(IJnrnpU Ham ^rlinnl IGibtary Cornell University Library KF 915.646 1888a Ben amin's Treatise on the law of sale o 3 1924 018 830 350 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/cu31924018830350 BENJAMIN'S XTreatise on the Xaw OF SALE OF PERSONAL PROPERTY: WITH REFERENCES TO THE AMERICAN DECISIONS, AND TO THE FRENCH CODE AND CIVIL LAW. Zhlvt) lebition. BROUGHT DOWN TO THE END Ol" THE YEAR 1883 (WITH THE AUTHOR'S SANCTION AND REVISION) ARTHUR BEILBY PEARSON, B.A., (0/ Trinity Hall, Cambridge) HUGH FENWICK, BOYD, {Of Brasenose CoUei/e, Oxford) OP THE INNER TEMPLE, BARRISTERS-AT-LAW. WITH AMERICAN NOTES BY JAMES M. KERR, Editob 01- "American and English Railroad Cases," and the "American and English Corporation Cases." BOSTON : CHARLES H. EDSON & CO., PUBLISHERS. 1888. l^/Z^yzf Copjiriglit. 1888, By Charles H. Edsox & Co. AT Typography by J. S, Gushing & Co. Prksswork by Berwick & Smith, Boston. DFX 21 TO THE ^onoxaUt jTrancts a. JHacomftcr, iLiL.19., ONE OF THE JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK, THIS EDITION OF BENJAMIN ON SALES IS KBSPECTPULLY INSCRIBED BY THE EDITOR. AMERICAN EDITOR'S PREFACE. In the preparation of this edition of Benjamin on Sales from the last English edition the editor has endeavored to give a complete view of the American law regulating the sale of personal property, pointing out wherein it may differ from the English law as laid down in the text. To do this, it was not thought desirable, as it certainly was not practicable, in the time allowed in which to do the work, to cite all the numerous American cases upon all points discussed. But an effort has been made to discuss fully close and delicate points and unsettled questions. It has been thought desirable to distribute the matter throughout the volumes in the shape of notes appended to the particular point in the text to which they apply. Throughout the work, for the convenience of ready reference, the authorities have been arranged alpha- betically by states, and in the states numerically in the inverse order. In the discussion of important and unsettled questions the decisions of the states are, so far as practicable, kept separate, and the states arranged alphabetically. Later English and Cana- dian cases have been added. The citations have all been verified, and no pains spared to make the work as perfect as possible and complete to the date of going to press. Viii AMERICAN EDITOE's PKEPACE. In the contents and the analysis at the beginning of each chapter, the reference is to tlie paging of the English edition — the star-paging of this edition. In the index and tables of cases, the pages given are the foot-paging to this edition. JAMES M. KERR. September, 1888. PEEFACE TO THE THIKD EDITION. In presenting a New Edition of " Benjamin on Sale," the Editors must crave a full measure of indulgence, by reason of the difficulties with which they have had to contend through the enforced retirement of the learned Author from the Profession. It was Mr. Ben- jamin's intention to have revised the Work throughout as it passed through the press, and he had accordingly revised and approved the Editor's labors up to the end of the Chapter on Delivery (page *689), when his health gave way, and he was interdicted by his physicians from any further work, and ordered absolute repose and cessation from all intellectual fatigue. Under these circumstances the Editors are compelled to issue the Work as completed by themselves. In accordance with the Author's desire, the text of the last Edition has been retained, and