 be- fore us. For we have shown, by authority, that the taking of the bill of lading in the name of the ^jlaintiff, 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., supra, the agreement between the agents and the bank was like that here, that the draft should be drawn on the 202 farmers' bank v. logan. [chap. hi. principal, and that the bill of lading be taken in the name of the bank as security for the payment. Dows v. National Exchange Bank, 91 U. S. Eep. (1 Otto) 618, stands upon the same footing. The outset of the opinion, in that case, states the onlj' 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 puchased and paid for it with their own monej-, became the owners of it. This is placed upon the fact, that not being furnished with funds hy their principals, thej' raised them in the way used by Sears & Daw. It is said, in argument before us, that the posi- tion just stated was conceded hy the counsel in that case, and the infer- ence is then made here, that it was assumed by that court as the law of that case, without consideration or deliberate judgment, or as necessa- rily applicable to everj- case of like facts. We think that the position is stated by the court as the law of that case and of ever^- 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 " onlj' a special propertj', like that of a lienor or pledgee ; it is put as ' ' the absolute ownership," " the complete power of disposi- tion." In this view, those cases are not applicable here which hold that a deliverj' to a vendee, even upon condition expressed at the time, will maintain a right in a bona fide purchaser from the vendee. Smith v. Lynes, 5 N. Y. 41, is an example of such cases. Ballard v. Burgett, 40 Id. 314, and Austin v. Dye, 46 Id. 500, show the distinction which exists ; and the same appears in considering Rawls v. Deshler, 3 Kejes, 572 ; and Mechanics' and Traders' Bank v. Farmers' and 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, thei'efore, needed that we consider 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 plain- tiff 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 b^- 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 § 3.] RESERVATION OF JUS DISPONENDI. 203 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 possession, and if possession merely did not give title, there was still something 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 b^' 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 thej' 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 accordance with the usual course of business on the produce exchange. We doubt not that the latter makes very easy and rapid the transaction of an immense trade in the agricul- tural products of the country ; and that it would tend much to the security and confidence with which it could be done, if the law of mar- ket overt could be applied to it. But such is not the rule of this State, in the sale of chattel propertj', and we may not declare it so to be. ' The purchaser buys at his risk of the title, and if he would be safe, must make inquiry. He maj' not, with certainty, stop at the fact of possession, but must learn how the possession has been acquired. In every such case as this, the muniments of a real title arc 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 directions of that document are relied upon, there cannot be much risk. A reliance upon it, and a prior inspection of it may delay transactions, but they will protect all innocent and well-meaning par- ties, and thwart seriousl}- only those who mean to do wrong or are too 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 title. 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 on-nership, or authority to sell, as that third persons have a ' right, as against the true owner, to rely thereon. The appellants oflfered 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 excluded the evidence, and the appellants excepted. We think that there was no error in that. The manner in which this transaction was to be cai'- ried 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, except Rapallo, J. , not voting. Judgmeni affirmed. 204 MOOES V. WYMAN. [CHAP. IIL MOORS V. WYMAN et al. 146 Mass. 60. 1888. Holmes, J. This is a bill in equity brought by a creditor of the Boston firm of F. Shaw & Brothers, consisting of Fayette Shaw and Braokley Shaw, against that firm ; against another firm in Vanceboro, Maine, of the same name, consisting of the above-named Shaws and Thaxter Shaw ; and against Ferdinand A. Wj-man, to whom both firms have made voluntary assignments for the benefit of creditors. As the objections to the jurisdiction are now waived, and as the assets in con- troversj- have been converted into money, and a large part of the plains- tiff's claim has been paid since the filing of the bill, leaving only certain items of the account in dispute, such onl3' of the facts need be stated as are necessary in order to settle these disputed items. The plaintiff. Moors, made advances to the Boston firm in several ways. 1st. Under what is called the loan account agreement, by in- dorsing their notes, etc., in Boston, taking as security bills of parcels of specified hides, which the Vanceboro firm were tanning for the Bos- ton firm, and which were delivered by the Boston firm to and held bj- Thaxter Shaw as agent for the plaintiff with the consent of the Vance- boro firm. The Vanceboro firm agreed that the cost to Moors for tan- ning should not exceed four cents per pound, and in fact all charges for tanning were paid by the Boston firm to the Vanceboro firm. By the Boston firm's agreement, Moors had power in case of default, or if in his opinion the collateral did not afford a margin of twenty-five per cent, above the amount unpaid, to sell at public or private sale without notice ; and it was further agreed that all collateral security held by Moors for the Boston firm's account, whether under that contract or otherwise, might be taken and applied as general security for all exist- ing or subsequent indebtedness. This account has been paid off, in great part, since the filing of the bill. 2d. The plaintiff issued to the Boston firm letters of credit on Morton, Rose, & Co., of London, under which the firm bought hides, taking bills of lading to the plaintiff's order by agreement, the plaintiff having a lien on the goods, bills of lading, and policies of insurance, with authority to take possession and dispose of them at his discretion for his security or reimbursement. Before the defendant's failure, the prac- tice was for the plaintiff to indorse the bill of lading to the Boston firm, they signing a contract by which they received the hides as his agents, and agreed as such agents to send the hides to specified tanneries ot theirs in Maine or New York, and to deliver to the plaintiff upon de- mand the identical leather into which the hides should be manufactured, the plaintiff not to be chargeable with any expense thereon. The intention of the agreement was stated to be to protect and preserve unimpaired the plaintiff's lien. After the failure the plaintiff took pos- § 3.] KESEEVATION OF JUS DISPONENDI. 205 session of the hides as thej- arrived, and sold them through reputable brokers for fair prices. The plaintiff has paid Morton, Rose, & Co. the whole amount due them. 3d. The plaintiff obtained letters of credit for the Boston firm drawn upon the Bank of Montreal by the agents of the bank, the Boston firm giving the bank an agreement similar to that with Moors, last men- tioned, with authority to the agents to take possession of the goods and dispose of the same at discretion, and to charge all expenses, in- cluding commissions, for sale and guaranty-. Upon the arrival of the hides the agents of the bank indorsed the bills of lading to Moors, who before the failure indorsed them to the Boston firm under the same form of agreement as stated with regard to bills of lading under the Morton, Rose, & Co. credit. The hitles arriving after the failure were sold by him in like manner as before stated. The plaintiff has paid the bank the whole amount due to it. It is argued for the Shaws that Moors received the indorsed bills of lading as agent of the Bank of Montreal, and that, however this maj' be, he has lost his rights in all hides received by him under any bills of lading before the failure, and turned over to the Boston firm as Moors's agents. But upon the record before us we must take it that Moors received the hides, as the master's report implies that he did, on his own behalf. The agents of the bank looked to him for payment, and they have been paid. The bank had a title, whether absolute or quali- fied does not matter. See De Wolf v. Gardner, 12 Cush. 19 ; Forbes V. Boston & Lowell Railroad, 133 Mass. 154, 156 ; Moors v. Kidder, 106 N. Y. 32. Moors got this title by indorsement, and had a similar title originally under the Morton, Rose, & Co. bills of lading. His indorsements of the bills of lading to the Boston firm as his agents did not release this title. It was not a conve3-ance in form, and being made onlj' for the purpose of enabling him to get the goods from the carriers, it was not a conveyance in substance or effect. See Moors v. Kidder, supra; Pratt v. Parkman, 24 Pick. 42, 47; Low v. De Wolf, 8 Pick. 101, 107. Neither did Moors lose his rights by giving the custody of the hides to the Shaws. They expressly agreed to hold as Moors's agents, and the general rule i& perfectly well settled that the custody of a servant or of a mere agent to hold is the possession of the master or principal. The onlj' difficulties that have arisen have been due to the failure to distinguish aecuratelj' between such servants or agents and bailees who hold in their own name ; Hallgarten v. Oldham, 135 Mass. 1, 9 ; or, in the case of pledges, between a delivery to the pledgor for his own pur- poses and intrusting him with the custody on behalf of the pledgee. Kellogg V. Tompson, 142 Mass. 76, 79. . . ' Decree accordingly. 206 lansing v. tukner. [ohap. iil § 4. The Eisk of the Loss. LANSING V. TURNER. 2 Johns. (N. Y.) 13. 1806. Action on the case for breach of contract, in not delivering to plaintiffs in a good and merchantable condition a certain quantity' of beef purchased by them of defendants. The-cause was tried before Kent, C. J., at cir- ' cuit, who charged the jurj- that defendants were bound to deliver the beef in a good, merchantable order, at anj- time when the plaintiffs called for it ; and the jury found a verdict for $1,370. Motion was made to set aside the verdict, and for a new trial. JRussell and Foot, for the defendants. Woodioorth and Allen, contra. Thompson, J., delivered the opinion of the court. The principal question in this case is whether, in judgment of law, there was a delivery of the property'. The purchase was made in the autumn of 1804, and the consideration monej' paid the following Janu- ary, at which time there is little or no doubt that the beef was in good order. It remained, however, in the actual possession of the defendants until the succeeding summer, when it was found to be damaged ; and on whom the loss ought to fall is now the point in dispute. The prop- erty in the beef was so far transferred on the payment of the considera- tion money that it must be considered as remaining at the plaintiffs' risk. Blaclistone, in his Commentaries, la3's down the rule, generally, that a bargain struck, and payment of the purchase-money, vests the propertj' of the chattel in the vendee. To illustrate his rule, he puts the case of a horse dying in possession of the vendor after payment of the consideration, and the loss, he says, must fall on the vendee. 2 Bl. Com. 448. This I apprehend to be the rule in all cases on the sale of a specific chattel, where the identity of the article cannot be contro- verted," — the inference of law being that the vendor is a mere bailee, retaining the possession at the request of the vendee. The sale is not executed so as to vest the property' in the vendee, without an actual or presumed delivery ; and the latter is to be Inferred from circumstances, — as where there is a designation of the goods by the vendor to the use of the vendee, the marking them or making them up for deliverj', the removing them for the purpose of being delivered, and the like. 1 H. Black. 363. In the present case there is no controversy respecting the identity or designation of the beef sold, nor does it appear but that the plaintiffs purchased the whole which the defendants had in their storehouse. The only testimony respecting the delivery was that of James Giles, who swore that at the time the monej' was paid for the beef he understood it was to remain in the defendants' slaughter- § 4.j THE EISK OF THE LOSS. 207 house until it was shipped to New York. Under these circum- stances, I should suppose that the inference of the law would be that it was at the risk of the vendee, with respect to future damage, unless occasioned by the gross negligence of the vendor. If there was a deliver}', the present action is not maintainable, it being founded on a supposed breach of contract for non-delivery. But we are not authorized by the case to direct a nonsuit to be entered. We can, therefore, only award a new trial, with costs, to abide the event of the suit. New trial granted. CHALMERS v. McAULEY. 33 At. 767: 68 Vt. 44. 1895. Start, J. The plaintiff, owning certain cattle that were subject to a mortgage, made an arrangement with the mortgagee whereby the same were sold at public auction. By the terms of the sale, six months' credit was given, on approved paper, on sales of over $10. The de- fendant bid off some cows and calves, and went directly to the plaintiff to arrange the terms of payment, and the plaintiff sent him to the mort- gagee, telling him that any arrangement he could make with the mort- gagee would be satiafactor}', as the pay was going to him. The defendant went to the mortgagee, who was present at the sale, and he told the defendant if he would bring him a good note the following Tuesda}- or "Wednesday, he might have the cattle. On the following Wednesday the defendant offered the mortgagee a good note for the cattle, and the mortgagee refused to take it, whereupon the defendant told him he would not take the cattle. The mortgagee then told the defendant to meet him at the plaintiff's house the next Saturday, and he would let him have the cattle upon some terms. Pursuant to this pio- posal, the defendant met the mortgagee at the plaintiff's house, and made an arrangemient whereb}' he took the cattle for the amount at which they were bid off, and gave the mortgagee a lien note therefor. The plaintiff was present when this arrangement was made, and, when it was completed, he and his son turned the cattle out of the barn, and the defendant's man drove them awaj'. The defendant did not have anj-- thing to do with the cattle, except to bid them off, until he gave his lien note and they were driven away by his man. Nothing was said about keeping or feeding the cattle until an hour or more after thej"^ had been driven away. The plaintiff seeks to recover the expense incurred in keeping the cattle from the day of the auction until thej' were delivered to the de- fendant. At the close of the evidence the defendant moved for a ver- dict. The court overruled this motion, and instructed the jury that the only question for them to consider was how much it was worth to keep the cattle, to which ruling and instruction the defendant excepted. 208 CHALMERS V. MoAULEY. [CHAP. III. In determining whether the court should have ordered a verdict for the defendant, it becomes important to inquire when the title to the cattle passed to the defendant. If the title did not pass until the lien note was given and the cattle delivered to the defendant, the plaintiff was the owner of the cattle, and was keeping his own cattle from the daj' of the auction until the time the}- were delivered, and, in the ab- sence of an express contract on the part of the defendant to paj' for the keeping, the plaintiff could not recover. Cole v. Kerr, 20 Vt. 21. It is undoubtedlj' the rule in this State, as between vendor and vendee, where the sale of a chattel is a cash sale, the deliver^' of the thing sold and paj-ment of the purchase-money are concurrent acts, and the title does not pass until paj-ment, or tender of payment, is made. Turner V. Moore, 58 Vt. 455 ; State v. O'Nicl, 58 Vt. 140 ; Miller v. Cushman, 38 Vt. 593 ; Towsley v. Dana, 1 Aikens, 344 ; Eiley v. Wheeler, 42 Vt. 528. When chattels are sold to be paid for in approved paper or good' t^ notes, and delivery and" payment are to be simultaneous acts, the title remains in the vendor until deliverj'. Lupin v. Marie, 6 Wend. 77; 21 Am. Dec. 256 ; Whitwell v. Vincent, 4 Pick. 449 ; 16 Am. Dec. 355. When, bj' the terms of a contract for the sale of a chattel, payment is to be made in cash or approved paper, the delivery of the chattel and payment are concurrent acts ; and unless the vendor waives his right '^ to pa3'ment before deliverj-, or there is an agreement to the contrarj^, the title does not pass until paj-ment is made or tendered. As we construe the exceptions, no question was made in the court below but that payment and delivery of the cattle were to be concur- rent acts. The plaintiff did not waive his right to insist on paj-ment before deliver}-, and there was no agreement or circumstance attending the contract of sale that tended to show that the plaintiff intended to part with his property before payment was made bj' a good or approved note. The time of paj-ment and delivery of the cattle was deferred, by the agreement of the parties, until the day the cattle were delivered. There was no express agreement that the defendant should pay for keeping the cattle, and, under the circumstances disclosed by the evi- dence, the law will not imply one. The giving of the lien note was pursuant to an agreement then made. Until this was done the sale was " not complete, and the plaintiff was the owner of the cattle, subject to the rights of the mortgagee. He was not entitled to the expense in- curred in their keeping, and a verdict should have been ordered for the defendant. Judgment reversed and cause remanded. CHAPTER IV. § 1. Acceptance and Eeceipt : Common Law. KELSEA V. RAMSEY CO. 55 N. J. L. 320. 1893. The opinion of the court was delivered by — Van Syckel, J. It appears in tlie case that the defendants, who live in Paterson, New Jersey, made a valid contract in March, 1890, w'ith the plaintiff, who is a bobbin manufacturer in New Hampshire, under which the latter was to manufacture six thousand bobbins and send them to the defendants at Paterson. The following are the controlling facts in the case : — The contract was made in March, 1890, and the plaintiff at once commenced to make the bobbins. On the 28th of March, 1890, the defendants wrote to one Wilkins who had introduced them to the plaintiff requesting him to tell the plaintiff to stop the order for the time being. It does not appear that the contents of this letter were communicated to the plaintiff. On the 29th of March, 1890, Wilkins replied to the letter of the defendants, asking them to explain why they wished to have the order cancelled. The ease shows no reply to this letter. On the 6th of June, 1890, the plaintiff shipped to defendants, by rail- road, fourteen hundred bobbins, and on July 25th, 1890, the balance of the bobbins was shipped in the same way. Both lots arrived safely in Paterson, and on the 14th of August, 1890, the defendants wrote to the plaintiff that they would not accept or pay for them. This suit was instituted to recover the price agreed upon when the order was given. The first ground is that the contract was made by Eamsey & Gore, and not by the Eamsey & Gore Manufacturing Company, and that, therefore, the motion to non-suit on the trial should have prevailed. There is no merit in this contention. The letter of August 14th, 1890, acknowledges that it is the contract of the company. The second objection is that all the bobbins were not sent at once, and that the defendants were not bound under the contract to accept less than the whole number ordered. Conceding this to be so, the sufficient answer is that this objection was not taken on the trial below, and when the letter notifying the plaintiff of the defendants' refusal to 14 210 KELSEA V. EAMSEY CO. [CHAP. IV. accept was written, the whole number of bobbins was in Paterson, of which fact the defendants had notice. The third ground of defence is that the order to stop for a time ter- minated the plaintiff's right to fill the order, but to this I cannot agree. His right under the contract was to proceed at once with the manu- facture of the goods, and to make delivery- within a reasonable time. The defendants had no right to require him to stop temporarih-, and could not b}- such notice change the plaiutiflT's rights under the contract. The fourth ground relied upon by the defendants is the debatable one, and that is that there was no acceptance hy the defendants, and there- fore that the title did not pass to defendants, and the price conse- quently cannot be sued for ; that the onlj' remedy' of the plaintiff is an action of damages for non-acceptance. If the question in this case was whether there was deliver}' and acceptance to take the case out of the statute of frauds, it would be clear that the plaintiff could not recover, for there was a refusal to accept. In this case the contract is conceded to be a valid contract in writing and the question presented is the narrower one, whether there was such a deliver^' as passed the title to the vendees, so that they maj- be held for the purchase price. The vendor claims that the delivery of the goods to the common carrier constituted a delivery to the purchasers, and passed the title to them subject only to the right of stoppage in transitu. It is not asserted that the receipt bj- the carrier constitutes accept- ance bj' the vendee, — it is only a deliver}', not an acceptance ; that the carrier, in absence of authority to accept, represents the purchasers onlj- to receive and forward. Although the cases upon this subject are not entirely in accord, the authorities generally hold that a deliver}' to a common carrier of the goods properly addressed to the vendee is a delivery to the vendee subject to the vendor's right of stoppage in transitu, and to the vendee's right to reject for non-conformity to the contract. Brown r. Hodgson, 2 Campb. 37 ; Button v. Solomonson, 3 Bos. & P. 582 ; Dunlop v. Lamber, 6 CI. & F. 600 ; Pragano v. Long, 4 Barn. & C. 219 ; Dawes V. Peck, 8 Term, 330 ; Krulder v. Ellison, 47 N. Y. 36 ; Wilcox Com- pany v. Green, 72 Id. 17; Spencer v. Hale, 30 Vt. 314; Stanton v. Eager, 16 Pick. 467; Hunter v. Wright, 12 Allen, 548; Hall v. Richardson, 16 Md. 396 ; Magruder v. Gage, 38 Id. 344 ; 1 Benj. Sales, §§161, 181 ; Story, Sales, § 306 ; 2 Kent, Com. 499. The distinction is made in some of these cases that, in order to give to the delivery to the carrier the effect of a delivery to the buyer, the carrier must be selected or named by the bu}'er. When the contract of the manufacturer is simply to make the goods at an agreed price, he has fully executed the agreement on his part when the goods are produced at liis factory ready to be delivered on demand. In that case, however, he is not authorized by the vendee to deliver them for transportation. But when the purchaser instructs the § 1.] ACCEPTANCE AND RECEIPT: COMMON LAW. 211 vendor to send the goods to him, it does not appear how it makes any difference in the rule applicable to the case, whether he names the carrier or not. If the carrier is not specifled, the vendor, acting in this respect under the order of the purchaser to forward the goods, is his agent in the selection of the carrier, and in either case the carrier is, in contemplation of law, chosen bj- the purchaser. In this case the purchasers expressly instructed the plaintiff to send the goods from New Hampshire to Paterson. When the goods passed out of the possession of the plaintiff into the hands of the carrier, who must be regarded as the agent of the pur- chasers to transport them, the transfer of the title to the purchasers became complete, and all the rights of ownership in them passed to the purchasers. If the carrier had converted the goods to his own use, the defendants could have maintained an action for them, or if there had been a loss in transit, it would have fallen on them. In my opinion, therefore, the vendor was entitled to recover the con- tract price, and the judgment below should be affirmed. For affirmance, — The Chancellor, Chief Justice, Gaekison, Magie, Reed, Van Stckel, Bogert, Beown, Clement, Smith. For reversal none. JOHNSON et al. v. HIBBARD. 44 Pao. 287 : 29 Or. 184. Wolveeton, J. This is an action to recover $815 for goods sold and delivered at and for an agreed price. The defendant denies all the allegations of the complaint except the copartnership of plaintiffs, and that certain goods were delivered. The verdict and judgment being for plaintiffs, the defendant appeals. At the trial the plaintiffs offered testimony tending to show that the defendant, at Portland, Or., had ordered from plaintiffs, at Rochester, N. Y., through their travelling salesman, certain boots and shoes, to be manufactured for defendant, and to correspond in width, size, quality, and style with samples exhibited, at the agreed price of $815 ; that plaintiffs shipped the goods so ordered, in two lots, on December 31, 1890, and March 28, 1891, which were received by defendant at his store on January 30 and April 21, 1891, he paying freight and cartage ; that, immediately upon the arrival of the first lot, defendant opened and examined the goods, and placed them on his shelves for sale, and kept them there for two or three months, selling from them as there was demand. The second lot was never examined by defendant, although the possession remained with him at the time of the trial. Defendant offered some correspondence between him and plaintiffs- 212 JOHNSON V. HIBBAED. [CHAP. IV. The first was a letter written by him, March, 22, 1891, stating in eflfeet that the shoes were narrower than those he had ordered, and in which he further said : "I hold them here subject to 3-our order. You may cancel the balance of my order. ... I will try to sell enough of them to pay the freight bill, if you say so." On March 30th, plaintiffs answered that the second shipment had started before the receipt of defendant's letter of the 22d. On April 2.5th, defendant again wrote that the goods did not fill the requirements of his order, specifjing the objections, and closed by saying: "I will try to use the French kidj^ if agreeable to you, although, the vamps being of the old style, they will go slow. But to accept the others, I will not, and will turn them over to whom you maj' designate, or ship them back to j'ou.'' The court instructed the jurj-, among other things, as follows : " Now, the question here is whether these acts that have been shown here amount to a receipt and acceptance of these goods, or whether thej' do not. I submit the question to j'ou along with the evidence, — these letters, etc., that have been read, — whether the defendant, within a reasonable time, repudiated this contract of sale alleged bj' the plain- tiffs." And again, after explaining to the jurj' the right of the pur- chaser to disclaim the sale and reject the goods, the court said : " I subroit this question to you, whether, under all these letters that are written by the parties, there was reasonable diligence in disclaiming this sale." The onlj- assignment of error relied upon here, for reversal, is touch- ing this latter clause of the court's instruction, to which the defendant objected. The grounds upon which the objection is based are — First, there was no testimony offered which tended to show an acceptance of the lot of goods received April 21st ; and, second, the language of the court implies that the defendant was liable unless he could show an affirmative defence, whereas it was incumbent upon plaintiffs to show an acceptance bj' defendant. In the sale of articles or goods to be manufactured, it is clear that no title passes to anj' specified articles or designated lot of goods until their manufacture is completed, and they, by the understanding and consent, express or implied, of the parties to the sale, have been selected or designated, and set apart to the pur- chaser. The contract for such a sale, like a contract for the sale of goods not specified, is executory in its nature, and it does not become a complete bargain and sale until the identical goods to which the contract is to attach are specified or appropriated to its purposes. It seems the only question that there is anj' difficulty in determining is as to when the appropriation takes place. Wiiere a simple order is given to a dealer for goods of certain quality and quantity, there is an implied assent that the dealer shall make the selection, and the exact point, in the act of making such selection, when the dealer is no longer at liberty to change his intention, may be designated as the time when the title vests in the purchaser. Mr. Benjamin saj-s : "The rule on the subject of election § 1.] ACCEPTANCE AND RECEIPT : COMMON LAW. 213 is that when, from the nature of an agreement, an election is to be made, the part}' who is, by the agreement, to do the first act, which, from its nature, cannot be done till the election is determined, has authority to make the choice, in order that he may be able to do that first act ; and, when once he has done that act, the election has been irrevocably determined, but till then he may change his mind." Benj. Sales, § 359. Applying the rule to the case at bar, the tide would pass when the goods were manufactured and delivered to the common carrier, con- signed to the defendant, if made as ordered ; and especiallj' would it be so when received by the consignee. Bank v. Bangs, 102 Mass. 295 ; Brewer v. Association, 47 Mich. 526 ; Martz v. Putnam, 117 Ind. 392, 400. There is some conflict in the authorities as to whether the same rule applies to a sale of goods to be manufactured as to a sale of goods not specified ; but it is believed the weight of authority is in favor of the doctrine that it is alike applicable to the one case as to the other. 21 Am. & Eng. Enc. Law, 494, 505. But, in order that the title maj- pass at this juncture of the transaction, the goods must conform as to quantity and quality with the specifications of the order. See Brigham V. Hibbard, 28 Or. 386 ; 43 Pac. 383. If they did not so correspond, then an acceptance by the purchaser would be necessary to complete the sale ; otherwise, not. This case seems to have been tried in the court below upon the theory that the goods did not fill the measure of the order, as it would appear to have turned upon the question as to whether there had been an acceptance by the defendant. He does not question the plaintiflfs' con- tention that the facts show an unqualified acceptance of the first ship- ment, but claims the evidence does not warrant a finding that the last consignment was so accepted. It was argued that the court should have distinguished between the two consignments upon the question of acceptance ; but no such instruction was asked for, and no error can therefore be predicated upon the court's failure in that respect. We think the court properly instructed the jury touching the question of acceptance, and we cannot see that the limited portion of the instruction excepted to does in any manner cast the burden of proof upon the defendant to show non-acceptance, which is the burden of appellant's contention. Finding no error in the record, the judgment of the court below is affirmed. 214 CHAPLIN V. EOGEKS. [OHAP. lY., § 2. ACCBPTANGE AND EeCEIPT : STATUTE OF FRAUDS. CHAPLIN y. ROGERS 1 East, 192. 1800. In an action for goods sold and delivered the case proved was that, the parties being together in the plaintiflfs farm-yard, the defendant, after some objections and doubts upon the qualitj^ of a stack of hay (particularly' the inside part) then standing in the yard, agreed to take it at 2s. &d. per hundred weight. Soon after he sent a farmer to look at it, whose opinion was unfavorable. But about two months after- wards another farmer of the name of Loft agreed with the defendant for the purchase of some of this hay still standing untouched in the plaintiff's yard, and the defendant told Loft to go there and ask what condition it was in, saying he had only agreed for it if it were good. The plaintiff having informed Loft it was in a good state, he agreed to give the defendant 3s. 9c?. per hundred weight for it, the defendant having told him that he had agreed to give the plaintiff 3s. 6c?. for it. Loft thereupon brought away thirty-six hundred weight ; but this latter fact was without the knowledge and against the direction of the defendant. There was a contrarietj' of evidence as to the qualitj' of the hay when the stack was afterwards cut. At the trial before HoTHAM, B., on the last Norfolk circuit, Sellon, Serjt., for the defendant, objected that the contract of sale was fraudulent and void bj- the statute of frauds, being for the sale of a commoditj- no part of which was delivered, and of which there was no acceptance by the defendant. But the learned judge left it to the jurj- to decide whether the sale 'had been fraudulent, and whether under the circumstances there had been an acceptance by the defendant ; and thej- found for the plaintiff on both points, and gave him £50 damages, being the value of the hay at the price agreed for. In the last term a rule was obtained calling on the plaintiff to show cause why the verdict should not be set aside and a new trial had, on the grounds that the learned judge had left that as a question of fact to the jury which he himself ought to have decided as an objection in point of law arising ou the statute of frauds ; and because the evidence did not warrant the verdict. Wilson now showed cause. Oarrow, contra. Lord Kenyon, C. J. It is of great consequence to preserve unim- paired the several provisions of the statute of frauds, which is one of the wisest laws in our statute book. My opinion will not infringe upon it ; for here the report states that the question was specifically left to the jury whether or not there were an acceptance of the hay by the defendant, and thej' have found that there was, which puts an end § 2.] ACCEPTANCE AND RECEIPT: STATUTE OF FRAUDS. 215 to any question of law. I do not mean to disturb the settled construc- tion of the statute, that in order to take a contract for the sale of goods of this value out of it there must be either a part delivery of the thing, or a part paj'ment of the consideration, or the agreement must be reduced to writing in the manner therein specified. But I am not sat- isfied in this case that the jury have not done rightly in finding the fact of a deliverj'. Where goods are ponderous, and incapable as here of being handed from one to another, there need not be an actual delivery ; but it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, \ or by delivery of other indicia of property. Now here the defendant \ dealt with this commodity afterwards as if it were in his actual posses- sion ; for he sold part of it to another person. Therefore, as upon the whole, justice has been done, the verdict ought to stand. The other judges agreed that there was suflScient evidence of a delivery to and acceptance by the defendant to leave to the jury. Rule discharged. BEAUMONT v. BRENGERI. 5 C. B. 301. 1847. Debt for goods sold and delivered, goods bargained and sold, work and materials, and money found due upon an account stated. Plea, nunquam, indebitatus. . . , In the early part of November, 1846, the defendant called at the shop of the plaintiff, a coachmaker, and there saw a carriage which he agreed t& buy for the sum of £70, at the same time giving direc- tions to the plaintiff to remove the brass beading, and to substitute plated, and to make some other slight alterations. These alterations having been made, the defendant again saw and approved of the carriage, and requested that it might remain in the plaintiff's back shop until he was ready to ship it for Denmark ; at the same time observing that he would make use of it a few times, in order that it might pass at the custom house for second-hand. Accordinglj', on Saturday, the 14th of November, the defendant requested the plaintiff to hire a horse and man and send them to his house on the following day with the carriage, as he wished to drive round the park. This was done (the defendant paying 13s. for the hire of the horse and man) ; and tiie defendant after using the carriage for a few hours returned it to the plaintiff, and afterwards refused to accept or pay for it. On the part of the defendant it was insisted that there was no evi- dence to go to the jury of any delivery or acceptance of the carriage within the statute of frauds ; and that the contract, if any, not being complete until Sunday, the 15th of November, it was void by the 29 Car. 2, c. 7 216 BEAUMONT V. BEENGERI. [CHAP. IV. Under the direction of the learned judge, a verdict was taken for the plaintiff for the sum claimed by the particulars, leave being reserved to the defendant to move to enter a nonsuit if the court should think the objections well founded. Prentice obtained a rule nisi. John Henderson showed cause. CoLTMAN, J. It appears to me that there was a sufficient delivery and acceptance of the carriage in question previously to Sundaj-, the loth of November, 1846, to satisfy- the 17th section of the statute of frauds. In Elmore v. Stone, 1 Taunt. 458, it was held by this court that, if a man bargains for the purchase of goods, and desires the vendor to keep ) them in his possession for an especial purpose for the vendee, and the ' vendor accepts the order, this is a sufficient delivery of the goods with- in the statute of frauds. In Carter v. Toussaiht, 5 B. & Aid. 855, 1 D. & R. 515, Abbott, C. J., deals with that case thus : " In the case of Elmore v. Stone, indeed, the custody was of the same kind as in this case. There the plaintiff would have a right to say to the defendant, 'You shall not have the horse until jou paj- me the pi'ice;' but the court thought that, in consequence of the plaintiff's having consented to put the horse into another stable, and to keep it there at the defend- ant's charge, he had changed the character in which he originallj' held the horse, and instead of holding him as his own held him for the defendant as his livery-stable-keeper. But there is nothing of that kind in this case. So long as the horse remained at the plaintiff's stables, and before it went to Kimpton Park, the plaintiff was the keeper of it, not as a livery-stable-keeper, but as owner, and he had a right to retain it until the money was paid. Afterwards by the defendant's desire the horse is sent to the park ; and if it was sent there and entered in the defendant's name, and b}' his desire, I should have thought that that was an actual acceptance of the horse. But the evidence is that it was entered in the plaintiff's name. The defendant therefore had no right bj' law to go to the owner of the park and demand the possession of the horse, because the park-keeper would not- be authorized to part with it without the plaintiff's order. Therefore the character of owner belongs to the plaintiff at the time of the sale,, and remained unchanged, notwithstanding the horse was sent to the park, where it is entered in his own name without anj' control whatever being vested in the defendant" And Bayley, J., saj's : " The case of Elmore v. Stone certainly comes very near this ; but there is a distinc- tion. In that case the original proprietor of the horse had one stable in which he kept horses as owner, and another in which he kept them as a liverj'-stable-keeper, and bj' removing the horse from the one to the other it was considered that he had consented to divest himself of the character of owner, and conveyed the property in the horse to the buyer without retaining any lien for the price. That was the ground upon which the decision in the Common Pleas was founded. I can see nothing of that kind here. Tlrere is no consent on the part of the § 2. J ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 217 plaintiff to divest himself of the possession, or to abandon his right to retain the horse until the price was paid." In cases of this sort therefore it seems that the question will be, whether the vendor held the subject-matter of the sale as owner, or merely as a warehouse keeper for the vendee. Looking at the evidence in this case, it appears to me that there is enough to show an agreement between the parties I that the plaintiff should hold the carriage as a warehouse keeper for| the defendant. It was proved that the defendant had seen the carriage, and had had alterations made in it, and had expressed his intention to use it a few times before embarking it, so that it might pass as a second- hand carriage ; and that at his request it was placed by the plaintiff in his back shop, where it stood at the disposal of the defendant. It was further proved that on Saturday-, the 14th of November, the defendant called at the plaintiff's shop, and desired that a horse might be hired for him, and that the carriage should be sent to his house on the follow- ing day (Sunday) ; which was accordingly done. In considering whether the plaintiff had at this time agreed to hold the carriage as the defend- ant's agent, we maj' look at what took place on the Sundaj'. Is it reasonable to suppose that the plaintiff TO)uld have allowed the carriage to be used, — which would have reduced it to the condition of a second- hand article, — if it had not been well understood between the parties that he had ceased to be the owner? I can come to no other conclusion than that the plaintiff had assented to the defendant's proposal to keep the carriage in the shop as his, the defendant's, agent. I therefore think there was a sufficient delivery and acceptance, independently of what took place on the Sunday, to satisfy the statute, and consequently that the plaintiff was entitled to the verdict. ■" MARVIN V. WALLIS. 6 E. & B. 726. 1856. On the trial before Lord Campbell, C. J., it appeared that the action was brought to recover the price of a horse. .It was agreed that there had been a complete verbal bargain for the sale of the horse by the plaintiff to the defendant for a price above £10, and that about a fortnight afterwards the plaintiff sent the horse to the defendant, who refused to take or pay for him ; alleging that the horse had been ill-used in the interval. The plaintiff's evidence was that the bargain was complete for immediate delivery ; that after it was complete the plaintiff asked the defendant to lend him the horse for a few weeks till he got another, to which the defendant agreed if the plaintiff would take care of it ; and that in consequence the plaintiff kept the horse 1 Maule, Creswell, and V. 'WiLLiAMiS, JJ., delivered concurring opinions. 218 MARVIN V. WALLIS. [CHAP. IV. from that time, not as vendor, but as borrower of the horse. There was no part payment, nor any memorandum in writing. It was ob- jected that there was no evidence to go to the jury of any acceptance and actual receipt of the horse. The Lord Chief Justice refused to stop the case. The defendant then gave evidence, according to which ^^ the original verbal bargain was that the liorse should not be delivered for a month ; and the plaintiff retained possession, not as a borrower, but in virtue of the original bai'gain. The Lord Chief Justice left the question to the jury, whether the verbal contract for the sale of the horse was complete before there was any agreement about the horse being retained b}' the plaintiff, and the horse was lent to the plaintiff by the defendant as his owner ; or whether the retainer of the horse was part of the bargain. The jury found that the contract was com- plete before the permission to keep the horse was given to the plaintiff, and that the horse was lent b^' the defendant as his owner. The Lord Chief Justice then directed a verdict for the plaintiff, with leave to move for a rule to show cause. Hayes, Serjt., cfc Bittleson showed cause. Mellor and Field, in support of the rule. Coleridge, J. I am of opinion that we ought to discharge this rule. The question is, whether on the facts found by the jurj- the statute of frauds is satisfied, and whether there is anj' evidence for that finding. The statute of frauds requires an actual receipt, which implies delivery, and acceptance. It is admitted that if there be an actual visible pos- session in the vendee for a single moment, that is enough : the question cannot turn on time. It must also be admitted that it is enough if a third party has such possession for the vendee. It is said that nothing short of that will do ; and as I understand Mr. Field, he contends that there must be some positive act, and that without that words alone will not satisfy the statute. Here it is found that the bargain was complete, and that after that the vendor asked the vendee to lend him the horse for a specific purpose, to which the vendee assented. The vendor retains the apparent possession, but holds for the vendee, unless there be a distinction between this state of things and what is admitted to be sufficient to satisfy the statute of frauds. Try then how that is. Must there be an actual transfer? The case of Elmore V. Stone, 1 Taunt. 458, furnishes an answer to that question ; for there, there was a removal of the horse from one stable of the vendor to another stable of the vendor ; in the first of these the vendor kept his own horses, in the other the horses belonging to other people : so that the horse still continued in his apparent possession, but the character of the possession was altered. So here there is the same apparent possession throughout, but the evidence shows that its char- acter was changed. Much has been said as to whether the lien here was retained or not ; but it seems to me that this is not material to the argument, and that the legal result arises from the preceding part of the transaction. Had the plaintiff retained the horse in the character \ § 2.] ACCEPTANCE AND RECEIPT: STATUTE OF FRAUDS. 219 of an unpaid vendor, there would not have been a delivery ; but the verdict negatives that supposition. Erlb, J. I also am of opinion that the rule should be discharged. The question is, whether the buyer has accepted the horse, and actually received it. All that passed has been merely by word of mouth : there has been nothing which, according to the language of many cases, amounts to manual delivery. The statute for manj' j-ears was very much praised. I believe that the party who inserted the words had no idea what he meant by " acceptance : " that opinion I found on the everlasting discussion which has gone on, as if possession according to law could mean only manual prehension. It ma}' mean that or it may mean a handing over to a servant ; but the question is, whether there | has been an exercise of the right inconsistent with smy supposition I but that of ownership ; whether there is an actual sale, and an act which is inconsistent with anything but ownership. When you apply that here, you have the finding of the jury that there was an actual sale, and that the purchaser assumed to be in actual possession. He permitted the other party to retain the horse. All indeed passed by word of mouth ; but to my mind it is a most decisive case of posses- sion and one in which the vendor had lost his claim to lien. Bule discharged} CUSACK V. ROBINSON. IB. S. 299: 30 L.J. Q. B. 361. 1861. Declaration for goods sold and delivered, and goods bargained and sold. Plea, never indebted. At the trial, before Blackburn, J., it ap- peared that the defendant, who was a London merchant, on the 24th October, 18G0, at Liverpool, called on the plaintiffs, who are importers of Canadian produce, and said he wanted to buy from 150 to 200 firkins Canadian butter. He then went with one of the plaintiffs to their cel- lar, where he was shown a lot of 156 firkins of butter, " ex-Bohemian," belonging to the plaintiffs, which he then had the opportunity of in- specting, and in fact he did open and inspect six of the firkins in that lot. At a later period of the same day, the plaintiffs and the, defendant made a verbal agreement by which the defendant agreed to buy that specific lot of 156 firkins at 77s. per cwt. When the price had been agreed on, the defendant took a card on which his name and address in London were written, " Edmund Robinson, 1 Wellington Street, London Bridge, London," and wrote on it, " 156 firkins butter to be delivered at Fenning's Wharf, Tooley Street." He gave this to the plaintiff's, and at the same time said that his agents, Messrs. Clibborn, at Liver- pool, would give directions how the goods were to be forwarded to Fen 1 Concurring opinions by Ckompton, J., and Lokd Campbell, C. J., are omitted. 220 CUSACK V. ROBINSON. [CHAP. IV. ning's Wharf. The plaintiffs, by Clibborn's directions, delivered the butter to Pickford's carts to be forwarded to the defendant at Fennlng's Wharf. The plaintiffs sent an invoice dated the 25th October, 1860, to the address on the defendant's card. On the 27th October, the plaintiffs in Liverpool received a telegram from the defendant in London, in effect asserting that the butters had been sold bj' the plaintiffs sub- ject to a warrant}' that the}' were equal to a sample, but that they were not equal to sample, and therefore would be returned. The plaintiffs replied by telegram that there was no such warrant}', and they must be kept. The defendant's counsel admitted that it must be taken that the sale was not subject to any warranty ; but objected that the price of the goods exceeded £10, and that there was nothing proved to satisfy the requisitions of the statute of frauds. The verdict was entered for the plaintiffs for £420 10s. Id, with leave to the defendant to move to enter a nonsuit, if there was no evidence proper to be left to the jury, either of a memorandum of the contract or of an acceptance and actual receipt of the goods. Mellish and Quain showed cause. Millward, in support of the rule. Blackburn, J. It was not contended that there was anj' sufficient memorandum in writing in the present case ; but it was contended that ■1 there was sufficient evidence that the defendant had accepted the goods ^ sold and actually received the same ; and on consideration we are of that opinion. The words of the statute are express that there must be an accept- ance of the goods or part of them, as well as an actual receipt; and the authorities are very numerous to show that both these requisites must exist, or else the statute is not satisfied. In the recent case of Nicholson v. Bower, 1 E. & E. 172, which was cited for the defendant, 141 quarters of wheat were sent by a railway, addressed to the vendees. They arrived at their destination, and were there warehoused b}' the railway companj' under circumstances that might have been held to put an end to the unpaid vendor's rights. But the contract was not origi- nally a sale of specific wheat, and the vendees had never agreed to take those particular quarters of wheat : on the contrary it was shown to be usual, before accepting wheat thus warehoused, to compare a sample of the wheat with the sample by which it was sold ; and it appeared that the vendees, knowing that they were in embarrassed circumstances, purposely abstained from accepting the goods ; and each of the judges mentions that fact as the ground of their decision. In Meredith v. Meigh, 2 E. & B. 364, the goods, which were not specified in the origi- nal contract, had been selected by the vendor and put onboard ship by the directions of the vendee, so that they were iu the hands of a carrier to convey them from the vendor to the vendee. It was there held, in conformity with Hanson v. Armitage, 5 B. & Aid. 557, that the carrier, though named b}' the vendee, had no authority to accept the goods. And in this we quite agree ; for though the selection of the goods by § 2.] ACCEPTANCE AND KECEIPT : STATUTE OV FRAUDS. 221 the vendor, and putting them in transit, would but for the statute have been a sufficient deliverj- to vest the property in the vendee, it could not be said that the selection bj- the vendor, or the receipt by the car- rier was an acceptance of those particular goods by the vendee. In Baldey v. Parker, 2 B. & C. 37, which was much relied on by Mr. Millward in arguing in support of this rule, the ground of the de- cision was that pointed out by Holroyd, J., who says (p. 44) : " Upon a sale of specific goods for a specific price, by parting with the posses- sion the seller parts with his lien. The statute contemplates such a parting with the possession ; and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the ven- dee from accepting and receiving them as his own within the meaning of the statute." The principle here laid down is, that there cannot be an actual receipt by the vendee so long as the goods continue in the possession of the seller as unpaid vendor so as to preserve his lien ; and it has been repeatedlj' recognized. But though the goods remain in the personal possession of the vendor, 3'et if it is agreed between the vendor and the vendee that the possession shall thenceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the statute. Marvin u Wallis, 6 E. & B. 726, Beaumont v. Brengeri, 5 C. B. 301. In both of these cases the specific chattel sold was ascertained, and there ap- pear to have been acts indicating acceptance subsequent to the agree- ment which changed the nature of the possession. In the present case there was ample evidence that the goods when placed in Fenning's Wharf were put under the control of the defendant to await his further directions, so as to put an end to any right of the plaintiffs as unpaid vendors, as much as the change in the nature of the possession did in the cases cited. There was also sufficient evidence that the defendant had at Liverpool selected these specific 156 firkins of butter as those which he then agreed to take as his property as the goods'sold, and that he directed those specific firkins to be sent to Lon- \ don. This was certainly evidence of an acceptance ; and the only re- niaining question is, whether it is necessary that the acceptance should I follow or be contemporaneous with the receipt, or whether an accept- ance before the receipt is not sufficient. In Saunders v. Topp, 4-Exch. 390, which is the ease in which the facts approach nearest to the present case, the defendant had, according to the finding of the jury, agreed to buy from the plaintiff forty-five couple of sheep, which the defendant, the purchaser, iiad himself selected, and the plaintiff had by his direc- tions put them in the defendant's field. Had the case stopped there, it would have been identical with the present. But there was in addi- tion some evidence that the defendant, after seeing them in the field, counted them, and said it was all right ; and as this was some evidence of an acceptance after the receipt, it became unnecessarj' to decide whether the acceptance under the statute must /ollow the delivery. Parke, B., from the report of his observations during the argument, 222 VINCENT V. GERMOND. [CHAP. IV. seems to have attached much importance to the selection of particular sheep by the defendant ; but in his judgment he abstains from deciding on that ground, though certainly not expressing anj- opinion that the acceptance must be subsequent to the delivery. The other three barons, — Anderson, Rolfe, and Piatt, — express an inclination of opinion that it is necessary- under the statute that the acceptance should be sub- sequent to or contemporaneous with the receipt ; but thej- expressly abstain from deciding on that ground. In the elaborate judgment of Lord Campbell, in Morton v. Tibbett, 15 Q. B. 428, in which the nature of an acceptance and actual receipt suflficient to satisfy the statute is full}' expounded, he says (p. 434) : " The acceptance is to be something which is to precede,, or at anj' rate to be contemporaneous with the .actual receipt of the goods, and is not to be a subsequent act after the goods have been actuallj' received, weighed, measured, or exam- ined." The intention of the Legislature seems to have been that the contract should not be good unless partially- executed ; and it is par- tially executed if, after the vendee has finall}- agreed on the specific articles which he is to take under the contract, the vendor, by the ven- dee's directions, parts with the possession, and puts them under the control of the vendee, so as to put a complete end to all the rights of the unpaid vendor as such. We think, therefore, that there is nothing in the nature of the enactment to implj- an intention, which the Legis- lature has certainlj- not in terms expressed, that an acceptance prior to the receipt will not suffice.