all fresh matter, other than that inserted in the Notes, is included in brackets. This course, whilst entailing the retention of some portions of the Work the subject-matter of which has been rendered obsolete by later decisions and statutes, is in the opinion of the Editors justified, by reason of the high value which has attached to the text of the Treatise. It must also be remembered that the learned Author had not at his disposal the leisure time necessary for re-casting the Work. X PEBFACE TO THE THIRD EDITION. The passing of the Bills of Sale Acts, 1878 and 1882, rendered it necessary to re-write the portion of the Work which deals with the subject of Bills of Sale. And, in doing so, attention has been paid to the recent cases in which the latter statute has received judicial interpretation. The Married Women's Property Act, 1882, and the Bankruptcy Act, 1883, so far as they affect the subject- matter of the Treatise, have also been taken into con- sideration. The more important decisions of the Supreme Court of the United States, and of the Court of Appeals in the State of New York, together with some decisions of the other States on the subject of the Book, have been noticed. The Index, in the compilation of which the Editors are indebted for assistance to their friend Mr. F. J. Frankau, barrister-at-law, has been very much enlarged, and will, it is thought, be found complete. In conclusion, the Editors express the earnest hope that their work may not have impaired the high repu- tation which " Benjamin on Sale " has won in America, as well as in this country. A. B. P. H. F. B. Temple, January, 1884. PKEFACE TO THE SECOND EDITION. In this Second Edition, the numerous important decisions which liave been given since the publication of this Treatise in 1868, have been carefully noted, and some anterior authorities which had escaped the author's research have been added. The favorable reception given to the work in the United States has encouraged the insertion of a larger number of American decisions ; but in order to avoid an unnecessary increase in the bulk of the volume, reference has generally been confined to the latest lead- ing case in the Reports of the Supreme Court of the United States, and of the Court of Appeals in the State of New York. This will suffice to guide the reader to the authorities in the Courts of the other States. Temple, July, 1873. PREFACE TO THE FIRST EDITION. If the well-known treatise of Mr. Justice Blackburn had been designed by its learned Author to embrace the whole law on the subject of sale of goods, nothing fur- ther would now be needed by the practitioner than a new edition of that admirable work, incorporating the later statutes and decisions, so as to afford a connected view of the modifications necessarily introduced by lapse of time into the law of a contract so perpetually recur- ring as that of sale. But unfortunately for the Profes- sion, Blackburn on Sale was intentionally restricted in its scope, and is confined to an examination of the effect of the contract only, and of the legal rights of property and possession in goods. This treatise is an attempt to develop the principles applicable to all branches of the subject, while follow- ing Blackburn on Sale as a model for guidance in the treatment of such topics as are embraced in that work. An effort has been made to afford some compensation for the imperfections of the attempt, by references to American decisions, and to the authorities in the Civil law, not elsewhere so readily accessible. Temple, August, 1868. TABLE OF CONTENTS. 