- There is no decision putting this construc- tion on the statute, and we do not think we ought so to construe it. We are therefore of opinion that there was evidence in this case to satisfy the statute, and tliat the rule must be discharged. . Hule discharged. VINCENT V. GERMOND et al. 11 Johnson (N. Y.), 283. 1814. This was an action of assumpsit for cattle, &c., sold and delivered. It was proved at the trial that in June, 1812, B. Germond, one of the defendants, came to the plaintiff and asked him if he had any cattle to sell, and, the plaintiff replying in the affirmative, they went together into the field to look at them. B. Germond offered $280 for the cattle, four in number, which after some hesitation the plaintiff agreed to accept, if they were at B. G.'s risk, observing that he had had one or two cattle injured by the clover in the field where the cattle were feeding. B. Germond replied that he- took them at his own risk, and the cattle must remain where they were ; that he would call and take them away as soon as he had completed his drove. After the bargain was concluded, the cattle so purchased continued in §2.] ACCEPTANCE AND EECEIPT : STATUTE OF FRAUDS. 223 the same field with other cattle of the plaintiff ; in a few daj-s one of them died, being injured bj' the clover. On the 4th of July following, James Germond, the other defendant, came alone to the field and took awaj' the three remaining cattle without saj'ing anj^thing to the plaintiff. The defendants gave some evidence of a tender to the plaintiff in June, 1813, of the price of the three cattle left. It was agreed that $231 was a sufficient compensation for the three cattle. The defendants' counsel objected to the parol evidence of the con- tract, which was admitted by the judge, reserving the question ; and a verdict was taken for the plaintiff for 1311.03, being the price of the four cattle with interest. The case was submitted to the court without argument. Per Curiam. No earnest money having been paid nor any writing made between the parties relative to the contract, the question is, whether there was such a delivery of the cattle as to take the case out of the statute of frauds. It was not made a question whether the defendants were partners so as to be bound by the acts of each other. It may be questioned whether what took place between B. Germond and the plaintiff, if standing alone, would amount to a delivery ; but the subsequent conduct of the other defendant in taking away the a three oxen, without any new contract, affords sufficient ground to infer 1 a deliver}-. This was the exercise of an act of ownership over the I propertj' in confirmation of the bargain. The defendants dealt with the oxen as their own, and as if in their actual possession, without asking any permission from the plaintiff for so doing. This must have been done in virtue of the right acquired bj- the original contract and transfer of the property. Such exercise of ownership bj^ selling part of the propert}' was, in the case of Chaplin v. Rogers, 1 East, 192, lield a suffi- cient delivery to take the case out of the statute. And the case of Elmore v. Stone, 1 Taunt. Rep. 457, is much stronger on this point. It was there held that an agreement between the parties that the vendor should keep the horses sold for the vendee at livery was sufficient to vest the propert}' in the buyer without any written contract or earnest paid. The opinion of the court upon this point renders it unnecessary to notice the other question made in that case. The plaintiff must accordingly have judgment upon the verdict for $311.03. Judgment for the plaintiff'. PAGE V. MORGAN. 15 Q. B. D. 228. 1885. The defendant, a miller, bought of the plaintiff by oral contract through the plaintiff's agent eighty-eight quarters of wheat. The sale was by sample. The wheat was shipped by the plaintiff's agent on a barge for carriage to the defendant's mill, which was upon a navigable 224 PAGE V. MORGAN. [CHAP. IV. canal. The barge arrived at the mill on the evening of Tuesday, the 25th of March, and at eight o'clock, on the morning of the 26th, some of the sacks containing the wheat were, bj' direction of the defendant's foreman, hoisted up out of the bai'ge into the mill and examined by him. After twenty-four sacks had been hoisted up and examined, the foreman sent for the defendant, who came to the mill and inspected the contents of the sacks already- delivered, and ordered some more to be sent up for examination, and after having, examined thirty-eight sacks in all, he at nine o'clock told the bargeman to send up no more, as the wheat, he said, was not equal to sample. The defendant then on the same day went off to see the plaintiffs agent at a neighboring market town, and told him that the wheat was not equal to sample, and that he should not take it. Some days afterwards, the exact interval, however, was not stated, the wheat taken into the mill was returned by defend- ant's order to the barge, which remained at the defendant's mill with the wheat in it, the plaintiff refusing to take the wheat away, for seven weeks and until after action was brought, when the wheat was sold by the order of a judge at chambers, and the proceeds paid into court to abide the event of the action. The learned commissioner directed the jury that there was evidence of an acceptance by the defendant sufficient to constitute a contract within the 17th section of the statute of frauds, although the defendant was not precluded from rejecting the wheat if not equal to sample. The jury found that the wheat was equal to sample, and that the de- fendant had accepted it within the meaning of the 17th section of the statute of frauds, and accordingly gave a verdict for the plaintiff. A rule for a new trial, or to enter judgment for the defendant, was moved for ; but the Queen's Bench Division refused the application. Morten {Murphy, Q. C, with him), for the defendant. PMlhrick, Q. C, and R. Vaughan Williams, for the plaintiff. Bkett, M. R. It seems to me that the case of Kibble v. Gough, 38 L. T. (n. s.) 204, lays down the governing principle with regard to the question whether there is evidence of an acceptance to satisfy the 17th section of the statute of frauds. It was there pointed out that there must be under the statute both an acceptance and actual receipt, but such acceptance need not be an absolute acceptance ; all that is neces sary is an acceptance which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract. Cotton, L. J., in giving judgment in that case, said : ' ' All that is wanted is a receipt and such an acceptance of the goods as shows that it has regard to the contract, but the contract may yet be left open to objection ; so that it would not preclude a man from exercising such a power of rejection. I think that in this case enough had been done to satisfy the statute." Now what had been done in that case? The goods had been taken into the defendant's warehouse and kept for some time, though not so long as to make it unreasonable that thp defendant should exercise his right of rejection if the goods § 2.] ACCEPTANCE AND EECEIPT : STATUTE OF FRAUDS. 225 had not been according to contract, and the defendant had inspected the goods. Thej' therefore had been delivered and actual possession of them had been taken, and they had been dealt with by the defendant for the purposes of the contract. It was held that under those circum- stances what had been done in respect to the goods by the defendant must be considered as having been done with regard to a contract for the purchase of the goods, and as amounting to a recognition of the existence of such contract, and that, therefore, though the defendant might still have a right to reject the goods if not equal to sample, tliere was evidence on which the jury might find that the defendant had ac- cepted the goods within the meaning of the statute. That being the law as laid down by that decision, what was the evidence on the ques- tion of acceptance in the present case? The wheat was sent to the defendant's mill in a barge, which was brought under the mill in the evening. The next morning a considerable quantity of wheat was taken up by the defendant's sei'vants into the defendant's mill and remained there some time more or less until the defendant had opened the sacks and examined their contents to see if they corresponded with the sam- ple. How could the defendant have these sacks taken into his mill and there opened and examined without a recognition of the existence of a contract entitling him so to deal with them? How could anj- reason- able men come to any other conclusion from his dealing with them than that he had made a contract of purchase with regard to them, and that the goods were delivered to and received bj' him under such contract, and examined by him to see if they were according to the contract? It seems to me clear that under these circumstances there was evidence for the jurj- of an acceptance within the meaning of the statute. I can conceive of many cases in which what is done with regard to the deliv- ery and receipt of the goods may not afford evidence of an acceptance. Suppose that, goods being taken into the defendant's warehouse by the defendant's servants, directly he sees them, instead of examining them, he orders them to be turned out or refuses to have anything to do with them. There would there be an ^actual delivery ; but there would be no acceptance of the goods, for it would be quite consistent with what was done that he entirely repudiated any contract for the purchase of the same. I rely for the purposes of my judgment in the present ease on the fact that the defendant examined the goods to see if thej- agreed with the sample. I do not see how it is possible to come to anj- other /i conclusion with regard to that fact than that it was a dealing with the 1 goods involving an admission that there was a contract. It appears to \ me that, having regard to tlie case of Kibble v. Gough, which is an au- thoritj- binding on us, there was clearlj- evidence in this case for the jury of an acceptance, and that upon such evidence there was only one conclusion to which they reasonably could come.'' The counsel for },he 1 In Hinchman v. Lincoln, 124 U. S. 38 ; 8 Sup. Ct. E. 369 (1888), it la said — " In dealing with the question arising on this record, we keep in view the general rule that it is a question for tlie jury whether, under all the circumstances, the act» 15 226 STONE V. BROWNING. [CHAP. IV. defendant placed reliance on the case of Rickard v. Moore, 38 L. T. (n. s.) 841. It is alleged that in that case Lord Bramwell doubted the correctness of what he had said in the previous case of Kibble v. Gough, supra. However that may be, it is quite clear that that case cannot overrule Kibble v. Gough, supra. For these reasons I am of opinion that this appeal must be dismissed. Appeal dismissed.^ STONE V. BROWNING. 68 N. Y. 598. 1877. Appeax from judgment of the general term affirming a judgment in favor of plaintiffs, entered upon a verdict. A former appeal is reported in 51 N. Y. 211 (1872). The contract of sale was oral. The material facts are stated in the opinion. Geo. F. Comstock, for the appellants. Wm. M. Svarts, for the respondents. Rapallo, J. After a careful examination of the testimony in this case, we are satisfied that there was no evidence of an acceptance of the goods in controversy by the defendants, which would take this case out of the operation of the statute of frauds, and that the motion for a nonsuit made upon that ground should have been granted. It is con- which the buyer does or forbears to do amount to a receipt and acceptance, within the terms of the statute of frauds. Bushel v. Wheeler, 15 Q. B. 442 ; Morton v. Tib- bett, Id. 428 ; Borrowscale v. Bosworth, 99 Mass. 381 ; Wartman v. Breed, 117 Mass. 18. But where the facts in relation to a contract of sale alleged to be within the statute of frauds are not in dispute, it belongs to the court to determine their legal effect. Shepherd v. Pressey, 32 N. H. 56. And so it is for the court to withhold the facts from the jury when they are not such as can in law warrant finding an accept- ance ; and this includes cases where, though the court might admit that there was a scintilla of evidence tending to show an acceptance, they would still feel bound to set aside a verdict finding an acceptance on that evidence. Browne, St. Frauds, § 321 ; Denny v. Williams, 5 Allen, 5 ; Howard v. Borden, 13 Allen, 299 ; Pinkham v. Mattox, 53 N. H. 604. . . . " It is quite true, and the authorities so declare, that the receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in dispute. Receipt and acceptance by some unequivocal act, sufficiently proven to have taken place under some contract of sale, is suflScient to take the case out of the prohibition of the stat- ute, leaving the jury to ascertain and find from the testimony what terms of sals were actually agreed on. Marsh v. Hyde, 3 Gray, 331 ; Townsend v. Hargraves, 11& Mass. 325; Benj. Sales, § 170. But, as was said by Williams, J., in Tomkinson v. Staight, 17 C. B. 697, the acceptance by the defendant must be in the quality of ven- dee. ' The statute does not mean that the thing which is to dispense with the writ- ing is to take the place of all the terms of the contract, but that the acceptance is tO' establish the broad fact of the relation of vendor and vendee.' The act or acts relied on as constituting a receipt and acceptance, to satisfy the statute, must be such, as definitely establish that the relation of vendor and vendee exists. Eemlck v- Sandford, 120 Mass. 309." 1 BowEN and BAGai.LLAT, L.JJ,, delivered concurring opinions. § 2.] ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 227 clusively established that by the terms of the verbal contract of sale, the goods were to be examined bj' the defendants, before closing the transaction by giving their notes for the price, and that such examina- tion was to be made at the store of the defendants. This was one of the conditions of the sale, and its consummation necessarily depended upon the result of such examination. The receipt of the goods by the defendants at their store under this arrangement was clearlj' not an acceptance of them. The}- received them for the express purpose of seeing whether they would accept them or not. Some further act on their part was necessary to constitute an acceptance which would give validity to the contract of purchase. It was requisite either that they should have made the examination and pronounced it satisfactory-, or that they should have dealt with the goods, or done some unequivocal act evincing their intention to accept them unconditionall}- as their own property, in order to supply the place of a written contract of purchase. Not only is the case totallj- barren of any pi'oof of such an acceptance, but the uncontroverted evidence is, that after proceeding with the ex- amination the defendants refused to accept the goods, and returned them to the plaintiffs. Evidence was introduced to the effect that the goods were in fact such as represented, and that thej' corresponded with the samples ex- hibited at the time of the sale, and upon these points there was a con- flict in the testimony. This evidence would have been material had there been a written contract of purchase, and the question had been whether the plaintiffs had performed their contract, and whether, conse- quently, the defendants ought to have accepted and paid for the goods. But it was not material upon the issue whether there had been in fact an acceptance which would supply the place of a written contract. Without such an actual acceptance, no valid contract was established. Performance by the plaintiffs of their part of the oral contract was not sufficient to give validity to it. All these points are covered bj' the de- cision of the Commission of Appeals when this case was before it on the former appeal (51 N. Y. 211), and are sustained in Caulkins v. Hellman (47 Id. 449, and cases therein cited). It is argued that it is unreasonable to suppose that the object of send- ing the goods to the defendants' store was merely to enable them to decide whether they would purchase them or not. It perhaps was not the intention of the plaintiffs that the defendants should have the option of rejecting the goods unless some just reason for so doing should be developed by the examination ; but nevertheless, so long as the plain- tiffs reposed upon a verbal contract, void under the statute, they exposed themselves even to an unjust refusal to accept. The onlj- mode of se- curing themselves against such a result was to obtain a written memo- randum of the purchase. The injustice of the refusal, if it were unjust, could not supplj' the place of an acceptance or of a written contract. When goods are sold subject to examination, and there is no written contract, Blackburn, in his work on Sales (pp. 22, 23), lays down the 228 STONE V. BROWNING. [CHAP. IV, rule as follows : "So long as the buyer can, without self-contradiction, declare that the goods are not to be taken in fulfilnaent of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuse the goods, assign- ing grounds false or frivolous, or assigning no reasons at all, it is still clear that he does not accept the goods, and the question is not whether he ought to accept, but whether he has accepted them.'' The point mainly relied upon in the prevailing opinion in the court below, and upon the argument here, is that, under the charge, the jury must be regarded as having found that the sale was absolute and not conditional, and, was subject onlj' to the right of reclamation, affecting the price to be paid, if, upon examination of the goods, there should be found a less number of yards than the invoice specified, or that proper allowance had not been made, according to the usages of trade, for holes that might be found in the cloths, and that they must also be deemed to have found that the cloths were both delivered to and accepted bj- the defendants, under such a form of contract, and that these findings obvi- ate the objections founded upon the statute of frauds. Without discussing the soundness of this conclusion, as to which there appears to have been a difference of opinion at the General Term, we are satisfied, after a full examination of the testimony, that the evidence was not such as to justify the submission to the jurj- of the several propositions of fact which thej' are thus supposed to have passed upon and found in favor of the plaintiffs. The facts, as testified to by the plaintiffs themselves, were that the sixty-five cases of kerseys in con- troversy were, at the time of the sale, in the basement of plaintiffs' store, nailed up, and in plaintiffs' wai"ehouse, with the exception ot three or four, which were upstairs and open. That the purchase was made by Mr. Button, one of the defendants, who made a partial exam- ination of the goods in these open cases. They were exhibited to him by Mr. Bliss, one of the plaintiffs. There was some conversation as to the quality of goods and the price. Button proposed to purchase them on a credit of four months ; thereupon Bliss consulted his partner, Stone ; after further conversation. Stone said to Button, " I will sell to you on four months, provided you will examine the goods and give me your notes immediately." Button said he could not examine them before Wednesday of the following week. Then Mr. Stone said, "I want you to know what you are doing. If you buy this lot of goods, I want you to give them a thorough examination," and afterwards said that he did not want any after-claps about the sale ; he wanted it to be a finality. Bliss proposed to Button to go downstairs and look at the goods, but he replied that he could not examine them there ; that it was not a fit place. Fay, another of the plaintiffs, being present, said that looking at one case was as good as looking at fortj'. Bliss, being asked whether both parties acted on the belief that the sample fairly represented the goods, said: "I did not wish him to act upon that belief; I wished him, if he had any doubt about it, to go and examine § 2.] ACCEPTANCE AND EECEIPT : STATUTE OF FEAUDS. 229 them." " Q. Then the action taken was upon your statement that the balance corresponded with the sample? A. No, sir, that was the very point I wished to avoid." The plaintiffs agree substantially in this 'Statement of the transaction, and do not claim that anything was said limiting the proposed examination to the mere purpose of a measurement of the goods. Mr. Stone testifies that he understood that the examina- tion was to be at the store of the defendants, and assented to the goods being examined there, and also that the examination was to be for the purpose of determining the quantitj' of the goods and whether they came up to the representations. Fay confirms this, and the plaintiffs, in their letter to defendants, dated April 3, 1864, in reply to the defend- ants' letter of the same date, rejecting the goods, saj' : " We have onlj' to repeat that unless you can show that the light blue kerseys sold to j'ou on the 11th ult. are not as good as the four sample cases fairly ex- hibited, and examined by your Mr. Button, we must consider the sale binding on you," etc. This evidence, proceeding from the plaintiffs themselves, clearly establishes that the goods were sold subject to ex- amination, and necessarily implies a right of rejection in case they should not prove to be of the quality represented, or indicated by the samples exhibited. This right was conceded by the plaintiffs by their letter of the 3d of April, and by the testimony of two of them on the trial, and there is no evidence in the case which would have warranted the submission to the jury of the question whether the sale and delivery were absolute and unconditional, and the examination merelj' related to measurement. It was attempted to prove bj- Mr. Bliss, one of the plain- tiffs, a custom that when goods are delivered to be examined, the pur- pose of the examination is merely to correct the invoices in respect to measurement ; but assuming the evidence to be admissible, it failed to establish anj' such custom, and the evidence of the other plaintiffs showed clearly that the purpose of the examination was not thus limited. Even Mr. Bliss, who gives his understanding of what the purpose of the examination was to be, does not testify that anj'thing was said confining it to any special purpose. The controversy between the parties appears to have been, not as to the right of the defendants to reject the goods if reall3- defective, but as to the fact whether thej' were so or not. This fact, as has already been shown, was not material to the determination of the question whether there was an actnal acceptance. The fact that the goods were rejected and i-eturned is established bej'ond controversy. Ordinarily the question of acceptance is one of fact. But when the nncontroverted facts are such as cannot afford any ground for finding an acceptance, or where, though the court might admit that there was a scintilla of evidence tending to show an acceptance, thej^ would still feel bound to set aside a verdict finding an acceptance on that evidence, it is the dutj- of the court to withhold the case from the jury. Brown, Stat. Frauds, § 321 ; Denny v. Williams, 5 Allen, 5 ; Howard v. Borden, 13 Id. 299. We think that this case falls within the rule. 230 COEBETT V. WOLFORD. [CHAP. IV. The judgment should be reversed and a new trial ordered, with costs to abide the event. All concur ; Allen, J., absent. Judgment reversed. CORBETT V. WOLFORD et al. 35 At. (Md.) 1088. 1896. Betak, J. Corbett contracted to purchase from the appellees 20 tons of hay at the price of $8 a ton. The hay was contained in several ricks in an open field which belonged to Wolford and his wife, and was occupied by the Ripples as their tenants. The contract was verbal. . . . Nothing was given as earnest to bind the bargain, or in part payment, and no note or memorandum in writing was made. Corbett was sued by the appellees for the price of the haj-, and judgment was rendered against him. The evidence tended to prove that, shortly after the contract was made, Corbett ordered men who were in his service to go to the place where the ha}' was standing in ricks, and pack it ; and that one of his men took some of the haj- from" the top of one of the ricks, and trimmed down the sides ; and that, about twenty minutes afterwards, all the hay was accidentally destroyed by fire. The question at the trial was whether the title to the hay had vested in Corbett before it was burned up. On tlie prayer of the appellees, the court granted the following in- struction : " The jury are instructed that if they believe, from the evi- dence, that the defendant bought the haj' in controversj', and directed his hands or employees to bale the same, and said hands took possession of said hay, and by topping the same and cutting down the sides thereof prepared the same for such baling, and that such hay was afterwards destroyed by fire, then the jury are instructed that such acts are evi- dence of the receipt and acceptance by the defendant of the hay in con- troversy, and their verdict must be for the plaintiffs." The facts stated, if there had been no others in evidence, would have justified the jury in finding a verdict for the plaintiffs. We do not desire to be unnecessarily critical in considering the form of the instruc- tion. It is well, however, to say that this court has on several occasions disapproved of this method of putting a case before the jurj'. . . . We would not, nevertheless, be willing to reverse the judgment if there were not a more serious objection to this instruction. We will state it. Corbett, in his testimony, says : " The hay was to have been deliv- ered by the plaintiffs, after I had packed it, to Charlton station, or at the canal landing, — which place I was to determine after it had been packed, — and then the money was to be paid." This testimony was entirely excluded from the consideration of the jury by the court's § 2.] ACCEPTANCE AND KECEIPT : STATUTE OF FKAUDS. 231 instruction. It tended to show that, by the terms of the bargain, Corbett was not to accept the hay until conveyed b}' the plaintiffs " to Charlton station, or the canal landing ; " and, if believed by the jury, it was competent for them to find that what occurred at the hay rick was merely- in preparation for the packing, which Corbett was to do, in order that the plaintiflFs might deliver it to him at the appointed place. Whatever might be the belief of the jur^- on this point, they were required to find for the plaintiffs provided they believed the facts hypothetically stated in the instruction. "When it is stated, in a pra^-er, that the plaintiff is entitled to recover, provided the jury find certain enumerated facts, it has been uniformlj' held that the effect of the prayer is to withdraw from the jur3' all other facts than those mentioned. It was so declared in Riggin v. Insurance Co., 7 Har. & J. 280, and also in Bo'sley v. Insurance Go., 3 Gill & J. 462 ; Adams v. Capron, 21 Md. 205 ; Haines v. Pearce, 41 Md. 234, and in every other case where the question has been raised. If the jury would be justified in drawing from the facts excluded from the prayer a conclusion different from that which the prayer requires them to find, it is a manifest corollary, from the ruling just mentioned, that it would be error to grant such a prayer. The cases just cited maintain this position. It was held in Belt v. Marriott, 9 Gill, 335, that, " in order to satisfy the statute [of frauds], there must be a delivery of the goods, with intent to vest the right of possession in the vendee, and there must be an actual acceptance by the • latter, with intent to take possession as owner." And this doctrine is full3' sustained by the authorities. The facts excluded from the instruc- tion tended to the inference that the acceptance of the hay by Corbett was to take place when it was delivered at Charlton station or at the canal landing. Of course, the jury may have refused to draw this infer- ence, and the}' may have concluded that the other testimony in the cause proved that the purpose to deliver the haj- at one of the places named had been changed, or they maj- have refused to believe the testi- mony altogether. But it was certainly their province to consider it, and to form their opinion upon it. Their verdict ought to be founded on all the facts in evidence which bear on the matter in controversy, and they must be submitted to their finding unless they are admitted to be true. For error in withdrawing evidence from them, the judgment must be reversed and a new trial ordered. Reversed, and new trial. HOLMES v. HOSKINS. 9 Exchequer, 753. 1854. Action for the price of cattle sold by the plaintiff to the defendant Plea, never indebted. 232 HOLMES V. HOSKINS. [CHAP. IV. At the trial before Maktin, B., at the last Taunton assizes, it appeared that the defendant, who was a butcher, having seen fifteen head of cattle in the plaintiff's field, verbally agreed with him on a Saturday to buj' the lot for £190. After the bargain was concluded, the defendant felt in his pocket for his check-book in order to pay for the cattle ; but finding that he had not got it, he told the plaintiff to call at his house in the evening and he would paj' him. It was then arranged that the cattle should remain in the plaintiff's field until the following Tuesday-, as it was inconvenient for the defendant to remove them before that time to his farm, which was ten miles distant. The plaintiff called at the defendant's house for the money, but the defendant was from home. On the same evening the defendant sent his men to the plaintiff to request that he would allow them to get some of the plaintiff's haj' to feed the cattle with until the defendant could remove them. The plaintifi" consented, and the men took the hay from the ricks and so fed the cattle until the following Wednesday. The defendant, on being afterwards asked for the mone}', said that he had offered too much for the cattle, and would not have them. It was objected on behalf of the defendant that there was no evidence of an acceptance and receipt of the cattle to satisfj- the requirements of the 17th section of the statute of frauds, 29 Car. 2, c. 3. The learned judge was of that opinion and nonsuited the plaintiff, reserving leave to him to move to enter a verdict for £190 if the court should be of opinion that the evidence was suflScient. Kingldke, Serjt., now moved accordinglj'. Pollock, C. B. I am of opinion that there was no evidence to go to the jur}' of an acceptance and receipt of the cattle as required bj- the statute of frauds. The words of the statute are very plain, though no doubt there has been a considerable fluctuation of opinion on the sub- ject, and it is difficult to reconcile all the cases. This ma3' perhaps have arisen from a rule being laid down in one class of cases which is applicable to another class. There may be an acceptance and receipt of the goods although they remain in the possession of the vendor; for instance, if the vendee takes the goods and gives them to a porter, and as he is about to carry them away the vendee says to the vendor, " I would rather leave them here until to-morrow." In this case, however, there is no evidence of acceptance and receipt. Pakke, B. I am of opinion that there was no reasonable evidence to go to the jury of an acceptance and receipt of the cattle. In order to satisf}' the statute, there must be an acceptance and an actual or constructive delivery. Now in this case there was no actual delivery ; and therefore, to entitle the plaintiff to recover, there must be such a dealing with the cattle by the defendant as owner that the plaintiff would lose his lien. But it is clear that the plaintiff never meant to part with the cattle until the price was paid, and there is no ground for holding that the mere giving permission to feed the cattle changed the possession. In Tempest v. Fitzgerald, 3 B. & Aid. 680, which was an § 2.] ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 233 action for the price of a horse which had died after the time when it was sold by parol, and before it was delivered or paid for, the only evidence of acceptance and receipt was that, while the horse remained in the possession of the vendor, the purchaser made his servant gallop it, and gave directions about its future treatment, requesting that it might be kept by the vendor a week longer ; and the Court of King's Bench held that there was no acceptance of the horse within the mean- ing of the statute. In this case there has been no actual receipt, for the defendant never had the cattle ; and the only question is, whether the act of feeding the cattle with the plaintiff's assent is an exercise of such an act of ownership as to amount to an acceptance and construc- tive delivery. I think that it is not. In the case of Tempest v. Fitz- gerald the jury found that the defendant, by riding the horse and giving directions respecting its future treatment, exercised an act of ownership over it ; but the court held that there was no acceptance, since by the terms of the contract the defendant had no right of property in the horse until the price was paid, and therefore he could not exercise any right of ownership. My Brother Kinglake relied on Elmore v. Stone ; but that ease is very different from the present ; for there, when the vendor assented to the purchaser's request, there was an act of accept- ance bjr which the former lost his lien. Lord Mansfield, C. J., in delivering the judgment of the court saj's : " After the defendant had said that the horses must stand at livery, and the plaintiff had accepted the order, it made no difference whether they stood at livery at the vendor's stable, or whether they had been taken awa3' and put in some other stable. The plaintiff possessed them from that time, not as owner of the horses, but as any other livery- stable-keeper might have them to keep." In this case the plaintiff never lost his lien on the cattle ; for there is nothing to show that he evei: intended to deliver them up without being paid. Bule refused} s AFFORD ET AL. V. Mcdonough. 120 Mass. 290. 1875. Morton, J. This is an action of contract to recover the price of a quantity of leather, exceeding fifty dollars in value, alleged to have been sold by the plaintiffs to the defendant. There was no memoran- dum in writing of the contract, and the purchaser did not give anything in earnest to bind the bargain or in part payment. It appeared on the trial that the defendant, on May 17, 1872, went to the plaintiffs' store and agreed to purchase the leather at the price named, to be paid for by a satisfactory note. * The concurring opinions of Alderson, and Maktin, B.B., have been omitted. 234 SAFFORD V. MCDONOUGH. [CHAP. IV. On the thirty-first day of the same month, he again went to the plaintiffs' store, examined the leatlier, had it weighed, marked with the initials of his name, and piled up by itself, to be taken awaj' by him upon giving a satisfactory note for the price, or the payment of the price in money, but not otherwise. He never complied with the terms of the agreement. The plaintiffs refused to allow him to take the leather from their store without such compliance, claiming a lien upon it for the price due. It remained in their store till November 9, 1872, when it was burned with the store. Upon this evidence the presiding Justice of the superior court ruled that the leather had not been so accepted and received by the defendant as to take the contract out of the statute of frauds, and the plaintiff excepted to such ruling. It should be kept in mind that the question is not whether, if a valid contract of sale upon the terms above named had been proved, the title in the property would have passed to the defendant so that it would be at his risk. In such a case, the title would pass to the purchaser unless there was some agreement to the contrary-, but the vendor would have a lien for the price, and could retain possession until its pa^-raent. Haskins v. Warren, 115 Mass. 514 ; Morse v. Sherman, 106 Mass. 430 ; Townsend v. Hargraves, 118 Mass. 325. But the question is whether the defendant had accepted and received the goods, so as to take the case out of the statute of frauds, and thus complete and make valid the oral contract relied on. Unless there was such acceptance and receipt, there was no valid contract by virtue of which the title' to the goods would pass to the defendant. To constitute this, there must be a deliverj' 'by the seller, and some unequivocal acts of ownership or control of the goods on the part of the purchaser. Knight v. Mann, 118 Mass. 143, and cases cited. In the case at bar, there was no actual acceptance and receipt of the goods bj' the defendant. They were never in his possession or control, but remained in the possession and control of the plaintiffs, who refused / to allow him to take them, claiming a lien for the price. If they bad and asserted a lien as A'endors, this is inconsistent with the deliverj- of possession and control, necessary to constitute an acceptance and receipt by the vendee. In Baldey v. Parker, 2 B. & C. 37, 44, Hol- royd, J., says : " Upon a sale of specific goods for a specific price, bj' parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore, as long ^ as the seller preserves his control over the goods, so as to retain his lien, he prevents tlie vendee from accepting and receiving them as his own within the meaning of the statute." Benjamin on Sales (Am. ed.), 151, and cases cited; Browne on St. of Frauds, § 317. It is true there may be cases in which the goods remain in the pos- session of the vendor, and yet may have been accepted and received by the vendee. But in such cases the vendor holds possession of the goods, not by virtue of his lien as vendor, but under some new contract by which the relations of the parties are changed. Cusack v. Robinson, f 2.] ACCEPTANCE AND RECEIPT: STATUTE OF FKAUDS. 235 1 B. & S. 299, 308 ; Castle v. Sworder, 6 H. & N. 828 ; Dodsley v. Varley, 12 A. & E. 632. In the case at bar, the vendors refused to permit the vendee to take possession or control of the goods, but claimed and asserted their lien as vendors for the price. We are therefore of opinion that the ruling of the superior court was correct. Exceptions overruled. ED AN V. DUDFIELD. 1 Q. B. 302 : 5 Jurist, 317. 1841. Lord Dbnman, C. J., delivered the judgment of the court. After stating the ground of motion to be that there was no memorandum in writing, nor, as the defendant alleged, any acceptance, his Lordship proceeded as follows : — The facts were that the defendant had acted as agent for the plain- tiff on several occasions in relation to certain merchandises imported from France, and that the goods in question were lying at the custom- house in the defendant's name, to be sold by him for the plaintiff. The plaintiff was considerably indebted to the defendant, who was pressing that a sale should be made that he might pay himself out of the pro- ceeds, and an authority to sell, dated 6th April, was given by the plaintiff to the defendant, and produced in the course of the plaintiff's evidence. But a witness stated that at the end of the same month he had called on the defendant on behalf of the plaintiff, and that in that conversation the defendant finallj' agreed to buj- these goods himself 15 per cent, under the cost price. The defendant subsequently sold the goods and rendered a debtor and creditor account to the plaintiff, in which credit was given to the plaintiff for the goods bj' an item in these words : " Goods [describing them] sold for £120." The action was brought in effect for that sum, and the verdict passed accordingly. ' The plaintiff argued that this parol contract of sale was binding within the statute, because the defendant had accepted the goods in selling them and keeping the money. This was denied ; and it was said that the statute, requiring acceptance and actual receipt of the whole or part where there was no written memorandum, could not be satisfied in the case of one at the time of the bargain possessed of the goods, inasmuch as that circumstance prevents them from being delivered to him or actually received by him in virtue of the sale. At all events it was contended that no act could be relied on to prove acceptance and receipt but what was inconsistent with the purpose of I the prior possession ; whereas in this case all that was done, the sale and the account rendered, were perfectly consistent with the authority 236 SNIDEE V. THKALL. fcHAP. IV. previously' given and the defendant's character of agent. We have no doubt that one person in possession of another's goods -may become the purchaser of them by parol, and may do subsequent acts without any writing between the parties which amount to acceptance ; and the effect of such acts, necessarily to be proved by parol evidence, must be submitted to the jur^'. "We entertain this opinion after fully consider- ing all the cases cited, especially Elmore v. Stone, 1 Taunt. 458 ; Nicholle v. Plume, 1 C. & P. 272 ; Maberley v. Sheppard, 10 Bing. 99 ; agreeing that such evidence must be unequivocal, but thinking the question, whether it is so or not under all the circumstances, fact for the jur}', not matter of law for the court. It was indeed contended that parol evidence was inadmissible to explain the character of the acts relied on to prove acceptance : for that to admit it would let in all the inconvenience which the statute was intended to prevent. No case, however, warrants the holding the rule so strict : nor does convenience require it ; for where there is the foundation of an act done to build upon, the admission of declarations- to explain that act lets in only that unavoidable degree of uncertainty to which all transactions to be proved by ordinary parol evidence are liable. Upon this principle stat. 9 G. 4, c. 14, § 1, on a very anal- ogous matter, has been construed in the Court of Exchequer. For whilst in Willis v. Newham, 3 Y. & J. 518, it was held that part pay- ment, to take a case out of the statute of limitations, could not be proved by a verbal acknowledgment onlj-, it was held in Waters v. Tompkins, 2 C. M. & R. 723, s. c. Tyrwh. & Gr. 137, that, where a sum had been paid without any statement on what account, declara- tions were admissible to explain on what account. Therefore a non- suit cannot be entered. . . . Rule discharged. SNIDER V. THRALL. 56 Wis. 674. 1883. Cole, C. J. We think there is no sufficient reason for holding that evidence of the sale of the house by the defendant to the plaintiff upon the chattel mortgage was not admissible under the answer. The answer, in fact, sets up, both as a defence and by way of counterclaim, the sale of the house for the agreed price of $140, which the plaintiff was to pay in work and materials on demand. What more was it necessary to state in the answer to admit all evidence in regard to the sale of the house? This house seems to have been treated by the owners of the realty as personal property. Boyd gave a chattel mort- gage upon it to defendant when he owned the lot on which it was situ- ated. He testified that he sold the premises to Perkins, subject to this § 2.] ACCEPTANCE AND EECEIPT : STATUTE OF FRAUDS. 237 mortgage. The plaintiflF bought the premises of Perkins, and sa3-s that he purchased this house of him and entered into possession thereof. In this statement, that he purchased the house of Perkins, he is con- tradicted bj' other witnesses. The county court found as a fact that the defendant, on the 9th of June, 1873, sold and delivered to the plaintiff the house for the sum of $140, which sum the plaintiff agreed to pay in cash, and in work, ser- vices, and materials, upon demand. This finding is amply sustained by the evidence. But the learned counsel for the plaintiff insists that this sale of the house was void, because no note or memorandum of the contract in writing was made and subscribed by the parties to be charged, so as to take the case out of the statute of frauds. It appears that at the time of this sale the plaintiff was in possession of the house and premises. The court finds that the plaintiff went into possession of the house under the sale, and has occupied the same ever since. If the plaintiff did take possession of the house under the sale made by defendant, as found by the court, this would meet the conditions of the statute. The transaction then would amount to a delivery of the house by the vendor, or, at all events, it would be all the delivery- that could be made when the nature of the property was considered. It seems to us it would be a complete and perfect sale and deliver3' of the house, so that thereafter the title would be in the plaintiff. Now, does it make any difference, as affecting the validity of the contract, that the plaintiff had been in possession prior to, or that he was in possession at, the time the chattel mortgage was foreclosed? We cannot see that it should change the result. Certainly, if the plaintiff had removed from the house when the mortgage was foreclosed, had delivered pos- session to the defendant, and then had purchased the house and gone into possession, there could be no doubt that these acts would take the case out of the statute. Now, what was done really amounted to this, as we understand the facts. The law surely did not require, under the circumstances, that the plaintiff should go though the idle ceremony of removing the house, delivering up possession to the defendant, and then going back into possession under the sale in order to make the contract valid. The law is founded in reason and common sense, and requires the perform- ance of no such useless acts to make a sale valid. A person can sell his property to his bailee and make a good delivery thereof without actually taking the property into his own possession and then returning it to the possession of the vendee. The question in the case would seem to be. Did the plaintiff really purchase the house on the mort- gage sale and go into the possession of the same as the owner under such sale? If he did, as found by the court, the contract was not within the statute. The court also found that there was an agreement between the parties that the plaintiff should pay for the house in money, work, and materials as demanded ; and that whatever work had been done by plaintiff, and all monej' paid and materials furnished by him, 238 DORSEY V. PIKE. [CHAP. lY. had been applied according to the agreement at the time of sale. It cannot be denied that there is evidence to sustain these findings. It follows from these views that the judgment of the county court, must be affirmed. DOESEY V. PIKE. 50 Hun (N. Y.), 534. 1889. Beadlet, J. The action was brought to recover the price of an engine, boiler and pump, with appendages, alleged to have been sold and delivered by the plaintiff to the defendant and to have been pur- chased by her. The latter denied the sale and purchase. It appears that the defendant was the owner of a stone quarry, in which she was engaged in quarrying stone for market, and that early in July, 1886, James B. Pike, the husband of the defendant, rented of the plaintiff this apparatus to use in working the quarry, and it was put in use there for drilling and pumping. The plaintiff claimed, and gave evi- dence tending to prove, that in the forepart of the following August, an agreement was made between him and the husband, by which the plaintiff agreed to sell and he agreed to purchase, at the price of $250, the apparatus to use in the quarr3^ This is contradicted b^' evidence on the part of the defendant. . . . The alleged agreement of sale was evidenced by no writing, and no payment was made of anj' part of the purchase price. . . There was no act of delivery and acceptance at the time the alleged contract was made. But the property was then at the quarry under an arrangement with the husband by which the plain- tiff had rented it for use there. And assuming that the husband was such agent, and rented it for the defendant, the property was then in her possession as lessee. Upon the subject of delivery and acceptance, the trial court charged the jury that the husband then had the posses- sion of the engine, either in his own right or as agent of his wife ; and that if it was then understood and agreed between the parties that there was or should be a sale, " that sale was a valid sale, and the only question remaining for you to determine is who the sale was made to ; " and that " if he had the entire possession, of course he could not get any more possession, and there was no necessity of any writing, no necessity of any payment or necessity for any further delivery.'' The view of the court evidently was that no act further than the making of the oral agreement of sale and purchase was es'sential to its validity and to render the contract effectual, if the property was then in the possession of the party in whose behalf it was made as purchaser. The defendant's counsel took exception to the proposition so charged. . . . Assuming that the machine was in the possession of the defendant, at the time the agreement to purchase was made, and that the husband, as her agent. § 2.] ACCEPTANCE AND EEOEIPT : STATUTE OF FRAUDS. 239 made it, those facts alone were not sufficient to give validity to the contract. To hold otherwise would have the effect to render the mere words of the parties to such a contract effectual, and the purpose of the statute would be defeated. The then possession was in no manner produced bj' or derived from such contract, but was lawfully taken and held under another and independent arrangement between the parties ; 1 and until the purchase was evidenced by some act of acceptance under or in pursuance of the agreement to buy, no valid sale would be accomplished. This is clearly the expressed import and purpose of the statute ; and such is the unbroken current of authoritj' as to its effect. The mere fact that the propert}' was in possession of the defendant at the time of making the contract furnished no evidence of acceptance in * its support. Edan v. Dudfield, 1 Q. B. (1 Adol. & Ell. n. s.) 302 ; Lilly- white V. Devereux, 15 M. & W. 285 ; In re Hoover, 33 Hun, 553 ; Benjamin on Sales (Corbin), § 173. But there must be some act or conduct on the part of the buyer, in respect to the property, which manifests an intention to accept it pursuant to or in performance of the contract of sale and purchase, which the parties have sought to make. ... This case was not entirely without evidence upon the question. Thei'e was evidence tending to prove that some use was made of the machine at the quarry, not only after the alleged contract of sale was made, but after Mr. Pike had notified the plaintiff that it was subject to the order of the latter, and would be returned to him at such place in Rochester as he might designate. Tbis notice was given two weeks after the alleged purchase, and apparently- indicated a purpose to termi- nate the agreement under which the apparatus had been taken ; and it in terms imported no intention to accept or retain it under the contract of sale ; and whether any action on the part of the defendant's agent (assuming her husband was such) in the control and use of the machine after such verbal agreement was made, was characterized by his intent to accept it in observance and execution of such contract, was a ques- tion for the jury ; and to enable them to reach such conclusion, and thus give validitj' to the contract as one of sale, the fact must fairly have the support of evidence. We do not here intend to express any view upon the weight of the evidence on that subject ; but, so far as related to the use made of the apparatus after the plaintiff was so noti- fied of the purpose to terminate the arrangement for its service and return the propert}' to him, there was some evidence on the part of the defendant, to the effect that such use was applied to pumping water from a place mentioned, in order to remove a pipe connected with it, and with a view only to take out and remove the pump. This may have been consistent with no intent to accept the property as a purchaser ; but, in view of all tlie evidence upon that subject, we think the question was one of fact for the jury. The suggestion of the plaintiff's counsel, that the question raised by the exception before mentioned was obviated bj' other portions of the 240 SIMMONDS V. HDMBLE. [OHAP. IT. charge of the court, does not seem to be supported. The part of the charge in question is not qualified, necessarily or in fact, bj' any in- struction given to the jur^'. So far as appears, they were permitted to understand that the fact of possession by the defendant of the property at the time of making the contract by her agent (if so made), was sufficient to render the contract of sale valid. "While it is true that, in view of such possession, nothing further was required of the plaintiff by •"^waj' of delivery of the property, the matter of acceptance requisite to the validity of the contract was dependent wholly upon the voluntary act of the other party to such contract. It is deemed unnecessarj-, for the purposes of another trial, to express consideration of any other question presented on this review. The judgment and order should be reversed, and a new trial granted, costs to abide the event.^ SIMMONDS V. HUMBLE. 13 C. B. N. 8. 258. 1862. This was an action for the breach of a contract for the sale of a quantity of hops. The defendants traversed the making of the con- tract. The case was tried before Erle, C. J., at the sittings at Guildhall after last term, when the following facts appeared in evidence : The plaintiff and the defendants were respectively hop-merchants. In Janu- ary', 1862, the defendants agreed to buy a quantity of hops belonging to the plaintiff. The contract was made b}- one Peacock, who was the salesman of certain persons trading under the name of the Hop Plant- ers' Joint Stock Company, who were the factors of the plaintiff. (The part of the case relating to a memorandum is omitted.) It was further contended on the part of the plaintiff that there had been a sufficient acceptance of the hops to take the case out of the statute. As to this, the evidence was as follows : The usual course upon a sale of hops is for the parties to meet to ascertain the weight and to compare the samples with the bulk before the prompt-day. And here the parties attended bj' their respective agents for that pur- pose, and weighed and compared all the pockets, and agreed upon certain allowances to be made as to certain of them which were objected to. Nothing further was done. But one of the plaintiff's witnesses stated that after the weighing and comparing no objection could bj' the usage of the trade be allowed. 1 This ease went to the general term a second time, where the judgment in favor of the plaintiff was affirmed ; the court holding that the evidence given on the second trial of the use made by defendant's husband of the machine, was sufficient to sustain the verdict of the jury for the plaintiff. 32 N. Y. State R., 258. 1890. § 2.] ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 241 His lordship left it to the jury to say whether or not there had been an acceptance of the hops under the contract. Thej' found in the affirmative, and accordingly returned a verdict for the plaintiff, damages £851 9s. U. Hawkins, Q. C, now moved to enter a verdict for the defendants or a nonsuit, or for a new trial. Williams, J. It appears to me that it is unnecessarj' to consider the first point made bj' Mr. Hawkins ; because whether there was or was not a sufficient note or memorandum of the contract to satisfy the statute is quite immaterial if there was a sufficient acceptance. As to the second point, I have felt some difflcultj' whether I ought to express my opinion or to wait to hear what Tny lord says. He however thinks the point was not reserved, and therefore it resolves itself into a ques- tion of misdirection. Now, looking at the facts and at the way the matter was presented to the jury, I am clearlj' of opinion that there was no misdirection. The vendor employed an agent to conduct the sale, who happened to be the warehouseman of the hops. No point appears to have been made as to whether there was a sufficient receipt. The result is, that as soon as the sale was perfected the warehouseman began to hold the hops for the buyer. As to the acceptance, the ques- tion is whether there was any evidence upon which the jury might properly be directed to find that there had been a sufficient acceptance. I think there was. After the making of the contract there was not only a verification of the bulk b^^ comparison with the sample, but a weighing and approval by the agents of both parties. Add to this the evidence of the witness who stated that he never knew of an instance of a contract having been thrown up after this ceremony had been gone through. I am of opinion that there is no ground whatever for dis- turbing the verdict. Byles, J. I am of the same opinion. The 17th section of the statute of frauds requires in the case of a verbal contract, which we must for this purpose assume this contract to have been, that the buyer should have accepted the goods and actually received the same. As to acceptance, the hops were compared with the samples and weighed, and the allowances settled on certain of the pockets which were objected to, deductions from the price to be paid. I observe also that there was evidence that, by the usage of the trade, after the hops have been weighed and approved objections are no longer heard. It is clear, therefore, that there was an acceptance. Then the statute requires that the goods shall be actually received. Now here was a verbal con- tract made b^' the bailee of the hops. The moment that contract was complete the bailee became the bailee of the buyer. No objection, therefore, could be taken to the want of a sufficient receipt. The jury have found upon legal evidence, independently of the written contract, that the buyers accepted the hops and actualh' received the same. Keating, J., and Erle, C. J., concurring. Hule refused. 16 242 BENTNALL V. BUEN. ^CHAP. IV, BENTNALL v. BURN. 3 B. & C. 423. 1824. Assumpsit for goods bargained and sold and goods sold and delivered by Dj'er and the bankrupts before their bankruptcj'. This was an action brought to recover £13 14s., the price of a hogshead of Sicilian wine sold to the defendant by the bankrupts, they being copartners with the other plaintiff, Dyer, who resided in Sicily. At the trial be- fore Abbott, C. J., at the London sittings after last Trinity term, it appeared that the bankrupts had, on the 15th of Februarj-, 1822, sold, in the name of and on account of the firm, to the defendant, a hogshead of Sicilian wine, then lying in the London docks, at the price of £13 14s., and at the same tijiie a delivery order and invoice were made out and sent to the defendant, signed by the firm. But there was no contract in writing. On the 5th of June, the defendant, on being applied to for payment, said that the former order had been lost, and that the wine had not been transferred to him in proper time, and he had consequently lost the sale of it ; that he had not been allowed to taste it. It was proved that a delivery order is given where the wine is intended to be speedily removed, and that the party receiving it may get the goods mentioned in the order upon producing it at the London docks and pay- ing the charges, which are always deducted from the price. Upon this evidence the Lord Chief Justice was of opinion that the acceptance of the delivery order by the vendee was not equivalent to an actual accept- ance of the goods within the meaning of the statute of frauds ; and he directed a nonsuit to be entered, with liberty to the j)laintiffs to move to enter a verdict for them for the price of the wine. Per Curiam. There could not have been anj* actual acceptance of the wine by the vendee until the dock company accepted the ' order for the delivery, and thereby assented to hold the wine as the agents of the vendee. They held it originally as the agents of the vendors, and as long as they continued so to hold it the propertv' was unchanged. It has been said that the London Dock Company were bound by law, when required to hold the goods on account of the vendee. That may be true, and they might render themselves liable to an action for refusing so to do ; but if they did wrongfully refuse to transfer the goods to the vendee, it is clear that there could not then be any actual acceptance of them by him until he actually took possession of them. Eule refused. § 2.] ACCEPTANCE AND KECEIPT : STATUTE OF FRAUDS. 243 FROSTBURG MINING CO. v. NEW ENGLAND GLASS CO. 9 Gushing (Mass.), 115. 1851. Fletcher, J. This is an action of assumpsit for goods sold and de- livered. Upon the trial it appeared by the testimony of Mr. Addison Child that he was the agent of plaintiffs, who did their business in Baltimore, Maryland; that about the 19th March, 1849, he received from the agent of the defendants, who do their business in Cambridge and Boston, a verbal order for a cargo of coal, to be shipped by the plaintiffs from Baltimore in a vessel drawing not more than ten feet of water, at a freight not over $2.25 a ton. This order the wiUiess for- warded to the agent of the plaintiffs in Baltimore ; and on the 14th April, 1849, the cargo was shipped on board a schooner which drew, when fuUj' loaded, nine feet and nine inches only. By the bill of lading the cargo was consigned to Mr. Child the plain- tiffs' agent, or his order, for tiie defendants. This bill of lading was forwarded by the plaintiffs to Mr. Child, and received by him in due course of mail on the 16th or 17th of April, and specified the freight to be $2.45 a ton. On the day it was received it was indorsed by Child, and together with a bill of the cokl left by him in the counting-room of the defendants' agent, who was at that time absent. As soon as the defendants' agent returned, he sent back the bill of lading and refused to receive the coal. The said bill for the coal reduced the price twentj' cents a ton, so that the freight on the same, to be paid by the defendants, need not exceed their limits of $2.25 a ton. On the passage from Baltimore to Boston the vessel in which the coal was shipped foundered. After being raised and repaired, she arrived in Boston, when the plaintiffs, by their aforesaid agent, tendered the coal to the defendants, who refused to receive it. It was proved on the trial that, by the usage of the coal trade between Baltimore and Boston, when coal is ordered in Boston from Baltimore the delivery of it on board a vessel consigned to the person ordering it is a compliance with the order, and the coal is thereafter at the risk of tlie partj' ordering it. The defence is that, according to the provisions of the statute of frauds, this being a contract for the sale of goods, wares, and mer- chandise, for the price of fiftj- dollars or more, and there being no note or memorandum of the bargain in writing, the contract was not binding unless the purchaser shall accept and receive part of the goods, or give something in earnest to bind the bargain or in part payment. There was nothing given in earnest or in part payment. The only question is, whether the defendants did accept and receive the goods or anj' part of them. 244 FEOSTBUEG MINING CO, V. NEW ENGLAND GLASS 00. [CHAP. IV. That there was no actual manual taking or occupation of the coal by the defendants, is quite clear. As soon as the defendants' agent had knowledge that the bill of lad- ing was left at his counting-room, he forthwith sent it back to the plaintiffs' agent, and expressly refused to receive the coal. When the coal arrived and was tendered to defendants' agent he at once refused to receive it ; so that the defendants have promptly repelled all attempts to make an actual delivery of the coal to them, and have promptly re- fused to accept and receive the coal or any part of it. But the learned counsel for the plaintiffs maintains with much ability that it is not necessary- that there should be an actual manual taking or occupation of the coal, but that there may be a constructive accepting and receiving, and that the receiving on board the vessel was a suflScient accepting and receiving bj- the defendants. The proposition of the plaintiffs' counsel, that there maj' be a con- structive accepting and receiving, or a receiving without the actual manual occupation by the purchaser, seems to be well sustained by the authorities. Therefore in many cases it is made a question to the jary, whether the purchaser by his mode of acting or forbearing to act, or by some acquiescence, has not accepted the goods, though there has been no actual manual taking and occupation of them by him. The further proposition of the learned counsel for the plaintiffs, that the acceptance and receipt, to satisfy the statute of frauds, are not such as to preclude the purchaser from afterwards objecting to the quantity or quality of the goods, is certainly fully sustained by the case of Morton v. Tibbett, 15 Add. & Ellis (n. s.) 428. This case in this particular differs from manj' previous cases, which are all carefully referred to and commented on by the Chief Justice of the Queen's Bench in delivering the opinion of the court. In Morton v. Tibbett the receipt of the goods is considered as a sub- stitute for writing, leaving to the purchaser the same right to object that the contract has not been complied with which he would have if the contract had been in writing. The other and most material proposition on behalf of the plaintiffs, that the coal when delivered on board the vessel was accepted and re- ceived by the defendants witliin the provision of the statute, remains to be considered. That a deliver}' to a carrier is not sufficient to satisfy the statute, as a general proposition, is undoubtedly true, and is very properlj' ad- mitted b}" the plaintiffs' counsel. But it is maintained that the master of the vessel, under the particular circumstances of the case, was an agent to accept to satisf}' the statute, because in the first place he was a carrier nominated bj' the defendants. But the facts show that the verbal order of the defendants was merely to have the coal shipped by the plaintiffs from Baltimore in a vessel drawing not more than ten feet of water, at a freight not over $2.25 a ton. No reference was made to any particular vessel or master. Even this very general order § 2.] ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 245 was not complied with by tiie plaintiffs, as the freight was $2.45 a ton instead of $2.25, as was ordered. This departure in the price of the freight would perhaps of itself be suflScient to exempt the defendants from the liabilitj' to take and pay for the coal. But it is not necessary to put the case on that ground, or attach any importance to that point. The order as to a vessel was very general, referring to no particular ves- sel or master, specifying only the draught of water and price of freight. The master was merely a carrier, and the taking by him would in no sense and upon no principle be regarded as a receipt by the vendee. The case of Morton v. Tibbett was much stronger than the present. There the defendant himself sent a particular lighterman to receive the wheat. But the delivery to the lighterman was not considered to be a receipt by the vendee, though other acts of the vendee tending to show an acceptance by him were regarded as sufficient to justify a verdict for the plaintiff. So also in Bushel and others v. "Wheeler, which is reported in con- nection with Morton «. Tibbett, the vendee ordered the goods to be forwarded b}' a particular sloop. Yet the delivery on board the sloop was not regarded as a receipt by the vendee within the statute, though the subsequent acts and forbearing to act on the part of the vendee were held to be sufficient to go to the jury, to find an actual receipt by the vendee. It is therefore quite clear that a delivery on board the vessel in this case cannot be regarded as a receipt, within the provision of the stat- ute, by the vendee, on the ground that the defendant ordered the coal to be forwarded in that waj'. But it is further maintained for the plaintiff that the master of the vessel was an agent to accept within the statute, because the usage of trade made him such in the coal trade between Boston and Baltimore. The usage as shown was that when coal is ordered in Boston from Bal- timore the delivery of it on board a vessel consigned to the person ordering it is in compliance with the order, and the coal is thereafter at the risk of the party ordering it. It does not in terms appear whether or not this usage applies to mere verbal orders, which are invalid by the statute of frauds. Nor is it shown upon what ground this usage can be set up and maintained against established provisions and principles of law. Upon general principles of mercantile law, when a person accepts a written order and delivers goods on board a vessel according to the order, con- signed to the person ordering them in common form, they are then of course at the risk of the consignee. When orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading signed and forwarded, the seller is functus officio and can do nothing more, except so far as he may have a right of stoppage in transitu. It is unnecessary to consider how far there could be any usage affect- 246 ALLAED V. GEEASEET. [CHAP. IT. ing the rights of the parties in this case, as it is quite clear that the case is not within the usage set up and relied upon. The usage is said to be that, when coal ordered is delivered on board a vessel consigned to the part}- ordering it, that is a compliance with the order, and the coal is thereafter at the risk of the partj' ordering it. But in the present case the coal was not consigned to the party ordering it, but on the contrary- was consigned to the plaintiffs' own agent. By the bill of lading tlie coal was to be delivered to Addison Child or his assigns. But the bill of lading expressed that it was to be delivered to Addison Child for the New England Glass Companj' ; and when the bill of lading was received hy the consignee he indorsed it and offered it to the defendants' agent, which it is said was a sub- stantial compliance with the alleged custom. The supposed custom required the coal to be consigned to the defendants, but it was in fact consigned to the plaintiffs' agent. This, so far from being a substantial compliance with, was the widest possible departure from the custom. The bill of lading gave the defendants no right to or control over the coal, and when indorsed and offered to the defendants' agent was promptly rejected. There having therefore been no acceptance of the coal by the defend- ants to satisfy the statute of frauds, according to the provision of the report the plaintiffs must become nonsuit. Plaintiffs nonsuit. ALLARD V. GREASERT. 61 N. Y. 1. 1874. Action for the price of the following bill of hats and caps, as goods sold and delivered : — Of ease No. 361, half doz. child's Leghorn sylvans, at $11 per doz 3f5.50 Of case No. 312, one doz. harvest hats, at 4.50 Of case No. 371, half doz. Panama hats at 28.50 a doz. Of case No. 372, half doz. Panama hats at 36.00 Of case No. 326, one doz. palm leaf hats, at 2.50 Of case No. 324, one doz. palm leaf hats, at 3.00 Of case No. 329, one doz. white Glenwood, at 15.00 Of case No. 159, one doz. black Alpine, at 24.00 Of case No. 309, one doz. Leg. harvest, at 3.25 Defendants moved for a nonsuit because (1) "that the agreement under which the plaintiffs seek to recover is within the statute of frauds, and void ; (2) that the order for the goods constitutes one entire contract, and the plaintiffs have failed to fulfil, on their part, to deliver the harvest hats of the description ordered ; that, by reason of said § 2. J ACCEPTANCE AND RECEIPT: STATUTE OF FRAUDS. 247 failure, the defendants had a right to refuse to receive any of the goods sent." The court nonsuited plaintiffs on the last ground. Daniel Wood, for appellants. JBowen & Pitts, for respondents. Eael, C. The judge at the circuit regarded this as an entire con- tract of sale, and not severable ; and if he was right in this, he properly nonsuited the plaintiffs upon that ground. If it was an entire contract, within the meaning of the law, the plaintiffs could recover onlj' by showing entire performance, by a full delivery of all the articles pur- chased. But it is not necessarj-, in this case, to determine whether this was an entire or a severable contract, because the defendants also moved for a nonsuit upon the ground that the contract of sale was void under the statute of frauds. Although the judge did not place the non- suit upon this ground, it may be considered here. He nonsuited the plaintiffs, and even if he gave a wrong reason for it, and placed it upon the wrong ground, the nonsuit may be upheld upon any ground appear- ing in the case. Curtis v. Hubbard, 1 Hill, 336 ; Simar v. Canaday, 63 N. Y. 298 ; Deland v. Richardson, 4 Den. 95. Even if this were a severable contract so far as relates to the per- formance of the same, within the meaning of the statute of frauds it is an entire contract. The reasons for holding it to be such are clearly set forth in Baldey v. Parker, 2 B. & C. 41, and Story, Sales, § 241. This, within the meaning of the statute of frauds, is a contract for the sale of goods for the price of $50 or more, and as there was no note or memorandum or payment, the question to be determined is, whether the goods were accepted and received by the buyers so as to satisfy the statute. By the terms of the contract, the goods were to be delivered to the Merchants' Union Express, to be carried to the defendants, and they were so delivered. It is well settled that when there is a valid contract of sale, a delivery to a carrier, according to the terms of "^ the contract, vests the title to the property in the buyer. It was de- cided in Rodgers v. Phillips, 40 N. T. 519, that a delivery, according to the contract, to a general carrier, not designated or selected by the buj'er, does not constitute such a deliver}- and acceptance as to answer the statute of frauds. But it has been .held that when the goods have been accepted by the buj'er, so as to answer that portion of the statute which requires acceptance, a deliver}- to a carrier selected bj' the buyer will answer that portion of the statute which requires the buj-er to re- ceive. Cross V. O'Donnell, 44 N. Y. 661. So far as I can discover, it has never yet been decided in any case that is entitled to respect as \ authority, that a mere carrier designated by the buyer can both accept I and receive the goods so as to answer the statute. Benj. Sales, 124. The cases upon this subject are cited and commented upon, and the principles applicable to the question are so fullj' set forth in the two recent cases above referred to that no further citation of authorities or extended discussions at this time is important. It will be found by an examination of the authorities, that in most of the cases where a de- 248 BRAND V. FOCHT. [CHAP. IV. y livery to a carrier. has been held to satisfy the statute of frauds, there had been a prior acceptance of the goods by the buyer or his agent. A buyer may accept and receive through an agent express!}- or im- pliedly appointed for that purpose. There is every reason for holding that a designated carrier may receive for the buj'er, because he is ex- pressly authorized to receive, and the act of receiving is a mere formal act requiring the exercise of no discretion. But there is no reason for holding that the buyer in such case intended to clothe the carrier, of whose agents he may know nothing, with authority to accept the goods, so as to conclude him as to their quality', and bind him to take them as a compliance with a contract of which such agents can know nothing. This ease furnishes as good an illustration as any. The goods wer& boxed ; the carrier could know nothing about them ; and its agents had no right to unpack and handle them. Its sole duty and authority was to receive and transport them. In such a case, it would be quite I absurd to hold that the carrier had an implied autiiority from the bu3-er pto accept the goods for him. If the buyer does not accept in person, I he must do it through an authorized agent. Here it is not claimed that there was express authority conferred upon the carrier to accept, and the circumstances are not such that such authoritj- can be implied. Upon this last ground therefore the nonsuit was proper, and the judgment must be aflBrmed, with costs. All concur. BRAND V. FOCHT, et ai. 1 Abbott's N. Y. App. Decisions, 185. 1867. Action to recover a boat-load of coal. Plaintiff contracted orally with defendants, in March, 1863, for a boat-load of coal to be delivered in New York within two weeks, at $6.00 per ton. It did not arrive until May 8th, when defendants proposed to sell it to plaintiff at $6.50 per ton, and made out a bill therefor amounting to $174 and annexed it to the bill of lading for the coal, and sent the same by their clerk to the plaintiff. Plaintiff refusing to take the coal at that price, and insist- ing that he had purchased it at $6.00 per ton, detached the bill of lad- ing from the bill rendered, keeping the former and returning the latter to the clerk. The clerk demanded the bill of lading, and upon plain- tiff's refusal to surrender it, told him he could not have the coal, and the plaintiff brought this action. Benjamin T. Kissam, for the plaintiff. 2>. Hawley, for the defendants. By The Court. — Davies, C. J. This case presents no serious diffi- culty. The case of Shindler v. Houston, 1 N. Y. 261, is quite decisive. In this case, as in that, the contract of sale not being in writing, and § 2.] ACCEPTANCE AND EECEIPT : STATUTE OF FRAUDS. 249 as no part of the purchase money was paid by the vendee, the contract was void by the statute of frauds (2 R. S. 136, § 3, sbd. 3), unless the buyer " accepted and received " the whole or part of the propert3'. In the present case it is not asserted that any part of the purchase money was paid, or that there was any delivery of the property in whole or in part, except the alleged symbolical delivery, evidenced by the bill of lading which the plaintiff got into his possession. A delivery of the property, to satisfy the requirements of the statute, must be a delivery by the vendor, with the intention of vesting the i right of possession in the vendee, and there must be an actual accept- 1 ance by the latter, with the intent of taking possession as owner ; and | this rule can only be satisfied by something done subsequent to the sale, unequivocally indicating the mutual intentions of the parties. SMndler v. Houston, supra. Now, it is quite clear that these vendors never did, and never intended to, make any delivery of the coal in whole or in part, to this plaintiff, upon the contract of sale which he set up, and it is equally clear that thej' never delivered the bill of lading with any intent to complete and perfect the sale. Nay, it is very mani- fest that they never intended to part with the bill of lading, except upon the condition and understanding that the plaintiff would purchase the cargo of coal therein mentioned, at the rate of six dollars and fifty cents a ton. This he peremptorily declined to do, and detained the bill of lading, against the remonstrance of the defendants' agents. He clearly had no right so to detain it, and now setting it up as evidence of the delivery of the coal, under the contract of sale made in March, is a fraud upon the defendants. They never delivered it to the plaintiff with any such intent or for any such purpose, and it cannot now be permitted to the plaintiff that he should avail himself of this bill of lading, thus im- properly retained by him, to make a title in himself to this coal. The contract of sale not being in writing, as no part of the purchase money was paid, and as there was no delivery in whole or in part, of the property purchased, and no symbolical deliveiy, it follows that the plaintiff was never vested with the title to this coal. He never had possession of it, actual or construction ; he was not the owner, and cannot, therefore, maintain this action. On the contrary, the evidence conclusively established that the plaintiff was not the owner of the cargo of coal in controversy, and that he was not entitled to the pos- session thereof He never acquired any title thereto. This difHculty is fundamental with plaintiff's right of recovery, and it therefore becomes unnecessary to examine the other qufestion suggested. The nonsuit was properly granted, and the judgment should be affirmed.'^ 1 In Tempest v. Fitzgerald, 3 B. & Aid. 680 (1820), Abbott, C. J., said, " Now the word ' accepted ' imports not merely that there should be a delivery by the seller, but that each party should do something by which tlie bargain should be bound. I do not mean, however, to say that if the buyer were to take away the goods without the assent of the seller, that would not be sufficient to bind him." 250 SCOTT V. EASTERN COUNTIES RAILWAY CO. [CHAP, IV. SCOTT V. EASTERN COUNTIES RAILWAY CO. 12 M. & W. 33. 1843. At the trial before Lord Abinger, C. B., it appeared that in May, 1841, Mr. Braithwaite the defendants' agent went to the plaintiff's manufactory to order the lamps mentioned in the declaration, all of which were of a well-known and ordinary description, with the excep- tion of the triangular lamp, which was ver}' peculiar. The raoaler, the square, and the new side lamps were delivered with a separate invoice, and paid for in May, 1841 ; but the triangular lamp was not finished until the month of April, 1843, when the defendants, being dissatisfied with it, refused to receive or pay for it, whereupon the present action was brought. Under these circumstances, it was objected for the defendants that the contracts for these articles were distinct, and that the delivery and acceptance of the comthon lamps did not constitute a part acceptance within the statute of frauds, so as to bind the defend- ants to receive and pay for the triangular lamp which was afterwards manufactured. The learned judge, reserving leave to the defendants to move to enter a nonsuit, left the case to the jurj', who found for the plaintiff for £248, the amount claimed bj- him. JSVfe now moved accordingly either for a nonsuit or a new trial. Lord Abinger, C. B. I am of opinion that there ought to be no rule. I think the order for the readj'-made lamps, and that given for the triangular one, amounted but to one contract. Can it be said that, if a man goes to a tailor's shop and buj's a suit of clothes which are readj'-made, and at the same time orders another suit to be made for him, and the former are sent home to and accepted by him, he is n'ot bound to pay for the latter? The two statutes that have been referred to must be construed as incorporated together ; and then it is plain that, when an order for goods made and for others to be made forms one entire contract, acceptance of the former goods will take the case out of th,e statutes as regards the latter also. Aldbrson, B. I am of the same opinion. The transaction consti- tuted but one contract. There is no distinction between this case and that of a party who goes into a shop and buj's fift^' different articles at the same time. It is clear that such a person does not make fift3- different contracts. If a man enters into an entire agreement for goods made and for others to be made, his accepting part of the goods made is evidence of his having entered into the agreement. That is the true object and meaning of the statute. The articles bargained to be made are treated for this purpose as goods actually made, although thej- are not in existence at the time of the agreement. GuENEY, B., and Rolfe, B., concurred. Mule refused. § 2.] ACCEPTANCE AND EEGEIPT : STATUTE OF FRAUDS. 251 ELLIOTT V. THOMAS. 3 M. & W. 170. 1838. Assumpsit for goods sold aud delivered, and on an account stated. Plea, the general issue. At the trial befoi'e Pakke, B., the following appeared to be the facts of the case : On the 16th of November, 1835, the traveller of the plaintitf took from the defendants a verbal order for thirty-five bundles of common steel at 34s., and five bundles of cast steel at 48s., of a specified thickness. The traveller wrote down the order at the time in his own book, but no memorandum was made of it such as to satisfy the statute of frauds. On the 19th of December, the defendants wrote by post to the plaintiflf for three hundred weight more of cast steel. The steel ordered on the first occasion was forwarded by canal to the defendants at various times in the months of December and January. . . . The learned judge, having stated to the jury that the question in the cause was whether there had been an acceptance of the cast steel included in the verbal order of the 16th of November, so as to bind the defendants, left it to them to sa^', first, whether the steel supplied was fit for the edge-tool trade ; secondly', whether, if it was not, the defend- ants had agreed nevertheless to take it, and whether their letter of the 10th of February was not at all events a waiver of the objection as to its thickness ; and, thirdly', whether more of it was used than was necessar}' to make an experiment on its quality. The jur3' found that the steel was according to order, and that the defendants had used more of it than was necessary ; and gave a verdict for the plaintiff, damages £112 3s. 9d Cresswell obtained a rule nisi to reduce the damages to £24, or for a new trial, on the grounds that there was no acceptance of the cast steel included in the verbal order within the meaning of the statute of frauds ; and also that the verdict was against the evidence. Alexander aud Wightman now showed cause. Cresswell, contra. Parke, B. The first question in this case is one of some importance, but none of the court entertain any doubt upon it. It is whether there was a sufiicient part acceptance of the goods ordered in November to take the case out of the statute of frauds. That was a joint order for common steel and cast steel : the effect of such joint order, unless ex- plained, would be to make it one entire contract, since we must assume that one article would not have been furnished at one stipulated price unless the other had been agreed to be paid for at the other price. There was no explanation in this case, and therefore it must be taken to be a joint contract. Then one of the articles, the common steel, was certainly accepted ; and the question is, whether that acceptance is sufficient to take the case out of the statute as to the cast steel also, 252 ELLIOTT V. THOMAS. [CHAP. IV. v' and I am clearlj' of opinion that it is. In order to determin& the ques- tion the best coarse is to look at the words of the statute itself. Those words are [stating them] . The object of the statute was to prevent perjury in proving by parol a contract which was never made in fact : but none of its provisions effectual!}' exclude perjury ; the}' only intend to diminish the probability of its being committed. There may be perjury in swearing to the handwriting of the party charged, or in proving the agency of the party signing on his behalf ; neither does the acceptance of the goods, or the giving of earnest, operate as a certain prevention of perjury. The same observation applies to Lord Tenterden's Act, 9 Geo. 4, c. 14, under which part payment of principal or interest is sufficient to take a case out of its operation. Looking then at the words of the statute, and assuming that there is but one contract, I am of ^ opinion that there was an acceptance of part of the goods sold within the words, and also within the principle of the statute. I should have been of this opinion supposing that there were no decided case on the subject. Several cases have, however, been referred to on the part of the defendants for the purpose of proving that this was not a sufficient part acceptance. In Thompson v. Maceroni, 3 B. & Cr. 1, the court held that the acceptance of a small part of goods to the value of £144 made to order was not sufficient to enable the seller to recover against the buj'er for the price of the whole as for goods sold and delivered. The court there say in effect that there was no proof of actual delivery, nor such proof of actual acceptance as to take the case out of the statute of frauds ; i. e., the defendant had not accepted the whole sa as that a count for goods sold and delivered could be maintained for the whole. That case seems to me to have turned entirely on the form of the action. The plaintiff could not succeed unless there was a delivery of the whole, or at least an actual acceptance and receipt of the whole, so as to be equivalent to a delivery. In Hodgson v. Le Bret, 1 Camp. 233, Lord Ellenborough formed his opinion apparently on the ground of there having been separate contracts ; but that case is greatlj- shaken by Baldey v. Parker, 2 B. & Cr. 37, which shows that the contract in Hodgson V. Le Bret ought to have been considered as a joint one, and that the act of the purchaser's writing her name on the goods was no acceptance. Hodgson v. Le Bret therefore is no binding authority. No other case was cited in argument which bears upon the point ; and that of Price v. Lea, 1 B. & Cr. 156, referred to by my Brother Alder- son, is rather an authority the other way. Ilolroyd, J., there says: " There was not then one entire contract for both the articles, so as to make the acceptance of the one the acceptance of the whole." The inference therefore is (I do not say it is conclusive) that, if the con- tract had been entire, the acceptance of part would have been deemed sufficient to take the case out of the statute as to the whole. I am of opinion therefore that there was in this case a sufficient acceptance of ^ part to bring the case within the exception of this section of the statute of frauds ; and that the defendants may be made responsible upon this § 2.] ACCEPTANCE AND RECEIPT: STATUTE OF FRAUDS. 253 joint contract for two articles bj' the receipt of one, provided both the articles were furnished according to that contract, and were such as ought to have been delivered pursuant to it. That was to be proved bj- the plaintiff, and he did give evidence of it for the consideration of the jury ; but, as we are not altogether satisfied with the propriety of the verdict in that respect, it will be better for the parties to enter -into some compromise to avoid the necessity of a new trial, which we other- wise might be disposed to grant. Hule absolute by consent to reduce the damages to £24, the defendants undertaking to return all the steel complained of} ATHERTON v. NEWHALL. 123 Mass. 141. 1877. Contract to recover the price of 660 sides of sole leather. At the trial in the Superior Court, before Gardner, J., it appeared that the plaintiffs were dealers in leather in Boston, and that the defendants were manufacturers of boots and shoes in Lynn. One of the plaintiffs testified that the defendant Newhall called at their store on Saturday, November 9, 1872, examined some leather, and said he would take *' what leather was adapted to his purpose," being leather " light weight " in thickness, out of a certain lot of about 800 sides which were piled up in the store ; and that, after Newhall had gone, he assisted in sorting out the leather intended for the defendants, which was then rolled up into 44 rolls, containing 660 sides, weighed, marked with the defendants' names, and placed near the front door of the store, ready for delivery. It was also in evidence that in the afternoon of the same day an expressman, who was in the habit of calling at tlie plaintiffs' store for good: for Lynn, called and took six rolls of the leather, con- taining 90 sides, which was all his wagon could carry, with the goods then on it, but did not deliver them until the Monday following to the defendants, who were regular customers of his ; but in this case no order 1 Tlie statement lias been shortened and the concurrine opinions of Boi.land, Aldekson, and Gurnet, B.B., omitted. In Garfield v. Paris, 98 U. S. 557 (1877). " Cer- tain questions.were submitted to the jury, among which were the following : Were there any receipt and acceptance in New York of part of the goods sold ; and if so, what was so received "i To which the jury answered : There was, to wit, certain labels. Was anything added to the price of the liquors on account of the labels, and if so, what amount or price "i Answer : There was nothing added ; but the labels added to the value of the liquors and formed part of the price. ... It was contended by tlie plaintiffs that the case was taken out of the statute of frauds : 1. Because the labels were a part of what was purchased, and that the defendants accepted and received the same at the time and place of purchase." This contention was upheld by the court and Jackson v. Lowe, 7 Moore, 219 ; Mills v. Hunt, 20 Wend. (N.Y.) 431, and Van Woert v. A. & S. Ry., 67 N. Y. 539, were cited in support of this conclusion. 254 ATHEKTON V. NEWHALL. [CHAP. IV. had been given to him by either party. The plaintiffs' store, with its contents, induding the remaining 570 sides of leather, was burned in the great fire of November 9, 1872. On Monday, November 11, 1872, the defendant Newhall called on the plaintiffs and produced the bill, which he had received from the plaintiffs, for the 660 sides, and re- quested their book-keeper to correct the bill so as to correspond with the amount of leather actually received by him, and the book-keeper thereupon deducted the 570 sides from the bill. On March 20, 1873, he tendered to the plaintiff $394, the amount due for the 90 sides, which they declined to receive. Upon this evidence, the judge ruled that there was no evidence of any delivery to or acceptance by the defendants of the 570 sides of leather, directed the jury to return a verdict for the price of the 90 sides, and reported the case for the consideration of this court. If the action could be maintained for the whole 660 sides, the verdict was to be set aside ; otherwise, judgment was to be entered on the verdict. E. Avery and G. M. Hobbs, for the plaintiffs. B. M. Morse, Jr., for the defendants. Gray, C. J. It is unnecessary to consider whether there was a suf- ficient delivery to complete the sale, because it is quite clear, upon the authorities, that there was no such acceptance and receipt of part of the goods as would satisfy the statute of frauds. Gen. Sts. c. 105, § 5. Such acceptance must be by the buyer himself, or by some one author- ized to accept in his behalf. The acts of the buyer on Saturday did not constitute such an acceptance, because, according to the seller's own testimony, the buyer merely agreed to take all the sides of leather of a certain thickness, which were not then set apart by themselves, but formed part of a large pile from which they were afterwards to be selected by the seller. Knight v. Mann, 118 Mass. 143. The receipt of part of the leather by the expressman did not constitute such an acceptance, because he was not authorized to accept so as to bind the buyer. Johnson v. Cuttle, 105 Mass. 447. The acceptance by the buyer on Monday, of the part brought by the expressman, was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with an intention to perform the whole contract and to assert the buyer's ownership under it, but, on the contrary, that he immediately informed the seller's clerk that he would . be responsible only for the part received. Townsend v. Hargraves, 118 ^Mass. 325, 333 ; Remick v. Sandford, 120 Mass. 309. Judgment on the verdict. § 2.} ACCEPTANCE AND RECEIPT : STATUTE OF FRAUDS. 255 FAEINA V. HOME. 16 M. & W. 119. 1846. The opinion contains a statement of all of the facts. Thomas showed cause. Prentice, in support of the rule. Parke, B. In this ease. . . the only point we wished to consider was, whether there was sufficient evidence of the acceptance and actual receipt of the goods to satisfy the seventeenth section of the statute of frauds. The evidence as to this part of the case was that, after the defendant had verbally ordered a quantity of eau-de-Cologne, and at the price of more than £10, from the plaintiff's agent in London (the plaintiff residing at Cologne), a case containing the quantity ordered was received by the agent, and warehoused by him with a warehouse-keeper who gave for it a document dated the 21st of July which is called a warrant, by which the case was made deliverable to the agent or his assignee by indorsement, on payment of rent .and charges from the 25th of July, and the agent indorsed it to the defendant and sent it to him. This warrant the defendant kept for some months. He was repeatedly applied to for the chai'ges upon and price of the eau-de-Cologne, which he did not paj- ; nor did he return the warrant when asked for it, but said he had sent it to his solicitor, and meant to defend the action, as he had never ordered the goods ; and he further said the goods would remain at present in bond. It was contended on the trial before the under-sheriff that there was no such evidence of the acceptance and receipt of the goods as to bind the bargain. The under-sheriff left the question of receipt and accept- ance to the jurj', stating, and correctly stating, that to bring the ease within the statute the acceptance must be with the intention of taking possession as owner. The jurj' found a verdict for the plaintiff. The under-sheriff ordered the writ of trial to be retained, in order to allow time for an application to the court. On a motion for a new trial, we intimated our opinion that there was evidence to go to the jury of the defendant's acceptance of the goods by retaining the delivery warrant ; but Mr. Prentice insisted that there was no sufficient evidence of the i actual receipt of the goods, that is, the delivery of the possession of the I goods on behalf of the vendor to the vendee, and the receipt of the 1 possession by the vendee ; and that the delivery and receipt of the war- * rant was not in effect the same thing as the delivery and receipt of the goods ; and we are all of that opinion. This warrant is no more than an engagement hy the wharfinger to deliver to the consignee or any one he raaj- appoint; and the wharfinger holds the goods as the agent of the consignee (who is the vendor's agent), and his possession is that of theconsignee until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold 256 CUKKIE V. ANDEESON. [CHAP. IV. for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of the assignee, and then only is there a constructive delivery to him. In the mean time the warrant, and the indorsement of the warrant, is nothing more than an offer to hold tlie goods as the warehouseman of the assignee. The case is in principle the same as that of Bentall v. Burn, and others, which are stated and well discussed in a recent able work of Mr. Blackburn, On the Contract of Sale, pp. 27-41, 297, and in Mr. C. Addison's work, p. 70. We all therefore think that, though there was suflBcient evidence of the acceptance if the goods had been delivered to the defendant, there is none of the receipt ; and therefore there must be a new trial. Rule absolute.^ CURRIE ET AL. V. ANDERSON. 2 E. & E. 592. 1860. At the trial before Watson, B., the facts appeared to be as follows : The plaintii¥s were merchants and ship-chandlers at Liverpool, carrying on business under the firm of Currie, Newton, & Co. , and the defendant was a ship-owner at Aberdeen. On 27th September, 1855, the defend- ant called at plaintiffs' oflfice, and saw Mr. Newton, one of the plaintiffs, and verbally ordered of him some stores, to the amount of £62 10s., for the " Phoenix," a ship of the defendant, then in the Black Sea, to be sent out from Liverpool by one of Mclver's steamers to Constantinople. The defendant directed Newton to enter the stores out at the custom- house. Before he ordered the stores he had asked Newton whether the plaintiffs had ever sent anj' goods out to Constantinople, and whether they had any agent there. Newton answered that they had no agent there, but had once consigned some goods there to Messrs. Hanson & Co. Newton, having selected the goods according to the defendant's order, namely, five tierces of beef, four barrels of pork, two barrels of flour, one barrel of peas, and one keg of barley, entered them out at the custom-house, and sent them down to Mclver's steamer " Melita" in a cart, together with two other barrels of flour, which the defendant, hav- ing purchased of some other person, had in the mean time sent to the plaintiffs' warehouse, to be sent to the ship together with the goods which he had ordered of the plaintiffs. ' Newton afterwards asked the defendant how the bills of lading were to be made out, and the defend- 1 See Sale of Goods Act, § 29 (."). Judge Chalmers, in commenting on tliis sec- tion, notes that " the transfer of a delivery order or dock-warrant operated" at com- mon law "only as a token of authority to take possession, and not as a transfer of possession ; and as between immediate parties there is nothing to modify the common- law rule." In Whitlock v. Hay, 58 N. Y. 484, it was declared that the " delivery and acceptance of a negotiable warehouse receipt must be regarded as substituted for a delivery ol the grain." § 2.] ACCEPTANCE AND KEOEIPT : STATUTE OF FRAUDS. 257 ant said, " Make them out in the name of the same parties you sent your goods to ; " and added, " You had better make them out in your • own name, for they won't know me, but will know you." Accordingly the plaintiffs made out the bill of lading thus : — " Shipped by Currie, Newton & Co." (here followed an enumeration of the goods, which corresponded with the other in all respects, except that the number of barrels of flour enumerated was four, the two sent by the defendant to the plaintiffs' warehouse as above mentioned being included). "To be delivered at the port of Constantinople unto Messrs. C. Hanson & Co. or their assigns." The plaintiffs handed the bill of lading to the agent of the steamer, and at the same time (13th October, 1855) paid freight for the whole, and received back the laill of lading signed. On 16th October, the de- fendant called on the plaintiffs and repaid the freight, and Newton handed him the bill of lading. The defendant enclosed the bill of lading in a letter addressed to the captain of the "Phoenix," to the care of Messrs. Hanson & Co., Constantinople ; and wrote another letter to the captain advising him of this. The captain, being absent in the French transport service in the Black Sea, did not receive these letters for some time, but on doing so in the middle of March, 1856, went to Constanti- nople and obtained the bill of lading from Messrs. Hanson & Co. The goods, however, were not forthcoming. It did not appear whether or not the " Melita" ever arrived at Constantinople. The captain of the ' ' Phoenix " returned the bill of lading to the defendant, who, on 5th No- vember, 1856, forwarded it from Aberdeen to the plaintiffs in a letter, in which he said, " I enclose the bill of lading for stores sent out to the bark ' Phoenix.' Please see after them. I think that the master of the steamer must account for them." The plaintiffs immediately returned the bill of lading, saj'ing that they could not interfere in the matter ; and after a long correspondence they brought this action to recover the price of the stores so supplied by them. The jury returned a verdict for the plaintiffs for the amount claimed, £62 10s. ; and the learned judge reserved leave to the defendant to move to enter the verdict for him if the court should be of opinion that there was no evidence of an acceptance and receipt by the defendant of the goods to satisfy the statute of frauds. A rule having been obtained calling upon the plaintiffs to show cause why the verdict should not be entered for the defendant, Baylis now showed cause. Manistry and Kemplay, contra. WiGHTMAN, J. I am of opinion that there was evidence in this case that the defendant so dealt with the goods and with tlie bill of lading as to justify the jury in finding that there was an acceptance and actual receipt by him of the goods within the meaning of the 17th section of the statute of frauds. The facts seem to bring the case very much within the principle -thrown out by some of the judges in Meredith v. Meigh, 2 E. & B. 264, in which I entirely concur. Erie, J., there says : 17 258 SHEPA.ED V. KING. [CHAP. IV. " I have no doubt that the bill of lading, which is the symbol of prop- I erty, may be so received and dealt with as to be equivalent to an actual [receipt of the property itself." And Crompton, J. : " When goods or "the indicia of the property in goods remain long under the control of the vendee, especially when the vendee has in any respect acted as the owner of the goods, there may be sufficient evidence of an acceptance and receipt, although the goods themselves are not received." In the present case the defendant purchases goods of the plaintiffs, and hear- ing from them that they had before consigned goods to Messrs. Hanson & Co. at Constantinople, desires the plaintiffs to make out the bill of lading to that firm. The defendant also sent goods of his own to the plaintiffs' warehouse, which were by his direction sent down to the same ship with the goods purchased by him of the plaintiffs. All the goods were put on board together, and in the bill of lading those other goods of the defendant were included with the goods the subject of the present action. The plaintiffs paid the freight in the first instance, and the de- fendant repaid tbem, and thereupon received from them the bill of lading. This was in October, 1855, and after keeping and dealing with the bill of lading for more than a year, the defendant returned it in November, 1856, to the plaintiffs with this letter : "I enclose the bill of lading for stores sent out to the bark 'Phoenix.' Please see after them. I think that the master of the steamer must account for them." This letter seems to me most material as evidence to show that the defendant has acted as owner of the goods, not only by keeping the bill of lading so long, but by expresslj- desiring the plaintiffs to see after the goods. Drawing the ordinary inference from all these facts, I think that there was abundant evidence that the defendant had so dealt with the goods as to have accepted and actually received them within the dicta in Meredith u Meigh, 2 E. & B. 364, which are clearly good law. Jiule discharged.^ SHEPAED V. KING. 96 Ga. 81. 1895. Simmons, C. J. On January 28, 1890, the Rome Rolling Mill Co. entered into a contract with Shepard & Co. in the form of a writing, signed by the rolling mill company, which reads as follows : "Rome, Ga., 28th January, 1890. "We have this day sold to Messrs. Shepard & Go. of Boston, Mass., 50,000 bundles of cotton ties, to be 11 feet long, to have No. 2 or No. 4 arrow buckles (new), bundles to consist of 30 hoops and 30 buckles, well bundled and coated, and to weigh not le.s3 than an average of 50 pounds to the bundle. Messrs. Shepard & Co. to pay us cash for the ties as fa.st as we make and store them for them in our warehouse. We to draw on them at sight, with our warehouse receipt attached to draft. The rate of delivery and price to be as follows: 1 Ckompton and Hill, JJ., delivered concurring opinions. § 2.] ACCEPTANCE AND RECEIPT: STATUTE OF EEAUDS. 259 5,555 bundles per month from January, 1890, to September inclusive. The January quota to be delivered in February and March. Price to be for Janu- ary, February, and March, $1.05 per bundle for 1,000 bundles, SI. 10 per bun- dle for balance. For April, May, and June, $1.07i per bundle for 10,000 bundles, and $1.12J for balance. For July, August, and September, $1.10 per bundle for 10,000 bundles, and $1.15 per bundle for balance. All prices f. o. b. cars here. We to store the ties in our warehouse, to keep them insured, and to load them into cai-s for .shipment at any time this season' as Messrs. Shepard & Co. shall instruct us, and to make no charge for same." For several months, and until placed in the hands of a receiver, the rolling mill compan3' furnished ties in pursuance of this contract, the ties, as soon as finished, being removed to the company's warehouse, about two hundred yards from the mill, and a warehouse receipt being issued at the end of each week for the week's supply, and attached to a draft for the value of the ties covered by the receipt. Usually the receipt and draft would include a few ties which were in an unfinished state, and had not been removed from the mill to the warehouse. On Saturday, May 31, 1890, a draft was drawn by the rolling mill company at the direction of Shepard & Co. for the value of 1,700 bundles of ties, and attached to the draft was a warehouse receipt of the same date, issued by the rolling mill company for the number of ties. On the same day the draft and receipt were deposited, as was the custom, with the Merchants' National Bank of Rome, and the amount of the draft placed by the bank to the credit of the rolling mill companj-. The draft was paid by the drawee when presented for payment. On Mondaj', June 2, 1890, King, as receiver in the case of Cothran et al. v. The Rome Rolling Mill Company et al., took possession of the mill and other prop- erty of the rolling mill company', and found stored in the mill 643 bun- dles of ties. These ties were a part of the 1,700 bundles included in the warehouse receipt and draft of the preceding Saturdaj-, above re- ferred to, and had not been removed because some of them were with- out buckles, and others had not yet been tarred, or the tar was so fresh that they could not be bundled. This was explained to the receiver by the officers of the rolling mill company, but the receiver took possession of the ties and converted them into money. Shepard & Co. thereupon filed a petition claiming title to the ties, and praying that they might be made parties to the case, to the end that under proper issues joined between them and the receiver, their title might be established, and the proceeds in the hands of the receiver be refunded to them ; and for such other relief as might properly be granted them. By agreement, the cause was submitted for trial, upon the law and the facts, to the presid- ing judge without a jury. At the trial the facts above stated appeared in evidence. The court adjudged that no title had passed to the petition- ers, and denied the relief prayed for ; and to this ruling they excepted. "We think the court erred in so holding. The essentials of a sale are an identification of the thing sold, an agreement as to the price to be paid, and consent of the parties (Code, § 2629). Generally the delivery 260 -WILLIAMS V. BUEGESS. [CHAP. IV. of goods is essential to the perfection of a sale, but the intention of the parties to the contract ra&y dispense therewith. Delivery need not be actual, but may be constructive (Id. § 2644). In determiniug whether a sale of the ties in question had been effected, so as to pass title to Shepard & Co., the main thing to be considered is the intention of the parties. The issuing or transferring of a warehouse receipt is a com- mon and well recognized mode of eflfecting deliverj', and in this case was undoubtedly intended to operate as a delivery. Having received the price of the goods, the rolling mill company would be estopped from denying the fact of delivery. To allow the compan}' to deny this fact would be to permit it to take advantage of its own wrong ; and it could not be heard to say that the delivery was incomplete because the goods were not entirely finished or had not been removed from the mill to the warehouse. Nor do we think the creditors of the vendor stood upon a different footing in this respect from the vendor itself. It was not contended, nor is there anj' evidence indicating, that there was bad faith or an intent to defraud creditors on the part of the rolling mill company and Shepard & Co. It is certain that if Shepard & Co. paid a draft for the value of the ties, knowing that they were partially unfinished, and not in fact in the warehouse, the delivery would be complete, for it would then be the manifest intention of both parties that one should tender and the other accept a delivery of the ties in an unfinished con- dition ; and it can make no substantial difference that Shepard & Co. paid the draft in ignorance of the fact that the recitals were in fact incorrect, if thej' made no complaint when the truth was ascertained, and thus ratified the failure of the rolling mill company to fully comply with its contract. See on this subject 1 Corbin's Benj. Sales, pp. 366, 392 ; Tiedeman on Sales, § 106 ; 21 Am. & Eng. Enc. of Law, pp. 505 -507. Judgment reversed. WILLIAMS V. BURGESS. 