1 -♦- BOOK I. rORMATIOlSr OF THE CONTEACT. PAET I. — At Common Law. CHAPTER I. PAGE The Contract of Sale of Personal Property, its Form, and Essential Elements *1 CHAPTER II. The Parties *5 Sect. 1. — Who may sell *5 2. — Who may buy *22 CHAPTER III. Mutual Assent *39 Sect. 1. — At Common Law *39 2. — Civil Law *64: 3. — American Law *66 CHAPTER IV. The Thing sold *77 CHAPTER V. The Price *83 1 The pages referred to in this Contents are the pages of the English edition — the star pages of this edition. Xiv TABLE OF CONTENTS. PAET II. — Under the Statute op Frauds. CHAPTER I. PAGE What Contracts are within the Statute *yT CHAPTER n. What are Goods, Wares, and Merchandise *105- CHAPTER III. " Of the Price or Value of Ten Pounds " *123 CHAPTER IV. Acceptance and Receipt ......... *126 Sect. 1. — What is an Acceptance . . ^. . . . *127 2. — What is an Actual Receipt *150 CHAPTER V. Earnest and Part Payment *162 CHAPTER VI. The Memorandum or Note in Writing *169 Sect. 1. — What is a Note or Memorandum in Writing . *1S5 2. — What is a Sufficient Note of the Bargain made . *193 CHAPTER VII. Signature of the Party to be charged ...... *21& CHAPTER VIII. Agents duly Authorized to sign . *229 BOOK II. EFFECT OF THE CONTEACT IN PASSING PROPEETY.. CHAPTER I. Distinction between Contracts Executed and Executory . . *260' TABLE OF CONTENTS. XV CHAPTER II. PAGE ^ale of Specific Chattels unconditionally *264 CHAPTER HI. Sale of Specific Chattels conditionally *268 CHAPTER IV. .Sale of Chattel not Specific *295 CHAPTER V. .Subsequent Appropriation *302 CHAPTER VI. Reservation of the Jus Disponendi *328 CHAPTER VII. Nature and Effect of a Sale by the Civil French and Scotch Law *355 BOOK III. AVOIDANCE OF THE CONTEACT. CHAPTER I. Mistake, and Failure of Consideration *369 CHAPTER II. Praud Sect. 1. — In General 2. — On the Vendor .... 3. — On the Buyer .... 4. _ On Creditors — Statute of Elizabeth 5. " " Bills of Sale g. <' " Fraudulent Preference CHAPTER III. Illegality Sect. 1. — At Common Law *383 *385 *392 *412 *456 *463 *492 *496 *496 2. — By Statute *°'^^ XVI TABLE OF CONTENTS. BOOK IV. PEEFOKMANCE OF THE CONTRACT. PAGE PART I. — Conditions *54'i PAET II. — Vendor's Duties. CHAPTER I. Warranty *604 Sect. 1. — Express ^Varranty ...... *605 2. — Implied Warranty of Title *619 3. — Implied Warranty of Quality .... *633 CHAPTER II. Delivery *665 PAET III. — Buyer's Duties. CHAPTER I. Acceptance *690 CHAPTER II. Payment and Tender «690 BOOK V. BEEACH OE THE CONTRACT. PAET I. — Rights axd Eemedies of the Vendor. CHAPTER I. Personal Actions against the Buyer *73-l- TABLE OF CONTENTS. XVll PAQB Sect. 1. — Where Property has not passed .... *734 2. — Where Property has passed .... *741 CHAPTER II. Remedies against the Goods — General Principles . . . *744: CHAPTER III. Remedies against the Goods — Resale *767 CHAPTER IV. Remedies against the Goods — Lien *781 CHAPTER V. Remedies against the Goods — Stoppage in transitu Sect. 1. — Who may exercise the Right 2. — Against whom may it be exercised 3. — When does the Transit begin : and end 4. — How is the Right exercised 5. — How may it be defeated 6. — What is the Effect of Stoppage in transitu »815 *818 *825 *825 *84:9 *856 *865 PART II. — Rights and Remedies of the Buyer. CHAPTER I. Before obtaining Possession of the Goods *871 Sect. 1. — Where the Contract is Executory . . . *872 2. — Where the Property has passed .... *894 CHAPTER II. After receiving Possession of the Goods *901 INDEX 'SIS TABLE OF AMERICAN CASES. [The references are to the