10 Ad. & E. 499. 1839. Assumpsit. Declaration stated that, in consideration plaintiff would sell and deliver to defendant a mare, which plaintiff supposed to be in foal, for £20, subject to the condition that if the mare should prove to be in foal defendaut should, on receiving £12 from plaintiff, return it to plaintiff on request, defendant promised, if it proved to be in foal, and plaintiff paid £12, to return it. Averment of sale and delivery of the mare for £20, subject to the above condition ; that it proved to be in foal ; that the plaintiff then tendered to defendant £12, and requested him to return the mare ; but defendant refused so to do. Plea, non assumpsit. On the trial, before Parke, B., the plaintiff proved a verbal agree- ment as stated above, and the acceptance of the mare and payment of § 2.] ACCEPTANCE AND RECEIPT : STATUTE OF FKAUDS. 261 the money by the defendant. It was objected on the part of the defendant that the agreement on which the action was brought was a distinct agreement for a re-sale of the mare within § 17 of the statute of frauds, 29 C. 2, c. 3, and ought to have been in writing. But the learned judge, considering it to be merely a qualification of the original contract of sale which was executed, overruled the objection, reserving leave for the defendant to move to enter a nonsuit. There was a ver- dict for the plaintiff. Knowles obtained a rule nisi to set aside the verdict. Alexander showed cause. Lord Denman, C. J. This is a sale by the plaintiff to the defendant on particular terms, one of which is a return of the article sold in a certain event ; the acceptance of the thing sold takes the whole con- tract out of the statute. The case differs from Watts v. Friend, 10 B. & C. 446, where the re-sale was of a different thing. LiTTLEDALB, J . The plaintiff is willing to part with his property on certain conditions which are part of the agreement. It is not an inde- pendent contract of sale on which he sues, but the original contract, which was a qualified sale. It is like the case of the delivery of a horse on trial ; when the buyer returns it after a trial, it is not a re-sale. I have not the slightest doubt on the case. Patteson, J. It is one entire contract, and not two distinct con- tracts. It is a sale on the terms that the mare and part of the price should be returned in a certain event. If indeed the defendant had agreed to sell to the plaintiff the foal, the case might have been differ- ent. In Watts V. Friend the bargain was to sell to the plaintiff an entirely different thing, and not merely to return to him the same article. Wood v. Benson, 2 Cr. & J. 94, shows only that there may be two contracts on one piece of paper, of which one may be bad, the other good. Williams, J., concurred. Rule discharged. JOHNSTON V. TRASK. 116 N. Y. 136. 1889. This was an action for a breach of contract. Since January, 1882, the defendants have been bankers and brokers, doing business as part- ners under a firm name. On the trial of the issues, the plaintiff testi- fied that on the 18th day of January, 1882, the managing partner of the firm, at its place of business, orally agreed with the plaintiff to purchase for him, if they could be bought in the market, income mortgage bonds of the Ohio Central Railroad of the par value of 810,000, "and" (giving the language of said partner), " any time you want to get rid of them, we will take them off of your hands at what they cost you." 262 JOHNSTON V. TRASK. [CHAP. IV, Later in the day, the defendants reported to the plaintiff that thej' had purchased the bonds for $4,800, and their commissions were $12.50 ; and thereupon the plaintiff paid $1,000 towards the purchase price. The bonds were retained bj' the defendants as security for the sums due from the plaintiff to them until November 16, 1822, when the plaintiff paid the full purchase price for the bonds, commissions, and interest, and took them into his possession. The market price of the bonds declined until April 28, 1884, when they were selling for about 10 cents on a dollar. On this date the plaintiff tendered the bonds to the defendants, and demanded that they should pay him $4,812.50, which they refused to do ; and April 30, 1884, this action was brought, on contract, to recover that sum. The defendants did not contradict the plaintiff's evidence, which was corroborated by three witnesses ; but at the close of his case they moved for a nonsuit on the grounds, — I. That the oral contract was void for not complying with the following section of the statute of frauds : " Sec. 3. Every contract for the sale of anj' goods, chattels, or things in action, for the' price of fiftj' dollars or more, shall be void, unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therebj' ; or (2) unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action ; or (3) unless the buyer shall, at the time, pa}' some part of the purchase money." II. That the evidence was insufficient to sustain the conclusion that the managing partner had authority to bind the firm by such a contract. III. That the plaintiff did not tender the bonds, and demand the repayment of the price, within a reasonable time, and thereby lost his right of action. The motion was denied, and, the defendant not asking to have any question submitted to the jury, a verdict was directed in favor of the plaintiff for $4,800, with interest thereon from April 28, 1884. Horace E. Smith, for appellants. John M. Carroll, for respondent. FoLLETT, C. J. {after stating the facts as above). An oral contract by which a person sells his own chattels or choses in action for more than $50, paj-ment and delivery being made, and agrees to take them back I from, and repaj' the purchase price to, the purchaser on demand, is an entire contract ; and the promise to take back the propertj', and repay the purchase price, is not void by the third section of the statute of frauds. Wooster v. Sage, 67 N. Y. 67 ; Fitzpatrick v. "Woodruff, 96 N. Y. 561; White?'. Knapp, 47 Barb. 549; Williams v. Burgess, 10 Adol. & E. 499 ; Fay v. Wheeler, 44 Vt. 292 ; Dickinson v. Dickinson, 29 Conn. 600 ; 1 Benj. Sales (Corbin's Ed.), § 169. Executed contracts of sale, embracing a promise by vendors of chat- tels that in case they do not suit the purchaser, or do not possess certain specified qualities, the vendor will repay to the vendee the purchase price upon their return, have been frequently considered by the courts § 2. J ACCEPTANCE AND EECEIPT : STATUTE OF FRAUDS. 263 (Towers v. Barrett, 1 Term E. 133 ; Thornton v. Wynn, 12 Wheat. 183) ; but no case has been cited holding that such a promise on the "^ part of a vendor is an independent contract. When an agent, bj- an oral contract, sells and delivers the goods of a disclosed principal, his personal oral warranty of quality is not a contract independent of the contract of sale, but is a part of it, and one consideration is sufficient to support the sale and warranty. The oral contract of the defendants that thej- would purchase for the plaintiff in the market, at market rates, the bonds, for the usual com- pensation, and, in case be should thereafter become dissatisfied with the bonds, that they would, on demand, take them off his hands at what they cost him, was a single contract. Under this contract, the bonds were purchased and held by the defendants until the purchase price and their commissions were paid, and then they delivered the bonds to the plaintiff. The promise of the defendants that they would take the bonds off the plaintiff's hands at what they cost him, upon request, is not a contract for the sale of goods, chattels, or things in action, within the third section of the statute of frauds, but is a provi-^^ siou for the recissiou of the entire contract, and is valid. The learned counsel for the appellant, in support of his contention, cites Hagar v. King, 38 Barb. 200. In that case a firm was indebted to the plaintiffs in the action for work performed in constructing part of a railroad. The defendant, who was one of the firm, asked the plaintiffs to take from the railroad corporation its bonds in payment of the debt, orally agreeing with the plaintiffs, for himself, that, if they would so take the bonds, he (not the firm) would, within 10 days, take the bonds from and pay to the plaintiffs the amount of the firm's debt. The plaintiffs assented to the proposal. Afterwards they accepted from the corporation its due-bill for the amount due them for their work, payable in the bonds of the corporation, and gave a receipt for all of their demands for work done on the road. The plaintiffs then indorsed the due-bill, delivered it to the corporation, and received the bonds. Within 10 days the plaintiffs tendered the bonds to the defendant, and demanded the amount for which they were taken in payment. It was held that the oral agreement embraced two contracts, — one to accept the bonds in payment of the debt, and another to purchase the bonds at a future day at a given price, — and that the latter contract was within the third section of the statute of frauds, and void. That case is easily distinguishable from the one at bar. The defendant in that case, as an individual, was not indebted to the plaintiffs, and his indi- vidual contract to take back the bonds was held to be distinct from the contract by which the firm's debt was paid in the manner described. The judgment should be affirmed, with costs. All concur.^ 1 That part of the opinion which deals with the second and third grounds for nonsuit is omitted. In Pape v. Romey, 45 N. E. (Ind. App.) 671, 1896, Davis, J., said: "Wright 264 JOHNSTON V. TEASK. [cHAP. IV. testified that, in the sale made by him for Pape to PfeifiEer on December 30, 1882, it was agreed that Pfeiffer ' could have the privilege of withdrawing his money ' with interest at 8 per cent at any time within the year. When the agreement was re- duced to writing between Pape and PfeifCer, it was expressly stipulated therein that ' the purpose ' of the contract, among other things, was to enable Pfeiffer to ' with- draw from said business within one year if he so desires.' Strictly speaking, the contract between Pape and Pfeiffer may not be a conditional sale, nor do its terms provide for a rescission of the contract ; but it was a contract upon the condition that, if said Pfeiffer was not satisfied with liis investment therein at any time within one year, he had the right to withdraw his money, with interest. The use of the words ' repurchase ' and ' resale ' in the contract between Pape and Pfeiffer, did noV under the circumstances, change the nature of the transaction. In other words, whatever name may be given to the transaction, there was what may be termed a ' string ' to the sale made by Pape to -Pfeiffer, through Wright, which in the end en- tirely defeated the sale." CHAPTEE V. § 2. Conditions. SHIELDS ET AL V. PETTEE et ai. 4 N. Y. 122. 1850. AcTioK for the price of a quantity of pig iron. A contract waa negotiated between the parties bj' Thos. Ingham, a broker, in these words : — New York, July 19, 1847. Sold for Messrs. George W. Shields & Co., to Messrs. Pettee & Mann, one hundred and fifty tons Gartsherrie pig iron, No. 1, at $29 per ton, one haU at six months, one haU cash, less four per cent., on board " Siddons." Thomas Ingham, Broker. The ship was understood by both parties to be at sea when the con- tract was made, and she arrived about ten days thereafter with the contract quantity of iron, but which turned out not to be of No. 1 quality. Defendants received between sixty and seventy tons, but, upon ascertaining its quality, declined to accept and pay for it, or for the residue, as of the quality required by the contract. The plaintiffs offered to deliver the residue in fulfilment of the contract, and upon the defendants declining to accept, the former demanded paj-ment for the portion delivered at the contract price, and this being refused, they re- quired that the iron which had been taken should be returned ; which was not complied with. By this time No. 1 iron had advanced about 13.50 per ton above the contract price. The defendants had parted with a portion of the iron before the demand for its return. The jurj' were instructed that under the circumstances the defendants were liable by an implied contract to pay for the iron received at its then market value. The plaintiffs had judgment on a verdict for $2,197.39. The defendants brought this appeal. W. Hall, for appellants. i\r. Sill, Jr., for respondents. HuRLBDT, J. In my judgment the contract was not a sale but an agreement to sell, which was not executed, and which could only be required to be executed upon the arrival of the ship with the iron on board. The arrival of the vessel without the iron would have put an end to the contract, which was conditional as a sale, to arrive. The vessel was at sea at the time ; "this was known to both parties, and neither could be certain, either of her arrival or of her bringing tha 266 SHIELDS V. PETTIE. [CHAP. V. iron. If a part only had arrived, the plaintiffs would not have been bound to deliver nor the defendants to accept it. There was no war- ranty, express or implied, either that any iron should arrive, or that arriving, it should be -of a particular quality. One hundred and fifty tons of Gartsherrie pig iron of the quality denominated No. 1 was ex- pected to arrive by the " Siddons," and the contract was to the effect, that if that qiiantitj' and quality of iron did so arrive, one party should sell and the other should receive it at a certain price per ton. The iron called for by the contract did not arrive, but iron of a different qualit}-, '"and I think the contract was at an end. Boyd v. Siffkin, 2 Camp. N. P. 326 ; Alewyn v. Pryor, 1 Ryan & Moody, 406 ; Lovatt v. Hamilton, 5 Mees. & Wels. 639 ; Johnson v. Macdonald, 9 Id. 600 ; Russell v. NicoU, 3 Wend. 112. The jury were instructed that, under the circumstances of the case, the law implied a contract on the part of the defendants to pay for the iron which they received at the then value of the same in the market, and they found accordingly ; which, in effect, compelled the defendants to pay for an inferior article a greater price than that stipulated for in the contract. This arose from the circumstance of a rise in the market, intermediate the contract and the time of deliverj-. But this ought not to affect the rule of damages, which cannot bend to an accident of this nature, but must remain the same in a case like the present, whether the commoditj- rise or fall, or remain stationary in the market. Where, upon a sale of goods, there is no agreement as to the price, the law implies a contract on the part of the buyer to pay for them at the market value. The present case cannot be excepted from the opera- tion of this rule. There was no error in the charge of the learned judge, provided the law implied a promise on the part of the defend- ants to pay anything whatever for the iron which they received. This they had taken in go6d faith, supposing that it answered the contract, and intending to pay for it accordingly ; but finding it to be of an inferior quality, they declined to pay the contract price, and upon a demand of the iron were not in a condition to restore it, as they had parted with a portion of it. Thej', however, had received the iron rightfully, in the character of vendees, and, up to the time of the de- mand bj' the plaintiffs, the case exhibits nothing in the nature of a tort, but savors altogether of contract. After the demand and refusal, the case was so far modified as to assume, technically at least, the complex- ion of a tort, so that trover might have been maintained by the plain- tiffs. But although they might have done so, were they bound to bring their action in that form, or were they at libertj' to disregard the tort and to treat the defendants as still retaining their original characters of purchasers of the iron and to charge them accordingly? I perceive no reason why they maj- not be permitted to do so. The goods were neither wrongfully taken, nor do the defendants claim title to them. The case rested originally in contract, and the on\y difference between the parties related to the price of the article delivered. If the plaintiffs § 2.] CONDITIONS. 267 had brought trover, the rule of damages would not have been more favorable to the defendants than the one laid down at the trial, and I am unable to perceive in what respect they can be injured by the present form of action. In general it would be the most favorable to the defendant. In Young v. Marshall, 8 Bing. 43, Tindal, C. J., de- clared that no party was bound to sue in tort, when by converting the action into one of contract, he does not prejudice the defendant. It is not necessary to go this length, nor as far as the court went in Hill v. Davis, 3 N. H. 384, for the purpose of determining the question before us ; nor is the point presented in the last case of much importance, since the distinctions which obtained at common law in the forms of action have been abrogated in this State. I therefore abstain from expressing any opinion upon it. It is enough for our present purpose that, in the case before us, the cause of action arose out of an imperfect sale and delivery of goods, and not out of a wrongful taking of them by the de- fendants ; that the tortious feature in the case is scarcely one of sub- stance, but is rather of a technical character ; that in effect the parties must be deemed to have agreed as to everything except the price of the goods ; and that being so, the plaintiffs were at liberty to disregard whatever might savor of tort, and require the defendants to respond in their substantial characters as purchasers of the iron for what it was worth in the market. The judgment of the superior court ought to be affirmed. SUMMERS ET AL. V. HIBBARD, &c., CO. 38 N. E. (111.) 899. 1894. Action by Hibbard, Spencer, Bartlett, & Co., a corporation, against Summers and others for the amount paid by plaintiffs for sheet iron in excess of the contract price for which defendants agreed to furnish it. The contract was made b}- letters which passed between the parties. Plaintiffs below, who are the appellees here, wrote to appellants, on March 1, 1889, for prices ; appellants answered as follows : — " All sales subject to strikes and accidents. Summers Bros. & Co., Manu- facturers of Box-Annealed Common & Refined Sheet Iron. Struthers, Ohio, Mch. 4, 1889. To Hibbard, Spencer, B. & Co., Chicago : Your favor of March 1st at hand. We make you the following offer : — 1,000 bdls. in March. 1,000 bdls. in April. 1,000 bdls. in May. 1,000 bdls. in June. 500 bdls. in July. 500 bdls. in August. 5,000 268 SUMMEKS V. HIBBAED, AC, CO. [CHAP. V. " March and April as follows : — No. 27x24x101 at $2.80 deld. Chicago. 26x24x101 " $2.70 " " 16x18x20 "$2.60 " " " May, June, July, and August iron : — No. 27x24x101 at $2.85 deld. Chicago. 26x24x101 " $2.75 " " 16x18x20 " $2.65 " " " All 6/) days, or two ■per cent, ten days from date of invoice. " Yours, respy., Summkks Bros. & Co." On March 9th, appellees replied under a like letter head as that in their first letter, as follows : — "Chicago, 3/9/89. Summers Bros. & Co., Struthers, Ohio, — Gentlemen: Your favor 4th is at hand. If you are willing to revise your ideas a little, we can trade with you. You may enter our order for 5,000 bdls. first-class com. sheet iron, as follows : — 500 bdls. March delivery. 500 April 1,000 May 1,000 June 1,000 July 1,000 August Prices to be : No. S No. 22 & 24, $2.60. 25 & 26, $2.70. 27, $2.80. " Chicago, delivery, 60 days, or two per cent, cash in ten days. " If you accept our offer, you may enter us for March shipment 250 bdls. 26x24x101 in., and 250 bdls. 27x24x101 in. " Awaiting your prompt reply, we are, very truly yours, " HiBBARD, Spencer, Bartlett, & Co." On March 11th, appellants mailed to appellees an acceptance of their offer as follows : — " All sales subject to strikes and accidents. Summers Bros. & Co., Manu- facturers of Box-Annealed Common & Refined Sheet Iron. Struthers, Ohio, Mch. 11, 1889. To Hibbard, Spencer, B. & Co., Chicago : Your favor of 3/9 at hand. » " Mr. Charles, — Dear Sir : We accept your offer, 5,000 bdls. iron, 500 March, 500 April, 1,000 May, 1,000 June, 1,000 July, 1,000 August. Prices: No. 27 at $2.80. 26 " $2.70. 24 " $2.60. " F. O. B. cars, Chicago, two per cent, ten days from date of invoice. We also enter your order, 250 bdls. 26x101 and 250 bdls. 27x101, Mch. shipment. " Respy., yours. Summers Bros. & Co." J 2.] CONDITIONS. 269 An additional contract was made for 3,000 bundles of the same sort of iron at the same price for July, August, and September deliver^-. Appellants delivered only 1,847 bundles of sheet iron, and appellees bought on the market, during August, 5,500 bundles. For this amount they were obliged to pay in excess of the contract price a sum, which, after deducting for unpaid shipments, amounted to $1,546.61. For this sum the jury, under the instructions of the trial court, rendered a verdict for the appellees. From a decision (50 111. App. 381) affirm- ing this judgment, the original defendants appealed. L. D. Thomas, for appellants. JTamlin, Scott, <& Lord, for appellees. Baker, J. It is insisted by appellants that the words, " All sales subject to strikes and accidents," printed at the top of their letter heads, must be considered in determining what the contract was, and that said words constituted an express condition that became a part of the contract between them and appellees. We do not so understand the case. Under the date of March 1, 1889, appellees invited appellants to make them an offer of sale of a specifled quantity of sheet iron, to be delivered in certain designated months. On March 4th, appellants made them an offer as requested. On March 9th, in their letter of that date, appellees declined to accept the offer received, and at the same time they submitted for consideration an offer of their own, — an offer of purchase. This offer contained all the elements and terms of a pre- cise and complete contract, and lacked only the assent thereto of the persons to whom it was addressed to make it such a contract. The offer was to buy a certain quantity of sheet iron, of certain sizes, to be delivered in Chicago in specifled quantities and at designated times, and to paj' therefor certain prices at certain stated times. And appel- lees concluded their proposal by saying, " If you accept our offer, you may enter us for March shipment 250 bundles," etc. The offer was absolute and positive, and without any conditions, qualifications, or exceptions whatever. On March 11th, appellants wrote to appellees: " Your favor of March 9 at hand. We accept your offer." And they thereupon proceeded to restate in their letter the terms of the proposal made to them. These two letters made the contract between the parties. The two preceding letters seem to us to be wholly imma- terial. The mere fact that appellants wrote their acceptance on a blank ' form for letters at the top of which were printed the words, " All sales subject to strikes and accidents," no more made those words a part of the contract than they made the words there printed, " Summers Bros. & Co., Manufacturers of Box-Annealed Common & Refined Slieet Iron," a part of the contract. The offer was absolute. The written acceptance, which they themselves wrote, was just as absolute. The printed words were not in the body of the letter, or referred to therein. The fact that they were printed at the head of their letter heads would not have the effect of preventing appellants from entering into an un- 270 SUMMERS V. HIBBARD, &C., CO. [CHAP. V. conditional contract for sale. In Express Co. v. Pinckney, 29 111. 392, this court said : " In a case where the agreement is partlj' written and in part printed, the preference is always given to the written part." In that case the printed matter was in the body of the instrument, incor- porated and mingled with the written matter. It would seem there is more reason and occasion for applying the principle of law there in- voked in a case where, as here, the words in print are separate and apart from the writing that appears upon the paper, and in a place where one would not be likely to look for limitations upon that which is written. People v. Dulane^-, 96 III. 503, is to the same eflFect as the case above cited. When an instrument is in part written and in part printed, and these parts are apparently inconsistent, or there is a reasonable doubt upon the sense and meaning of the whole, the words in writing will control, because they are the immediate language and terms selected by the parties themselves for the expression of their meaning. Kobertson v. French, 4 East, 130, and Alsager v. Dock Co., 14 Mees. & W. 796, both cases cited with approval in Express Co. Case, supra. In the case at bar it is inconsistent that the contract should be both an absolute contract and a conditional contract. The terms of agree- ment in this contract were sixtj- days' time or two per cent, discount for cash in ten days. Suppose the words, " All sales not paid for on delivery to draw interest," had been printed on the letter head, can there be anj' doubt that the written terms would have controlled the printed words ? Here there was a written provision that the iron was to be delivered free on board the cars at Chicago. Suppose it had been printed on the letter head that the manufacturers would not be respon- sible for iron after a delivery to a common carrier, would not the written provision have governed the contract? Upon the whole we . are inclined to the opinion that the mere fact that the words in question Iwere printed in the caption of the paper on which appellants wrote itheir unqualified acceptance of the contract proposed by appellees did inot have the effect of reading them into the agreement thereby con- \summated. And appellees understood that some sort of an agreement was brought to a completion by their act, for in their letter they wrote, " We also enter your order for 250 bundles," etc., "March ship- ment." Appellants make a further claim that there was an implied condition in the contract that would relieve them from perforniance if their mill plant, without any fault on their part, was so disabled as to make it impossible for them to make the iron that they contracted to deliver. The contract did not call for iron manufactured at their mill ; it simply called for flrst-class common sheet iron of certain specified sizes. There was nothing to prevent their filling the contract by going into the market and buying sheet iron manufactured at other mills. Appel- lees seem to have experienced no difflcultj', other than that of being forced to pay a higher price when they went on the market and bought § 2.] CONDITIONS. 271 from other parties the sheet iron contracted for which appellants failed to supply. But even if the contract had been for sheet iron of their own manufacture, the breakages in this mill would not have relieved them from liability-. The general doctrine is that where parties by their own contract and positive undertaking create a duty or charge upon themselves, they must abide by the contract, and make the promise good, and either do the act or pay the damages. Steele v. Buck, 61 III. 343; Dehler v. Held, 50 111. 491 ; Bunn v. Prather, 21 111. 217. Inevitable accident affords them no relief, for they are re- garded as insurers to the extent of making good the loss. There is a principle of the law that in contracts in which the perform- ance depends on the continued existence of a given or specified person or animal or thing, a condition is implied that the impossibility of per- formance arising from the perishing of the person, animal, or thing shall excuse the performance. But there is no place in this case for the application of that rule. There is no doubt of the correctness of the rule stated by appellants that where delivery is required to be made by instalments the measure of damages will be estimated by the value at the time each delivery should be made. In the case- at bar appellees made threats to buy it at seller's expense, but excuses rendered and promises made by appellants of frequent and large ship- ments deterred them from doing so. If delivery is postponed b}' agreement between the parties, the measure of damages is the dif- ference between the contract price and the market price at the time the article is deliverable by the subsequent agreement ; and where the time of delivery is postponed indefinitely, the measure of damages is the difference between the contract price and the market value at a reason- able time after demanding performance. Appellees admit that the^- had no legal right to buy in during the month of August more than 3,159 bundles of sheet iron, that being the quantity then due under the original and additional contracts on September 1st. But the uncon- troverted evidence is that the prices of such iron remained firm during September and a part of October, being at no time lower than August prices. So, the premature purchases worked appellants no injurj-, but were to their benefit. Besides this, it was held in Follansbee v. Adams, 86 111. 13, that the vendees may charge the vendor with the difference in prices without making any purchases, the result being the same, and the vendee being entitled to the benefit of his contract. The judgment of the appellate court is affirmed?- DEXTER V. NORTON. 47 N. Y. 62. 1871. Reported supra, p. 24. ' A part of the opinion, dealing with a question of evidence has been omitted. 272 YICKBES V. VICKEKS. [cHAP. V. VICKEES V. VICKERS. L. R. 4 Eq. 529. 1867. Edward Vickees and James Vickers, being in partnership as distil- ,lers, came to an agreement whereby James was to buy out Edward, and it was also agreed that if James should daring Edward's life be desirous of retiring, he should give notice, and Edward should then have an option of repurchase, on the terms that within six months after notice by James the premises, good-will, stock-in-trade, and all such of the subsisting contracts as Edward should be willing to take, should be valued in the usual way by two valuers, one to be named by Edward, the other by James, or by the umpire of the two valuers. James gave notice December 30, 1863, of intention to retire ; and on January 30, 1864, Edward gave notice of his election to purchase. Two valuers were appointed, but later James refused to allow his valuer to proceed with the valuation. Thereupon Edward filed a bill for the specific per- formance of the contract. W. M. James and others, for plaintiff. Sir Moundell Pahner and others, for the defendant. SiE W. Page Wood, V. C. ... No doubt the parties did not an- ticipate the event which has happened. Six months were given to James Vickers in which to make his option ; and it is clear that nothing could have been less in the minds of the parties than what has unfortunately happened ; for the price to be paid by Edward was to be given not only for his own share, but for the share of James, which he never owned before. It was to be a new purchase, not only of things as they stood, but of things as they might stand after the stock had been increased or diminished by the continuance of James's business ; and the price was to be ascertained only in one way, namely, by the decision of two persons, to be nominated in the manner described. If a nomination of that kind fails, or if the two persons named do not make their award, this court has said there is no constat of the price ; the contract is not complete, and there is nothing on which it can act. The court has adopted this principle (I am not sure that it has not ex- tended it) from the civil law as stated in the Code of Justinian, who seems to have taken great pride in having decided a point, which he said was a knotty point, and had occasioned great controversj' among lawyers, namel}-, if a given man is to name the price, whether that is to be con- sidered as equivalent to the arhitrium boni viri. The Emperor Justinian (Inst. 3, 24, 1 ; Cod. 4, 38, 15) determined that if Titius be unable or unwilling to name the price, the sale is null. But he does not say that if one of the parties to such an engagement were to throw any obstacle in the way and avail himself of what in ordinary cases we should call his own wrong, the court would still hold the same view, and that a sub- stitution could not be made in order to give effect to the bona fides of the contract. I 2.] CONDITIONS. 273 In Wilkes v. Davis, 3 Mer. 507, it was decided that when a man says, "I will not execute the arbitration bond," the court will hold him free. Whether that is a desirable conclusion or not, it is now too late to question ; the court has so determined, and that, I apprehend, is the law. I must say that this particular case is one which tries the principle to the utmost ; because it is impossible to avoid seeing the enormous inconvenience which must arise from engagements of this kind, whereby A. is at liberty to give a notice which will throw on B. the task of purchasing at the end of six months, — that period being given to B. for preparation, — and then A. may say, when everything is ready, and B. has made his preparations, " All this is to go for noth- ing ; 1 will not allow ray valuer to proceed." It is true that B. might take the same course, and at the last moment decline to name a valuer ; but in an ordinary case that would be a very strange proceeding, and strange cases should not be permitted to make bad law. But I must, nevertheless, adhere to what has been decided. I cannot distinguish this case from Milnes v. Gary, 14 Ves. 400 (1807), and especially from Wilks v. Davis, 3 Mer. 507 (1817). . . . In this instance there is no difficulty, because the courts have decided, | and we must take it to be positive law, that there is no existing contract until this valuation has taken place ; and therefore there is nothing for arbitrators, who may be appointed by the court, to arbitrate upon. They have no authority ; no stranger can be invoked. The only per- sons who can act are two persons to be named, or two persons to be selected b^- others ; they are to act when the time arrives ; if they never come into existence, the contract does not exist. That is the principle on which the cases have been decided, and which I am obliged to follow. The bill must be dismissed, but, considering the conduct of the parties, without costs. KENNISTON et al. v. HAM. 29 N. H. 501. 1854. Woods, J. The defendant cut the timber in question upon lands claimed by the plaintiffs, and, after having cut a portion of it, he, wish- ing to cut more, agreed with the agent of the plaintiffs to pay them for what he had cut, and what he should cut, so much per thousand, as Horner and Sawyer should saj* it was worth on the stump. After this arrangement, the defendant went on and cut a considerable quantity more, and drew away the whole, amounting to 128,000 feet in all. One ground of answer to the plaintiffs' action relied upon by the de- fendant at the trial was that he revoked the authority conferred upon Horner and Sawyer to determine the value of the timber, and that, there- fore, although they expressed their opinion upon the question, still thej 18 274 CAMPBELL PKINTING-PRESS GO. V. THORP. [CHAP. T. did not intend it as binding upon tlie parties. The court ruled that the evidence offered to show this state of fact was inadmissible, on the ground that it did not "show any defence to the action. The question is whether this ruling was correct. The defendant agreed to take the whole timber cut by him, and to pay for it, and was permitted by the plaintiffs to take, and actually did take it into his possession, and convert it to his own use. He took it and hauled it away, under a contract for the purchase of it. And the plaintiffs, if the sole owners of it, would clearly be entitled to recover the value of it, as for goods sold and delivered, unless the right be defeated upon the ground assumed by the defendant. But that ground of answer cannot avail him. The defendant has taken to his use and benefit the timber cut by him ; and the plaintiffs have done and been ready to do everything stipulated to be done by them to entitle them to a fair com- pensation for it. If the price or value of the timber was not determined in the manner agreed upon by the parties, it was not the fault of the plaintiffs, but of the defendant. The defendant cannot set up the fact of the failure of the parties to obtain the judgment of Horner and Saw3-er as to the value of the timber in defence of this action, when that was occasioned by the defendant himself. He cannot avail himself of his own wrongful act, in violation of his own agreement, for this purpose. Here was a sale hy the plaintiffs to the defendant, and a deliverj' of the timber, which will render him liable for the fair value of the interest which he acquired by the sale, notwithstanding the alleged revocation on his part of the authority given to Horner and Sawyer to determine the value of it. The revocation, then, if fully shown, would form no bar to a recovery by the plaintiffs, and the rejection of the evidence of the fact offered by the defendant could in no way prejudice his rights, or furnish sufficient ground to sustain a motion for a new trial. Judgment on the verdict.''- CAMPBELL PRINTING-PRESS CO. v. THORP et al. 36 Fed. 414. 1888. Plaintiff agreed to sell to the defendants certain printing-presses, rollers, and other propertj- connected with a printing establishment, and guaranteed that the presses should be " free from defective material or workmanship, and should do their work satisfactorily." The referee, to whom the case was referred, found that neither of the three presses was satisfactory to defendants, nor did thej" do their work reasonably well ; j'et he found as a conclusion of law that the plaintiff was entitled to recover the whole agreed price, less a small sum, conceded as a set- 1 That portion ol the opinion relating to a different question lias been omitted. § 2.J CONDITIONS. 275 off, upon the theory that it was the duty of the defendants to reject the presses if they were not satisfied with them, and that, having kept them, there was no method of estimating the loss they suffered by reason of their dissatisfaction ; in other words, that the value of a press that should work to their satisfaction was not capable of pecuniary estimation. Qharles A. Kent, for plaintiff. W. L. Carpenter, for defendants. Before Jackson, Circuit Judge, and Brown, District Judge. Brov™, J. (after stating the facts as above) . The correctness of the referee's ruling depends largely upon the proper construction of the guarantee that the presses should be free from defects of material or workmanship, and should do their work satisfactorily. There is no doubt of the general proposition that where one party agrees to do a piece of work to the satisfaction of another, the excellence of which work is wholly or in part a matter of taste, such, for instance, as a por- trait, a photograph or bust, a suit of clothes, a musical instrument, or a piece of furniture, the buyer may reject it without assigning any reason for his dissatisfaction. In such case the law cannot relieve against the folly of the vendor, by inquiring whether the dissatisfaction of the vendee was based upon reasonable grounds or not. It is even doubtful whether it can inquire into the good faith of the vendee's decision. Brown v. Foster, 113 Mass. 136 ; McCarren ■;;. McNulty, 7 Gray, 139 ; Gibson v. Cranage, 39 Mich. 49 ; Hoffman v, Gallaher, 6 Daly, 42 ; Zaleski v. Clark, 44 Conn. 218 ; McClure v. Briggs, 58 Vt. 82, 2 Atl. Rep. 583. The true doctrine is expressed in McCarren v. McNulty, 7 Graj-, 139, 141 : " It ma3' be that the plaintiff was injudicious or indiscreet in undertaking to labor and furnish materials for a compensation, the paj-- ment of which was made dependent upon a contingencj' so hazardous or doubtful as the approval or satisfaction of a party particularly in interest. But of that he was the sole judge. Against the consequences resulting from his own bargain the law can afford him no relief. Having voluntaril}- assumed the obligations and risk of the contract, his legal rights are to be ascertained and determined solely according to its provisions." Other cases extend the same doctrine to contracts for the performance of labor, or for the support of another to his satisfaction. In such case the employer may be wholly dissatisfied with the character of the service rendered, or the beneficiary made exceedingly uncomfort- able by his surroundings, without in either case being able to assign , what the law would recognize as a sufficient reason for his dissatisfac- Ition. It makes him, however, the sole judge of the reasonableness oi his own discontent. Taj'lor v. Brewer, 1 Maule & S. 290 ; Rossiter v. Cooper, 23 Vt. 522 ; Tyler v. Ames, 6 Lans. 280 ; Spring v. Clock Co., 24 Hun, 175 ; Hart v. Hart, 22 Barb. 606 ; Ellis v. Mortimer, 1 Bos. & P. N. R. 257. Whether these words should receive the same construction where the 276 CAMPBELL PRINTING-PRESS 00. V. THOEP. [OHAP. V. suitableness of the article furnished involves no question of taste or personal feeling, but simply one of mechanical fitness to do a certain work, or accomplish a certain purpose, admits of some doubt. The authorities are not entirely harmonious, but the decided weight of authority is in favor of the construction given to it by the referee. So far as this state is concerned, two decisions seem to put the matter en- tirely- at rest. In Machine Co. v. Smith, 50 Mich. 565, it was held that where the vendor of a harvesting machine gave a warranty that the contract of purchase should be of no effect unless the machine worked to the buyer's satisfaction, it was held the purchaser had reserved the absolute right to reject the machine, and that his reasons for doing so could not be investigated. A still stronger case is that of Manufacturing Co. V. Ellis, 68 Mich. 101. The agreement was that a certain grain- binder should do good work and " give satisfaction.'' It was held that, unless the defendant was satisfled with the machine, although it did good work, he was not bound to purchase. See also Piatt v. Broderick, 70 Mich. 577. In the case of Machine Co. v. Chesrown, 33 Minn. 32, plaintiff guaranteed to furnish defendant a cord-binder guaranteed to work satisfactorilj-. It was held that in case, upon reasonable trial, it did not work satisfactoril}-, it was unnecessary for the defendant to return it to plaintiff, but it was sufficient for him, within a reasonable time, to notify plaintiff, in substance, that it did not work satisfactorilj', and that he deelined'to accept it. The same ruling was made with re- gard to a steamboat, in Gray v. Railroad Co., 11 Hun, 70 ; with regard to a machine for generating gas, in Aiken v. Hyde, 99 Mass. 183 ; with regard to a fanning-mill, in Goodrich v. Van Nortwick, 43 111. 445 ; and with regard to a passenger elevator, in Singerly v. Thayer, 108 Pa. St. 291. In this latter case a large number of authorities are cited by counsel and court to the same effect. The New York cases at first blush would seem to laj' down a different rule, but when carefully examined the difference is more apparent than real. The earliest case is that of Folliard v. Wallace, 2 Johns. 395, in which one covenanted that in case the title to a lot of land conveyed to him should prove good and sufficient in law, that he would pay to a third party, three months after he should be well satisfled that the title was undisputed and good against all other claims. It was held that the award of certain commissioners on the title in favor of the covenantor ought to satisfy him, and that it was not enough for the defendant to allege that he was not satisfied with the title without some good reason being assigned for his dissatisfaction, and that be was not to judge for himself, but that the law would determine when he ought to be satisfled. Chancellor Kent, who delivered the opinion, observed that, "if the de- fendant were left at liberty to judge for himself when he were satisfled, it would totally destroy the obligation, and the agreement would be ab- solutely void." In City of Brooklyn v. Railway Co., 47 N. Y. 475, an action was brought upon a covenant in which the defendant agreed to keep the pavement of certain streets in thorough repair within the § 2.] CONDITIONS. 277 tracks, etc., under the direction of such competent authority as the common council might designate. The court held that, if the pavement were kept in thorougli repair, it was sufficient, though it was kept up without direction from the competent authority designated by the com- mon council. " That which the law shall sa^' a contracting partj' ought in reason to be satisfied with, that the law will say he is satisfied with." A like ruling was made in Miesell v. Insurance Co., 76 N. Y. 115, with reference to the certificate of a physician in a life insurance case ; and, finally, in Boiler Co. v. Garden, 101 N. Y. 387, the parties entered into a contract by which plaintiff agreed to alter certain boilers belonging to defendants, for which the defendants agreed to pay the stipulated price " as soon as they are satisfied the boilers as changed are a success." In an action to recover the contract price, the defendants claimed the question as to whether the work was a success was one alone for them to determine. This was held to be untenable, and that a simple allegation of dissatisfaction without a good reason therefor was no defence. The prior cases were quoted as settling the law in that State. None of these cases, however, related to the sale of manufactured articles. In none of them was there an opportunity for a rescission, and restoring the parties to their statu quo. The last case particularly is much like that of Iron Co. v. Best, 14 Mo. App. 503, hereafter cited, and is subject to the same criticism. Notwithstanding the cases in New York, and admitting all that is claimed for them, the weight of authority as well as of reason inclines us to the opinion that the parties must stand to their contract as they I have made it, and if the vendor has agreed to furnish an article that shall be satisfactory to the vendee, he constitutes the latter the sole ! arbiter of his own satisfaction. It is entirely well settled that if the acceptance of a machine is made dependent upon the approval of an engineer, or if a pavement is to be laid to the satisfaction of a street commissioner, or if lumber is to be scaled by an inspector, the decision of such agent, in the absence of fraud, bad faith, or clear error, is conclusive. We know of no reason of public policy which prevents parties from contracting that the decision of one or the other shall be conclusive. In the case of chattel mortgages the rule is entirely well settled that, if the mortgage provides that the mortgagee may take pos- session whenever he deems his security unsafe, the mortgagor tliereby submits himself to the judgment of the mortgagee on the question of security', and the latter is not bound to prove circumstances justifying his action. Certain cases, however, establish a reasonable modification of this rule, to the effect that the dissatisfaction must be real, and not feigned, and that the vendee is not at liberty to say he is dissatisfied when in reality he is not ; in other words, that his discontent must be genuine. Manufacturing Co. v. Brush, 43 Vt. 528 ; Daggett v. John- son, 49 Vt. 845 ; McClure v. Briggs, 58 Vt. 82. The same cases, bow- ever, hold that, while the vendee is bound to act honestly, it is not enough to show that he ought to have been satisfied, and that his dis- 278 CAMPBELL PEINTING-PEESS CO. V. THOEP. [CHAP. V. content was without good reason. See also Lj'nn v. Railroad Co., 60 Md. 404 ; Eailroad Co. v. Brydon, 65 Md. 198, 611. In Manufacturing Co. y. Chico, 24 Fed. Rep. 893, it was held that where, under a eon- tract, a fire-engine was to be made and delivered whicli should be satis- factory to the purchaser, it must in fact be satisfactory- to him, or he is not bound to take it ; but that, where the purchaser was in fact satis- fied, but fraudulently, and in bad faith, declared that he was not satisfied, tl\e contract had been fully performed bj- the vendor, and the purchaser was bound to accept the article. This I regard as an accurate summary of the whole law upon the subject. Some doubt is thrown upon this case by the stipulation that the presses shall work satisfactorily, without stating the person to whom they shall be satisfactory. We think, however, that there can be but one interpretation fairly given to these words. When, in common lan- guage, we speak of making a thing satisfactory, we mean it shall be satisfactory to the person to whom we furnish it. It would be nonsense to say that it should be satisfactory to the vendor. It would be indefi- nite to say that it should be satisfactory to a third person, without designating the person. It can only be intended that it shall be satis- factoiy to the person who is himself interested in its satisfactory opera- tion, and that is the vendee. This was the view taken of similar words in Taylor v. Brewer, I Maule & S. 290 ; Machine Co. v. Chesrown, 33 Minn. 32 ; and in Singerly v. Thayer, 108 Pa. St. 291. The case of Iron Co. v. Best, 14 Mo. App. 503, is clearly distinguish- able from the cases last cited. In this case defendant agreed to build an air-furnace in plaintiff's warehouse, according to a plan to be fur- nished by himself. The furnace thus became attached to the freehold of the plaintiff, and was incapable of severance. It was a structure into which the plaintiff had put all the materials, and the defendant had put all the labor. Defendant could not take awaj- the materials, because they were not only attached to plaintiff's freehold, but actually belonged to him. His labor was gone, and could not be recalled. To permit the plaintiff, under such circumstances, to refuse to pay, if in fact the furnace 'worked reasonably well, and at the same time to retain the fruits of defendant's labor, would have been an unwarrantable extension of the doctrine applied to machines or articles of manufacture which can be rejected. The court very properlj' held that the covenant was satisfied if the furnace worked reasonably well. Conceding, then, that the plaintiff was bound to furnish presses that should work satisfactorilj' to the defendants, it is very evident that thej- were not satisfied with their operation, and that they had reasonable grounds for their dissatis- faction, as the referee finds that the presses neither worked to their satisfaction, nor reasonably well. This undoubtedl3' gave them the power to reject the machines. Instead of doing this, however, they kept them, and now seek to recoup their damages by reason of their failure to work as they ought to. Had the covenant been that the presses should work well, we should have no doubt that the defendants § 3.J A. sellee's engagement to confer title. 279 might have recouped such damages, and that the referee would have found them capable of estimation. These damages would have been the difference in value between presses which would work reasonably well and those which were actually furnished. But in attempting to apply the same rule in the present case, we encounter a formidable difflcultj' from the impossibility of fixing the value of machines which shall work to the satisfaction of the defendants. It will not do to saj' that such value is to be gauged bj' that of a machine which shall work reasonably well, because such a press might not have been satisfactory to the vendee, or he might have been content with one which would not have worked to the satisfaction of experts in the business. We think that, having elected to retain the presses, thej' are bound to pay the full price for them. The exceptions to the referee's report will there- fore be overruled, and judgment entered upon his finding. § 3. A. Seller's Engagement to confer Title. EICHHOLZ -y. BANNISTER. 17 C. B. N. s. 708. 1864. The plaintiff was a com mission- agent at Manchester. The defendant was a job-warehouseman in the same place. The plaintiff went to the defendant's warehouse, and there saw, amongst other goods which the defendant had just purchased, 17 pieces of prints, which he offered to buy of him at h\d. a yard. After some discussion, the defendant agreed to sell them, and gave the plaintiff an invoice in the following form, the whole of which was printed, with the exception of the parts in italics : — " 21 Chorlton Street, Portland Street, Manchester, April 18, 1864. " Mr. Eichholz " Bought of R. Bannister, Job-Warehouseman. " Prints, Fents, Gray Fustians, etc. Job and Perfect Yarns in Hanks, Cops, and Bundles. " n pieces of prints, 52 yds. at 5\d. £19 " IJ per cent for cash 6 " £18 14 " The trial judge directed a verdict for the plaintiff. Holker obtained a rule nisi. C. Pollock showed cause. Erle, C. J. I am of opinion that this rule should be discharged. The plaintiff brings his action to recover back money which he paid for goods bought by him in the shop of the defendant, which were after- wards lawfully claimed from him by a third person, the true owner. 280 EICHHOLZ V. BANNISTER. [CHAP. V. from whom they had been stolen. The plaintiff now claims to recover back the money as having been paid by him upon a consideration which has failed. The jury at the trial found a verdict for the plaintiff, under the direction of the learned judge who presided; and a rule has been obtained on behalf of the defendant to set aside that verdict and to enter a nonsuit, on the ground that it is part of the common law of England that the vendor of goods by the mere contract of sale does not warrant his title to the goods he sells, that the buyer takes them at his peril, and that the rule caveat emptor applies. The case has been remarkably well argued on both sides ; and the court are much indebted to the learned counsel for the able assistance they have rendered to them. The result I have arrived at is that the plaintiff is entitled to retain his verdict. 