bottom paging,] Aaron v. Harley, 64 r. Moore, 144 Abat I'. Atkinson, 472 V. Nolte, 1064 Abbey v. Deyo, 101 Abbot It. Bayley, 87, 88 Abbott r. Blossom 494 u. Creal, 82 V. Gilohrist, 221, 230 V. Shepard, 106, 120, 121, 128, 134, 181 Abdil V. Abdil, 92 Abeel v. Radcliff, 156, 333 Abell V. Douglass, 610 V. Howe, 677 V. Warren, 71 Abernathy v. Abernathy, 91 Abies V. Cochran, 388 Abraham ;;. Cartel 201 Abrahams v. Weiller, 1052 Abshire v. Mather, 87 Ackerman v. Runyon, 74, 75 Ackert v. Barker, 804 Ackley v. Westervelt, 101 Adams v. Adams, 145 163 403, 992 V. Bank of Lo uisiana. 1058 V. CouUiard, 777 V. Dale, 995 V. Foley, 978 V. Gay, 826 828 833, 834 V. Gorham, 1111 V. Gray, 340 345, 453 V. Ham ell. 827 V. Hayes, 15 I'. Helm, 1017 V. Jones, 132 V. Lindsell, 128 v. McMillan, 342, 362, 402, 407, 426 V. Nichols, 190, 845 I). Paige, 630 V. Kowan, 774, 775 V. Tanner, 197 V. Wilson, 343 Adams Express Co i,'. Black 1058 Adams Mining Co. i-. Senter, 472, 484 Addington r. Allen, 671, 868 Aderiiolt v. Embry, 516 Adkins v. Watson, 361, 363, 376 Adler v. Fenton, 648 Adrian v. Lane, 456, 838 Aertson d. Cage, 455 iEtna Ins. Co. v. Reed, 628 Agard t'. Valencia, 156 Aguirre v. Allen, 454 V. Parmelee, 1180 Ahern v. Easterby, 87 V. Goodspeed, 920 Aiken v. Blaisdell, 810, 813, 821 V. Hyde, 887 V. Peters, 1044, 1062 Ainsworth v. Bowen, 39,40 Aitcheson v. Cook, 853 Albertson v. Halloway, 1271 Albertt v. Lindau, 9 Alberty v. Dawson, 41 Albin V. Lord, 100 Alderman v. Eastern R. Co., 585 Aldrich v. Grimes, 74, 77, 78 V. Jackson, 617, 897 V. Pyatt, 265, 266 Aldridge v. Johnson, 517 Alexander v. Gusman, 27 V. Heriot, 74,77 V. Huteheson, 74 V. Macauley, 1235 u. Swackhamer, 24 Alexandria &c. R. R. v. Burke, 38, 40 Alford V. Baker, 1063 Alger r. Scoville, 240 V. Thacher, 792 Allaire v. Day, 765 V. AVliitney, 668 Allan !'. Aguira, 324 V. Eldred, 1047 Allard v. Belfast, 839 V. Greasert, 265, 266, 280, 296, 311 V. Lamirande, 806 Alleott !■• Boston Steam Flour Mill, 106, 197 XX TABLE OF AMERICAN CASES. [Keferences are to the bottom paging.] Allen V. Aguirre, i;.">(j c. Carr, 731 V. Clark, 897 V. Deming, 827, 828, 832, 833 V. Edgerton, 604 V. Fuller, 92, 101 V. Gardiner, 837 V. Goodnow, 196, 198 (.. Hammond, 148, i:.(l, 151, 154, 191 V. Hart, 0i9 r. Hartfield, 650, Osy, 1023 V. Hawks, 805, 806 V. Jarvis, 73, 221, 553, 1071, 1075 V. Johnson, 731 V, Jones, 675 V. King, 1066, 1068 V. Leonard, 217 V. Massey, 732 t.. Maur, 1136 V. Maury, 472, 1156 V. McJvibben, 142 V. Mercier, 1177 V. Pegram, 396 V. Polereczky, 14 V. Richmond College, 145 V. Roberts, 333 c. Rostain, 387, 388 V. Sehuohardt, 215, 217 V. Smith, 1096 V. Sowerby, 341, 350, 353 V. Stephanes, 659 V. VVanamaker, 673 V. Webb, 156, 667 u. Williams, 470, 528, 532, 538, 558 575 Allerton v. AUerton, 677,' 695 AUis V. Billings, 73, 82 V. Read, 324 Allison V. Hogan, 764 Alna V. Plunimer, 421, 427, 429 Alsberg v. Latta, 117 Alsop !^. Todd, 59 Alstine v. Wimple, 268 Alston V. Heartman, 358 V. Rowles, 91 Alverson c. Jones, 100 Alvord V. Smith, 815 Amelie, The, 43 Amer o. Hightower, 474, 515 American Buttonhole, 0. & S. Machine Co. v. Gurnee, 1065 American Cigar Co. v. Foster, 199 American Fur Co. v. United States, 699 American Ins. Co. v. Capps, 611 /■. Center, 43 r. Kuhlman, 677 Ames V. Foster, 101, 240 V. Jackson, 214 PAGE Ames r. Jones, ''"'t V. Quimby, 207, 209, 210 Amory r. Gilman, °1;^ Amsinck v. American Ins. Co., 217 Amson ?■. Dreher, 276, 296 Anderson r. Brenneman, 481, 517 V. Burnett, 906 V. Chick, 426 !-. Coonley, 691 !.. Davis, 240 V. Harold, 333 V. Levison, 516 1'. Nicholas, 642 !