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. So is the law laid down in the verj' elaborate judgment of Parke, B., in Morley v. Attenborough, 3 Exch. 500, 513, where thatMearned judge puts the case upon which I ground my judgment. A difference is taken in some of the cases between a warranty and a condition ; but that is foreign to the present inquiry. In Morlej-- v. Attenborough, 3 Exch., 513, Parke, B., says: "We do not suppose that there would be any doubt, if the articles are bought in a shop professedly- carried on for the sale of goods, that the shopkeeper must be considered as warranting that those who purchase will have a good title to keep the goods pur- chased. In such a case the vendor sells ' as his own,' and that is what is equivalent to a warranty x)f title." No doubt, if a shopkeeper in words or hy his conduct affirms at the time of the sale that he is the owner of the goods, such aflOirmation becomes part of the contract, and, if it turns out that he is not the owner, so that the goods are lost to the buyer, the price which he has received ma^^ be recovered back. I ven- tured to throw out some remai-ks in the course of the argument upon the doctrine relied on by Mr. Solke'r, which he answered by assertion after assertion coming no doubt from judges of great authority in the law, to- the effect that upon a sale of goods there is no implied warranty of title. The passage cited from N03' certainly puts the proposition in a manner that must shock the understanding of any ordinary persoi). But I take the principle intended to be illustrated to be this, — I am in possession of a horse or other chattel : I neither aflBrm or denj* that I am the owner: if you choose to take it as it is, without more, caveat emptor: you have no remedy, though it should turn out that I have no title. Where that is the whole of the transaction, it may be that there is no- warranty of title. Such seems to have been the principle on which Morley v. Attenborough was decided. ' The pawnbroker, when he sells- an unredeemed pledge, virtually says, — I have under the provisions ot the statute a right to sell. If you choose to buy the article, it is at your own peril. So, in the case of the sale by the sheriff of gooda § 3.] A. seller's engagement to confer title. 281 seized under Sifi.fa., — Chapman v. Speller, 14 Q. B. 621. The fact of the sale taking place under such circumstances is notice to bu3'ers that the sheriff has no knowledge of the title to tlie goods ; and the buj-ers consequently btiy at their own peril. Many contracts of sale tacitly express the same sort of disclaimer of warrantj'. In this sense it is that I understand the decision of this court in Hall v. Conder, 2 C. B. (n. s.) 22. There the plaintiff merely- professed to sell the patent-right such as he had it, and the court held that the contract might still be enforced, though the patent was ultimately defeated on the ground of want of novelty. The thing which was the subject of the contract there was not matter, it was rather in the nature of mind. These are some of the cases where the conduct of the seller expresses at the time of the contract that he merely contracts to sell such a title as he himself has in the thing. But, 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. The sale of a chattel is the I strongest act of dominion that is incidental to ownership. A purchaser | under ordinary circumstances would naturallj' be led to the conclusion, that, by offering an article for sale, the seller afHrms that he has title to sell, and that the buyer may enjoj' that for which he parts with his monej'. Such a case falls within the doctrine stated by Blackstone, and is so recognized by Littledale, J., in Earlj' v. Garrett, 9 B. & C. 928, 4 M. & R. 687, and by Parke, B., in Morley v. Attenborough. I think justice and sound sense require us to limit the doctrine so often repeated, that there is no implied warranty of title on the sale of a chattel. I cannot but take notice, that, after all the research of two very learned counsel, the onh- semblance of authority for this doctrine from the time of Noy and Lord Coke consists of mere dicta. These dicta, it is true, appear to have been adopted by several learned judges, amongst others by my excellent Brother Williams, whose words are almost obligatory on me. But I cannot find a single instance in which it has been more than a repetition of barren sounds, never resulting in the fruit of a judg- ment. This very much tends to show the wisdom of Lord Campbell's remark in Sims v. Marryat, 17 Q. B. 291, that the rule is beset with so many exceptions that they well nigh eat it up. It is to be hoped that the notion which has so long prevailed will now pass away, and that no further impediment will be placed in the way of a buyer recovering back money which he has parted with upon a consideration which has failed. Btles, J. I also am of opinion that this rule should be discharged. It has been said over and over again that there is no implied warranty of title on the mere sale of a chattel. But it is. certainh', as my lord has observed, barren ground ; not a single judgment has been given upon it. In every cause, there has been, subject to one single excep- tion, either declaration or conduct. Chancellor Kent, 2 Com. 478, says : " In every sale of a chattel, if the possession be at the time in another, and there be no covenant or warranty of title, the rule of caveat emptor applies, and the party buys at his peril ; " for which he cites the dicta y^ 282 GEOSE V. HENNESSY. [CHAF, V. of Lord Holt in Medina v. Stoughton, 1 Salk. 210, 1 Ld. Raym. 593, and of Buller, J., in Pasley v. Freeman, 3 T. R. 57, 58. " But," he goes on, "if the seller has possession of the article, and he sells it as his own, and not as agent for another, and for a fair price, he is under- stood to warrant the title." Thus the law stands that, if there be declaration or conduct or warranty whereby the buyer is induced to believe that the seller has title to the goods he professes to sell, au action lies for a breach. There can seldom be a sale of goods where one of these circumstances is not present. I think Lord Campbell was right when he observed that the exceptions had well nigh eaten up the rule. Hule discharged.^ GROSE ET AL. V. HENNESSY et al. 13 Allen (Mass.), 389. 1866. CoNTKACT brought to recover damages for the breach of covenants of title contained in a bill of sale from the defendants to the plaintiffs of a shop on Broad Street in Boston, together with the unexpired term of the lease of the land on which the shop stood. At the trial in the Superior Court, before Wilkinson, J., it appeared that the shop was built on leased land, and the plaintiffs contended that it became part of the realty ; and the defendants contended that liberty to remove the same at the end of the term was reserved by special agreement. The lease had not expired, and the plaintiffs had never been disturbed in their possession. The defendants contended that on this ground the plaintiffs could not recover ; but the judge ruled otherwise. The defendants requested the court to rule that under the circumstances of the case the plaintiffs could onl3' recover nominal damages ; but the judge admitted evidence of the value of the shop, and ruled that the measure of damages, in case the jurj- should find that the defendants were not the owners of the shop, would be the difference in value between such title as the plaintiff took and such title as the defendants covenanted that they had conveyed. The jury accordingly returned a verdict for the plaintiffs, and the defendants alleged exceptions. HoAK, J. The suggestion of the defendants that there was a mis- trial, because the facts might have shown that the shop which they sold was a tenant's fixture, and so that the plaintiffs got a good title b}' the sale, cannot affect the decision of the case. No such ground appears to have been taken in the court below, and the facts on which it could have been maintained are not fully reported. That the defendants might, perhaps, have had a better defence than that which they pre- sented does not constitute a mistrial. 1 Keating, J., delivered a concurring opinion. § 3.] A. sellek's engagement to confer title. 283 The point presented by the exceptions is a very plain one. Upon the finding of tlie jur^-, it appears that the defendants sold as a chattel a building to which they had no title, because it was a part of the realty. B3' the same instrument they transferred a lease of the premises of which the building formed a part, and the plaintiffs had the possession of the building, under the lease. But by the sale of it as a chattel no title passed. In every sale of personal property there is an implied warranty of title. Here there was an express warrantj-. The rule of damages was certainlj- sufficiently favorable to the defendants. The difference in value between that which the defendants did convey and that which the}' covenanted that they conveyed, would be the exact measure of the plaintiffs' loss by the breach of the covenant. The rules which belong to the covenants of seisin and warranty in conveyance of real property have no application. Exceptions overruled. JOHNSON V. OEHMIG & WIEHL. 95 Ala. 189. 1891. This action was brought by Oehmig & Wiehl, suing as partners against Henry Johnson and L. M. Gordon, and was commenced on the 13th December, 1888. The complaint contained a single count which claimed $200 due by account for goods, wares, and merchandise sold by plaintiffs to defendants on or about 30th July, 1888. The defendants pleaded (1) "not indebted," and (2) that the account sued on was made for a stationary engine and set of mill rocks which defendants bought from plaintiffs at the agreed price of $300, of which amount $100 was paid in cash ; that after said purchase, and after the payment of said $100 defendants ascertained, and they here aver, that plaintiffs had no title to said engine, but the title to the same was in one A. B. Farquhar ; that said engine was the principal inducement to said pur- chase, and before defendants ascertained plaintiffs' want of title to said engine the}' had made very valuable improvements on said engine ; that they offered to rescind said contract after they ascertained that plain- tiffs had no title to said engine, by returning to them all the property purchased of them, if they would pay back said $100 and the value of the improvements put on said engine, but plaintiffs refused to do this ; and defendants aver that they are now ready to rescind said contract, if plaintiffs will pay back $100 and the value of said improvements ; and further, that plaintiffs represented to defendants, at the time of said purchase, that they had a good title to said engine." The court sustained a demurrer to this plea, and its judgment is here assigned as error. Davis c0 Haralson, for appellants. L. A. Dohbs, for appellees. 284 JOHNSON V. OEHMIG & WIEHL. [OHAP. V, Walker, J. In Ogburn v. Ogburn, 3 Porter, 126, it was held that the vendee of personal property cannot, while holding possession there- of, defend against an action for the purchase money by proof of want of title in the vendor. In the course of the opinion in that case it was said : ' ' We think no defence can be made to an action for the purchase money when the facts relied upon to make it would not, if the parties were changed and the money had been paid, enable the vendee to re- cover it back for the breach of the warranty of title." The defendants would not be entitled to such i-ecovery on the facts stated in their second plea. In an action bj- a vendee of personal propertj-, against his vendor for a breach of warranty of title, only damages for actual loss can be recovered. The plaintiff in such an action must not only establish that his vendor is without title to the property sold, and that another is the true owner, but also that he has restored the property to such owner ; that it has been taken from him under compulsory pro- ceedings, or that he has parted with money or property in consequence of a judgment obtained against him, or voluntarily in answer to a claim made for the property. O'Brien v. Jones, 91 N. Y. 193. In Harris v. Rowland, 23 Ala. 644, the propertj' sold had been recovered on the adverse title. No such state of facts is shown by the second plea in this ease. It is not averred that the defendants have in any way been disturbed in their possession of the property-. If that possession re- mains undisturbed, their title will be perfected by lapse of time. If a paramount title is asserted, the plaintiffs may settle with the adverse claimant, or thej' will be answerable in damages on their warranty of title, if the defendants shall be required to deliver up the property in response to a claim bj' one who may prove to be the true owner. So long as the vendee of personal property remains in undisturbed posses- sion, he cannot recover damages in an action on an implied warranty of title, or set up want of title in his vendor as a defence to au action for the purchase monej', unless there were fraudulent representations made by the vendor in regard to the title. Such a vendee in peaceable pos- session has nothing substantial to complain of in the fact that his vendor was not the true owner of the property. When nothing more is shown than that he may suffer loss in the future, in consequence of the out- standing claim to the pToperty, he must rely upon his warranty, and he cannot sue thereon until he has suffered damages because of its breach. Case V. Hall, 35 Am. Dec. 605 and note ; Sumner v. Gray, 33 Am. Dec. 39 ; Burt v. Dewey, 100 lb. 482 and note ; 2 Benjamin on Sales (Corbin's Ed.), §§ 948 and 1347, and notes. There was no error in sustaining the demurrer to the second plea. Affirmed. § 3.] A. seller's engagement to confer title. 285 GOULD V. BOURGEOIS. 51 N. J. L. 361. 1889. Ddpde, J. This suit was upon a promissory note made by the de- fendant. The defence was the want or failure of consideration. The city council of Holly Beach City proposed to build a breakwater. The defendant was an applicant for a contract to do the work, and prepared and sent to the city council an agreement with the city to that effect. Members of the city council sent word to the defendant that the city had already entered into a contract for the building of the breakwater with Gould & Downs, that these parties could not fulfil their contract, and that, if the defendant would make a satisfactory arrangement with Gould & Downs, the city would give him the contract. The parties thereupon entered into negotiation, the conclusion of which was a con- tract in writing and under seal, whereby Gould & Downs, for the con- sideration of a note for $375 and $500 in citj- bonds, assigned to the defendant " all our right, title, and. interest in a certain contract entered into by the authorities of Holly Beach City and ourselves to build a certain breakwater ordered built by a resolution passed April 14, 1887." Subsequently, the city council, having obtained the opinion of counsel that the city had no power to build the breakwater, refused to ratify the arrangement of the defendant with Gould & Downs, and abandoned the project of constructing the work. The note sued on was given in compliance with the terms of this assignment. There was no proof of an express warranty by Gould & Downs of the validity of their con- tract, nor any evidence from which fraud, either in representation or concealment on their part, could be inferred. The power of the citj' to make the contract was not mooted until after these parties had con- cluded their arrangement and the assignment had been made; and, if the contract was invalid, its invalidity arose from the city charter, a public act equally within the knowledge of both parties. The defendant's contention was that, inasmuch as there was a sale of the contract, a warranty that the contract was a valid contract was im- plied, and that, the contract being ultra vires on the part of the citv, and void, the consideration entirely failed. If the proposition on which the defence was rested be sound in law, the defence was appropriate in this suit. The doctrine of implied warranty of title in the sale of goods I applies as well to the sale of a chose in action, and extends not merely to the paper on which the chose in action is written, but embraces also ' the validity of the right purported to be transfeiTed. Wood v. Sheldon, 42 N. J. L. 421. Nor is there anything in the nature of the alleged infirmity of the contract that would bar the defence. In the ordinary case of a suit on a breach of warranty of title, the validity of the vendor's title against the adverse claimant is triable, if the purchaser has in fact lost title, although the transactions which determine the vendor's title 286 GOULD V. BOUKGEOIS. CHAP. V, are res inter alios acta. If the contract which was the subject-matter of the assignment was in ia.ct ultra vires, a foundation was laid for this defence, the cit^' having repudiated the contract in limine on that ground. The validitj' of the defence offered and overruled depends upon the fundamental proposition whether, under the circumstances of this sale, a warranty of title is implied in law. The theory on which a warrant of title is implied upon the sale of personal property is that the act selling is an aflarmation of title. The earlier English cases, of which Medina v. Stoughton, 1 Salk. 210, 1 Ld. Raym. 593, is a type, adopted a distinction between a sale by a vendor who was in possession and a sale where the chattel was in the possession of a third person ; an- nexing a warrant}' of title to the former, and excluding it in the latter. . . . Later decisions have placed the whole subject of implied warranty of title on a more reasonable basis. Mr. Benjamin, in his Treatise on Sales, after a full examination and discussion of the late English cases, states the rule in force in England at this time in the following terms : " A sale of personal chattels implies an affirmation by the vendor that the 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 in- tend 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 implied warranty of title, has been generallj* recognized ; but the tendency 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. . . . There is a line of English cases holding that, where the facts and circumstances show that the purpose of the sale, as it must ha,ve been understood by the parties at the time, was not to con- vej' 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. ... 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 defendant 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 warrant}' 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 Lis 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 former 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 § 3.] A. seller's engagement to confer title. 287 at such a sale. In Hall v. Conder, 2 C. B. (n. s.) 22, the plaintiff, by an agreement in writing by which, after reciting that he had invented a method 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 Lsuit to recover the consideration, the defendant pleaded that the inven- ■fln was wholly worthless, and of no public utility or advantage what- ^^11) and that the plaintiff was not the true and first inventor thereof. On demurrer tlie plea was held bad, for that, in the absence of any allegation of fraud, it must be assumed that the plaintiff was an in- ventor, 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 invention 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 ascertain- ing its value, and each acting on his own judgment. A like decision 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 expresses, 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 that, while it rescues the common-law rule of implied warrant}- 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 warrant^' or fraud the purchaser was remediless, it also placed the rule under the just limitation that it should not apply where the circumstances showed that the sale purported to be onl}' a transfer of the vendor's title. Expres- sions 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 as his own, and not as the agent of another, 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 doctrine 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 Morle^' v. Atten- borbugh, that there is no undertaking by the vendor for title unless there be an express warrant}' of title, or an equivalent to it hy declara- tion or conduct, affects only the order of proof. It was conceded in that case that the pawnbroker selling his goods undertook that thej' had been pledged, and were irredeemable by the pledgor, 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 entirely overcome bj- the facts and circum- stances connected with the transaction, the difference between Morley V. Attenborough and Eichholz v. Bannister will rarely be of anj' prac- tical importance. The limitation above mentioned upon the doctrine that the act of selling is an afHrmation of title has been adopted in this State. In 288 GOULD V. BOURGEOIS. [CHAP. -V. I ill 38 i eld/ w Bogert V. Chrystie, 24 N. J. L. 57-60, this court held that the general rule that the vendor of goods having possession, and selling them as his own, is bound in law to warrant the title to the vendee, did not apply where the vendor sells with notice of an outstanding interest in a third party, and subject to that interest. In Hoagland v. Hall, 38 N. J. L. 351, the vendor agreed in writing to assign a lease he held upon certain premises, and to sell and transfer goods and chattels me: tioned in a schedule. The premises were a licensed inn and tave and in the schedule of the articles sold were enumerated '" the licenses of the house." The law under which the license was granted prohibited the transfer of a license, and in the purchaser's hands it would be void and valueless. The court held that that circumstance did not justify the purchaser in withdrawing from his contract ; that there was no warranty by the vendor that the license, when assigned, would be of any value to the purchaser ; and that the latter, having obtained by the assign- ment what he had bargained for, could not annul his contract unless he showed fraud or misrepresentation with respect to the subject-matter of the contract. In Bank v. Trust Co., 123 Mass. 830, the defendant had a contract with B., pledging to him certain tobacco, in which it was recited that the tobacco was B.'s own propertj-, and free from all incumbrances, and made an assignment to the plaintiff " of all his right, title, and interest in and under the contract, with all the property therein mentioned." The tobacco was then in the defendant's posses- sion, and was delivered by him to the plaintiff. Afterwards a third person demanded and recovered of the plaintiff part of the tobacco as his property, which had been pledged to the defendant without right. The' plaintrff then sued the defendant on an alleged implied warranty of title. The court ruled adversely to the plaintiff's claim. In the opinion the court said that the written assignment did not purport to be a sale of the goods, but of all the defendant's right under the con- tract, and its obvious purpose was to substitute the plaintiff in the place of the original pledgee, and that' the fact that at the time of the transfer to the plaintiff the goods were in the actual possession of the defendant did not vary the case. In the case in hand the circumstances connected with the assignment, independent of the words " all our right, title, and interest," etc., con- tained in it, preclude the implication of a warranty of the validitj- of the contract. Taken in connection with the words of the assignment, the intention of the parties is free from doubt. Tlie contention that the plaintiff was in fault in that he made no de- livery of the contract to the defendant is without substance. The con- tract was neither produced at the negotiation between the parties, nor was it required. The transaction was the purchase of Gould & Downs' interest to consummate an arrangement whereby those parties were to be got rid of, that the city might give the defendant a contract. The defendant obtained by the assignment all he bargained for. The defence was properly overruled, and the rule to show causfi should be discharged. § 3 ] A. SELLEE'S ENGAGEMENT TO CONFER TITLE. 289 JOHNSON V. LAYBOUEN. 56 Minn. 332. 1894. Appeal by plaintiff, Edward M. Johnson from an order of the District Court of Hennepin County, Seagrave Smith, J., made Februarj- 4, 1893, denying his motion for a new trial. The Flour City Sash and Door Compan}', a corporation of Minne- apolis, being insolvent on July 21, 1891, made an assignment under Laws, 1881, eh. 148, of its property to the defendant, Charles G. Lay- bourn, in trust for the benefit of its creditors. He accepted the trust, and on October 15, 1891, sold at public auction the assigned real and personal property separately. He sold to plaintiff for $1,500 all the machinery, shafting, belting, pulleys, and the engine, boilers, steam pump, water-heater, and purifier, and gave him a bill of sale thereof, and received the price. This propertj' was a part of the machinery and plant of the insolvent corporation, and was situated in its factory buildings on its real estate, Nos. 1608-1620 Monroe Street, N. E. This real estate was mortgaged, and the mortgage had been foreclosed, and the real estate sold to D. B. L3'on. Lyon claimed that the engine, boiler, steam pump, water-heater, and purifier were fixtures, and in- cluded in the foreclosure sale to him. Plaintiff purchased of the as- signee the real estate, subject to the rights of Lyon therein. The sales were reported to, and confirmed by the court, and the plaintiff was given possession. The time for redemption of the real estate expired December 9, 1891, but it was not redeemed from the foreclosure sale, and Lyon obtained the engine, boilers, pump, heater, and purifier. On November 14, 1892, the plaintiff brought this action against Laybourn, the assignee, to recover $1,350 the value of those fixtures. At the trial on January 2, 1893, defendant had a verdict. Plaintiff moved for a new trial. Being denied, he appeals. Gii.FiLLAN, C. J. As the sale of the real estate and of the personal property, had at the same time, passed the title to the articles sued for in this action, whether they were personal property or fixtures, and as possession was delivered, the action can stand only on the proposition, that there was an implied warranty that the articles were movables, and not fixtures, so as to be covered by the mortgage on the real estate. As the buyer knew, as well as the seller, the character of the prop- erty, it maj' be doubted that, had the sale been by a private person, any warrantj^ as to its character could have been implied. But it is well settled that in judicial sales the rule caveat emptor applies. Barron V. Mnllin, 21 Minn. 374. The rule also applies to otHcial sales ; that is, sales made by and as officers of the law, such as sheriffs, constables, etc., under writs of execution, though they are not strictly judicial. The Monte AUegre, 9 Wheat. 616 ; "Worthy v. Johnson, 8 Ga. 236 ; 19 290 POETEK V. BLIGHT. [CHAP. T. Henslej- v. Baker, 10 Mo. 157; Chapman v. Speller, 14 Q. B. 621 Morgan v. Fencher, 1 Blaokf. 10; Rodgers v. Smith, 2 Ind. 526 Bostick V. Winton, 1 Sneed, 525; Yates v. Bond, 2 McCord, 382 Bashore v. Whisler, 3 Watts, 490 ; Davis v. Hunt, 2 Bailej', 412 ; Stone V. Pointer, 5 Mnnf. 287. In case of such sales, offlcial, as well as judicial, the buyer is, unless the officer assumes to do more, bound to know that the latter sells only what he is authorized to sell, and to sell it just as it is. An assignee under the insolvent law is an officer of the court. His title and all his acts are official. Order affirmed. PORTER V. BLIGHT. 82 Pa. St. 441. 1876. Mk. Justice Shaeswood delivered the opinion of the court, October 23, 1876. We are of the opinion that the offer of the defendants below, the rejection of which by the learned court forms the subject of the first assignment of error, ought to have been admitted. That offer was in substance that the defendants did not know the bonds which thej' offered to sell the plaintiffs to be counterfeit, but supposed thera to be genuine ; that the3' stated to the plaintiffs what thej' had done themselves to ascertain their genuineness ; that the plaintiffs must make inquiry' and satisfy themselves upon that point, as they would guarantee against nothing except their being stolen, and afterwards the plaintiffs called on the defendants and said that they had made inquiries and were satisfied from what they had heard that they were genuine, and the sale was then made. No doubt every vendor of a bond or other instrument of writing war- rants impliedlj' his title in the same manner as the vendor of any other personal chattel does. If the bond is forged, or its assignment is- forged, he has no title, and the vendee can reclaim the price he has paid. It makes no matter whether the vendor knows his title to be bad or not, nor how entirely innocent he may be of any fraud in the transaction. What he has sold proves to be intrinsically worthless. But it would be carrying this doctrine entirely too far to hold that in the I absence of concealment or false representations by the vendor, the vendee may not agree to assume all the risk of the title. Why not in the case of the forgery of the instrument, as in the case of any other defect of the title, as, for example, that the bond was void for an}' other reason, or that the assignment of it was forged? There is nothing to affect such a conti-act with illegality. Even in equity a vendee of land under articles cannot set up the failure of consideration in consequence of the vendor's want of title, if he expressly agreed to take the risk. § 3.] A. seller's engagement to confek title. 291 " Where the purchaser is aware of a flaw and provides not against it, ^ he takes the risk of it on himself ; Lightj- v. Shovb, 3 Penn. R. 452. The ease of Charnley v. Dulles, 8 W. & S. 353, is an authority' in point. That was the sale of a certificate of deposit issued b}- a bank pa^'able to the order of J. S. Skinner, whose indorsement was forged. The vendor had no title, and if the case had there rested, the vendee coulA have recovered back the price. But this court held, that the liabilitj'' of the vendor depended upon the circumstances of the sale, and that it was for the jury to say whether on the evidence the plaintiff took the certificate subject to every risk or not. The indorsement of the vendor there was ' without recourse,' but the court held that to be immaterial. It did not relieve him from the implied warrant^' of title. It was for the jury to say, on all the evidence, what was the understanding of the parties as to the liability of the defendants ; whether the plaintiflf took the note subject to every risk, as well of the solvency of the parties as of the genuineness of the signature of the payee to the indorsement. If he did, the defendants are not responsible; but if, on the other hand, there was no such understanding, the words, ' without recourse ' alone do not in law exempt the defendants from responsibility." It is very plain that if the evidence proposed to be given by the defendants be- low had come up to their offer, and had been believed by the jurj-, it would have been suflScient to have justified them in finding that one of - the terms of the contract of sale was that the plaintiffs took themselves ^ the risk of the genuineness of the bonds. The plaintiffs in error have not fcrnished us with the evidence in the cause, and without it it is impossible for us to say whether there was anything of which to predicate the points of the answers to which the plaintiffs complain in the second, third, fourth, and fifth assignments of error. If the evidence appended to the paper book of the defendants in error was all the evidence in the cause, it certainly was not suflBcient to raise these points. There was no error in the court's not charging as requested by the defendants in their sixth point, "that in the pur- chase and sale of said bonds the law of caveat emptor applies," nor in the answer to the seventh point that " if the plaintiffs made known to defendants the character of the bonds witiiin a reasonable time after thej' discovered it themselves thej' were not negligent." Judgment reversed, and a venire facias de novo awarded. MORLEY V. ATTENBOROUGH, 3 Exchequer, 500. 1849. Parke, B. This case was argued some time ago before my Lord Chief Baron, my Brothers Rolfe, Platt, and myself, and stood over for our consideration. The plaintiff brought an action of assumpsit, 292 ■ MOELEY V. ATTENBOROUGH. [OHAP. T. stating that in consideration that the plaintiff would buy a harp for a certain sum, the defendant promised that he, the defendant, had lawful right to sell it, and the breach assigned was that he had not. It appeared on the trial, before \ay Brother Platt, that the defendant, who was a pawnbroker, had the harp pledged with him in the waj- of his business, and, the time having elapsed for its redemption, and the pledge being unredeemed, offered it for sale through certain auction- eers, who sold it to the plaintiff. It turned out that the harp had been pledged to the defendant by a person who had no title to it, and the real owner obliged the plaintiff to give it up, after it had been delivered to him by the defendant. But, of the want of title of the pawner to it, the defendant was ignorant, and there was no express warranty. My Brother Platt directed a verdict for the plaintiff, reserving leave to move to enter a nonsuit. On showing cause, the case was fully argued, and every authority cited and commented upon on both sides, bearing on the question, whether there is an implied warrantj- of title in the contract of sale of an article, or under what circumstances there is a liability on the part of the vendor to make good a loss b}' defect of title. It is very remarkable that there should be an}- doubt, as that, cer- tainly, is a question so likely to be of common occurrence, especiallj' in this commercial country. Such a point, one would have thought, would not have admitted of any doubt. The bargain and sale of a specific chattel, by our law (which differs in that respect from the civil law), undoubtedly transfers all the property- the vendor has, where nothing further remains to be done according to the intent of the par- ties to pass it. But it is made a question, whether there is annexed by law to such a contract, which operates as a conveyance of the property, an implied agreement on the part of the vendor, that he has the ability to convey. With respect to executor}' contracts of purchase and sale, where the subject is unascertained, and is afterwards to be convej'ed, it would probably be implied that both parties meant that a good title to that subject should be transferred, in the same manner as it would be implied, under similar circumstances, that a merchantable article was to be supplied. Unless goods, which the party could enjoy as his own, and make full use of, were delivered, the contract would not be performed. The purchaser could not be bound to accept if he dis-' y covered the defect of title before delivery, and if he did, and the goods were recovered from him, he would not be bound to pay, or, having paid, he would be entitled to recover back the price, as on a consider- ation which had failed. But when there is a bargain and sale of a specifie ascertained chattel, which operates to transmit the property, and nothing is said about title, wliat is the legal effect of that contract? Does the contract necessarily import, unless the contrary be expi'essed, that the vendor has a good title? or has it merely the effect of trans- ferring such title as the vendor has? According to the Roman law (vide Domat, Book 1, tit. 2, s. 2, art. 3), and in France (Code Civil, § 3.] A. seller's engagement to confer title. 293 chap. 4, sect. 1, art. 1603), and Scotland, and partialh- in America (1 Johns. Rep. 274 ; Broom's Maxims, 628, where this subject is well discussed) , there is always an implied contract that the vendor has the right to dispose of the subject which be sells (Bell on Sale, 94) ; but the result of the older authorities is, that there is by the law of England no warrant}' of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor applies to both ; but if the vendor knew that he had no title, and concealed that fact, he was always held responsible to the purchaser as for a fraud, in the same way that he is if he knew of the defective quality. This rule will be found in Co. Litt. 102 a ; 3 Rep. 22 a ; Noy, Max. 42 ; Fitz. Nat. Brev. 94 c, in Springwell v. Allen, Aleyn, 91, cited bj' Littledale, J., in Early v. Garrett, 9 B. & C. 932, and in "Williamson v. Allison, 2 East, 449, referred to in the argument. The same principle applies to transfer by deed. Lord Hale says, "Though the words, ' assign, set over, and transfer,' do not amount to a covenant against an eign title, yet, as against the covenantor himself, it will amount to a covenant against all claiming under him " (Deering v. Farrington, 3 Keb. 304, which was an assignment of a chose in action). It may be, that as in the earlier times the chief transactions of pur- chase and sale were in markets and fairs, where the bona fide purchaser without notice obtained a good title as against all except the Crown (and afterwards a prosecutor, to whom restitution is ordered \>y the 21 Hen. 8, c. 11), the common law did not annex a warranty to any contract of sale. Be that as it may, the older authorities are strong to show that there is no such warranty implied by law from the mere sale. In recent times a different notion appears to have been gaining ground (see note of the learned editor to 3 Rep. 22 a) ; and Mr. Justice Blackstone says, "In contracts for sale it is constantly understood that the seller undertakes that the commodity he sells is his own ; " and Mr. Wood- deson, in his Lectures, vol. 2, p. 415, goes so far as to assert that the rule of caveat emptor is exploded altogether, which no authority warrants. At all times, however, the vendor was liable if there was a warranty in fact ; and at an early period, the affirming those goods to be his own by a vendor in possession, appears to have been deemed equivalent to a warrant}'. Lord Holt, in Medina v. Stoughton, 1 Salk. 210 ; Ld. Raym. 593, says, that " Where one in possession of a personal chattel sells it, the bare affirming it to be his own amounts to a warranty ; " and Mr. Justice BuUer, in Pasley v. Freeman, 3 T. R. 57, disclaims any distinction between the effect of an affirmation, when the vendor is in possession or not, treating it as equivalent to a warranty in both cases. Some of the text- writers drop the expression of " warranty " or " affirmation," and lay down in general terms, that if a man sells goods as his own, and the title is deficient, he is liable to make good the loss, 2 Black. Com. 451 ; the commentator cites, for that position, Cro. Jac 294 MOELEY V. ATTENBOROUGH. [OHAP. V. 474, and 1 Roll. Abr. 70, in both which cases there was an allegation that the vendor affirmed that he had a title, and therefore it would seem, that the learned author treated the expression, " selling as his own," as equivalent to an affirmation or warrant^'. So Chancellor Kent, in 2 Com. 478', says, " that in every sale of a chattel, if the pos- session be in another, and there be no covenant or warranty of title, the rule of caveat einptor applies, and the party buj's at his peril ; but if the seller has possession of the article, and he sells it at his own, and for a fair piice, he is understood to warrant the title." From the authorities in our law, to which may be added the opinion of the late Lord Chief Justice Tindal, in Ormrod v. Huth, 14 M. & W. 664, it would seem that there is no implied warrant^' of title on the sale of goods, and that if there be no fraud, a vendor is not liable for a bad title, unless there is an express warranty, or an equivalent to it, by declarations or conduct; and the question in each case, where there is no warranty in express terms, will be, whether there are such circum- stances as to be equivalent to such a warrant}'. Usage of trade, if proved as a matter of fact, would, of course, be sufficient to raise an inference of such an engagement ; and without proof of such usage, the very natnre of the trade may be enough to lead to the conclusion, that the person carrying it on must be understood to engage that the purchaser shall enjo}- that which he buys, as against all persons. It is, perhaps, with reference to such sales, or to executory contracts, that Blackstone makes the statement above referred to. Similar questions occur in cases as to the quality of goods, in which it is clear there is, by law, no implied warranty ; yet, if goods are ordered of 'a tradesman, in the way of his trade, for a particular pur- pose, he may be considered as engaging that the goods supplied are reasonably fit for that purpose. We do not suppose that there would be any doubt, if the articles are bought in a shop professedly' carried on for the sale of goods, that the shopkeeper must be considered as war- ranting that those who purchase will have a good title to keep the goods purchased. In such a case the vendor sells " as his own," and that is what is equivalent to a warranty of title. But in the case now under consideration, the defendant can be made responsible only as on a sale of a forfeited pledge eo nomine. Though the harp maj' not have been distinctly stated in the auctioneer's catalogue to be a for- feited pledge, yet the auctioneer had no authority from the defendant to sell it except as such. The defendant, therefore, cannot be taken to have sold it with a more extensive liability than such a sale would have imposed upon him ; and the question is, whether on such a sale, accompanied with possession, there is any assertion of an absolute title to sell, or only an assertion that the article has been pledged with him, and the time allowed for redemption has passed. On this question we are without any light from decided cases. In our judgment, it appears unreasonable to consider the pawnbroker, from the nature of his occupation, as undertaking anything more thaa § 3.] B. THE AGKEED ARTICLE. 295 that the subject of sale is a pledge and irredeemable, and that he is not cognizant of an}- defect of title to it. Bj- the statute law (see 1 Jac. 1, c. 21), he gains no better title b^- a pledge than the pawner had ; and as the rule of the common law is, that there is no implied warranty from the mere contract of sale itself, we think, that where it is to be implied from the nature of the trade carried on, the mode of carrying on the trade should be such as clearly to raise that inference. In this case we think it does not. The vendor must be considered as selling merelyl the right to the pledge which he himself had ; and therefore we think \ the rule must be absolute. Since the argument, we find that there was a count for money had and received, as well as the count on the warranty, in the declaration. But the attention of the judge at the trial was not di-awn to this count, nor was it noticed on the argument in court. It may be, that though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliquidated dam- ages, yet the purchaser may recover back the purchase-money, as on a consideration that failed, if it could be shown that it was the under- standing of both parties that the bargain should be put an end to if the purchaser should not have a good title. But if there is no implied warranty of title, some circumstances must be shown to enable the plaintiff to recover for monej- had and received. This case was not made at the trial, and the only question is, whether there is an implied warranty. Hule absolute. § 3. B. The Ageeed Article. SALISBURY ET AL. V. STAINER et al. 19 Wendell (N. Y.), 159. 1838. The plaintiffs declared for deceit in the sale of 184 bales of Italian hemp, amounting to 64,850 lbs., for which the plaintiffs paid the de- fendants at the rate of $210 per ton, the sum of $5,775.71, besides charges for cartage. The declaration also contained counts on a war- ranty. The defendants pleaded the general issue. When the hemp came to be worked, it was discovered that the interior of the bales was very different from the exterior, not only being of an inferior quality but containing large quantities of tow. The plaintiffs opened and worked 12 bales, and re'shipped the remainder to the city of New York, where the defendants resided, and tendered the hemp to the defendants, demanding a return of the money paid for it. The hemp was examined in New York by two men experienced in the article, who concurred in stating that it was not worth more than $150 per ton. The plaintiffs produced a letter accompanying the invoice 296 SALISBURY V. STAINEK. [CHAP. V. received by them from the defendants, containing the following clauses : " There is no more first quality hemp now remaining, but we should be glad to sell our third quality at about $175, if you have any use for it. We have only 8 tons of it on hand. Our second quality we hold at $205 for retail;" and "Advices received from Trieste this morning by the English packet, quote first quality Ferrara hemp, same as sold to you," etc. The plaintiffs also proved that the defendants, in speaking of the hemp in question to other persons to whom they offered to sell tlie same previous to the sale to plaintiffs, represented it as hemp of the first quality. On the part of the defend- ants, it was proved that the purchase was made by the plaintiff S. E, Salisbury ; that the hemp at the time of the purchase was not in the defendants' store-house, but in the store-house of Messrs. De Rham & Moore ; that the defendants sent a person in their emploj'ment to the store of De Eham & Moore to show the hemp to the plaintiff, telling him at the same time, Examine well for yourself; the plaintiff pro- ceeded to where the hemp was, cut open a bale, and, though he said nothing, appeared satisfied with the qualitj'. The witness testified that the plaintiff might, if he had so chosen, have cut open every bale ; he had the opportunity. It was further proved that the plaintiffs disavowed charging the defendants with fraud in the sale of the hemp. The counsel for the plaintiffs conceded that there could be no recovery on the ground of fraud, but insisted that the plaintiffs were entitled to a verdict on the grounds : either that an express warranty had been proved, or that the sale was hy sample, from which a war- ranty might be implied that the bulk of the article should correspond with the exterior of the bales. The judge charged the jurj- that if the plaintiffs were entitled to recover, it must be on the ground of an ex- press warrant}" or a sale by sample, that whether the repi'esentations of the plaintiffs amounted to an express warrant}-, or were mere mat- ter of opinion or description, was a question for the jury ; that the sale being by inspection of an article that could not be examined, there was an implied warranty that the inside of the bales corresponded with the outside ; and if thej' believed that the inside did not correspond, but was defective, the plaintiffs would be entitled to their verdict. He also instructed them to find specially whether the sale was on an express warrant}' or by sample. The jury found that the sale was by sample, and gave the plaintiffs a verdict for $6,110.45. The defendants' coun- sel having excepted to the charge, and obtained a bill of exceptions, to be sealed, now moved for a new trial. D. Graham, for defendants. IT. p. Sunt, for plaintiffs. By the court, Bronson, J. This was not a sale by sample. Salis- bury was told to examine, and did examine the hemp for himself. He inspected the bales, cut open one of them, and was at liberty to open others, had he chosen to do so. If he was not satisfied of the quality and condition of the goods, he should either have proceeded to § 3.] B. THE AGREED AKTICLE. 297 a further examination, or provided against a possible loss by requiring a warranty. Where the purchaser has an opportunity to inspect thei goods, no principle is better settled than that the seller, in the absence \ of fraud, is not answerable for latent defects. The rule in such cases is caveat emptor. The judge erred in charging the jurj' that there was an implied warrant}' that the inside should correspond with the outside of the bales. It is unnecessary to examine the other exceptions taken on the trial. New trial granted. BEIGGS ET AL. V. HUNTON. 32 At. 749: 87 Me. 145. 1895. Action for the contract price of the services of plaintiffs' stallion, Sir William, to the defendant's mare. Defence that the stallion at the time of service was afflicted with an incipient disease, which after- wards developed into fits ; that the offspring was weak, sick, and dis- eased when foaled and lived only four days, and that there was an implied warranty that the stallion was not diseased at the time of his service. The trial judge ruled that even if the stallion was at the time of the contract and service afflicted with any incipient disease, unknown to the plaintiffs, it would be no defence to this action ; and he directed the jury to find for the plaintiffs. Exceptions by defendant. George G. Wing, for plaintiffs. A. It. Savage and S. W. Oakes, for defendant. Haskell, J. Two questions are presented : — 1. Does a contract for the service of a stallion for breeding contain an implied warrant^' that the animal is free from disease that may be transmitted to offspring? The element of deceit that might result from the concealment of disease known to the owner of the animal must be eliminated from the consideration of this question, as that element might be cause for a remedy differing from that sought here. It does not pertain to this case. In the sale of chattels bj' the manufacturer, for specific uses, an implied warranty arises that the article is fit for the use intended. Downing v. Dearborn, 77 Me. 457. In the sale of chattels without express warranty of quality, and without fraud, caveat emptor applies, and no warranty is implied by law. Kingsbury v. Taylor, 29 Me. 508 ; Winsor v. Lombard, 18 Pick. 57 ; Mixer v. Coburn, 11 Mete. (Mass.) 559 ; French v. Vining, 102 Mass. 132 ; Howard v. Emerson, 110 Mass. 320. If, however, the sale be by description, without opportunity for inspection, the arti- cle must not only meet the description, but be salable or marketable, of the kind described. Said Lord Eilenborough: "The purchaser 298 BEIGGS V. HUNTON, [CHAP. T. cannot be supposed to buy goods to lay them on the dunghill." Gardiner v. Gray, 4 Camp. 144 ; Warner v. Ice Co., 74 Me. 475. In the sale of provisions, other than to the consumer, it seems settled that the rule of caveat emptor applies. Howard v. Emerson, supra; Giroux v. Stedmau, 145 Mass. 439 ; Moses v. Mead, 1 Denio, \ 378 ; Humphrey v. Comline, 8 Blackf. 516 ; Ryder v. Neitge, 21 Minn. 70. But some authorities except sales of provisions to the con- sumer for domestic use from the rule. Van Bracklin v. Fonda, 12 Johns. 468 ; Hoover v. Peters, 18 Mich. 51 ; Sinclair v. Hathaway, 57 Mich. 60; Copas v. Provision Co., 73 Mich. 541. Other cases are sometimes cited to the same point, but in these the defect was known, as it was in the leading case, — Van Bracklin v. Fonda, supra. In the case at bar the owner sold the services of his stallion for breeding purposes. Had he known the stallion to have been diseased, and concealed the fact, it would have been fraud. Not knowing this, upon what ground, or from what principle of law, can warranty be im- plied ? Why not apply the rule of caveat emptor? The purchaser had the same field of inquiry open to him as the seller. In Kingsbury v. Taylor, 29 Me. 608, winter rye was innocently sold for seed spring rye, whereby the purchaser lost his crop ; and the court held no deceit, and, in effect, say there was no warranty implied. In Winsor v. Lombard, 18 Pick. 57, mackerel were sold as No. 1 and No. 2. Held no warranty that they were not No. 3 in quality. In Howard v. Emerson, 110 Mass. 320, a cow was sold by a farmer to retail butchers, and it was held that there was no implied warranty that she was fit for food. In Giroux v. Stedman, 145 Mass. 439, a farmer killed a hog, and sold the flesh, knowing that the purchaser intended to eat it, and the court said there was no warrant^' that it was fit for food. If a warranty is to be implied in the case at bar, it must arise from the principle of sale for specific use. There was no sale of a chattel, but the sale of the use of a chattel. No authority has been cited that any implied warranty arises, from the contract of letting, that the thing let is fit for the use intended, where the selection is made by the lessee. In Deming v. Foster, 42 N. H. 165, a particular yoke of oxen were sold to work on farm, and the court held there was no implied war- ranty of their fitness. The court illustrates by quoting from Keates v. Earl of Cadogan, 10 C. B. 591, 2 Eng. Law & Eq. 320, and shows the difference between, " Sell me a horse fit to v.&vvy me," and " Sell me that gray horse to ride." In the case at bar the plaintiff did not sell the service of a stallion fit to beget offspring, but the service of Sir William. He knew no reason why he was not fit for the purpose, and the law does not imply a warranty that he was. Exertions overruled.^ * A portion of the opinion, relating to a statutory provision, is omitted. § 3.] B. THE AGREED ARTICLE. 299 WIELER V. SCHILIZZI. 17 C. B. 619. 1856. Tais was an action for an alleged breach of a contract for the sale of certain parcels of linseed described as Calcutta linseed. The cause was tried before Jekvis, C. J. The defendants, who were merchants carrying on business at Calcutta and in London, on the 18th of November, 1854, through their brokers, entered into the following contract with the plaintiff : — "London, 18th November, 1854. Sold for account of Messrs. Sohilizzi & Co., to Mr. W. Wieler, the following parcels of Calcutta linseed, viz. : Per " Thalestris," about 210 tons, bill of lading dated July last. Per " Mersapore,'' about 100 tons, bill of lading dated July last. Per " St. Abbs," about 18 tons, bill of lading dated July last. all at 65s. 6d. per quarter, and Per " Gloriosa," about 100 tons, bill of lading dated Sept. last. Per " Albatross," about 100 tons, bill of lading dated Sept. last. Per " Highlander," about 10 tons, bill of lading dated Sept. last. all at 66s. per quarter, the cost, free on board, and the freight, insur- ance, and packages to London included, — tale quale. . . . Laing & Campbell, Brokers. £1,000 paid 20th Nov. 1854." On the arrival of the seed, the buj-er objected to the qualitj', com- plaining that it contained a large admixture of rape and mustard seed, and therefore was not, in accordance with the terms of the contract, "Calcutta linseed." It appeared from the evidence that no seed comes to market without some mixture, the average being generally about two or three per cent. ; but, according to the evidence of the plaintiff's witnesses, the linseed in question contained about fifteen per cent, of tares, rape, and mus- tard. The defendants' witnesses, on the other hand, stated, that, though of somewhat inferior quality, the seed did answer the descrip- tion in the contract. It further appeared, however, that the plaintiff had sold it as an< for "linseed;" and the crushers to whom it was sold proved that it had been used by them as such, and that the cake was sold as linseed-cake. On the part of the defendant, it was submitted, that the contract — which contained no warrant^-, but which distinctlj' intimated to the purchaser that he was to take the seed as it was — was satisfied bj' the deliver}' of that which was known in the market as, and which in point of fact was, " Calcutta linseed," however inferior in quality, and however adulterated. For the plaintiff, it was insisted, that, to the extent of the mixture of foreign seeds, the article delivered was not linseed at all within the meaning of the contract. 300 WOLCOTT V. MOUNT. [CHAP. V. In submitting the ease to the jurj-jthe Lokd Chief Justice told them that the question for them to consider was, whether the plaintiff got what he bargained for, — whether there was such an admixture of for- eign substances in it as to alter the distinctive character of the article, and prevent it from answering the description of it in the contract, — more, in truth, than might reasonably be expected. The jur}- returned a verdict for the plaintiff, — the amount of dam- ages being bj- agreement referred. Montague Smith moved for a new trial, on the ground of misdirec- tion, and that the verdict was against evidence. Cresswell, J. I am utterly unable to discover an^' misdirection in this case. It is suggested that my lord was wrong in telling the jur}' that the question for them to consider was, whether the linseed deliv- ered contained a greater admixture of foreign substances than might reasonably be expected ; and that he should have left it to them simply to say whether or not it answered the description of Calcutta linseed. But I think that what my lord meant, and what the jury must have understood, was, that thej' were to say whether the article delivered reasonably answered the description of Calcutta linseed, that is, linseed with a reasonable amount of adulteration only. My lord does not express himself dissatisfied with the verdict, and I see no reason why we should be so. I think there should be no rule. WiLLES, J. The jury have in substance found that the linseed in question was so mixed with seeds of different and inferior description as to have lost its distinctive character and prevent its passing in the market by the commercial name of Calcutta linseed. The purchaser had a right to expect, not a perfect article, but an article which would »be salable in the market as Calcutta linseed. If he got an article ISO adulterated as not reasonably to answer that description, he did not 'get what he bargained for. As, if a man buys an article as gold, which every one knows requires a certain amount of allo\-, he cannot be said to get gold, if he gets an article so depreciated in qualitj' as to consist of gbld only to the extent of one carat. Jervis, C. J., and Crowder, J., concurred. Hule refused. "WOLCOTT V. MOUNT. 36 N. J. L. 262. 1873. The cause was argued in this court on the following statement of the case : — On the trial of the appeal. Mount, the appellee and plaintiff before the justice, proved that Wolcott, Johnson, & Co. were merchants, keep- ing a store of general merchandise, in the county of Monmouth, and § 3.] ■ B. THE AGREED ARTICLE. 301 that, among other articles, they advertised and kept agricultural seeds for sale, and sold seeds. Mount went to their store and asked one of the partners, Bloomfield Wolcott, for earlj' strap-leaf red-top turnip seed, and Wolcott showed him, and sold to him, seed which Wolcott told him was early strap-leaf red-top turnip seed, and sold it to Mount (two pounds) as such, and Mount paid him cents for the same. Mount sowed the same on acres of his ground, which he had prepared with care and great expense for the pui'pose. Mount had been in the habit, year after year, to sow earl}- strap-leaf red-top turnip seed, to produce turnips for the early New York market, such kind and description of turnips yielding a large profit, and he, at time of purchase, stated that he wished this description and kind of seed for that purpose. The seed sold to Mount by Wolcott was sown upon the ground pre- pared for same by Mount, and the turnips produced therefrom were not early strap-leaf red-top turnips, but turnips of a different kind and description, to wit, Russia, late, and not salable in market, and only fit for cattle, and he lost his entire crop. The plaintiff proved that the seed sold him by Wolcott was not early strap-leaf red-top turnip seed, but seed of a different kind and description, to wit, Russia turnip seed, and that it produced no profit to him, and that early strap-leaf red- top turnip seed on same .ground in other years had produced large profits to Mount, and on adjoining ground, prepared in same way, the same year, had produced great profits to the owner, and that Mount was damaged thereby. It is agreed that Wolcott did not know that the seed he sold Mount was not early strap-leaf red-top turnip seed, and that he did not sell the seed to him fraudulently, the said Wolcott having purchased the seed for early strap-leaf red-top turnip seed. It is also agreed that this kind of turnip seed cannot be known and distinguished, by the exam- ination through sight or touch, from Russia or other kinds, but only by the kind of turnips it produces after sowing, can it be known. The Court of Common Pleas gave judgment for the plaintiff below for $99.12 damages. Argued at February Term, 1873, before Justices Bedle, Daleimple, and Depue. For the plaintiff in certiorari, H. G. Clayton. For the defendant, B. Gummere. Depue, J. The action in this case was brought on a contract of warrantj', and resulted in a judgment against the defendants in the action for damages. Two exceptions to the proceedings are presented by the brief sub- mitted. Tlie first touches the right of the plaintiff to recover at all. The second the measure of damages. In the absence of fraud or a warranty of the qualitj- of an article, the maxim, caveat emptor, applies. As a general rule, no warranty of the goodness of an article will be implied on a contract of sale. ' 302 WOLCOTT V. MOUNT. [CHAP. V It has been held bj^ the courts of New York that no warranty what- ever would arise from a description of the article sold. Seixas v. Woods, 2 Caines, 48 ; Snell v. Moses, 1 Johns. 96 ; Sweet v. Colgate, 20 Johns. 196. In these cases the defect was not in the qualit}^ but the article delivered was not of the species described in the contract of sale. In the well known case of Chandelor v. Lopus, Cro. Jac. 4, it was decided that a bare afHrmation that a stone sold was a bezoar stone, when it was not, was no cause of action. The cases cited fairly present the negative of the proposition on which the plaintiff's right of action depends. Chandelor v. Lopus was decided on the distinction between actions on the case in tort for a misrepre- sentation, in which a scienter must be averred and proved and actions upon the contract of warranty. 1 Smith's Lead. Cas. 283. Chancellor Kent, who delivered the opinion in Seixas v. Woods, in his Commen- taries expresses a doubt whether the maxim, caveat emptor, was cor- rectly applied in that case, inasmuch as there was a description in writing of the article sold, from which a warranty might have been inferred. 2 Kent, 479. And in a recent case before the Commission of Appeals of New York, Earl, C, declared that Seixas v. Woods had been much questioned, and could no longer be regarded as authority on the precise point. Hawkins v. Pemberton, 51 N. Y. 204. In the later English cases some criticism has been made upon the application of the terra " Warranty" to representations in contracts of sale, descriptive of articles which are known in the market bj' sucli description, per Lord Abinger in Chanter v. Hopkins, 4 M. & W. 404 ; per Erie, C. J., in Bannerman v. White, 10 C. B. n. s. 844. But in a number of instances it has been held that statements descriptive of the subject-matter, if intended as a substantive part of the contract, will be regarded in the first instance as conditions, on the failure of which the other party maj- repudiate in toto, by a refusal to accept or a return of the article, if that be practicable, or if part of the consideration had been received, and rescission therefor has become impossible, such representations change their character as conditions and become warranties, for the breach of which an action will lie to recover damages. The rule of law is thus stated by Williams, J., in Behn v. Burness, as established on principle and sustained bj' authority. 3 B. & S. 755. In Bridge v. Wain, 1 Starkie, 504, no special warrantj' was proved, but the goods were described as scarlet cuttings, an article known in the market as peculiar to the China trade. In an action for breach of warranty, Lord EUenborough held that if the goods were sold by the name of scarlet cuttings, and were so described in the invoice, an undertaking that they were such must be inferred. In Allan v. Lake, 18 Q. B. 560, the defendant sold to the plaintiff a crop of turnips, described in the sold note as Skirving's Sweedes. The seed having been sown, it turned out that the greater part was not of that kind, but of an in- ferior kind. It was held that the statement that the seeds were Skir- § 3.] B. THE AGEEED ARTICLE. 303 ving's Sweedes was a description of a known article of trade and a warranty. In Josling v. Kingsford, 13 C. B. s. s. 447, the purchaser recovered damages upon a contract for the sale of oxalic acid, where the jury found that the article delivered did not, in a commercial sense, come properly within the description of oxalic acid, though the vendor was not the manufacturer, and the vendee had an opportunity of inspec- tion (the defect not being discoverable by inspection), and no fraud was suggested. In Wieler v. Schilizzi, 17 C. B. 619, the sale was of "Cal- cutta linseed." The goods had been delivered, and the action was in form on the warranty implied from the description. The jury having found that the article delivered had lost its distinctive character as Calcutta linseed, bj' reason of the admixture of a foreign substance, the plaintiff recovered his damages upon the warranty. The doctrine that on the sale of a chattel as being of a particular kind or description, a contract is implied that the article sold is of that kind or description, is also sustained by the following English cases : Powell V. Horton, 2 Bing. n. s. 668 ; Barr v. Gibson, 3 M. & W. 390 ; Chanter v. Hopkins, 4 M. & W. 399 ; Nichol v. Godts, 10 Exch. 191 ; Gompertz v. Bartlett, 2 E. & B. 849 ; Azemar v. Casella, Law Rep. 2 C. P. 431, 677; and has been approved by some decisions in the courts of this country. Henshaw v. Robins, 9 Mete. 83 ; Borrekins v. Bevan, 3 Rawle, 23 ; Osgood v. Lewis, 2 Harr. & Gill, 495 ; Hawkins v. Pem- berton, 51 N. Y. 198. The right to repudiate the purchase for the non-conformity of the article delivered, to the description under which it was sold, is univer- sally conceded. That right is founded on the engagement of the ven dor, by such description, that the article delivered shall correspond with the description. The obligation rests upon the contract. Substan- tially, the description is warranted. It will comport with sound legal principles to treat such engagements as conditions in order to afford the purchaser a more enlarged remedy, by recission, than he would have on a simple warranty ; but when his situation has been changed, and the remedy, by repudiation, has become impossible, no reason sup- ported by principle can be adduced why he should not have upon his contract such redress as is practicable under the circumstances. In that situation of affairs, the only available means of redress is by an action for damages. "Whether the action shall be technically considered an action on a warranty, or an action for the non-performance of a con- tract, is entirely immaterial. The contract which arises from the description of an article on a sale by a dealer not being the manufacturer, is not in all respects co-exten- sive with that which is sometimes implied, where the vendor is the manufacturer, and the goods are ordered by a particular description, or for a specified purpose, without opportunity for inspection, in which case a warranty, under some circumstances, is implied that the goods shall be merchantable, or reasonably fit for the purpose for which they were ordered. In general, the only contract which arises on the sale 304 WOLCOTT V. MOUNT. [cHAP. V. of an article by a description, by its known designation in the market, is that it is of the kind specified. If the article corresponds with that description, no warrant^' is implied that it shall answer the particular purpose in view of which the purchase was made. Chanter v. Hop- kins, 4 M. & W. 414 ; Ollivant v. Bayley, .5 Q. B. 288 ; Windsor v. Lombard, 18 Peck. 55; Mixer v. Coburn, 11 Mete. 559; Gossler v. Eagle, &c. Co., 103 Mass. 331. The cases on this subject, so produc- tive of judicial discussion, are classified by Justice Mellor, in Jones V. Just, L. R. 3 Q. B. 197. Nor can any distinction be maintained between statements of this character in written and in oral con- tracts. The arguments founded on an apprehension that where the contract is oral, loose expressions of judgment or opinion pending the negotiations, might be regarded as embodied in the contract, contrary to the intentions of parties, is without reasonable foundation. It is always a question of construction or of fact, whether such statements were the expression of a mere matter of opinion, or were intended to be a substantive part of the contract, when concluded. If the contract is in writing, the question is one of construction for the court. Behn V. Burness, 3 B. & S. 751. If it be concluded by parol, it will be for the determination of the jury, from the nature of the sale, and the cir- cumstances of each particular case, whether the language used was an expression of opinion, merelj' leaving the buyer to exercise his own judgment, or whether it was intended and understood to be an under- taking which was a contract on the part of the seller. Lomi v. Tucker, 4 C. & P. 15 ; De Sewhlinberg v. Buchanan, 5 C. & P. 343 ; Power v. Barham, 4 A. & E. 473. In the case last cited, the vendor sold by a bill of parcels, "four pictures, views in Venice — Canaletto;" it was held that it was 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 onlj- a description or an expression of opin- ion, and that the bill of parcels was properlj' laid before the jury with the rest of the evidence. The purchaser may contract for a specific article, as well as for a particular quality, and if the seller makes such a contract, he is bound by it. The state of the case presented shows that the plaintiflF inquired for seed of a designated kind, and informed the defendants that he wanted it to raise a crop for the New York market. The defendants showed him the seed, and told him it was the kind he inquired for, and sold it to him as such. The inspection and examination of the seed were of no service to the plaintiff. The facts and circumstances at- tending the transaction were before the court below, and from the evidence it decided that the proof was sufBcient to establish a contract of warranty. The evidence tended to support that conclusion, and this court cannot, on certiorari, review the finding of the court below, on a question of fact, where there is evidence from which the conclusion anived at may be lawfully inferred.^ ^ The discussion of the second exception i^ omitted. § 3.] B. THE AGREED ARTICLE. 305 POPE V. ALLIS. 115 U. S. 363. 1885. Edward P. Allis, the defendant in error, was the plaintiff in the circuit court. He brought his suit to recover from the defendants, Thomas J. Pope and James E. Pope, now the plaintiffs in error, the sum of $17,840, the price of 500 tons of pig-iron, which he alleged he had bought from them and paid for, but which he refused to accept because it was i)ot of the quality which the defendants had agreed to furnish. The plaintiff also demanded $1,750 freight on the iron, which he alleged he had paid. The facts appearing upon the record were as follows : The plaintiff carried on the business of an iron-founder in Milwaukee, Wisconsin, and the defendants were brokers in iron in the city of New York. In the month of January, 1880, by correspondence carried on by mail and telegraph, the defendants agreed to sell and deliver to the plaintiff 500 tons of No. 1 extra American and 300 tons No. 1 extra Glengarnock (Scotch) pig-iron. The American iron was to be delivered on the cars at the furnace bank at Coplay, Pennsyl- vania, and the Scotch at the yard of the defendants in New York. By a subsequent correspondence between the plaintiff and the defendants it fairly appeared that the latter agreed to ship the iron for the plaintiff at Elizabethport, New Jersey. It was to be shipped as early in the spring as cheap freights could be had, consigned to the National Ex- change Bank at Milwaukee, which, in behalf of the plaintiff, agreed to pay for the iron on receipt of the bills of lading. That quantity of American iron was landed at Milwaukee and delivered to the plaintiff about Jul}' 15th. Before its arrival at Milwaukee the plaintiff had not onl}- paid for the iron, but also the freight from Coplaj- to Milwaukee. Soon after the arrival in Milwaukee the plaintiff examined the 500 tons American iron, to which solely the controversy in this case referred, and refused to accept it, on the ground that it was not of the grade called for by the contract, and at once gave the defendants notice of the fact, and that he held the iron subject to their order, and brought this suit to recover the price of the iron and the freight thereon. The defences relied on to defeat the action were (1) that the iron delivered by the defendants to the plaintiff was No. 1 extra American iron, and was of the kind and quality required hy the contract ; and (2) that the title having passed to the plaintiff when the iron was shipped to him at Elizabethport, he could not afterwards rescind the contract and sue for tiie price of the iron and the freight which he had paid, but must sue for a breach of the warrant}-. It was conceded upon the trial that if the plaintiff was entitled to recover at all, his recovery should be for $22,315.40. The defendants pleaded a counter-claim for $5,311, which was admitted by the plaintiff. The jury returned a verdict for the plaintiff for $16,513.11, for which 20 306 POPE V. ALLIS. [chap. V. sum and costs the court rendered a judgment against the defendants. This writ of error brought that judgment under review. W. P. Lynde with Oeo. P. Miller, for plaintiffs in error. Mppa Hunton with J. Q. Jenkins, for defendant in error. Woods, J. . . . The assignment of error mainly relied on by the plaintiffs in error is that the court refused to instruct the jurj' to return a verdict for the defendants. The legal proposition upon which their counsel based tins request was that the purchaser of personal property-, upon breach of warranty of quality, cannot, in the absence of fraud, rescind the contract of purchase and sale, and sue for the recovery of the price. And they contended that, as the iron was delivered to defendant in error, either at Coplaj^ or Elizabethport, and the sale was completed thereby, the only remedj- of the defendant in error was by a suit upon the warrantj'. It did not appeal' that at the date of the con- tract the iron had been manufactured, and it was shown bj- the record that no particular iron was segregated and appropriated to the contract by the plaintiffs in error until a short time before its shipment, in the latter part of April and the early part of Maj'. The defendant in error had no opportunity to inspect it until it arrived in Milwaukee, and con- sequently' never accepted the particular iron appropriated to fill the contract. It was established by the verdict of the jurj- that the iron shipped was not of the qualitj' required hy the contract. Under these circumstances the contention of the plaintiffs in error is that the defend- ant in error, although the iron shipped to him was not what he bought, and could not be used in his business, was bound to keep it, and could onlj' recover the difference in value between the iron for which he con- tracted and the iron which was delivered to him. ] We do not thing that such is the law. When the subject matter of a pale is not in existence, or not ascertained at the time of the contract, kn undertaking that it shall, when existing or ascertained, possess Icertain qualities, is not a mere warrant}', but a condition, the perforra- lance of which is precedent to any obligation upon the vendee under the I contract ; because the existence of those qualities being part of the 1 description of the thing sold becomes essential to its identity, and the vendee cannot be obliged to receive and pay for a thing different from that for which he contracted. Chanter v. Hopkins, 4 Mees. & W. 404 ; Barr v. Gibson, 3 Mees. & W. 390 ; Gompertz v. Bartlett, 2 El. & Bl. 849 ; Okell v. Smith, 1 Stark, N. P. 107 ; notes to Cutter v. Powell, 2 Smith, Lead. Cas. (7th Amer. Ed.) 37 ; Woodle v. Whitney, 23 Wis. 55 ; Boothby v. Scales, 27 Wis. 626 ; Fairfield v. Madison Manuf g Co., 38 Wis. 346. See also Nichol v. Godts, lOExch. 191. So, in a recent case decided by this court, it was said by Mr. Justice Gray : "A statement " in a mercantile contract " descriptive of the subject matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warrantj' in the sense in which that term is used in insurance and maritime law ; that is to say, a condition pre- cedent upon the failure or non-performance of which the party aggrieved §^ 3.] B. THE AGREED ARTICLE. 807 may repudiate the whole contract." Norrington v. Wright, 115 U. S. 188. See alsa Filley v. Pope, 115 U. S. 213. And so, when a con- tract for the sale of goods is made by sample, it amounts to an under- taking on the part of the seller witli the buyer that all the goods are similar, both in nature and quality, to those exhibited, and if thej' do not correspond the buyer maj' refuse to receive them ; or, if received, he may return them in a reasonable time allowed for examination, and thus rescind the contract. Lorymer v. Smith, 1 Barn. & C. 1 ; Magee V. Billingsley, 3 Ala. 679. The authorities cited sustain this proposition : that when a vendor sells goods of a specified quality, but not in existence or ascertained, I and undertalies to ship them to a distant buj'er, when made or ascer-j tained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect tliem to ascertain whether the^' conform to the contract, and the right to inspect implies the right to reject them if they are not of the quality required by the contract. The rulings of the circuit court were in accordance with these views. We have been referred by the plaintiffs in error to the cases of Thornton v. Wynn, 12 Wheat. 184, and L^von v. Bertram, 20 How. 149, to sustain the proposition that the defendant in error in this case could not rescind the contract and sue to recover back the price of the iron. But the cases are not in point. In the first, there was an absolute sale with warranty and delivery to the vendee of a specific chattel, namelj-, a race-horse ; in the second, the sale was of a specified and designated lot of flour which the vendee had accepted, and part of which he had used, with ample means to ascertain whether or not it conformed to the contract. The cases we have cited are conclusive against the contention of the plaintiffs in error. The jury has found that the iron was not of the quality which the contract required, and on that ground the defendant in error, at the first opportunity, rejected it, as he had a right to do. His suit to recover the price was, therefore, well brought. Other errors are assigned, but, in our opinion, thej' present no ground for the reversal of the judgment, and do not require discussion. Judgment affirmed.^ ^ The parts of the opinion relating to questions of evidence and procedure aifl omitted. 308 GOULD V. STEIN. [CHAP. V. GOULD V. STEIN. 149 Mass. 570. 1889. C. Allen, J. The determination of this case depends upon the con- struction to be given to the bought and sold notes, which were similar in their terms. It does not admit of doubt that these notes were in- tended to express the terms of the sale. They were carefuUj- prepared and were read- to the parties line by line, as they were written. Of course all the existing circumstances may be looked at, but the contract of the parties is to be found in what was thus written, when read in the light of those circumstances. The goods respecting which the contro- versj- has arisen were a certain lot of rubber which the defendants had on hand, and which could be identified. The transaction was a pre- sent sale, and not an agreement to deliver rubber in the future. The defendants now contend that the contract was executory, and that, if there was anj- warranty, there was none which survived the acceptance of the goods by the plaintiffs ; but the argument that it was not an exe- cuted present sale finds no support in the bill of exceptions, and no such point was taken at the trial ; and there is no occasion to consider the further question whether, in case of an executory agreement to sell, a warranty will survive the acceptance of the goods. The bought note, which the plaintiffs put in evidence, was of "148 bales Ceara scrap rubber, as per samples, viz., 46 bales of first quality marked ' A,' 102 bales of second qualitj'." The controversj- relates only to the 102 bales. It appeared that there was no exact standard by which the grade of rubber could be fixed, but that it was a matter of judgment. The court also found that Ceara rubber of second qualit3' is well known in the market as distinct from a third or inferior grade ; and there was evi- dence which well warranted this finding. The parties in their contract recognized the existence of different grades or qualities, though all of the rubber properly classified as of first qualit3- or of second quality might not be of an exactly uniform standard or grade. The plaintiffs at the trial claimed damages merely on the ground that the 102 bales were not of second qualitj', and made no claim of inferi- ority to the samples shown, as a distinct ground, but waived all claim founded on the exhibition of samples, and the court found damages for the plaintiffs soleh' on the ground that the defendants failed to deliver rubber of the second qualitj-, ruling that the broker's note contained an absolute warrant}- of second quality rubber. If this ruling was right, it disposes of the defendants' second and third requests for instructions. The general rule is familiar and admitted that a sale of goods by a par- ticular description imports a warranty that the goods are of that de- scription. Henshaw v. Robins, 9 Mete. 83 ; Harrington v. Smith, 138 Mass. 92 ; Wiiite v. Miller, 71 N. Y. 118 ; Osgood v. Lewis, 2 Har. & G. 495 ; Randall v. Newson, L. R. 2 Q. B. D. 102 ; Jones v. Just, § 3.] B. THE AGREED ARTICLE. 309 L. R. 3 Q. B. 197; Josling o. Kingsford, 13 C. B. n. s. 447; Bowes V. Shand, L. R. 2 App. Cas. 455. And where goods are described oa a sale as of a certain quality, which is well known in tiie market as indi- cating goods of a distinct, though not absolutelj- uniform, grade or standard, the description imports a warranty that the goods are of that grade or standard. In such cases, the words denoting the grade or quality of the goods are not to be treated as merely words of general commendation, but they are held to be words having a specific com- mercial signification. Thus in Hastings v. Lo%'ering, 2 Pick. 214, the words, in a sale note, "Sold Mr. E. T. Hastings 2,000 gallons prime quality winter oil," were held to amount to a warranty that the article sold agreed with the description ; and in Henshaw v. Robins, 9 Mete. 87, it was said that the doctrine laid down in that case has ever since been considered as the settled law in this commonwealth. So in Chis- holm V. Proudfoot, 15 U. C. Q. B. 203, it was held that where a manu- facturer of flour marked it as of a particular quality-, viz., " Trafalgar Mills Extra Superfine," it amounted to a warranty of its being of such a quality. A similar doctrine may be found in Hogins w. Plympton, 11 Pick. 97 ; Winsor v. Lombard, 18 Pick. 57, 60 ; Forcheimer v. Stewart, 65 Iowa, 593 ; Mader v. Jones, 1 N. S. Law R. 82. In Gardner v. Lane, 9 Allen, 492, 12 Allen, 39, it appeared that the statutes provided for the preparation, division into different qualities, packing, inspecting, and branding of mackerel, and it was held that if a certain number of barrels of No. 1 mackerel were sold, and by mistake barrels of No. 3 mackerel were delivered, no title passed to the purchaser, and that the barrels of No. 3 mackerel thus delivered b}- mistake might be attached as property of the vendor, and that each different quality, after being thus prepared for market, was to be regarded as a different kind of merchandise, so that no title passed to the vendee ; there being no assent on the part of the vendee to take the No. 3 mackerel in place of those which he agreed to buy. Now, if the words " as per samples " had not been in the bought note, it would be quite plain that the present case would fall within the ordinary rules above given. But the insertion of those words raises the inquirj' whether they limit the implied warranty of the vendor, so that if the rubber sold was equal in quality to the sample he would be exonerated from liability, though it was not entitled to be classed as of the second quality. If no other meaning could be given to the words ' ' as per samples " except that they alone were to be considered as showing the quality of rubber to be delivered, the argument in favor of the defendants' view would be irresistible. So if there was a plain and necessary inconsistencj* between the two descriptions of the rubber, it might perhaps be successfully contended that the vendor's obligation was only to deliver rubber which would conform to the inferior quality described ; that is to saj', that in case of such inconsistency, the words " as per samples " should prevail, and the words " of second quality " be rejected. If it were to be held that the vendor's obligation was 310 GOULD V. STEIN. [CHAP. T. fulfilled by delivering rubber of a quality equal to the samples, though it was not of the second qualitj-, then the words " of second qualit3- " would mean nothing, or the}^ would be overborne by the words " as per samples." But if it is found that the bought note admits of a reason- able construction bj' which a proper significance can be given both to the words " as per samples " and also to the words ' ' of second quality," there will be no occasion to disregard either. Cases are to be found in the books where such a construction has been given to contracts of sale. Thus, in Whitney v. Boardman, 118 Mass. 242, a sale of Cawn- pore buffalo hides, with all faults, was held to mean with such faults or defects as the article sold might have, retaining still its character and identity as the article described ; and the court cited with approval the case of Shepherd v. Kain, 5 Barn. & Aid. 240, where there was a sale of a copper-fastened vessel, to be taken " with all faults, without allow- ance for any defects whatsoever," and this was held to mean only all faults which a copper-fastened vessel might have, the court, saj-ing by way of illustration : " Suppose a silver service sold with all faults, and it turns out to be plated." So, in Nichol v. Godts, 10 Exch. 191, an agreement for the sale and delivery of certain oil, described as "foreign refined rape oil, warranted ovAy equal to samples," was held to be not complied with bj- the tender of oil which was not foreign refined rape oil, although it might be equal to the qualitj' of the samples. The deci- sion of this case has stood in England, though not without some ques- tioning at the bar. See Wieler v. Schilizzi, 17 C. B. 619 ; Josling v. Kingsford, 13 C. B. s. s. 447 ; Mody v. Gregson, L. R. 4 Exch. 49 ; Jones V. Just, L. R. 3 Q. B. 197 ; Randall v. Newson, L. R. 2 Q. B. D. 102. In the present case, by a fair and reasonable construction of the bought note^ effect can be given to both of the phrases used to describe the rubber. Construed thus, the article sold was 102 bales of Ceara rubber, of the second quality, and as good as the samples. The rubber delivered was in fact Ceara rubber. There was no question that it was of the right kind ; but it was not of the second qualitj'. There is no necessity to disregard the words describing the rubber as of the second quality. They signified a distinct and well-known, though not absolutely uniform, grade of rubber. There was no exact standard or dividing line between rubber of the second quality and of the third quality, any more than there is between daylight and darkness. But nevertheless a decision may be reached, and it may be easy to reach it in a particular case, that certain rubber is or is not of the second quality. This general designation being given, the specification ' ' as per samples " being also included in the note, the rubber must also be equal to the samples. It must be rubber of the second quality, and it must be equal to the samples. If it fails in either particular, it is of no consequence that it conforms to the other particular. There is no in- consistency in such a twofold warranty ; and, this rubber having been found to be not of the second quality, the warranty was broken, with- out regard to the question whether or not it was equal to the samples. § 3.] B. THE AGREED ARTICLE. 311 The fact that the plaintiffs had an opportunity to examine the rubber, and actually made such examination as they wished, will not neces- sarily do awaj' with the effect of the warrant^-. The plaintiffs were not bound to exercise their skill, having a warranty. The}' might well rely on the description of the rubber, if they were content to accept rubber which should conform to that description. Henshaw v. Robins, 9 Mete. 83 ; Jones v. Just, L. R. 3 Q. B. 197. And the exhibition of a sample is of no greater effect than the giving of an opportunit}' to inspect the goods in bulk. Notwithstanding the sample or the inspection, it is an implied term of the contract that the goods shall reasonably answer the description given in its commercial sense. Drummond v. Van Ingen, L. R. 12 App. Cas. 284 ; Mody v. Gregson, L. R. 4 Exch. 49 ;' Nichol v. Godts, 10 Exch. 191. In the two former of these cases it was held that there might be, and that under the circumstances then existing there was, an implied warranty of merchantable quality notwithstanding the sale was by a sample, which sample was itself not of merchantable quality, the defect not being discoverable upon a reasonable examina- tion of the sample. The point urged in the defendants' argument, that the plaintiffs' remedy was destroyed by their acceptance of the goods, was not taken at the trial, and no ruling was asked adapted to raise the question as to the eflfect of such acceptance. For these reasons, in the opinion of a majority of the court, the entry must be : Exceptions ooerruled. DRUMMOND et al. v. VAN INGEN et al. 12 App. Cas. 284. 1887. An order having been made for the trial of certain preliminary issues of fact by Day, J., without a jury, before any of the other questions of fact, that learned judge found upon the issues as follows : — 1. That there was an implied warranty on the sale of the goods that the cloth should be merchantable generally as worsted coatings, and should be properlj' manufactured, and should be suitable to be made up into coats in the ordinary course of tailors' work. 2. That the plaintiffs did sell the cloth for the purpose of being made up into coats in the ordinary course of tailors' work. 3. That it was an express term of the contract of sale that the cloth should be eiHciently woaded and dyed so as not to fade unduly. 4. That the cloth was not mer- chantable as worsted coating, and was not properly manufactured and suitable to be made up into coats in the ordinary course of tailoring, and was not efficiently woaded and dyed within the meaning of the contract. 5. That the cloth was sold by sample in the sense that it was to be similar to a sample produced in respect of weight and quality, and that the term "quality"' covers strength as distinguished from 312 DEUMMOND V. VAN INGBN. [CHAP. T. rottenness in cloth, but the judge is not satisfied that the term quality has been ordinarily applied to such a defect as is alleged to exist in the cloth delivered under the contract, that is to say, slipperiness of weft nnder warp. 6. That the cloth did correspond with the sample. 7. That the sample was made to the defendants' order, and was seen and approved of by them as to pattern, color, and generallj' as to handle. 8 and 9. That the defects both of structure and color in the cloth and in the sample were latent, and were not apparent or discoverable upon such inspection as was ordinary and usual upon sales of worsted cloths of this class. The Court of Appeal (Lokd Eshek, M. R., and Fry, L. J.) afHrmed the findings of Day, J: From this decision the present appeal was brought. /Sir Ji. Webster, A. G., and M. 0. B. JLane, for the appellants. Waddy, Q. C, and JE. Tindal Atkinson, Q. C. (JVilberforce, with them), for the respondents. Lord Herschell. My lords, I think that the general principles of law which have to be applied to the facts of this case are well settled and beyond question. It was laid down in Jones v. Bright, 5 Bing. 533, that where goods are ordered of a manufacturer for a particular pur- pose, he impliedly warrants that the goods he supplies are fit for that purpose. This view of the law has been constantly acted upon from the time of that decision, and was not impeached \)y the learned counsel for the appellants. It is equally well settled that upon a sale of goods of a specified description, which the purchaser has no opportunity- of examining before the sale, the goods must not onlj' answer that specific description, but must be merchantable under that description. This doctrine was laid down in Jones v. Just, Law Eep. 3 Q. B. 197, where all the previous authorities on the point were reviewed. In the case of Mody V. Gregson, Law Eep. 4 Ex. 49, in the Exchequer Chamber, the decision in Jones v. Just was approved of and acted upon, and it was further held that the implied warrant}- that the goods supplied are mer- chantable was not absolutely excluded by the fact that the goods were sold bj' sample, and that the bulk preciselj' corresponded with it, but- was only excluded as regards those matters which the purchaser might, by due diligence in the use of all ordinarj- and usual means, have ascer- tained from an examination of the sample. I think that the law enunciated in these cases is sound and not open to doubt. I proceed to consider its application to the facts of the case before us. The plaintiffs were manufacturers at Bradford ; the defendants were merchants dealing in woollen and worsted cloths, carrj'ing on business in Huddersfield and New York. The order for the goods in respect of which the present litigation has arisen was given by the defendants to the plaintiffs in 1883. The goods ordered were described as ' ' worsted coatings," and they were to cor- respond in quality and weight wit^ patterns which had been supplied by the plaintiffs. They were of a description known in the trade as. § 3.] B. THE AGREED AKTICLE. 313 " corkscrew," having the warp on either side and the weft not exposed to view. The goods, when delivered, were shipped to the United States, and sold by the defendants to various purchasers there. It turned out, as I think the evidence establishes, that owing to the mode of manu- facture there was a great tendency in the warp to slip, and this to so serious an extent that when made into garments in the ordinary manner the seams gave wa3- with no more than ordinary tension and the braid became detached from the cloth. In consequence of this defect many purchasers from the defendants returned the goods to them, or com- pelled them to make allowances, for which they sought compensation by counter-claim in the present action. It is important to observe that the contract for 1883 was not the first dealing between the parties. The defendants had purchased of the plaintiffs a quantity of " cork- screw" worsted coatings in the previous j'ear, and I cannot see any evidence in the correspondence which passed, or in the oral communica- tions, to show that it was intended by either of the parties to the con- tract of 1883 that the goods should be of a different character to those of the previous year in any particular material to the controversy which has to be determined in this action. It is true that the purchasers desired goods of a somewhat softer "handle;" but I think, it is abundantly clear on the evidence that this was a matter of " finish,'' and that it was not the endeavor to give a softer " handle " which led to the defect of excessive slipping. I have said that the goods were, by the order, to conform to certain patterns supplied by the plaintiffs to the defendants, and approved of by them. There is no doubt tliat the bulk of the goods corresponded in every particular with these patterns ; and this the plaintiffs allege, is a complete answer to the defendants' claim. The tendency to slip is not, thej' insist, properly to be called a defect but a characteristic of the manufactured article, which existed in the sample just as much as in the bulk of the goods. I do not think it is very material what name is given to it ; but I confess it strikes me that a characteristic arising from a particular mode of manufacture which renders the manufactured article less useful for the purpose for which such an article is ordinarilj^ used, without, as far as appears, any counterbalancing advantage, may- well be called a defect. I think it is proved by the evidence that this defect existed to such an extent that the worsted coatings could not be used for the purpose of being made into coats in the manner usual with goods of the same general description and quality, and that they could onlj' be made into garments capable of resisting ordinar3' tension by the adoption of special precautions, both in regard to breadth of seam and method of sewing. The question arises whether, in these circumstances, the plain- tiffs have complied with their contract by delivering coatings precisely corresponding in quality and weight with the patterns, or whether they are liable to the defendants. Let me consider, first, how the ease would have stood if no samples 314 DEUMMOND V. VAN INGEN. [CHAP. V. had been supplied. Suppose the defendants had simply ordered worsted coatings similar to those thej' had purchased in the previous year, but with a difference of color, design, and handle. Could the plaintiffs have justified supplying under such an order coatings such as those which have given rise to this litigation? It is true that the purpose for which tlie goods were required was not, as in Jones v. Bright, svpra, stated in express terms, but it was indicated by the very designation of the goods, " coatings." I think that upon such an order the merchant trusts to the skill of the manufacturer, and is entitled to trust to it, and that there is an implied warranty that the manufactured article shall not by reason of the mode of manufacture be unfit for use in the manner in which goods of the same quality of material, and the same general character and designation, ordinarily would be used. I think too that where the article does not compl}' with such a warranty it may properl3' be said to be unmerchantable in the sense in which that word is used in relation to transactions of this nature. It was urged for the appellants by the Attorney-General, in his able argument at the bar, that it would be unreasonable to require that a manufacturer should be cognizant of all the purposes to which the article he manufactures might be applied, and that he should be acquainted with all the trades in which it may be used. I agree. Where the article may be used as one of the elements in a variety of other manufactures, I think it maj- be too much to impute to the maker of this common article a knowledge of the details of everj' man- ufacture into which it may enter in combination with other materials. But no such question arises here. There seems nothing unreasonable in expecting that the maker of " coatings" should know that thej' are to be turned into coats and other garments, and that he should further know what coatings will and what will not be capable of use for this purpose in the ordinary methods. It seems to me not open to doubt that in the case which I have supposed the manufacturer would be liable. Does it then make any difference that the plaintiffs furnished patterns which were approved of by the defendants, and that the goods delivered were in complete con- formity with their patterns? Except upon the assumption (with which I will deal presently) that the patterns ought to have conveyed to the defendants knowledge of the defect of which they complain, I cannot think that it does. "When a purchaser states generally the nature of the article he re- quires, and asks the manufacturer to supply specimens of the mode in which he proposes to cari-y out the order, he trusts to the skill of the manufacturer just as much as if he asked for no such specimens. And I think he has a right to rely on the samples supplied representing a manufactured article which will be fit for the purposes for which such an article is ordinarily used, just as much as he has a right to rely on manufactured goods supplied on an order without samples complying with such a warranty. § 3.] B. THE AGEEED AETICLE. 315 I adopt what was said by Willes, J., in Mody v. Gregson, Law Rep. 4 Ex. 49, 53 : " Tiie object and use of eitlier inspection of bulk or sample alike are to give information, disclosing direeth' through the senses what any amount of circumlocution might fail to express. It seems difficult, therefore, to ascribe any greater effect to a sample in excluding implication than would be ascribed to express words in the contract giving, as far as words could give, the same amount of infor- mation ; and as to such words, the doctrine that an express provision excludes implication, does not affect cases in which the express pro- vision appears on the true construction of the contract to have been superadded for the benefit of the buyer." There is no doubt that the implied warranty will be excluded as re- gards an}- defects which the sample would disclose to a buyer of ordinary diligence and experience. The inquirj', therefore, arises whether the defendants by "due diligence in the use of all ordinary and usual means " would have detected in the patterns the defects of which thej' now complain. I think not. What' is " due diligence " must depend upon the circumstances. Having regard to the order given in the previous year, and the mode in which that order was fulfilled, I think that when the defendants made the contract there was nothing which could reasonably lead them to anticipate that the patterns I'epresented goods possessing the defect which was, in fact, inherent in them. And I am satisfied upon the evidence that the defendants, who undoubtedh' did not discern the defect, did not fail to do so from neglecting to use the means usually adopted by buyers under like circumstances. I have therefore arrived at the conclusion that the learned judge who tried the case took a correct view of the facts on this part of it, and that his decision was properly affirmed by the Court of Appeal. As regards the other complaint, viz., that the goods were not woaded according to contract, I have nothing to add to what has been said by the noble Earl on the woolsack. It depended entirely upon disputed questions of fact, and I am not satisfied that they have been erroneously determined. I therefore concur in the motion that has been made. Order appealed from affirmed ; and appeal dismissed with costs. ^ BRADFORD V. MANLY. 13 -Mass. 139. 1816. Assumpsit, to recover the difference in value between two casks of cloves, alleged to be sold by sample to the plaintifl', and the cloves actually delivered in virtue of the sale. At the trial, the plaintiff pro- duced a bill of parcels of six hundred and two pounds of cloves at one 1 The concurring opinions of the Eabl of Selbokne and Lord Macnashtbn have been omitted. 316 BRADFORD V. MANLY. [CHAP. V. dollar fifty cents per pound, on which payment was acknowledged bj' the defendant. He then produced a witness who testified that on the 4th of Januarj', 1814, the defendant came to the plaintiff's store, with a sample of cloves in a paper, and asked the plaintiff if he wished to purchase some cloves. The witness examined the sample, and found the cloves to be of the best quality of Ca^'enne cloves. The sample was not taken from the casks sold, but from an open barrel, out of which those casks had been filled. In Maj', 1815, the casks were opened, and were found to contain a mixture of Caj'enne cloves and an inferior and distinct species of the same article. Before instituting this suit, and after the defect was discovered, the plaintiff offered to return the cloves, but the offer was not accepted. The jury returned a verdict for the plaintiff, having found that there was no fraud in the sale on the part of the defendant. Davis, Sol. Gen., and Thatcher, for plaintiff. Shaw, for defendant. Parkee, C. J. The first point taken by the defendant's counsel is, that parol evidence was admitted to control or explain the contract in writing which subsisted between the parties. The objection goes upon the supposition that a common bill of par- cels, given upon or after the purchase of goods, is evidence, and the onlj- proper evidence, of such a contract. But it is not so. The bar- gain is usually made verbally, and without any intention that it shall be put in writing ; and the bill of parcels is intended only to show that the goods have been purchased and paid for. It is seldom particular, or descriptive of the whole contract between the parties. But if it were not so, the paper introduced in this case is ambiguous with respect to the subject of the bargain ; and the ambiguity is latent, so that parol evidence may be admitted to explain it. It states only that " two casks of cloves " were purchased ; leaving it uncertain what kind of cloves, of which it appears in the case that there are at least two kinds, differing materially in quality and value. "We think this objec- tion was properly overruled. We may then come to the principal question, viz., Whether the evidence in the cause proved a contract to sell cloves of a different kind from those which were delivered. The defendant exhibited a sample, by which the plaintiff purchased. Among fair dealers there could be no question but the vendor intended to represent that the article sold was like the sample exhibited ; and it would be to be lamented, if the law should refuse its aid to the party who had been deceived in a purchase so made. The objection is, that no action upon a warranty can be maintained, unless the warranty is express ; and that no other action can be main- tained, unless there be a false aflarmation respecting the quality of the article. If such were the law, it would very much embarrass the operations of trade, which are frequently carried on to a large amount by samples of the articles bought and sold. § 3.] B. THE AGREED AETICLE. 317 The authorities cited by the defendant's counsel have been carefully looked into, and we think they do not militate with this decision; unless it be the case of the bezoar stone, Chandelor v. Lopus, Cro. Jac. 4, Dyer, 75, which we think would not now be received as law in England ; certainly not in our country. The vendor sold the stone as and for a bezoar stone, to one unacquainted with such articles, and it turned out to be of inferior value. The court held that no action would lie ; and some of the judges stated that even if the vendor had known that it was not a bezoar, and it had been so alleged, an action could not be maintained without an express warranty. The other case is that of Parkinson v. Lee, 2 East, 314. There the hops sold were of the same kind and quality as the sample ; but there was an unknown deterioration b3' fermentation, caused by the grower of the hops, and not by the vendor. Hops being usually sold in pockets, and the quality ascertained by sample, it was held that the innocent vendor was not responsible to the vendee, for an unknown inherent defect, without an express warrantj'. That case does not militate with our opinion in the case at bar. The fair import of the exhibition of a sample is, that the article proposed to be sold is like that which is shown as a parcel of the article. It is intended to save the purchaser the trouble of examining the whole quantity. It certainly means as much as this, " The thing I offer to sell is of the same kind, and essentially of the same qualitj-, as the specimen I give you." I do not know that it would be going too far to say tliat it amounts to a declaration, that it is equally sound and good. But it is not necessarj' to go so far in the present case, and we are not disposed to question the correctness of the decision in Parkin- son V. Lee. It is expressly found by the jury in the case at bar, that the cloves delivered were different in kind from those which composed the sample, and inferior in value ; not from decay or exposure, but that there is a specific difference in the respective plants from which they are pro- duced. Surel}-, if a man were to exhibit to me a parcel of hyson tea as a sample, to induce me to buy a chest, and I should pay him the price of hyson , and he should deliver me a chest of bohea or souchong, I might recover the difference in value, if he should refuse to do me justice, althougli he did not expressly warrant that the tea in the chest was the same as that in the sample. Indeed the exhibition of a sample must, in all fail- dealing, stand in lieu of a warranty or affirmation. It is a silent, symbolical warranty, perfectly understood by the parties, and adopted and used for the convenience of trade. The cases must be very strong to establish a principle so unjust, and so productive of distrust and jealousy among traders, as that contended for by the defendant's counsel. For what purpose is the sample exhib- ited, unless it is intended as a representative of the thing to be sold? What wonld an honorable merchant say if, when he took from a mass of sugar or coflfee a small parcel, and offered to sell by it, the man who 318 JONES V. BRIGHT. [OHAP. V. was dealing with him should ask him if it was a fair sample, and call upon him to warrant it so? Mercantile honor would instantly take the alarm, and if such questions should become necessary', there would be no need of that honor which happilj' is now general and almost univer- sallj' relied upon. That there is not an unknown and invisible defect, owing to natural causes, or to previous management b}' some former dealer, he maj' not be presumed to affirm when he shows the sample, and as to these particulars an express warrant}' may be required, eon- sistentlj' with confidence in the fair dealing of the vendor. But that the thing is the same, generically and specificallj', as that which he shows for it, he certainly undertakes, and if a different thing is deliv- ered, he does not perform his contract, and must paj' the difference, or receive the thing back and rescind the bargain, if it is offered him. A case similar to this in principle came before me two or three years Ago, 2it nisi prius. An advertisement appeared in the papers, which was published bj- a verj- respectable mercantile house, offering for sale good Caraccas cocoa. The plaintiff made a purchase of a considerable quantity, and shipped it to Spain, having examined it at the store before he purchased ; but he did not know the difference between Caraccas and other cocoa. In the market to which he shipped it, there was a considerable difference in value, in favor of the Caraccas. It was proved that the cocoa was of the growth of some other place, and that it was not worth so much in that market. I held that the adver- tisement was equal to an express warranty, and the jury gave damages accordingly. The defendants had eminent counsel, and thej- thought of saving the question ; but afterwards abandoned it, and suffered judgment to go. Surely, if a sample of Caraccas cocoa had been shown to the purchaser, and any other cocoa had been delivered to him, the case would not have been less strong. We are all decidedly of the opinion, that a sale by sample is tanta- mount to an express warranty that the sample is a true representative of the kind. There must, therefore, be entered judgment according to the verdict. JONES V. BRIGHT. 5 Bingham, 533. 