•. Reed, 10, 11 r. Roberts, 641, 730 Anding v. Levy, 807 Andrew v. Ncwcomb, 192, 198, 199 Andrews r. Allen, 387 r. Boyd, 615 V. Dietrich, 23, 27, 54, 458, 640, 650, 730 r. Durant, 296, 459, 460, 494, 511, 514 V. Hoover, 1073, 1074, 1126 V. Jineeland, 127, 691, 920, 941, 1263 V. Lyons, 165, 1110 r. Marshall, 818 V. Pond, 215, 806 V. Richmond, 516 Angel V. Felton, 1044 V. McLellan, 60, 70 Angier v. Taunton Paper Co., 506 V. Wakefield, 795 Angle V. Hanna, 144 Anonymous, 1084 Anthony v. Day, 666 I'. Wade, 731 /■. Wheatons, 727, 979 Antonie r. Belknap, 244 Appersoii r. Moore, 197, 201, 203 Appleton V. Bancroft, 19, 146, 306, 314, 1136 V. Donaldson, 1027 !■. Kennon, 1045, 1066 V. Norwalk Library Corp., 479 Arclier r. O'Brien, 728 Archibald r. Argall, 1063 V. ThoiTias, 797 Arendale r. Morgan, 27, 39, 41, 54, 640, 651, 731 Argus Co. r. Albany, 364, 373 Armentroul r. St. Louis &c. R. Co., 530 Armfield r. Tate, 74, 776 Armingtou c. Houston, 475 Armistead v. Brooke, 1061 Armitage v. Widoe, 61 Armour v. McMichael, 215 Armstrong v. Bufford, 958 TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Armstrong v. Burrows, 10.3 V. Huffstutler, ' 631 V. Lawson, 249 Armstrong Furniture Co., The, v. Krouse, 602, 608 V. Lawson, 256 o. Percy, 1270 V. Ross, 92 V. Stovall, 92, 93 V. Toler, 204, 215, 775, 776, 779, 817, 819, 831 Arnett v. Cloudas, 641 V. Wanett, 764 Arnold v. Brown, 19 V. Delano, 309, 311,313,467,469, 472, 981, 985, 1089, 1096, 1097, 1131, 1141, 1143, 1169, 1224 v. Lyman, 323 V. Prout, 530, 582 V. Richmond Iron Works, 82 V. Sprague, 1065 V. Stedman, 240 V. Suffolk Bank, 1235 Arnot V. Pittston & E. Coal Co., 781, 788 Arques v. Wasson, 192, 197 Arrowsmith v. O'Sullivan, 723 Artcher !■. Zeh, 236, 238, 241, 272, 322, 323, 324, 325, 327, 328 Arthur v. Chicago, R. I. & P. Ry. Co., 8 V. Griswold, 637 «. Moss, 1270 V. Putnam, 638, 641, 642, 649 Ashburner v. Parrish, Ashby V. West, Ashcom V. Smith, Ashe V. Johnson, Ashford v. Robinson, Aspinwall v. Torrance, Atcheson v, Mallon, Atchinson v. Bruffi, Atherton v. Newhall, 788 5 1074 1258 376 388 658 60,64 273, 279, 280, 296, 302, 312 Atkins V. Boylston F. & M. Ins. Co., 996 V. Cobb, 1230 V. Colby, 1169, 1177, 1205 Atkinson v. Brown, 43 V. Richardson, 92, 93, 101 V. Scott, 1075 V. Smith, 877 V. Steamboat Castle Garden, 1243 Atlas Bank v. Nahant Bank, 806 Atlantic &c. Ins. Co. v. Boies, 39 Atlantic T. & 0. R. R. Co. v. Carolina Nat. Bank, 348 Atwater v. Clancy, 363, 918, 955 FAGS Atwater v. Hough, 104, 218, 221, 22H V. Mower, 5 V. Walker, 215 Atwell V. Miller, 279, 309 Atwood K. Chapman, 630, 720 V. Cobb, 163, 397, 401, 402, 403, 992, 993, 998 V. Cornwall, 1051 V. Dearborn, 642 V. Impson, 730 V. Lucas, 276, 302, 303, 1085 Aubuchon v. Pohlmanies, 906 Audenried v. Betteley, 7, 9, 382, 1110 V. Randall, 17, 1212 Auffmordt v. Rasin, 767 Auld V. Hepburn, 346 Aulger V. Clay, 1041 Aultman c. Hetherington, 1272 V. Jett, 1272 V. Lee, 1055 V. Thierer, 887, 1271, 1273 V. Wheeler, 1273 Austin V, Dawson, 517 V. Dye, 4, 476 1'. Nickerson, 907 V. Roberts, 387 V. Sawyer, 243, 249, 254 V. Seligman, 6 Averill v. Hedge, 110, 125, 128, 129, 130, 141, 181, 183 Avery r. Miller, 1260 V. Stewart, 995, 1015 ,-, Wilson, 110, 143, 1003 Ayres v. French, 649, 650 V. Sleeper, 7 V. Van Lieu, 1066 Baals v. Stewart, 26, 480 Babb n. Clemson, 732 Babbett v. Young, 259 Babcock v. Bonnell, 1127, 1131, 1169 V. Booth, 766 ;;. Case, 604 V. Deford, 335 V. Doe, 72, 75 V. Eckler, 721 V. Libbey, 629 V. Thompson, 815 V. Trice, 956 Backentoss v. Speicher, 649, 650 0. Stahler's Adm'rs, 249, 258, 707 Backman v. Jenks, 806 Backus V. The Marengo, 1151 Bacon v. Brown, 604, 667, 685, 907 848 273, 279 387, 388 342 62, 69, 76, 77 20,39 r. Cobb, o. Eccles, V. Sondley, Badger v. Jones, V. Phinney, Badlani !