1829. Best, C. J. It is the duty of the court, in administering the law, to lay down rules calculated to prevent prevent fraud ; to protect persons who are necessarily ignorant of the qualities of a commodity they pur- chase ; and to make it the interest of manufacturers and those who sell to furnish the best article that can be supplied. The court must decide with a view to such rules, although upon the present occasion no fraud Las been practised by the parties calling for decision. This is an § 3.] B. THE AGREED AETICLE. 319 action against, defendants to recover damages for the insuffioiencj- of certain copper which they furnished for a particular purpose. It has heen asserted that the invoice is the only evidence of such a contract, and that the defendants ought not to be bound hy a loose conversation at the time of the sale. An invoice, however, is frequently not sent till long after the contract is completed, and is altogether unlike a broker's note, which does con- tain the contract between the parties ; but if we look at the invoice alone, we see in the present case that the copper was expressly for the ship '-'■ Isabella." However, I do not narrow my judgment to that, but think on the authoritj' of a case not cited at the bar, Kain y. Old, 2 B. & C. 634, that " where the whole matter passes in parol, all that passes m&y sometimes be taken together as forming parcel of the contract, though not alwaj's because matter talked of at the commencement of a bargain may be excluded by the language used at its termination." In that doctrine I entirely concur. Whatever, then, was not previous discussion, but formed part of the contract, may betaken into consideration. In a contract of this kind, it is not necessarj- that the seller should say, " I warrant ;" it is enough if he says that the article which he sells is fit for a particular purpose. Here, when Fisher, a mutual acquaintance of the parties, introduced them to each other, he said, " Mr. Jones is in want of copper for sheath- ing a vessel ; '" and one of the defendants answered, " We will supply him well." As there was no subsequent communication, that constituted a contract, and amounted to a warranty. But I wish to put the case on a broad principle : If a man sells an article, he thereb}' warrants that it is merchantable, — that it is fit for some purpose. This was established in Laing v. Fidgeon, 4 Campb. 1 69. If he sells it for a particular purpose, he therebj- warrants it fit for that purpose ; and no case has decided otherwise, although there are, doubt- less, some dicta to the contrary. Reference has been made to cases on warranties of horses ; but there is a great difference between contracts for horses and a warranty of a manufactured article. No prudence can guard against latent defects in a horse ; but by providing proper mate- rials a merchant may guard against defects in manufactured articles ; as he who manufactures copper may, by due care, prevent the introduc- tion of too much oxygen ; and this distinction explains the case of Bluett V. Osborne, 1 Stark. 384, in which Lord EUenborough held that the de- fendant, who had sold a bowsprit, was not responsible for a failure arising out of a latent defect in the timber. The decisions, however, touching the sale of horses turn on the same principle. If a man sells a horse generally, he warrants no more than that it is a horse ; the buyer puts no question, and perhaps gets the animal cheaper. But if he asks for a carriage horse, or a horse to carry a female or a timid and infirm rider, he who knows the qualities of the animal and sells, undertakes, on everj' principle of honest}', that it is fit for the purpose indicated. The selling upon a demand for a horse 320 JONES V. BRIGHT. [CHAP. V. with particular qualities is an affirmation that he possesses those quali- ties. So it has been decided, if beer be sold to be consumed at Gibral- tar, the sale is au affirmation that it is fit to go so far. Whether or not an article has been sold for a particular purpose is, indeed, a question of fact ; but if sold for such purpose, the sale is an undertaking that it is fit. As to the puffs to which allusion has been made, the court has no wish to encourage them ; they are mere traps for buyers ; and if a case were to arise out of a contract made under such circumstances, and it were shown that the article puffed was of inferior quality, when asserted to be of the best materials and workmanship, the seller would be bound to take it back or make compensation in damages. These principles decide the present case in favor of the plaintiff. After what Lord Tenterden had said in Gray v. Cox, 4 B. & C. 108, 1 declined expressing an opinion at nisi prius; but I expected the jurj* would have found that the article was not properly manufactured, for the testimonj' of the scientific witnesses was very clear ; and though the conduct of the defendants was most upright, the article they sold had certainly suffered in the manufacture. At all events, the warranty given hy them is not satisfied, because the jury find that there is an intrinsic defect in an article manufactured by them. Old cases have been cited, and Chandelor v. Lopus at the head of them ; but that does not bear on the question, because all that the court decided is that, to render defendants liable, there must be a warranty or a false representation. But the case does not decide there must be an express warranty ; an implied warranty would satisfy the terms of the decision. Here there has been, in my opinion, an express warranty. The most material case is Parkinson v. Lee ; but the point was not de- cided there ; the court only decided that a warranty that hops sold should be equal to sample, were satisfied by showing that they were equal to sample, although not perfectl}' good and merchantable. Then the de- fect complained of was in a product of nature, not of human art, and was unknown to the sellers. That case, too, was decided in 1802, and Gibbs, C. J., cannot be supposed to have been unacquainted with it, when he decided Laing v. Fidgeon, in 1815 ; yet he there decided the point now in dispute, that in every contract to furnish manufactured goods, however low the price, it is an implied term that the goods should be merchantable. The law, then, resolves itself into this, that if a man sells generally, he undertakes that the article sold is fit for some purpose ; if he sells it for a particular purpose, he undertakes that it shall be fit for that par- ticular purpose. In the present case, the copper was sold for the purpose of sheathing a ship, and was not fit for that purpose ; the verdict for the plaintiff, therefore, must stand. The case is of great importance, because it will teach manufacturers that they must not aim at underselling each other by producing goods of inferior quality, and that the law will protect purchasers who ai'C necessarily ignorant of the commodity sold. § 3.] B. THE AGKEED ARTICLE. 321 FITZMAURICE v. PUTERBAUGH. 45 N. E. (Ind. App.) 524. 1896. Gavin, J. Appellee sued to recover damages resulting from the ex- plosion of a steam boiler sold to him and his brother by appellant, the inherent defects in the boiler having been the cause of the explosion. The first paragraph of the complaint proceeds upon the theory of a war- ranty, while the second counts upon fraudulent representations. . . . In the first paragraph it appears that appellee and his brother were engaged in operating a sawmill and tile factorj", which were run by a steam boiler which was too small and insufficient for the purpose ; that they knew nothing of the kind or quality of materials used in construct- ing such boilers, but consulted with appellant, who was a manufacturer of steam boilers, told him the size and capacity of their old boiler, and that thej' desired a new one, and informed him of the purpose for which they desired it ; that he told them he had just what they wanted, — a second-hand iron boiler which had been tried and tested, and was better than a new steel boiler, and for which he would charge them $375, the full price of a new one ; that, relying upon his statements, thej^ pur- chased it, set it up, and operated it ; that appellee afterwards purchased his brother's interest in said mill; that the boiler was old, patched, and worn out, entirely worthless, and unfit for the purpose for which it was bought, and without any fault upon the part of appellee or any one in charge of the same, but solely by reason of the inherent weakness of the material therein, it exploded, causing great damage to the mill, etc. It is objected that there is here no direct averment of warranty, and that the statements made by appellant were mere matters of opinion, — *' dealers' chaff," — upon which appellee had no right to rely, and which could not constitute a warranty. If we assume (without decid- ing) this to be true, still the facts set forth abundantly establish an implied warranty that the boiler was reasonably fit for the purpose intended, and a breach thereof. Zimmerman v. Druecker (Ind. App.), 44 N. E. 557 ; Bank v. Fraze, 9 Ind. App. 165, 36 N. E. 378 ; Mc- Clamrock v. Flint, 101 Ind. 278. . . . Judgment for 'plaintiff affirmed)- RANDALL v. NEWSON. 2 Q. B. D. 102. 1877. The nature of the action is stated in the opinion. At the trial, the judge left to the jury two questions : 1. Was the pole reasonably fit and 1 That part of the opinion relating to the claim of fraud is omitted. 21 322- KANDALL V. NEWSON. [CHAP. V. proper for the carriage? 2. "Was the defendant guilty of any negli- gence ? And he asked them to assess the consequential damages, in case that should become material. The jury answered both questions in the negative, and as to the dam- ages, said they understood from the judge that £3 was all they could find. Sills (Cave, Q. C, with him), for the defendant. Gates, Q. C, and Edward Pollock, for the plaintiff. The judgment of the court (Kelly, C. B., Mellish, L. J., and Brett and Amphlett, JJ. A.) was delivered by Bkett, J A. This case was tried upon the footing that it was an action brought against the defendant, a coachbuilder, to recover dam- ages 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 negligence 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 onlj' dam- ages found by the jury were £3. Upon these findings the Court of Queen's Bench, applying to this contract the principle laid down in Eeadhead v. Midland Ry. Co., Law Rep. 2 Q. B. 412 ; in error 4 Q. B. 379, gave judgment for the defendant. No dispute was made at the trial, or in argument, as to the nature of the order given and accepted ; the questions argued were whether the defendant 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, it is to be taken, although nothing specific seems to ha\'e been said, that the order given and ac- cepted was not merelj' 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 purchase and sale, or supplj-, of an article for a specific purpose. In other words, the subject-matter of the contract was not merelj' a pole, but a pole for the purchaser's carriage ; or, to state the proposi- tion in an equivalent form, the .thing which would, if the contract were formally 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, namelj-, 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 warrant}^ that the pole shall be reasonably fit for the purpose, or is it only partially 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 decided, and to see whether the principle on which they were decided ought to be modified by the decision in Readhcad v. Midland Ry. Co., supra. The earliest case seems to be Parkinson v. Lee, 2 East, 314, in 1802. It is suflBcient to say of it that, either it does not determine the extent § 3.] B. THE AGREED ARTICLE. 323 of a seller's liability on the contract, or it has been overruled. Neither can the case of Fisher v. Samuda, 1 Camp. 190, in 1808, be said to de- cide anj-thing. The first cases of importance are Gardiner v. Graj-, 4 Camp. 144, and Laing v. Fidgeon, 6 Taunt. 108, in 1815. In Gardiner V. Graj-, supra, 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 buyer. Lord Ellen- borough 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 salable article, answering the description in the contract. Without any particular warrant}', this is an implied term in every such contract." The contract was for the purchase and sale of a commodity described generall}', not described to be ordered or supplied for a particular pur- pose. 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 salable waste silk. The decision, therefore, is that the commoditj' offered and delivered must answer the description of it and be salable waste silk. The principle is that the commodity offered must answer the description of it in the contract. Laing v. Fidgeon; supra, 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 commoditj' for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose." The commoditj' 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 hy 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 copper 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, supra, lay upon the seller or manufacturer an obligation to warrant in all cases that the article which he sells shall be reasonably fit and proper for the purpose for which it is intended, and render him responsible for all the consequences which may result, if it shall be found not to answer the purpose for which it was designed, and that, on account of some latent 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 improper materials, or any accident against which human prudence might tiave been capable of guarding him." Here, therefore, the whole proposition, with and without limitations, was plainlj- laid before the judges for their consideration. The answer given hy 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 324 KANDALL V. NEWSON. [CHAP. V, particular purpose, he thereby warrants it fit for that purpose. . . , Whether or not an article has been sold for a particular purpose is, in- deed, a question of fact ; but if sold for such purpose, the sale is an undertaking that it is fit. . . . The law then resolves itself into this, — that if a man sells generally, he undertakes that the article sold is fit for some purpose ; if he sells it for a particular purpose, he undertakes that it shall be fit for that particular purpose." Nothing can be more clear than that the rule is advisedl}' 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 thera to consider was, " whether there was such an ad- mixture of foreign substances in it as to alter the distinctive character of the article, and prevent it from answering the description of it in the contract." Cresswell, J., said: " The^' were to saj- whether the article delivered reasonably answered the description of Calcutta linseed." 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 salable in the market as Calcutta linseed. If he got an article so adulterated as not reasonably to answer that de- scription, 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 prin- ciple which was used by Lord EUenborough in Gardiner^;. Gray, supra. 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 adulter- ated. 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 accord- ing 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 samples in quality. But the defendant did not refuse to accept the oil tendered to him on the ground that it did not equal the samples, but on account of its not being foreign re- fined rape oil at all. And the learned judge told the jurj- that if they should think that was so, the defendant was not bound to accept it. That direction was perfectly correct. If the jurj- 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 jurj', 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- § 3.] B. THE AGREED AETICLE. 325 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 article 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 carefull3- enumerated and recognized in Jones v. Just, Law Rep. 3 Q. B. 197. In some con- tracts 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 undertaking is, that the article offered or delivered shall answer the description of it con- tained in the contract. That rule comprises all the others ; they are adaptations of it to particular kinds of contracts of purchase and sale. You must, therefore, first determine from the words used, or the cir- cumstances, 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 de- scription, that is to say, shall be that article or commodity, salable or merchantable. If the subject-matter be an article or commoditj- to be used for a particular purpose, the thing offered or delivered must answer that description, that is to say, it must be that article or commoditj', and reasonably fit for the particular purpose. The governing principle, there- fore, is that the thing offered and delivered under a contract of purchase and sale must answer the description of it which is contained in words in the contract, or which would be so contained if the contract were ac- curatelj' 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 discoverable. And accordinglj' there is no suggestion of any such limitation in any of the judgments in cases relating to con- tracts of purchase and sale. Unless, therefore, there is some binding authority to the contrary, we ought not now to introduce by implication a limitation into conti-acts of purchase and sale which has never been introduced before. It is said that the ease of Readhead v. Midland Ry. Co., Law Rep. 4 Q. B. 379, 386, in error is such a binding authority. But in answer to the cases cited of the implied undertaking in contracts of purchase and sale, Montague Smith, J., says : " The counsel for the plaintiff re- ferred to some of the cases in which it had been held that in contracts for the supply of goods for a particular purpose, there is an implied 326 EANDALL V. NEWSON. [CHAP. V. warranty that the goods supplied shall be reasonably fit for that pur- pose. . . . But the agreement to sell and supply for a price which may be assumed to represent their value is a contract of a different nature from a contract to carry, and has essentially different incidents at- taching to it." It is true that the learned judge afterwards says : " Even in the eases of contracts to supply goods it maj- be a question, on which it is not now necessary to express an opinion, how far and to what extent the vendor would be liable to the vendee in the case of a latent defect of the kind existing in the present case which no skill or care could prevent or detect." But it seems impossible logicalh' to bold that a case — in which the court declined to follow the decisions on contracts of purchase and sale, on the ground that those contracts are of a different nature and have essentially different incidents from the contract to carry, which was in discussion in that case — can be fairly binding on this court, so as to oblige it to introduce a particular limitation into a contract of purchase and sale, because, in that case, it was introduced into a contract to earrj' passengers. The case of Francis v. Cockrell, Law Rep. 5 Q. B. 501, 503, is based upon Readhead v. Midland Rj'. Co., supra, and is therefore of itself no more a binding authority on us in this case than the other. It is true, how- ever, that the Lord Chief Baron, going further than the doubt expressed by Montague Smith, J., does recognize the limitation as applicable to contracts of purchase and sale (Law Rep. 4 Q. B. 503). But the state- ment of the learned judge was not necessarj-, and therefore is not bind- ing, though of course inviting a careful consideration of the older cases. After such consideration, for the reasons before given, we are of opinion that the undertaking of the present defendant was not restricted b}' the limitations applied to the contract of carriage in Readhead v. Midland Rj'. Co., supra, and that so long as the verdict in this case stands it imposes a liability on the defendant. We are, therefore, of opinion that the judgment of the Court of Queen's Bench, directing the judgment to be entered for the defendant, was wrong. In the Court of Queen's Bench a cross rule had been obtained on be- half of the plaintiff for a new trial, on the ground of misdirection as to the measure of damages. In consequence of the decision that the de- fendant was not liable at all, it became useless to argue the point. But Mr. Gates has renewed it before us, and has asked for a new trial on the ground of such misdirection, desiring to have such new trial con- fined to the question of damage onlj-. We think that a question should have been left to the jury similar to that which was left in Smith v. Green, 1 C. P. D. 92, namely, whether the injurj^ to the horses was or was not a natural consequence of the defect in the pole. There has been a miscarriage in this respect at all events. We are asked to con- fine the new trial to the question of damages, but considering that the real question is not whether the pole was perfect, but only whether it was reasonably fit, we cannot think that the findings of the jurj' as to the questions left to them in order to determine the liability of the de- § 3.] B. THE AGREED ARTICLE. 327 fendant are so satisfactory as to authorize us to confine tiie question to be raised on a new trial to the damages only. We think that the judg- ment of the Court of Queen's Bench should be reversed, and that the order should be for a new trial generally, if the plaintiff elects to have a new trial at all. If he does not, the verdict and judgment for the plain- tiflf for £3 will stand. The plaintiff has succeeded on the appeal, and should therefore have the costs of the appeal. Judgment reversed. JONES V. PADGETT. 24 Q. B. D. 650. 1890. Appeal from the Westminster County Court. The plaintiff carried on the business of a woollen merchant at one address, and of a tailor at another. As a woollen merchant, he ordered of the defendants, wlio were woollen manufacturers, a quantity of " in- digo blue cloth," to be made according to sample. He intended to use the cloth in his business as a tailor for the purpose of making it into servants' liveries ; but the fact that he was a tailor as well as a woollen merchant was unknown to the defendants, and he did not communicate to them the particular purpose for which he wanted the cloth. The defendants made and supplied to the plaintiff cloth which was of the description ordered, and which corresponded with the sample. The plaintiff made the cloth into liveries which he supplied to a London club for the use of its servants. After the liveries had been in use for a few weeks, they showed signs of wear, the surface of the cloth came off, and the dj'e came out. It was admitted that the cloth was not strong enough in texture for the hard usage to which servants' liveries are subjected, and that it was altogether unsuitable for that purpose. There was evidence that one of the ordinary uses to which indigo blue cloth was applied was the making of servants' liveries, though it was also frequently used for other purposes, such as carriage linings, caps, and boots. There was no evidence that the cloth supplied by the de- fendants was unsuitable for these latter purposes. Before ordering the cloth the pla.intiff subjected the sample to the ordinarj' tests for the purpose of ascertaining whether it was suitable for liveries, and failed to discover that it was not so. The plaintiff having sued the defend- ants for breach of an implied warranty that the cloth was merchant- able, the judge left to the jur}- the question whether it was merchantable, as supplied to woollen merchants, and refused to leave to them the question whether an ordinary and usual use of cloth of tiie description ordered was the making of it into liveries. The verdict having passed for the defendants, the plaintiff moved for a new trial on the ground of misdirection. 328 JONES V. PADGETT. [CHAP. V. Danckwerts, for plaintiff. Guiry, for defendants, was not called upon. Lord Coleridge, C. J. I am of opinion that in this case the direction of the county court judge to the jury was right, and that there was not any such non-direction as made his direction amount to a misdirection. There is no doubt that if a manufacturer sells an article which he knows is bought for a particular purpose, he impliedly' warrants that it is fit for that particular purpose. That is a principle which was estab- lished some sixty j-ears ago in the case of Jones v. Bright, 5 Bing. 533, and has been acted upon ever since. But the present case is not within that rule, because nothing was mentioned to the seller as to the particular purpose for which this cloth was bought, and there was 1 nothing to fix him with knowledge of that purpose. Here all that was shown was that the seller on the one side was a manufacturer, and the buyer on the other side was a woollen merchant. No doubt it was possible that the buyer might sell the goods to some person or other who might use them for a purpose for which they were not fit, and I may assume that the goods here were unfit for the particular purpose to which the plaintiff applied them. But there was nothing, be3-ond the position of the parties, to show that the seller knew the specific pur- pose for which thej^ were bought, and it could not be denied that they might have been used for a variety of other purposes for which they were fitted. The plaintiff might have sold them to be used for purposes for which thej' were applicable. But then it is said that the case of Drummond v. Van Ingen, 12 App. Cas. 284, in the House of Lords carries the law farther than Jones v. Bright, supra. In my opinion that is not so. There was no intention on the part of the lords to extend the old rule. Lord Maenagten expressly said that he did not go beyond it; so also did Lord Selborne. And Lord Herschell, on whose judg- ment special reliance has been placed, was particularly careful to ex- plain that he did not intend to carry the doctrine farther. He said : "It was urged for the appellants by the Attorney-General, in his able argument at the bar, that it would be unreasonable to require that a manufacturer should be cognizant of all the purposes to which the arti- cle he manufactures might be applied, and that he should be acquainted with all the trades in which it may be used. I agree. Where the article maj' be used as one of the elements in a variety of other manu- factures, I think it may be too much to impute to the maker of this common article a knowledge of the details of every manufacture into which it may enter in combination with other materials." If the plain- tiff is to succeed, it must be on the ground of the reasonableness of imputing such knowledge to the manufacturer. I do not see that there was an}' evidence th.it the making of liveries was the onlj' purpose, or even the most usual purpose, for which, this particular kind of cloth was ordinarily used, and unless that is so, there is nothing to fix the manufacturer with knowledge which would bring the case within the rule. § 3.] B. THE AGKEED ARTICLE. 329 Lord Eshee, M. R. The question which was left by the judge to the jurj', and the sufBciency of which is now complained of, was whether the cloth supplied hy the defendants to the plaintiff was mer- chantable as supplied, to woollen merchants. The cloth in question was ordered under a particular name, namely, "indigo blue cloth," by a woollen merchant of a woollen cloth manufacturer, to be made accord- ing to sample. It was not denied that the cloth supplied answered the name, nor was it disputed that it agreed with the sample. But it was said that there was a breach of an implied warranty that it should be fit for the particular purpose of being made into liveries. Now the rule with regard to the implied warranty of fitness which arises in the case of a sale of goods is that which is laid down in Jones v. Just, L. E. 3 Q. B. 197, in the fourth of the five classes of cases there enum- erated : " 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 pur- pose to which it is to be applied." Those are the limits of the warranty. Here the goods were ordered by a woollen merchant. He no doubt happened also to be a tailor ; but that fact was unknown to the defend- ant. The purpose for which a woollen merchant buys cloth is to sell it again to others. There was indeed evidence that such cloth as this, if sold to a tailor, was not fit for one of the purposes to which a tailor miglit apply it. But there was no evidence that it was not fit for other of the purposes even of a tailor. Moreover, the cloth might have been sold hy woollen merchants to fifty other classes of persons besides tailors. There was no evidence that wool manufacturers know that woollen merchants sell to tailors at all. The manufacturer here was not told, either expressly or by implication, that the goods were or- dered that they might be sold to tailors. Then is there any authority which establishes that where goods are ordered by a woollen merchant of a cloth manufacturer the latter must be taken to know that they may be ordered to be sold to tailors? The case referred to in the House of Lords is no authoritj- for such a proposition, for there the goods were ordered under the designation of " coatings," which necessarily im- ported that they were intended to be made up into coats, and there- fore the facts of that case came within the precise terms of the fourth rule in Jones v. Just. It is suggested that every wool manufacturer is bound to know all the ordinarj' purposes to which a woollen merchant may put the cloth which he buys — that is to say, he is bound to be acquainted with all the trades to which the woollen merchant may re- sell it ; but that is the very proposition which Lord Herschell expressly denies. " It would be unreasonable," he saj's, " to require that a man- ufacturer should be cognizant of all the purposes to which the article he manufactures might be applied, and that he should be acquainted with all the trades in which it may be used." Though he adds that 330 EIGHT V. BACON. [CHAP. V, "There seems nothing unreasonable in expecting that the maker of ' coatings ' should know that they are to be turned into coats." And Lord Selborne says, that although, " if the goods being of a class known and understood, between merchant and manufacturer, as in de- mand for a particular trade or business, and being ordered with a view to that market, are found to have in them, when supplied, a defect practically new, not disclosed bj' the samples, but depending on the rnetbod of manufacture, which renders them unfit for the market for which they were intended," the doctrine of implied warrantj' applies ; yet that doctrine "ought not to be unreasonably- extended, so as to require manufacturers to be convei'sant with all the specialities of all trades and businesses which thej- do not carry on, but for the purposes of which goods may be ordered from them." The lords decided that case on the ground that it came within the fourth proposition in Jones ^'. Just, supra, which proposition they held to be applicable to a ease in which the goods were bought by sample. But here there is no evi- dence to bring the case within that proposition. The direction of the county court judge was right, and this appeal must be dismissed. Appeal dismissed. EIGHT V. BACON. 126 Mass. 10. 1878. Colt, J. The judge before whom this case was tried found as a fact that there was no express warrantj- by the plaintiffs of the quality of the leather sold to the defendants ; and ruled, as a matter of law, that on the evidence, there could be no implied warranty binding upon the plaintiffs. There was nothing at the time of the sale said bj- either party of the purpose for which the leather was bought ; and the evidence that the defendants were manufacturers of boots and shoes, and at the time of the sale asked the plaintiffs if the leather would crimp, is not sufficient to prove an implied warrantj' on the part of the plaintiffs that the leather was suitable for the purpose of being manufactured into boots and shoes, even if the plaintiff supposed it was bought for that purpose. . . . The case at bar is an action upon an executed sale bj' one dealer to another of a specific qnantitj- of leather, which the seller did not manu- facture, and as to the quality of part of which he had no superior infor- mation. The parties stood on an equal footing; the buj-er had full opportunity to examine the goods in the store of the plaintiffs, and did in fact examine two rolls, which were fair samples of the lot. There was no fraud practised. The leather appeared to be good, and both parties believed it to be good and suitable for the purpose of being manufactured into boots and shoes. It is plain that the buyer inspected § 3.] B. THE AGEEED AETICLE. 331 and selected the leather himself, without relying on the skill and judg- ment of the seller. The particular use which was to be made of it was not made known by the buyer at the time of the sale, in such a way as to indicate a purpose to put upon the seller the responsibility of furnish- ing an article reasonably fit for the purpose to which it was to be applied. Howard v. Emerson, 110 Mass. 320 ; ^ Deming v. Foster, 42 N. H. 165." . . . Exceptions overruled. BEALS V. OLMSTEAD. 24 Vt. 114. 1852. Assumpsit on the warranty of a quantity of hay. There was also a count for monej- had and received. Plaintiff contracted and paid for a mow of hay. When he came to open it for removal, he found it worthless, refused to take it, and brought this action. The trial court directed a verdict for defendant. Stevens and Edson, for plaintiff. a. R. Seardsley, for defendant. By the Couet. As to whether the defendant's assertions m regard to the quality of the hay are understood to form the basis of the con- tract, there could be but one opinion. The plaintiff declined to examine the hay, saying he could tell nothing about it. He expressly informed the defendant he wanted it for a particular use, to feed his oxen in spring and summer while at work upon the railroad, and that he' must have such hay as would answer that use. The defendant then proceeded to state that the hay was good, cut in good season, was well cured, and put in the barn in good season. And after the negotiation had continued some days, nothing more being said between the parties in regard to 1 In tins case the instruction of the trial court that, " if the plaintiff knew that the defendants wanted to purchase the cow for the purpose of immediately cutting It up into beef, for immediate use, tliere would be an implied warranty that the cow was fit for that purpose," was held to be erroneous. 2 At page 174, the court said : " The negotiation was not for a yoke of oxen to do work upon a farm. The purchase was of the particular oxen here in question, then under the observation of the parties, and tliough both parties understood that they were purchased expressly to do work upon a farm, yet the law implies no warranty as to their fitness for that purpose. The purchaser had the opportunity to require an express warranty, if he thought proper. . . . When there is an express warranty of tlie quality of an article sold, in any respect, no further warranty will be implied by the law. . . . With respect to any other warranty beyond those expressed, the maxim is, expressio facit cessare taciturn. Here there was an express warranty as to the char- acter and qualities of the oxen alleged by the plaintiffs and not denied by the defend- ants, the only question being whether the warranty was absolute in regard to holding back, or qualified as to one of the oxen. In such a case there could be no warranty implied." 332 HANSON V. BUSSE. [CHAP. V. the qualitj' of the hay, the trade was closed, and plaintiff paid for the haj'. It is scarcelj' possible to suppose a case where it ^s more abso- lutely certain that the defendant's statements formed the sole basis of the sale than the present, and in such case the declaration is ordinarily to be regarded as a warrant}-. . . . There is very much in the present case to show that defendant's state- ments ought to be regarded as a warranty. 1. The}- were understood by both parties as forming the basis of the contract of sale, there being no good opportunity to examine the goods, and none in fact attempted. 2. Thej' were in regard to matters upon which the defendant was sup- posed and professed to have personal knowledge, and, what he said, he asserted positively ; therefore he ought to expect to be bound by it. 3. The haj' was bought for a particular use, and the defendant knew plaintiff would not buy an inferior article. The sale of the haj' then for this particular use, ordinarily' implies a warrant^' that it is fit for the use. The mere assertion that haj' is good haj', eertainlj' implies some- thing more than was found in this case, but good haj' for the par- ticular use, cut and cured well, in good season, is sufficientlj- definite one would think. Judgment reversed. HANSON ET AL. V. BUSSE. 45 111. 496. 1867. Lawrence, J. This was an action, brought by Hanson and Barrett, against Busse, to recover the price of one hundred and ten barrels of apples, sold bj- them to Busse. The demand was resisted, on the ground that the apples, when opened, proved to be decayed and entirely worth- less. The jury found for the defendant, and the plaintiffs appealed. The court gave for the defendant a series of instructions, nearly all of which embody the idea that, if the plaintiffs represented the apples to be good, and the defendant bought them, relying upon such repre- sentations, and thej' were bad and unmerchantable, and the defendant offered, at once, to return them, he would not be liable for the price. In reference to the sale of personal property, which is open to the inspection and examination of the purchaser, this would not be the law. In such cases it is immaterial how far the purchaser maj- relj* upon the representations of the vendor as to the qualitj' of the goods, if there was no intention on the part of the vendor to warrant, and if he used no language fairly implying such an intent. The different rule of the civil law may be founded on higher morals, and the modern decisions, both in England and this countrj', seem to be tending in that direction. This tendencj' is shown in the recognition of exceptions to the rule. But the rule itself must be considered flrmlj' settled in the common law, that § 3.] B. THE AGKEED AETICLE. 333 the vendor of goods which the purchaser has, at the time of purchase, tlie opportunitj' of examining, is not responsible for defects of quality, in the absence of fraud and warranty ; and although no particular form of words is requisite to constitute a warranty, j'et a simple commenda- tion of the goods, or a representation that they are of a certain quality' does not make a warrantj-, unless the language of the vendor, taken in connection with the circumstances of the sale, fairlj' implies an inten- tion, on his part, .to be understood as warranting. The rule has been thus laid down by this court in several cases. Towell v. Gatewood, 2 Scam. 22 ; Adams v. Johnson, 15 111. 345, and Kohl v. Lindley, 39 Id. 195. In the last case the rule is fuU^' considered. But, although these instructions would be erroneous if applied to ordi- nary sales of personal property open to inspection, yet they must be considered in reference to their application to this particular case, and, tried b}' that standard, we cannot say they misled the jury. As stated by this court in Kohl v. Lindlej', above quoted, one of the exceptions to the general rule is, where the sale is made by sample, and another, where the purchaser has no opportunity for inspection, the bulk must be as good as the sample, and, if there is no opportunity for examina- tion, the article sold must be what the vendor represents it to be. In such cases the maxim caveat emptor can have no application. In the case before us the proof shows that the 110 barrels were piled up in tiers at a railway depot in Chicago. The purchaser went with the clerk of the plaintiffs to look at them. They opened a couple of barrels that stood on the floor. The purchaser was lame from rheuma- tism, and requested the clerk to climb up and open a barrel on the top of the tiers. He did so, and showed the purchaser some apples which were in good condition, and said they were all like that. The plaintiffs had told the defendant the apples were just such as he had previously bought, shipped by the same man, and good handpicked fruit. The apples in the three barrels exhibited as samples were unquestionably merchantable, or the defendant would not have bought. It would be unreasonable to require that he should have opened every one of the 110 barrels. He had the right to rely on the samples shown to him, and on the representations of the plaintiffs that the apples were good. He had no opportunity for the exercise of his own judgment, and the plaintiffs must have known that he bought relying upon their repre- sentations. The case falls clearly within the exceptions to the general rule above mentioned, and there is no ground for saying caveat emptor. The verdict was just, and the instructions as applied to the facts of this case could not have misled the jury. The plaintiffs' instructions were properly refused, because inapplica- ble to the facts of this case. They would have tended to mislead the jury. The judgment must be afBrmed. Judgment affirmed. 334 MURCHIE V. COKNBLL. [CHAP. V. MURCHIE ET AL. V. CORNELL et al. 155 Mass. 60. 1891. Holmes, J. The plaintiffs agreed to sell, and the defendants agreed to bu}-, a cargo of ice of three hundred and sixt^- tons, to be shipped from Pembroke, Maine. From some of the evidence it would seem that the ice was not identified hy the contract, but was to be supplied and appropriated to the contract by the plaintiffs, the sellers. From other parts of the testimonj- it might be inferred that the ice was identi- fied bj' the contract, but at a time and under circumstances when the defendants had no opportunitj' to inspect it before shipment. The judge instructed the jury generally that there was an implied affirmation that the ice was of such a kind that it could be shipped, transported hy sea, and discharged at New Bedford, as contemplated by the contract, and no other implied affirmation or warranty. If the instruction is wrong in either view which the jury might have taken of the facts, the exceptions must be sustained, and it is unnecessarj- to consider whether the implica- tion would be more extensive in the former case than in the latter. In some contracts of the latter kind, when the sale is of specific goods, but the buyer has no chance to inspect them, the name given to the goods in the contract, taken in its commercial sense, may describe all that the purchaser is entitled to demand. So it was held with regard to " Manilla sugar^" in Gosslerw. Eagle Sugar Reflnerj-, 103 Mass. 331. But in many cases like the present, the inference is warranted that the thing to be furnished must be not only a thing of the name men- tioned in the contract, but something more. How much more may depend upon circumstances, and at times the whole question may be for the jurj'. If a very vague generic word is used, like " ice," which taken literally may be satisfied by a worthless article, and the contract is a commercial contract, the court properly may instruct the jury that the word means more than its bare definition in the dictionary, and calls for a merchantable article of that name. If that is not furnished, the contract is not performed. Warner v. Arctic Ice Co., 74 Maine, 476 ; Swett v. Shumway, 102 Mass. 365, 369 ; Whitmore v. South Boston Iron Co., 2 Allen, 52, 58. In a sale of " ^Vlanilla hemp," like that of the sugar in Gossler v. Eagle Sugar Refinery, it was held in England that the hemp must be merchantable. Jones v. Just, L. R. 3 Q. B. 197; Gardiner w. Gray, 4 Camp. 144 ; Howard v. Hoey, 23 Wend. 350, 351 ; Merriam v. Fields 39 Wis. 578 ; Fish v. Roseberry, 22 111. 288, 299 ; Babcock v. Trice, 18 111. 420. See Hight v. Bacon, 126 Mass. 10, 12; Hastings v. Lever- ing, 2 Pick. 214, 220. Exceptions sustained} 1 A part of the opinion relating to a question of evidence is omitted. § 3.] B. THE AGREED ARTICLE.' 335 RODGERS ET AL. V. NILES -m al. 11 Ohio St. 48. 1860. Action for damages for defendants' breach of contract in furnishing to plaintiffs three defective boilers, for which plaintiffs paid $1,415. Plaintiffs asked the court to charge the jury that, " If they were satis- fled that the defendants engaged for a reasonable consideration to build them three boilers, to run the engines for their rolling-mill, the defend- ants impliedl}' agreed that the boilers should be built of good materials and good workmanship, so as to answer the usual purposes of such boilers." The court refused so to charge, but charged as follows : " When an article is ordered from a manufacturer, and the purpose for which it is intended is known to both parties, there is an implied agreement on the part of the manufacturer that it is suited to the purpose, and if it prove defective in workmanship or materials, the manufacturer will be responsible for all the legal consequences ; provided, however, that the defect in the material was known to the manufacturer at the time he supplied the article, or he could have discovered it by the use of the ordinary means by which such defects could be discovered by skilful workmen. That the manufacturer is not the absolute insurer of the qualitj' of the materials used ; he is bound to select the proper materials, and exercise the best skill, which should be competent skill, for the pur- pose of discovering any defect in the material ; and if, after careful examination and the aid of all the appropriate means, he cannot discover any defect, he has performed his duty. Any hidden, accidental defect will not impose a liability on the manufacturer to respond in damages.'' The plaintiffs excepted to the refusal to charge and to the charge as given. From a judgment entered on a verdict for the defendants, and aflBrmed at the general term, the plaintiffs appealed. Fox and Fox, for plaintiffs. Taft and Perry, for defendants. Scott, J. No issue seems to have been raised by the pleadings in this case, in regard to the terms and stipulations, whether express or implied, of the contract on which suit was brought. The defendants by not den3ing admitted the contract to be as claimed by the plaintiffs ; and an}' evidence on that subject was outside of the issue. If the boilers were proved, to the satisfaction of the jurj', to be defective as claimed by the plaintiffs, thej^ would have been entitled to a verdict in their favor. But the plaintiffs themselves offered evidence in relation to the terms of the contract, without requiring an amendment of the answer, and asked to have the jury instructed as to its implied stipula- tions, and having thus in fact submitted an issue not presented by the pleadings, they would have no right to complain, if the law governing that subject was correctly given in chai-ge to the jury. We proceed then to the consideration of the question, whether tlie y 336 EODGEKS V. NILES. [CHAP. V. court below erred in refusing to give the instruction asked- and in the instructions actually given. The general rule of the common law undoubtedlj' is that, upon an executed sale c*f specific goods, the vendor will not be held liable for an^- defects in the quality of the articles sold, in the absence of fraud, or express warrantj'. Where the purchaser is not deceived by anj- fraudu- lent representations, and demands no warranty, the law presumes that he depends on his own judgment in the transaction, and applies the maxim caveat emptor. But to this general rule the requirements of mani- fest justice have introduced sundry exceptions, of which some are as well settled as the rule itself; while as to others the authorities cannot be easily reconciled. We do not propose an investigation of the sub- ject further than is demanded b}- the case before us. The piincipal, if not the sole exceptions to the rule are found in cases where it is evident that the purchaser did not relj- on his own judgment of the quality of the article purchased, the circumstances showing that no examination was possible on his part, or the contract being such as to show that the obligation and responsibility of ascertaining and judging of the quality was thrown upon the vendor, as where he agrees to furnish an article for a particular purpose or use. Thus, it is said by Mr. Story, " When an examination of goods is, from their nature or situation at the time of the sale, impracticable, a warrantj' will be implied that they are mer- chantable. Thus, if goods be at sea, or not arrived, or if thej- fill the hold of a ship so that nothing but the surface can be seen, or if they be in bales so that an examination of the centre cannot be made without tearing each bale to pieces, the seller will be understood to wai-rant them merchantable, and of the quality demanded and expected by the bujers." Story on Contracts, § 834. It is true that the warranty of merchantable quality has in several cases been held to be limited to cases where the examination is impracticable, and not merely inconvenient. Hyatt v. Boyle, 5 Gill & Johns. 110 ; Hart v. White, 17 Wend. 267. So also the implication of warranty is said not to extend to cases where an examination, though practicable, would be fruitless, on account of the latent character of the defects, but only to those cases in which there can be an examination. 1 Parsons on Contracts, 466. The same writer, however, says : " One exception to the rule of caveat emptor springs from the rule itself For a requirement that the purchaser should ' beware,' or should take care to ascertain for himself the quality of the thing he buys, becomes utterly unreasonable, under circumstances which make such care impossible." The vendor's liability on an implied warrant^', in the case of articles sold for a particular purpose, is illustrated bj- the cases of Jones v. Bright, 5 Bingham, 533 ; Brown v. Edgington, 2 M. & G. 279 ; Beals v. Olmstead, 24 Vermont, 114 ; Brenton v. Davis, 8 Blackford, 817. Other cases have imposed proper limitations on this doctrine, as in the cases of Chanter v. Hopkins, 4 M. & W. 399, and OUivant v. Bayley, 5 Q. B. 288. In these cases it was held that where a " known and ascertained § 3.] B. THE AGREED ARTICLE. 337 article " is ordered and furnished, though intended for a particular use, the liability of the maker and vendor extends only to defects in the materials and workmanship, and not to such as arise from the principle or mode of construction. With respect to the doctrine that a sale made for a particular purpose implies a warranty that the thing sold shall be fit for that purpose, it is said in 1 Smith's Leading Cases, 250, that "the sounder view seems to be that no engagement of this sort can be implied against the vendor, save where the contract is partially or wholly executor^' ; aad that in this case it is not in the nature of a warrant}-, but of an implied stipula- tion, forming part of the substance of the contract." And a marked distinction will be found to pervade all the authorities between an executed sale, where the property passes in prcesenti, and an executory contract for the delivery on a future day of an article not specifically defined or selected at that time. In the latter case, it makes no difference whether the vendor have an article on hand, or it is after- wards to be procured or manufactured. In neither case can the promisee be compelled to rest satisfied with an inferior article. Though, in the absence of express stipulation, he cannot insist that the article shall be of any special degree of fineness, yet he has a right to insist that it shall be of medium quality or goodness, free from such defects as would render it unmerchantable, or unfit for the purpose for which it is ordi- narily used. Howard v. Hoey, 23 Wend. 351 ; Brown v. Saj-les, 27 Ver- mont, 227; Story on Contracts, § 834; Broom's Legal Maxims, 614. The doctrine is thus stated by the writer last referred to: "Where an agreement is for a specific chattel in its then state, there is no irnplied warrant}' of its fitness or merchantable quality ; but if a person is em- ployed to make a specific chattel, there the law implies a contract on his part that it shall be fit for the purpose for which it is ordinarily used." It but remains to apply the principles of these authorities to the case under review. The contract sued upon was executory in its character. It was for the making and delivery to the plaintiffs, at a future day, of three steam boilers, to be used in running the engines of their rolling- mill. It must be clear that the rule of caveat emptor can apply in no such case, whether the contract be made with a manufacturer or other person ; for the purchaser can exercise no judgment in regard to the quality of a thing not in esse, or which is. indeterminate, and to be tiiereafter selected or produced by the exercise of the vendor's sole judgment, discretion, and will. An}' rule must be unreasonable which would impute to a purchaser an intention to rely on his own judgment as to the quality of an article, where the circumstances of the case ren- ■ der it simply impossible for him to exercise any judgment whatever. This is perhaps not the case of an article agreed to be furnished for a special purpose. It does not appear that the plaintiffs' mills required boilers of a peculiar quality, and that this was known to the defendants. But they did know that the boilers were intended to be used for the 22 338 ' EODGEES V. NILEa [CHAP. V. purpose to which they are ordinarily ai^plied, — that is, to the genera- tion of steam, to be used as a motive power ; and the^' contracted to build them with reference to this their usual purpose and use. Whether they were large enough to generate sufficient power for the use of the plaintiffs' mills at Iroutown was a question upon which the plaintiffs might judge for themselves. The^- did so, and specified the dimensions ; and for any defect in their judgment the defendants are not liable. But the selection and procuring of the materials, and the manufacture of the boilers, the defendants took upon themselves, and over their action in these matters the contract of the parties gave the plaintiffs no right of supervision and no power of control. Under these circum- stances, the defendants must ha regarded as having agreed to procure such materials and apply such workmanship as would furnish to the plaintiffs steam boilers free from all such defects, latent or otherwise, [as would render them unfit for the ordinary uses contemplated by the contract. The question is, then, not a question of fraud, but of the performance of the implied stipulations of a contract. It was well known bj- the defendants at the time of making the conti-act that the plaintiffs desired to procure steam boilers fit both in material and workmanship for the use to which such boilers are ordinarily applied. They agreed to sup- • plj- the plaintiffs' demand in this behalf; and the question is, Have they performed their contract? If thej- have failed through defect of material procured by themselves or of workmanship, their contract is broken, whether such defects be latent or visible, and however honest' their intentions maj- have been. It has been suggested that the law has been recently held otherwise by the Court of Appeals, in New York, in the case of Hoe v. Sanborn, 8 Am. Law Reg. 740-754. But a reference to that case will show that, whatever the terms of the contract before the court may have been, it had been pleaded as an executed sale, not as an executory contract. Under the pleadings, therefore, that case was properly regarded by the court as raising only a question as to the extent of the manufacturer's- implied warranty in the case of an executed sale of specified goods. Indeed, the court fully recognized the distinction between the case then before them, and the case of executory contracts, and said, what is evi- dently true, that the rule of caveat emptor was wholly inapplicable to the latter class of cases. This authority, therefore, confirms, instead of conflicting with, the conclusion we have arrived at in this case. To a majority of the court it seems clear that the instruction asked by the plaintiff in the court below should have been given, and that the court erred in the limitation and exception specified in the charge given . The judgment is therefore reversed, and case remanded. Brinkerhoff, C. J., and Sutliff, J., concurred. Peck and Gholson, JJ., dissented, on the ground that the facts of the case brought it within the rule stated as applicable to the order of § 3.] B. THE AGREED ARTICLE. 339 goods from a manufacturer in a recent decision by the Court of Appeals in New York, Hoe v. Sanborn, 8 Am. Law. Eeg. 740-754 : " The ven- dor is liable in such cases for any latent defect not disclosed to the purchaser arising from the manner in which the article was manufac- tured ; or if he knowingly used improper materials, he is liable for that also, but not for any latent defect in the material, which he is not shown and cannot be presumed to have known." ^ TENN. RIVER COMPRESS CO. v. LEEDS & CO. 37 S. W. 389 : 97 Tenn. 574. 1896. Snodgrass, C. J. The plaintiff in error ordered a cast-iron piston head of Leeds & Co., manufacturers, at New Orleans, for use in a 60-inch Tyler press, which the Tennessee River Company was using in Chattanooga, to replace one which had just been broken. Leeds & Co. had made the one which broke, and plaintiff in error ordered the second of them from the same pattern, with direction to be made good and strong. The casting was done, and was apparently perfect. It was forwarded to plaintiff in error, and was received and used by it for two or three months, when it broke in two, as the other one had done. When Leeds & Co. sued on the note given for this casting, defendant contested anj^ liabilitj' on account of failure of consideration and breach of implied warranty. There was a trial before a jur}-, verdict and judg- ment for plaintiff for the amount of the note, and defendant appealed in error. The only error assigned is to the charge of the court as to ths manufacturer's liability on an implied warrant}''. It is as follows : "The manufacturer warranted impliedh' that the casting was suitable for the purpose for which it was designed, ordered, and manufactured, and that, if the easting or piston head was constructed on the plan or design proper for the purpose for which it was intended, and if made of 1 In Englehardt v. Clanton, 83 Ala. 3.36 (1887), it is said by Clopton, J. : "In con- tracts of purchase and sale, when an examination is impracticable from the nature of the article, and it is evident that the purchaser necessarily relies on the judgment and skill of the dealer, the implied warranty extends to defects unknown to him. In such cases, the law devolves on him the duty and obligation to ascertain and judge of the fitness of the article for the particular use or purpose for which he agrees to furnish |,it. The circumstances requisite to an implied warranty in such case are, that the seller shall be a manufacturer or dealer, shall hare information of the particular use for which the article is intended, and tlie purchaser trusts to the judgment or skill of the manufacturer or dealer from necessity or other sufficient causes, and not on his own judgment. If a person orders a specified article for a special purpose, and the dealer informs him that he has no personal knowledge of the article or of its fitness It cannot be said that the purchaser relies on the judgment or skill of the dealer. He purchases, under such circumstances, on his own judgment and at his own risk, The doctrine of caveat emptor applies." 34.0 TENN. EIVER COMPRESS CO. V. LEEDS & CO. [OHAP. T. the proper material, and cast in the proper manner, and if the manufac- turer had taken all precautions known to have the piston-head properly made, and if. it was of the proper dimensions, and if no defect could be ascertained or found in the same after a close inspection, using the most approved tests for that purpose, that the manufacturer would not be liable for a latent defect inside of the casting which could not be found by any inspection short of breaking and destroying the casting." This charge is erroneous. It assumes the non-liability of a manufacturer for latent defects if proper test had been applied to the discovery of such defects by him, and they had not been found. This is the rule when applied to the purchaser of machinery who is sued by persons injured in its use, but is not the rule as applied to the manufacturer who makes and sells to a purchaser machinery for a special purpose. In that case the manu- facturer warrants against latent defects that the machinery is reasonably fit for the use to which it is to be applied. He does not warrant (in the absence of exijress contract) that it is perfect, or the best for that pur- pose, but only that it is reasonably' fit and proper for the use designed. Overton v. Phelan, 2 Head, 445; Bridge Co. v. Hamilton, 110 U. S. 108 ; Hoe v. Sanborn, 21 N. Y. 552 ; Bragg v. Morrill, 49 Vt. 45, 24 Am. R. 102. On the merits of this case, it was a matter of serious controversy whether defendant had not done all that was required of it under this rule. The casting ordered appeared to be perfect. The only defect (discovered after it broke) was that there were certain blowholes inside of it, which could not be discovered by outside observation or test. It appeared in proof that it is impossible to make a cast- ing without blowholes, but tliere was evidence indicating that these were of unusual size, and that this casting was exceptionallj- defective. In the latter case the defendant might be liable, which it certainly would not be if only such blowholes existed as were or might be the natural result of the process of manufacture from good material in the usual wa}-. If one orders a casting which cannot be made without blowholes, there is no warranty implied that he will receive one without blowholes, but there is a warranty that be maj- not expect any more or larger blowholes than is usual in the process of manufacture designed to supply such articles fit and proper for use. It does not clearly appear that, even granting the blowholes in this machinery were unusual, the breaking was thereby occasioned ; but enough appears to require that this question be submitted to the jury, on a correct charge, along with other questions involved, and especially with that already indicated, — that in making an order for a casting in which blowholes were unavoid- able, there was no warranty that a purchaser would receive one without blowholes, but only that such blowholes would not be unusual or avoid- able by the exercise of necessary care and skill in the manufacture to make the machine reasonably fit and proper for use by eliminating them, if practicable, according to the usual approved method of casting such machinery. The jiidjsment will therefore be reversed, and the case remanded for a new trial. § 3.] B. THE AGREED ARTICLE. 341 BIERMAN ET AL. V. CITY MILLS CO. 151 N. Y. 482. 1897. Gray, J. The plaintiffs brought this action to recover damages of the defendant for a breach of warranty in the sale of felt cloths ; and, as there was no written contract at the time, it is essential to know the facts and circumstances under which the sales were made. The plain- .tiffs were engaged in business in the city of New York, as manufact- urers of clothing. The defendant, a Massachusetts corporation, was engaged in the business of the manufacture and sale of felt goods. The plaintiffs alleged that the defendant, through its lawfully authorized agent, had represented to them that it manufactured a certain kind of cloths, fit for their use in the manufacture of coats, and had requested them to purchase some. They further alleged that, relying on the rep- resentation, they had purchased such cloths, and had manufactured them into clothing ; that they subsequently discovered that the cloths were " damaged, of an inferior quality-, rotten, and unfit for any pur- pose whatever ; " and that the defendant had concealed the defects from the plaintiffs. They alleged that the defect was a latent one, and not discoverable by inspection, and was indicated by wear; that many of the goods sold by the plaintiffs had been returned to them ; and that they had on hand a number of said coats, which they had been unable to dispose of. The answer denied that the defendant had made any representations to the plaintiffs, as alleged, and denied the other allega- tions of the complaint respecting the cloths sold, and set up as a defence, that the goods purchased by the plaintiffs were first-class articles of their kind, and suitable for the manufactui'e of low-priced coats. Upon the trial of the issues, the plaintiffs gave evidence that they had npt purchased felt goods to be manufactured into clothing, until they made the purchases from the defendant, which occurred in the spring of 1890, at the plaintiffs' place of business in New York. The purchase was made through a Mr. Nichols, who showed them a sample of the cloth, and stated that it would make a splendid ulster, that it wore like buck- skin, and that he had an ulster made from the goods which he had worn for two years. [The judge outlined the evidence offered by the parties, which was conflicting on several points, and proceeded.] When all the evidence was in, on motion of the defendant, a verdict was directed in its favor ; and the request of the plaintiffs for leave to go to the jury upon the questions of fact, upon the question of whether there was an express or implied warranty, and upon the question of the damages, was denied ; and an exception was taken to that denial. The general term affirmed the judgment entered at the trial term, and we are required, upon this appeal, as the main question, to consider the correctness of the disposition made of the case by the trial court. Although the plaintiffs failed to sustain their allegation that the 342 BIEKMAN V. CITY MILLS CO. [CHAP. V. defendant had made certain representations to them respecting the goods, through an agent authorized to make the same, and, therefore, failed to establish an express warranty on the part of the defendant, their complaint contained by a liberal construction a sufficient cause of action for the recovery of damages for the breach of an implied war- ranty tliat the felt goods sold were fit for the plaintiffs' business in the manufacture of overcoats, and that they were merchantable, and free from any remarkable defect. . . . The question here, however, is one of a sale, where the seller was the manufacturer of the article sold, and, the contract being executory in its nature, and for the delivery of some- thing of a particular kind, there was the implied warranty, or promise, that the article to be delivered should be merchantable, and free from any remarkable defect. Mellor, J., in Jones v. Just, L. R. 3 Q. B. 197, after reviewing decisions illustrative of when the rule of caveat emptor does or does not apply in sales, stated, as one of the results, as follows : "Where a manufacturer undertakes to supply goods, manufactured 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." The same principle was laid down in Howard v. Hoey, 23 Wend. 350, and in Hoe v. Sanborn, 21 N. Y. 552, with respect to the obligation of a seller, under an executorj'^ con- tract to deliver an indeterminate thing of a particular kind, that it shall be free from anj' remarkable defect. [After citing with approval Bridge Co. V. Hamilton, 110 D. S. 108, and Carleton v. Lombard, 149 N. Y. 137, the judge continued.] The principles of adjudged cases applj- to the one before us. The defendant was the manufacturer of the article which it sold to the plaintiffs, and the circumstances of the case were such as to irnply a promise on its part that the article which it manu- factured and delivered to the plaintiffs should be free from any latent defect. It was under the obligation to furnish an article, not of the higher qualitj-, necessarily, but one that was merchantable, and free from any remarkable defect arising from the process of manufacture. Although there is no evidence that Nichols was expressly empowered to represent the defendant in the transaction, the adoption of his assumed agency to sell its product charged it with knowledge of the use to which that product was to be put, and imposed the duty of delivering goods which should be merchantable and reasonably fit for that use, and a consequent liability for a failure attributable to defects in the processes of manufacture or in the materials employed. We must differ with the general term in the supposition, as expressed in the opinion, that there was no evidence that the goods could not be made into coats which would stand the wear of ordinary felt cloths, and, therefore, that it was not shown that the goods were unmerchantable, and in the further supposition that the strength of the goods could have been tested in the ordinary manner, and that there was no latent defect discoverable upon use. The learned justices have overlooked the evidence in behalf of the plaintiffs in these respects. To be sure, § 3.] B. THE AGREED ARTICLE. 343 that may have been the effect of the evidence introduced on behalf of the defendant ; but it was in conflict with the plaintiffs' evidence. If the evidence of the plaintiffs is to be believed, the defendant improperly manufactured the felt cloth, or certainly some of it, which was delivered to the plaintiffs, by using what was called " too short stock," or " shoddy," as a consequence of which the cloth was " tender " and " un- even," and liable to separate, and " breaks," or holes would appear upon exposure by wear. The. evidence tended to show, on behalf of the plaintiffs, that the defect in the cloth was not discoverable upon inspection, and could not be tested as to its durability and qualitj', except by actual wear. The use of improper stock in the manufacture of the cloth might only make it tender and unserviceable in particular places, and, therefore, this was not a case where the plaintiffs could be said to have been concluded bj- their acceptance and retention of the cloth for manufacturing into ulsters. The obligation of the defendant would survive the plaintiffs' acceptance of the goods, if the latent defects were not discoverable upon inspection. Upon all the evidence, the case should have been submitted to the jurj', to determine whether there had been a breach of an implied warranty that the felt cloth should be merchantable. It was for them to say whether it was unmerchant- able, and unflt for plaintiffs' purposes, because of the use of defective material ; and, if thej' believed the evidence to that effect, and that the defect was not discoverable by the plaintiffs upon the usual and ordinary inspection and tests in such cases, they would be justified in awarding damages to the plaintiffs, measured by the loss shown by them to have been actually sustained, in the return upon their hands of defective ulsters, as well as in the manufactured coats left on hand, if unsalable, because valueless through defects in the material from which made. For the error, therefore, committed by the trial court in direct- ing a verdict for the defendant, there must be a new trial of the issues, wherein the cause may be submitted to the jury upon the evidence. . . . The judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur. Judgment reversed. SEITZ V. BREWERS' REFRIGERATING CO. ]2 Sup. Ct. E. 46: 141 U. S. 510. 1891. This was an action brought by the Brewers' Refrigerating Machine Companj' against Michael Seitz upon a written contract made the 11th day of January, 1879, to supply Seitz with a No. 2 size refrigerating machine, as constructed by the plaintiff, by the 15th day of March, 1879, or as soon thereafter as possible, the machine to be delivered at tlie depot or wharf in Philadelphia, Penn., and to be put up and put in 344 SEITZ V. BKEWEES' EEFKIGEEATING CO. [CHAP. V. operation in the brewerj' of the said partj' of the second part, at 258- 264 Maujer Street, at Brooklyn, E. D., N. Y. The agreed price was nine thousand four hundred and fifty dollars. The complaint alleged compliance with the contract in every respect by the plaintiff, and breach of the promise to pay the purchase price. The defendant stated in his amended answer, among other things, that the machine placed in defendant's brewery was worthless, and inca- pable of operating to produce the results represented by plaintiff to this defendant as an inducement to enter into the aforesaid agreement ;, that said machine has not been accepted by this defendant, nor oper- ated, or attempted to be operated, by defendant, his agents, employees, nor anj' other person acting b}' or under his authoritj-, and did not pass- out of the control of the plaintiff ; nor has the said machine been used by him in his said brewerj-, because said machine was worthless, and incapable of serving any useful purpose therein ; that defendant entered into the contract upon the representations of the plaintiff to the effect that the No. 2 machine referred to in the contract" set forth in the complaint would cool, and was capable of cooling, a space of 150,000 cubic feet of air, continuously to a temperature sufficiently low for the purpose of manufacturing beer in the defendant's brew- er3', that is to sa)', to a temperature in the neighborhood of 40°^ Fahrenheit. Evidence on defendant's behalf was admitted, tending to show that,, prior to the execution of the contract, plaintiffs agents had repre- sented that the machine would cool 150,000 cubic feet to 40° Fahren- heit ; that defendant had been cooling his brewery with ice, and wished the machine to cool the rooms to about the same extent ; and that the machine did not cool the rooms as desired. On cross-examination of the defendant's agent, it appeared that on January 13, 1879, he wrote to the secretar}' of the refrigerating company: "In spealiing to Mr. M. Seitz to-daj', he said that your agreement was verj' unsatisfactory to him ; in fact, that before he would get the machine that he wanted a. •written guaranty from you that you would cool his building, which you have seen, to 3 J E., and keep it at that all the time; otherwise he would not have the machine, as he would have no use for it, as he would have to put himself to great expense and great risk at the same time." To wliich plaintiff responded, January 20th: "I regret to- hear that Mr. Seitz feels dissatisfaction with the contract made with hira. The guaranty he now asks for in addition, it would not be proper for us to give, as Mr. Seitz himself will see on further reflec- tion, we think. The maintenance of a certain temperature in his rooms is not solely dependent upon our machines ; in fact, there are a great manj' other things entirely beyond the control of the machine which influence this temperature. The mode of working the rooms, the water used for washing, the fermentation, and many other things, might be mentioned in this connection as matters which we cannot control, and which nevertheless are most important considerations in. § 3.] B. THE AGKEED ARTICLE. 345 the maintenance of a given temperature. "We are confident, from the experience with the Portner machine during last summer and fall, that the machine sold to Mr. Seitz will not onlj' give him the desired low temperature, but will, in addition, give him what he never before had in the warmer months, namel}', pure and dry air. The machine we are building for him is in raan^- respects far superior (aside from size) to the Portner machine, and when he has had it a year we believe he would not part with it for anj' monej', if he could not replace it. That we must decline to guarantj' what Mr. Seitz asks for is simpl3- for the reasons stated. There are too many side considerations entirely beyond the control of the machines. We would add that we have not in any instance been asked for such a guarantj- as a condition of sale, but that all the parties to whom we have sold bought on our representa- tions, and what the}' have seen and heard of the working of the Portner machine." The defendant having rested, the court, on motion, directed a verdict for the plaintiff for the amount claimed. JEsek Cowen, for plaintiff in error. tTohn H. V. Arnold, for defendant in error. Fuller, C. J. If the defence were solelj' that the defendant was induced by false and fraudulent representations to enter into the con- tract in question, it is conceded that the circuit court did not err in directing a verdict for the plaintiff, as there was no evidence of fraud in the case. It is earnestly' contended, however, that, under the answer as amended, the defendant was entitled to avail himself of the breach of an alleged contract of warrantj' or guaranty collateral to the con- tract of purchase and sale, or of an implied warranty that the machine should be reasonably fit to accomplish a certain result. Assuming the suflflcienc}' of the pleadings to enable the questions indicated to be raised, we are nevertheless of opinion that the direction of the circuit court was correct. The position of plaintiff in error is, in the first place, that the evidence on his behalf tended to show an agreement between himself and defendant in error, entered into prior to or contempora- neously with the written contract, independent of the latter and collat- eral to it, that the machine purchased should have a certain capacity, and should be capable of doing certain work ; that the machine failed to come up to the requirements of such independent parol contract ; that this evidence was competent ; and that the case should therefore have been left to the jury. Undoubtedly', the existence of a separate oral agree- ment as to any matter on which a written contract is silent, and which is not inconsistent with its terms, maj' be proven bj' parol, if, under the circumstances of the particular case, it maj' properly be inferred that the parties did not intend the written paper to be a complete and final statement of the whole of the transaction between them. But such an agreement must not only be collateral, but must relate to a subject distinct from that to which the written contract applies ; that is, it must not be so closely connected with the principal transaction as to form part and parcel of it. And when the writing itself upon 346 SEITZ V. BEEWEES' EEFEIGEEATING CO. [CHAP. V. its face is couched in such terms as import a complete legal obligation, without any uncertainty as to the object or extent of the engagement, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing. 1 Greenl. Ev. § 275. There is no pretence here of any fraud, accident, or mistake. The written contract was in all respects unambiguous and definite. The machine which the company sold, and which Seitz bought, was a No. 2 size refrigerating machine, as constructed hy the company, and such was the machine which was delivered, put up, and operated in the brewery. A warranty or guaranty that that machine should reduce the temperature of the brewery to 40° Fahrenheit, while in itself col- lateral to the sale, which would be complete without it, would be part of the description, and essential to the identity of the thing sold ; and to admit proof of such an engagement by parol would be to add another term to the written contract, contrary to the settled and salutarj' rule upon that subject. Whether the written contract fully expressed the terms of the agreement was a question for the court, and since it was in this instance complete and perfect on its face, without ambiguity, and embracing the whole subject-matter, it obvi- ously could not be determined to be less comprehensive than it was. And this conclusion is unaffected by the fact that it did not allude to the capacity of the particular machine. To hold that mere silence opened the door to parol evidence in that regard would be to beg the t'hole question. We are clear that evidence tending to show the lleged independent collateral contract was inadmissible. Martin v. Cole, 104 U. S. 30; Gilbert v. Plough Co., 119 U. S. 491 ; The Dela- ware, 14 Wall. 579 ; Naumberg v. Young, 44 N. J. Law, 331 ; Conant V. Bank, 121 Ind. 323 ; Mast v. Pearce, 58 Iowa, 579 ; Thompson v. Libby, 34 Minn. 375 ; Wilson v. Deen, 74 N. Y. 531 ; Eobinson v. McNeill, 51 111. 225. Failing in respect of the alleged express warranty, plaintiff in error contends, secondly, that there was an implied warrant}', arising from the nature of the transaction, that the machine should be reasonably fit to accomplish certain results, to effect which he insists the purchase was made. It is argued that the evidence tended to establish that the plaintiff knew that the defendant had been cooling his brewery with ice, and that the object of obtaining the machine was to render unneces- sary the expense of purchasing ice for that purpose, and that unless the machine would cool it to the same extent, or about the same, as the ice did, it would be worthless, so far as he was concerned. It is not denied that the machine was constructed for refrigerating purposes, and that it worked and operated as a refrigerating machine should ; but it is said that it did not so refrigerate as to reduce the temperature of the brewery to 40° Fahrenheit, or to a temperature which would enable defendant to dispense with the purchase of ice. The rule invoked is that where a manufacturer contracts to supply an article § 3.] B. THE AGREED ARTICLE. 347 which he manufactures, to be applied to a particular purpose, so that the buyer necessavilj- trusts to the judgment of the manufacturer, the law implies a promise or undertaking on his part that the article so manufactured and sold by him for a specific purpose, and to be used in a particular waj-, is reasonably' fit and proper for the purpose for which he professes to make, and for which it is known to be required ; but it is also the rule, as expressed in the text-books and sustained by authoritj', 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 intended by the buyer. Benj. Sales, § 657 ; Add. Cont. bk. 2, c. 7, p. *977 ; Chanter v. Hopkins, 4 Mees. & W. 399 ; OUivant v. Bayley, 5 Q. B. 288 ; District cf Columbia v. Clephane, 110 U. S. 212; Bridge Co. v. Hamilton, 110 U. S. 108 ; Hoe v. Sanborn, 21 N. Y. 552 ; Deming v. Foster, 42 N. H. 165. In the case at bar the machine purchased was specificallj' designated in the contract, and the machine so designated was delivered, put up, and put in operation in the brewerj-. The only implication in regard to it was that it would perform the work the described machine was made to do, and it is not contended that there was an^- failure in such performance. This is not the case of an alleged defect in the process of manufacture known to the vendor, but not to the purchaser, nor of presumptive and justifiable reliance bj' the buyer on the judgment of the vendor rather than his own, but of a purchase of a specific article, manufactured for a particular use, and fit, proper, and eflScaeious for that use, but in respect to the operation of which, in producing a desired result under particular circumstances, the bu3'er found him- self disappointed. In short, there was no express warranty that the machine would cool 150,000 cubic feet of atmosphere to 40° Fahrenheit, or any other temperature, without reference to the construction of the particular brewery or other surrounding circumstances, and, if there were no actual warranty, none could be imputed. We may add that, in the light of all the evidence in the record, treated as competent, we think no verdict could be permitted to stand which proceeded upon the ground of the existence of such a warrantj' as is contended for. The alleged antecedent representations as to whether the machine possessed sufficient refrigerating power to cool this brewerj', were no more than expressions of opinion, confessedly honestly entertained, and depend- ent upon other elements than the machine itself, concernino' which plaintiff in error could form an opinion as well as defendant ; and the conduct of plaintiff in error in demanding, two days after the contract was executed, a written guaranty' that the machine company would cool his building to 3J Reaumur (or 40° Fahrenheit), and keep it at that all the time, and in acquiescing in the company's refusal to give the guar- anty for reasons stated, and in thereupon afterwards ordering the 348 WHITE V. OAKES. [OHAP. V", r company to go on with the work, as exhibited in the correspondence between the parties, seems to us to justify no other conclusion than that reached by the verdict. The judgment of the circuit court is affirmed. WHITE V. OAKES et ai,. 88 Me. 367: 34 At. 175. 1896. Action for damages caused by a folding bed, delivered by defendants to plaintiff, under the following contract in writing : — "Leased of Oakes & Chandler the following articles: One folding bed, ash, thirty-eight dollars, which article is to be used by me at No. 7 Wash- ington Street, and for which I agree to pay to the said Oakes & Chandler, or order, as follows: On delivery the sum of ten dollars, and every month there- after the sum of eight dollars, until the said Oakes & Chandler shall receive the full sum named above. It being expi'essly agreed that the right of prop- erty shall remain in said Oakes & Chandler until the same is wholly paid for ; and, in case of failure to pay any one of said instalments after the same have become due, all of said instalments remaining unpaid shall immediately be- come due and payable; and the said Oakes & Chandler may take, or cause to be taken, the said property, either with or without process of law, from the possession of the said subscriber or other representative to whom he may have delivered the same, without recourse against said Oakes & Chandler or any money paid on account thereof. It being expressly understood that the money so paid on account shall be for the use and wear of said property. The articles leased cannot be sold or removed from the place designated in the lease without the lessors' written consent. " Selling, conveying, concealing, or aiding in concealing, said property, wiU subject the subscriber to liability under the provisions of the law. " Witness my hand, this tenth day of June, 1893, in presence of G. H. Oakes. Agnes White." P. H. Gillin, for plaintiff. Jasper Hutchings, for defendants. Haskell, 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 trip that forward, and the bed collapse. This 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. § 3.] B. THE AGKEED ARTICLE. 349 The mechanism of this bed could be observed by the purchaser as well as bj- the vendor. Neither, unless skilled in mechanics, would be likely to discover the dangers of it unaided bj' anj' 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 further front at the head than they seemed to, therebj' overcoming the gravity of the headpiece, and tending to pitch it forward. The bed, when suffi- ciently loaded, would bring the centre of gravity of the upright head- piece so far outside its base, or so nearly so, that any unusual disturb- ance might work that result, especially when the casters were turned under. " In the sale of chattels b3^ the manufacturer for specific uses, an implied warranty arises that the article is fit for the use intended." Downing ^•. Dearborn, 77 Me. 457. In the sale of chattels without ex- press warranty and without fraud, caveat emptor applies, and there is no implied warranty*. Briggs v. Hunton, 87 Me. 145 ; Kingsburj' v. Taylor, 29 Me. 508 ; "Winsor. v. Lombard, 18 Pick. 57 ; Mixer v. Coburn, 11 Mete. (Mass.) 559 ; French v. Vining, 102 Mass. 132 ; Howard v. Emerson, 110 Mass. 320. If the sale be by description, without opportunitj- for inspection, the description must be met. The sale of this bed was with full opportunitj' of inspection. It was ■shown to the purchaser, and the terms of sale were put in writing. She therefore took no implied warrant}-, 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. Thej- 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 tbej' 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 warrantj' thej' might have then made would have been without consideration, and not binding. But the con- versation testified to does not amount to a warranty of its safety in use. At most, it can onlj' be considered an assurance that its mecJianism had been made sound. It does not appear that they were then in- formed of anj- inherent danger in its use from faulty contrivance. 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 cliar- acter, other considerations would arise, not material here. There is no phase of the case as presented that can cast anj' liability upon the defendants. The plaintiff asks to amend by inserting a count for the purchase money paid. The amendment could do the plainWff no good. The bed was bargained for on instalments. The plaintinsSys-that, after the shocking disaster with the bed, the defendants demanded payment of money overdue, which being refused, they took the bed. The defend- 350 GAMMELL V. GUNBY AND COMPANY. [CHAP. V. 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 /or defendants. GAMMELL v. GUNBY AND COMPANY. 52 Ga. 504. 1874. Waenek, C. J. This was an action brought by the plaintiffs against the defendant on a promissory note for $143.37, dated 1st June, 1870, due five months after date. The defendant pleaded that the note was given to the plaintiffs for guano, or a fertilizer known as "Wilcox's Superphosphate," which was worthless as a fertilizer, and not merchantable, nor reasonably suited for the purposes intended, etc. The evidence on the trial as to the quality of the article sold as a fertil- izer, was conflicting. The jury, under the charge of the court, found a verdict for the plaintiffs for the amount of the note with interest. The court, after charging the jury substantially the law as embodied in the 2651st section of the Code,^ in regard to the implied warranty of vendors, that the article sold was merchantable and reasonably suited to the use intended, further charged the jurj-, " that if the transaction (to- wit), the sale of the guano, was made bj' a merchant whose busi- ness it was to buy and sell to meet the wants of purchasers, and if the purchaser was a farmer, and it was bought bj' him as a fertilizer, such a transaction, the parties standing in such relation to each other, ex- cludes the idea that the vendor by the sale warranted the article to be merchantable and reasonablj' suited to the uses designed." This latter part of the charge was error, because it neutralized and destroj'ed the legal effect of the charge already' given to the jury as to the implied warranty of the vendors of the guano. The law does not contemplate any such qualification to the vendoi-'s implied warranty as to the quality of the article sold, as stated by the court in its charge. Nor does the fact that the purchaser of the guano was a farmer exclude the idea that the vendors, by the sale of the guano to him, did not impliedly, as the law declares, warrant it to be merchantable and reasonably suited to the use intended. As a general rule, it is farmers who purchase fer- tilizers, and it is that class of purchasers who especiallj- need the pro- tection of the law. J/et the judgment of the court below be reversed. 1 § 2651. " If there is no express covenant of warranty the purchaser must exer- cise caution in detecting defects : the seller, however, in all cases (unless expressly or from the nature of tlie transaction excepted) warrants (1) That he has a valid title and right to sell; (2) That the article sold is merchantable, and reasonably suited to the use intended j (3) Tliat he knows of no latent defects undisclosed." § 3.] B. THE AGEEED ARTICLE, 351 WINSOR ET AL. V. LOMBARD et al. 18 Pick. (Mass.) 57. 1836. Assumpsit on a warranty alleged to have been given, upon the sale of a quantity of mackerel, by the defendants to the plaintiffs. Trial be- fore Shaw, C. J. There was evidence tending to show that the fish were damaged, but that the damage proceeded principally from rust. There was also evidence tending to show that the fish in question were packed, inspected, and branded in the autumn of 1833 ; that the casks were then well filled with pickle ; and that the sale took place in the following Ma^-. In reference to this evidence, the jury were instructed, that if the damage arose from rust, and the cause of the rust was the want of pickle, commencing after the inspection and before the time of the sale, it was one of those tilings against which the defendants warranted, even although they believed that the mackerel were, at the time of the inspection, wliat the brands on the casks indicated, and that for aught they had known to the contrary, these brands had been truly and faith- fully applied, and that no alteration or change had happened within their knowledge. To this instruction the defendants excepted. Washburn, for defendants. Dexter and English, for plaintiffs. Shaw, C. J. The court are of opinion, that the amendment in strik- ing out the name of one of the plaintiffs, was admissible. But the main question arises upon the supposed implied warranty, that the fish, at the time of the sale, were merchantable. This was a sale of inspected fish, and there is nothing in the bill of parcels importing an express warranty. Then the question is, whether there was an implied warranty that the fish were merchantable or free from damage at the time of the sale? It was ruled at the trial, that there was, for the purpose of receiving the evidence, so that all the questions might be brought before the court at once ; but upon a revision of the case, the court are all of opinion, that the action cannot be maintained. The old rule upon this subject was well settled, that upon a sale of goods, if there be no express warranty of the quality of the goods sold, and no actual fraud, by a wilful misrepresentation, the maxim, caveat emptor, applies. Without going at large into the doctrine upon this subject, or attempting to reconcile all the cases, which would certainly be very difficult, it may be sufficient to say that, in this commonwealth, the law has undergone some modification, and it is now held, that without express warranty or actual fraud, every person who sells goods of a certain denomination or description, undertakes, as part of his con- 352 WINSOK V. LOMBARD. [CHAR V. tract, that the thing delivered corresponds to the description, and is la fact au article of the species, kind, and quality thus expressed in the contract of sale. Hastings v, Lovering, 2 Pick. 214 ; Hogins v. Plympton, 11 Pick. 97. Indeed this rule seems to be now well settled in England. In an action for a breach of warranty, a vessel was advertised and sold as a copper-fastened vessel, but sold as she lay with all faults. It appeared that she was only partially copper-fastened, and not what is known to the trade as a copper- fastened vessel. It was held that, " with all faults," must be understood, all faults which a copper-fastened vessel may have. Shepherd v. Kain, 5 Barn. & Aid. 240. The rule being, that upon a sale of goods by a written memorandum or bill of parcels, the vendor undertakes, in the nature of warranting, that the thing sold and delivered is that which is described, this rule applies whellier the description be more or less particular and exact in euuuieratiiig the qualities of the goods sold. In applying this rule to the present case, the question is, what did the parties mutually understand by their contract, as it was reduced to writing. It purported to be a sale of certain barrels and half barrels of No. 1, and others of No. 2 mackerel. It is a familiar rule, that every contract is to be construed according to the subject, and with reference to those circumstances which are so notorious, that all per- sons conversant with the branch of trade, to which the sale relates, must be presumed to be acquainted with them. In the sale of mack- erel, both parties must be presumed to be acquainted with the inspec- tion laws, both must be understood to know the season of the year when this species of fish are caught, packed, and branded, and the species of damage and deterioration, to which they are liable, and that if mackerel are sold in the spring, they cannot be of an inspection more recent than that of the preceding autumn. With these circum- stances mutually understood, we have no doubt, that when these fish were sold as No. 1 and 2, the understanding of the parties was, that they were fish, packed, inspected, and branded as of those numbers respectively. It was in evidence, that fish infected with that species of damage called rust, a damage contracted by the leaking out of the pickle, after the fish have passed under the brand of the inspector, may be packed and inspected as No. 3, but that however good in other respects, they cannot be considered or marked as No. 1 or 2. Upon this ground it was contended by the plaintiffs, that the effect of the contract of the defendants was, that the mackerel were, at the time of the sale, fish of the quality known as No. 1 and 2 ; that as they could not be of those qualities, if they were rusty, it was describing them by a quality which they did not then possess ; and that tliis was a breach of warrant^'. But we are all of opinion, that this would be a forced and erroneous construction of the instrument. Construed with reference to the sub- ject matter, we tliink they must have understood, that the fish were § 3.] B. THE AGREED AETICLE. 353 inspected and branded as No. 1 and No. 2. In this respect the parties referred to the brand, and to this extent they acted upon the faith of it. Then, as there was no express warrantj' of their actual condition, or of the manner in which they were kept and taken care of, after the inspec- tion, and from that time to the sale, and as there was no description embracing these particulars, it must be presumed, that both parties relied upon the faith of the inspection and brand. But if the plaintiffs would hold the defendants responsible, as upon a fraud, he must show that they knew that the brand was falsely applied, or that after the in- spection and before the sale, they had become damaged by rust ; but no such evidence being given, and no such case suggested, the action cannot be supported. . . . N'ew trial granted.''- MOOEE V. McKINLAY et al. 5 Cal. 471. 1855. MuKRAT, C. J. This was an action in the court below, to recover the amount paid by the plaintiff to the defendants for the purchase of an invoice of garden seeds. It is in evidence, that after the arrival of the vessel, the plaintiff was requested to open and inspect the seeds, but declined to do so, and paid for them. They were afterwards tested, and found to be almost wholly worthless. In order to maintain this action, the plaintiff must show either an express or implied warranty. The sale note is as follows: "We have this day sold you two shipments of seeds for arrival," etc. The plaintiff maintains, that the word ' ' seeds " thus used, amounts to an express warranty ; that it has an express signification, importing an article which will germinate or grow, and that it would be error to apply this term to any seeds not possessing these properties. And second, that if not an express warranty, the law will imply a warranty ; or, in other words, raise the presumption, that the article sold is mer- chantable, and fit for the use for which it was sold. At common law the rule caveat emptor applied to all sales of personal property, except where the vendor gave an express warrant}', which is said to be such recommendations or affirmations, at the- time of the sale, as are supposed to have induced the purchase. To constitute a warrant}', no precise words are necessary ; it will be sufficient if the intention clearh' appear. During the time of Lord Holt, the doctrine was established, that to warrant, no formal words were necessary, and therefore a warranty 1 That part of the opinion dealing with the rule applicable to a sale of provi- sions has been omitted. 2?, 354 MOOKE V. McKINLAY. [CHAP. V. might be implied, from the nature and circumstances of the case, and the maxim was thus introduced, that a sound price imports a sound bargain or warranty. This doctrine was afterward exploded by Lord Mansfield, since which time it has undergone some modifications in the English and American courts, tending in the former somewhat, and in some of the States of the Union, to the rule of civil law, which implies that the goods sold are merchantable, and fit for the purpose for which they /Were bought. The better opinion, however, I think, as deduced from English and American decisions, is that a warrant}' will not b§ implied, except in cases where goods are sold at sea, where the part}' has no opportunity to examine them, or in case of a sale hy sample, or of provisions for domestic use. In Hart v. "Wright, 17 Wend. 267, Judge Cowen reviews the former decisions of that State as well as the English cases, and arrives at the conclusion which I have stated. This case was afterwards brought before the court of errors of New York, and the doctrine approved. In Moses v. Mead, 1 Denio, 385, the question again came before the supreme court of New York. In commenting on the decisions on this subject. Judge Bronson saj's : " Some English judges have lately shown a strong tendency towards the doctrines of the civil law, in relation to sales, and have been disposed to imply warranties where none ex- ist. . . . I do not regret to find, that there are men in Great Britain who can look be^-ond the shores of that island ; but I feel no disposi- tion to follow them in their new zeal for the civil law, for the reason, that it is not our law in relation to sales." The same doctrine is maintained in Fraley v. Bispham, 10 Barr. 320, and manj' other American decisions. There have been no departures from this rule in the decisions of this court. In the case of Flint v. L3'on, 4 Cal. 17, the fiour was described as " Haxall," and we held, that this amounted to a warranty, that the article sold was " Haxall," and not a different brand or quality of flour. In Ruiz et al. v. Norton, 4 Cal. 359, the sale note described the rice as " sound rice,'' which it was held amounted to a warranty. Testing the present case by the rule which we have deduced from- the better authority of courts, the plaintiff cannot recover. The lan- guage used in the sale note cannot be tortured into a warranty, and the fact that the plaintiff had an opportunity, and declined to inspect the seeds before accepting them, takes the case from the operation of the rule of implied warranty. Judgment reversed with costs. § 3.] B. THE AGKEBD ARTICLE. 355 CARLETON v. LOMBARD, AYERS, & CO. 149 N. Y. 137 : 43 N. E. 422. 1896. James C. Carter, for appellants. B. F. Tracy, for respondent. O'Brien, J. The plaintiffs sought to recover damages in this action for the breach of an executory contract for the sale of goods. The defendant is a domestic corporation engaged in refining crude petroleum for sale and export, and both parties to the action were members of the New York Produce Exchange. On the lOth of January, 1887, the parties entered into a contract in writing, which, by its terms, was made subject to the rules of the exchange, whereby the defendant agreed to sell and deliver to the plaintiffs a large quantity of refined petroleum. The following is the material part of the contract, in which the kind, quantity, and price of the goods are specified, as also the time and place of delivery, in these words : " Fifty-five thousand cases, ten per cent., more or less, each case packed with two of their patent cans, with low screw tops or nozzles and brass labels, containing five gallons each of refined petroleum of their Stella brand, color standard white or better, fire test 76 degrees Abel or upwards, at eight and one-half cents per gallon, cash on deliver^'. To be delivered in yard, free of expense to vessel ; to be ready not earlier than the twenty-fifth January, 1887, not later than the tenth of Februar}', 1887, with twenty-five daj's to load. Brass labels one-half of one cent each." It appears that before closing this contract the plaintiffs had received from the firm of Graham & Co., merchants at Calcutta, British India, an oflTer to purchase a like amount of refined petroleum of the same brand, color, test, and packing, to be shipped at the port of New York, not later than March 15, 1887, for their account and risk, on board the British ship "Corby," bound for Calcutta. This offer the plaintiffs accepted on the same day that they entered into the contract with the defendant, and immediately after closing it. On or before March 1, 1887, the defendant delivered the oil, packed in the manner specified in the contract, to the plaintiffs, alongside the " Corby," at its factory at Bayonne. The delivery by the defendant to the plaintiffs, and by the plaintiffs to their vendees in Calcutta, was thus accomplished by substantially the same act. The rules of the Produce Exchange, which were made part of the contract between the plaintiffs and the defendant, so far as material to the ques- tions involved, were these : (1) The committee on petroleum were authorized and required to license duly qualified inspectors, members of the exchange, for the various branches of that business. (2) Buyers should have the right of naming the inspector, biit must do so at least five days before the maturity of the contract. Failing in this, the seller might employ any regular inspector at the buyer's expense, and his certificates that the oil is in conformity with the conti'act shall be 356 OAELETON V. LOMBARD, AYBRS, & CO. [CHAP. V. accepted. (3) When goods are delivered to vessel by buyer's orders, the acceptance of them by buyer's inspector shall be an acknowledg- ment that the goods are in accordance with the contract. The plaintiffs, under the rule, named the inspector, who, on March 1, 1887, after the cargo was loaded on board the " Corby," made and delivered to them a certificate in writing which certified that he had inspected the oil shipped on board the " Corby," and stated therein the brand, color, test, and gravity of the same, which corresponded with the contract. The vessel started upon her voyage. The plaintiffs paid the defendant the purchase price of the oil, and then drew upon the parties in Calcutta to whom they had been sold, for the price as between them, and their draft was paid. The vessel did not arrive at Calcutta till some time in June, and, when she began to discharge the cargo, it was found that the cans had become corroded from the inside by some foreign sub- stance in the oil, and so perforated that thej' did not retain their con- tents. A large part of the oil was lost by leakage, and the whole cargo was pronounced unmerchantable, and finally sold at Calcutta for a small sum, for account of whom it might concern. When the condition of the goods was discovered by the consignees, during the discharge of the cargo from the ship, the plaintiffs were notified by cable of the situation and the condition of the oil. They laid these despatches before the defendant, and a long correspondence by cable followed, in •which the defendant participated, and of all of which it had knowledge. The purpose of it was to ascertain the defect, if any, in the oil, and to reach some amicable arrangement. In the end all parties seem to have become satisfied that a large loss had been sustained, and the parties in Calcutta, who had paid the plaintiffs for the property, called upon them to make good their contract. The plaintiffs in turn called upon the defendant to indemnify them from los§, and it then took the ground that it had, in all respects, performed its contract, and was not liable for the result. In Julj', 1888, Graham & Co., in Calcutta, brought suit in the supreme court in New York, against the plaintiffs, to recover their damages. The complaint in the action, after alleging the legal obliga- tion of these plaintiffs to deliver to them a merchantable article of refined petroleum at the port of New York, fit for export and transpor- tation by sea, in a sailing vessel, to India, averred that in fact it was not a merchantable commodity, but on the contrary a very large portion of the cans so sliipped contained petroleum imperfectly refined, contain- ing water, acids, and other foreign substances, which would, in the course of transportation, corrode the cans, and should have been elimi- nated therefrom by proper refinement, and the presence of which rendered the article shipped unmerchantable and unfit for transporta- tion. There were various other breaches of the contract alleged, not material to state. Notice was given to the defendant to come in and defend the action, and it complied with the notice. It participated in the preparation of the defence, the production of proofs, and at the trial § 3.]' B. THE AGREED AETICLE. 357 was represented by counsel, and had every opportunity to resist the claim. The jury, however, rendered a verdict for the plaintiffs in the action, and against the defendants, who are the plaintiffs here, upon which a judgment was entered for nearly $50,000. The plaintiffs in this action, upon the refusal of the defendant to indemnify them, paid this judgment, and called upon the defendant to reimburse them, and upon its refusal this action was commenced, in March, 1891. . . . Tfie action having been brought to trial, a verdict was directed in favor of the plaintiffs, but the judgment was reversed at the general term upon a construction of the contract unfavorable to the plaintiffs, and upon exceptions taken at the trial, and a new trial was ordered. On the new trial the plaintiffs' complaint was dismissed on the rulings of the general term made when the first judgment was before it for review. On the second appeal that court adhered to its former ruling, and aflSrmed the judgment. The property which was the subject-matter of the contract between the parties was not in existence at the time it was made, but was there- after to be produced by i-efinement of the crude material through a manufacturing process by the defendant. It was therefore a contract by a dealer with a manufacturer, and is subject to the rules and prin- ciples that apply to executorj' contracts for the sale and delivery of goods when the parties occupy these relations to each other. It is a conceded fact in the case that the oil delivered by the defendant to the plaintiffs alongside the " Corby " was of the kind and quality described in the written contract. In quantity-, brand, color, and Are test, it cor- responded with the terms of the contract. But it is claimed that, while all this is true, yet there was a latent or hidden defect in the article so delivered, the result of improper refinement or manufacture, not discern- ible upon inspection, which rendered the oil unmerchantable, and unfit for transportation by sea in a sailing vessel, and that this defect was the cause of the loss which the plaintiffs have sustained. The most important question in the case is whether the defendant, notwithstand- ing its written contract, is bound to make good the loss, assuming that it was caused by such defect in the goods. The general rule of the common law, expressed by the maxim caveat emptor, is not of universal application, though the exceptions are quite limited ; and one of them is the case of a manufacturer who sells goods of his own manufacture, I who, it is said, impliedly' warrants that they are free from any latent defect growing out of the process of manufacture. The seller in such a case is liable for any latent defect arising from the manner in which the article is manufactured, or from the use of defective materials, the character of which he is shown or is presumed to have knowledge of. This rule, and the reasons upon which it rests, or its qualifications and limitations, have seldom been stated in the same form bj- courts and writers upon the subject ; but that it exists, as a principle in the law of contracts, cannot be doubted. The leading case in this State is Hoe v. Sanborn, 21 N. Y. 552. The learned judge who framed the opinion ia J 358 CAELETON V. LOMBARD, AYEES,