■. Tucker, xxn TABLE OF AMERICAN CASES. [References are to the bottom paging.' PAGE Bagley v. Findlay, 1073, 1074, 112(5, 1127 Baliara v. Bach, 706, 711 Bailey r. Bamberger, 68, 74, 76, 77 V. Bensley, 6, 3i9, 1012 V. Clay, 1076, 1231 i: Colby, 4 V. rreeman, 363 i\ Harris, 575 V. Hudson R. R. Co., 586 V. Nickols, 905 V. Ogden, 166, 272, 277, 302, 318, 362, 377, 396, 401, 460, 458 V. Smith, 457, 468, 472, 473, 517, 1074, 1085 Bailiffs &c. of Tewksbury v. Ditson, 30 Bain v. Wilson, 604 Bainbridge v. Wilcocks, 215 Baird v. Matthews, 1251 Baker v, Bourcicault, 614 V. Dinsmore, 46 t. Drake, 1235 V. Fourth New Hampshire Turnpike, 1040 V. Frobisher, 956 V. Fuller, 682 V. Gregory, 91 V. Hall, 476 V. Henderson, 1017 V. Higgins, 142, 346 V. Holt, 111, 112 V. Humphrey, 630 V. Jameson, 235 V. Johnson Co., 117, 132 V. Jordan, 1235 V. Le^er, 66, 69, 667, 668, 669, 671 V. Lovett, 81 i;. Lukens, 827 V. Lyman, 148 V. Pottmeyer, 801 V. Roberts, 618 V. Stone, 60 V. Whiting, 58 i: Woodruff, 6 Balch V. Ashton, 9 Baldwin v. Doubleday, 467, 470, 1017 r. Kerlin, 341 V. Mildeberger, 132, 149 V. Bank of Newbury, 359 !'. Palmer, 214 V. Williams, 237 Ball V. Benjamin, 343 L\ Gilbert, 816 r. Liney, 147 ". Loomis, 19 r. Newton, 114 V. Powers, 826 r. Stjinley, 1030 V. Vason, 201 Ballard v. Burgett, 4, 9, 53, 479, 642 r. Lockwood, 686 ;'. McKenna, 82 ,.. Walker, 408 V. Winter, 238 Ballentine v. Robinson, 514, 653, 1074, 1076 Ballin v. Dillaye, 100 Balling v. Munchus 375 Ballou !'. Parsons, 958 V. Talbot, 410 Ballston Spa Bank v. Marine Bank, 141, 145 Balme c. Wanibaugh, 1039 Baltimore & 0. R. R. Co. r. Brydon, 852 ;;. Glenn, 239, 727, 733 !•. Wilkens, 1214 Baltimore & P. Steamboat Co. v. Brown, 347 Baltimore Passenger R. R. Co. v. Sewell, 1234, 1235 Baltimore Marine Ins. Co. v. Dal- rymple, 38, 39 Baltzen v. Nicholay, 235, 387, 427 Baraber v. Savage, 4, 427, 430 Banchor v. Monsel, 821 V. Warren, 979 V. Warring, 517 Bancroft v. Dumas, 806 V. Holton, 1060 Bangor v. Warren, 1064 Bank r. Flanders, 410 V. Hall, 113 ;;. Raymond, 383 V. Reese, 1235 V. Shaw, 585 V. Taylor, 92 Bank of Barnesville v. Yocum, 667 Bank of Columbia v. Ilagner, 141 Bank of Commerce v. Bissell, 1185 Bank of Georgia v. Higginbottom, 626 Bank of Hallowell u. Baker, 346 Bank of Lansingburgh v. Crary, 194, 198 Bank of Missouri i'. Benoist, 61(; Bank of Montgomery !'. Reese, 1266 Bank of New Orleans v. Mat- thews, 777 Bank of North America v. Mere- dith, 1062 Bank of Old Dominion v. Dubuque &c. R. R. Co., 39 Bank of Orleans v. Torrey, 58 Bank of Rochester v. Jones, 532, 585, 586, 1185 Bank of Rutland v. Parsons, 806 (.. Woodruff, 39 Bank of St. Albans v. Farmers' & Mechanics' Bank, 897, 936 TABLE OF AMERICAN CASES. [References ure to the bottom paging.] Bank of St. Marys v. St. John, 1044 Bank of Silver Creek v. Brown- ing, 70 Bank of United States v. Bank of Georgia, 617, 897, 1030, 1031 V. Bank of Washington, 41 0. Daniel, 215, 1068 V, Davis, 674 V. Donally, 215 V. Dunn, 346 '■■ Lee, 720 0. Lyman, 105 V. Owens, 773, 782, 807 Bank of Watkins v. Miller, 91 Bank of "Woodland v. Hiatt, 631, 667, 671 Bankhead v. Owen, 897 Banking Co. v. Eantenburg, 773 Banks v. Judah, 58 V. Werts, 834 Bannister v. Weatherford, 843 Banton v. Shorey, 248 Bantz I). Basnett, 1068 Baptist Church v. Bigelow, 426 Barber v. Burrows, 113 V. Connecticut Mut. Ins. Co., 7!)2 Barbet v. Roth, 92 Barbour i<. Priest, 767 V. White, 669 Barclay !■. Tracy, • 265, 267 Barelli v. Brown, 1067 Barfield v. Price, 148, 602 Barbara v. Tuberville, 61 Barickman v. Kuykendall, 397 Barkalow v. Pfeiffer, 279 Barker v. Borzone, 348 V. Bradley, 335 V. Bucklin, 239, 323 V. Bushnell, 8 V. Cory, 146 V. Dinsmore, 51, 148, 149, 172, 17.3, 605, 606, 638, 651 V. Hibbard, 60 V. Merchants' F. Ins. Co., 382 V. Roberts, 5 Barkley i'. Barkley, 345 V. Rensselaer & S. K. R. Co., 277, 280 Barlow v. Scott, 112 V. Stalworth, 146 Barnaby v. Barnaby, 73 Barnard v. Backhaus, 816, 817 V. Campbell, 53, 54, 639, 640, 642, 649, 730, 731, 1104 V. Eaton, 194, 195, 197, 198, 203 V. Graves, 1043 ,;. Kellogg, 349, 953 V. Poor, 480, 490 Barnes v. Barnes, 60, 257, 1257 V. Brown, 637 PAGE Barnes i;. Greene, 1041 0. Hathaway, 82 V. Perine, 107, 230 Barnet v. Fergus, 728 V. Smith, 1066 Barnett v. Mason, 11.34 !'. Stanton, 604, 679 Barney v. Brown, 277, 976 V. Patterson, 40 Barns v. Barrow, 132 Barr v. Logan, 310, 1022, 1126, 1131 V. Myers, 988 Barreda v. Silsbee, 699 Barrett v. Allen, 995 V. Buxton, 84 V. Goddard, 312, 313, 317, 463, 468, 473, 480, 490, 583, 985, 1085, 1096 •:. Hyde, 204, 817 V. McHugh, 239 V. Mead, 204, 817 V. Pritchard, 210, 474, 476, 1089 V. Warren, 22, 23, 24 V. Western, 629 Barringer v. Warden, 240 Barron c. How, 1064 Barry v. Cavanagh, 1230 V. Coombe, 333, 343, 373, 411 V. Crosskey, 633 V. Gray, 407 V. Law, 361, 364, 373 V. Page, 381 V. Palmer, 529 V. Savage Mining Co., 23 Bartlett v. Bailey, 61 V. Drake, 76 Bartholamae v. Paull, 142 Bartholmew v. Bentley, 637 V. Finnomere, 74, 76, 77, 625 V. Leach, 58 V. Warner, 40, 41 Bartle v. Coleman, 779 Bartlett v. Blain, 630 V. Blanchard, 1230 ;;. Cowles, 76, 77, 604 V. Drake, 78, 604, 613, 625 V. Hoppock, 905, 961 V. Johnson, 12 r. Tucker, 387, 410 Bartley ;■. New Orleans, 1126 Barton r. Faherty, 935 v. Kane, 1007, 1009 V. Kelway, 346, 980, 1013 v. Trent, 897 Basford v. Pearson, 213 Basinger v. Spangler, 720 Basket r. Hassell, 15 Bass V. Veltum, 209 V. Walsh, 104, 309 V. White, 993, 1024 XXIV TABLE OF A.MEKICAN CASES. [References are to the bottom paging.] Bassett v. Brown, 76, 78, 604, 625, 626 V. Camp, 11.36 I'. Lederer, 381, 642 V. Lockard, 41 V. Percival, 795 r. Spofford, 48 Basshor r. Forbes, 355 Bast 7'. Byrne, 1002 Baswell r. Carlisle, 201 Batchelder, re, 1012, 11.36, 1152 r. -Tenness, 472 c. Sargent, 92, 100 Bate !'. Graham, 766 Bates V. Cherry Val. &c. R. E. Co., 1235 V. Clifford, 816 V. Conklin, 1143 V. Coster, 221, 470 V. Courtvvright, 668 V. Cunningham, 46, 49 V. Kempton, 14 V. Rosekrans, 1045 V. Watson, 775 Batsford v. Every, 826 Batterman v. Morford, 125, 181 Batty ,: Carswell, 691 Bauer v. Bauer, 100 Ba.xter i'. Busli, 61 /'. Duren, 616, 898 Bay P. Cook, 287 V. Raguet, 942 Bayard v. Malcolm, 344, 948 V. McLane, 805 V. Shunk, 1045 Bayliss v. Davis, 7, 9 Bayton v. Tricon, 345 V. Hennessey, 852, 887 Beach v. Bemis, 627, 670 Beal !'. McKeirnan, 58 i: Park F. Ins. Co., 141, 145 Beall V. Cockburn, 105 v. White, 201 Beals I'. Allen, 691 V. Olmstead, 906, 907, 908, 9.59, 1260 V. See, 83 I-. Terry, 1075 Bean v. Atwater, 838 c. Burbank, 104, 106, 333 V. Edge, 4, 475 V. Herrick, 628, 672 V. Howe, 549 r. Jones, 610 r. Morgan, 88 r. Renway, 686 Bear r. Bitzer, 249, 258 Bearce r. Bowker, 22, 51 Beard r. Brandon, 1051 u. Campbell, 672 V. Dennis, 803 PAtiE Beard v. Kirk, 186 V. Sloan, 1073. r. Webb, 90 Beards v. Wheeler, 729 Beardslee v. Morgner, 240 Beauchmap v. Comfort, 832 Beaumont v. Crane, 304, 521 Beaupre v. Pacific & Atl. Tel. Co., 104, 108, 109 Beavers v. Lane, 475, 640, 731 Beazley v. Mitchell, 23 Becker v. Hallgarten, 575, 583, 1212 V. Smith, 7 Beckley v. Munson, 346 Beckwith v. Cheover, 107, 110, 114, 12.5, 129, 131, 176, 183 V. Sibley, 39 V. Talbot, 342, 363, 377, 415 Bedell v. Carll, 15 Bedford &c. Ins. Co. v. Covell, 386, 387 V. Hunt, 619 Bedlam v. Tucker, 193 Bee Printing Co. v. Hichborn, 141 Beebe v. Johnson, 190 V. Knapp, 679 1'. Robert, 387, 388, 941, 956, 959, 1263 Beecher v. Mayall, 312, 470, 483, 980 Beekman v. Bond, 727 Beeler v. Young, 59, 60, 63, 70 Beeman v. Buck, 906 Beers r. Crowell, 236 V. Williams, 9.59, 1260 Beeson r. Beeson, 57 Begole V. McKenzie, 142, 473, 1081, 1083 Beirne v. Dord, 126, 127, 905, 941, 942 V. Dunlap, LS Belden v. Perkins, 11 Belding v. Frankland, 643, 650, 651 V. Pitkin, 805 Belfast & M. L. Ey. Co. ;;. Unity, 106, 113, 123 Bell V. Cafferty, 639, 641, 730, 897 V. Dagg, 617, 618, 897 r. Ellis, 649, 650 I'. Farrar, 515 I). Hewitt's Ex'rs, 240 V. Keller, 92 r. Mariott, 273, 275 '.. Offutt, 109, 1126 Beller v. Block, 386, 978, 990 Bellows V. Wells, 192, 194, 199, 249, 463, 470, 484 Belt V. Moss, 1224 Belun V. Western Union Tel. ro.,()69 Bement v. Smith, 553, 980, 989, 1075, 1085 TABLE OF AMERICAN CASES. XXV [ReferenceB are to the bottom paging.] Bemis v. Morrill, 470, 483, 493, 980, 991 Benadum v. Pratt, 87 Bench v. Sheldon, 626, 661 Benedict v. Field, 863, 1051, 1131 V. Schaettle, 1169, 1177, 1178, 1205, 1225 V. Stuart, 806 Benford v. Schell, 279, 977 Benham v. Bishop, 79 Beninger v. Corwin, 632, 720 Benjamin v. Elmira R. R. Co., 201 Benner v. BufEer, 50, 474, 476 Bennett v. Bartlett, 935 V. Buchan, 911 V. Buchanan, 1063 V. Hull, 218 V. Judson, 677, 699 V. Piatt, 10, 494 V. Pratt, 361, 362, 363, 375 V. Sims, 475 Benny v. Rhodes, 49 Benson v. New Jersey R. R. & Trans. Co., 1243 V. Til ton, 66 Bent V. Cobb, 421, 426 V. Manning, 59, 60, 64 Bentley v. Columbia Ins. Co., 127, 133 V. Dunkle, 727 Benton v. Fay, 1241 V. Pratt, 637 Bentz V. Rockey, 767 Bercich v. Marye, 24 Bergen v. Bennett, 456 Berghaus v. Alter, 1060 Berkley v. Rampacher, 100 Berkshire Glass Co. v. Wolcott, 146 Bernheimer v. Herrman, 1043 Berrian v. Mayor &c. of N. Y., 1060 Berry v. Dwinel, 1230, 1234 V. Griffin, 1044, 1066 V. Nail, 1027 Bertelson v. Bower, 470, 480, 516 Berthold v. Reyburn, 1041 Best V. Flint, 959 V. Givens, 72, 79 Bethel Steam Mills Co. v. Brown, 458, 463, 470, 484, 485, 978 Bethlehem c. Perseverance Fire Co., 146 Belts V. Carroll, 81 V. Francis, 16 Betz V. Conner, 727 Beurmann v. Van Buren, 731 Bever v. Butler, 351 Beyeridge v. Hewitt, 816, 817 Beverly v. Lincoln Gas Light Co., 1017 Bevis V. Heflin, 1055 Beymer v. Bonsall, 384 Bibend v. Liverpool & L. Ins. Co., 236 Bickett V. Taylor, 34o Bickford ;;. Cooper, 164 11. Grand June. R. Co., 526 Bickle V. Beseke, 1035 Bickley v. Keenan, 410, 411 Bicknall v. Waterman, 1234 Bicknell v. Buck, 1085 Bidanlt v. Wales, 649, 650, 663 Biddle v. Black, 650 Bierce r. Stocking, 618 Bigelow !■. Benedict, 816, 817 V. Grannis, 76, 77 V. Heaton, 649 V. Huntley, 475 V. Legg, 349 V. Wilson, 192 Biggs r. Barey, 649, 650 Bigler v. Fleckinger, 673 V. Hall, 468 Bigley v. Risher, 2, 114, 209 Bill V. Porter, 322 Billmeyer v. Wagner, 1234 Binford, re, 476 Binford v. Adams, 2, 36 Bingham v. Mead, 204 Binnard i'. Spring, 684 Binney v. Annan, 1258 Birch V. Bailey, 228 Bird V. Davis, 1060 V. Forceman, 614, 673 V. Muhlinbrinck, 220, 222 V. Munroe, 336, 338, 364, 419 V. Richardson, 402 Birdseye v. Frost, 911 Birge v. Edgerton, 485, 486, 976 Bishop V. Bishop, 243 V. Honey, 776 V. Small, 632, 907 V. Stewart, 604 Bissell V. Balcom, 324, 325, 328 t. Bissell, 241 V. Hopkins, 727 V. Price, 1151 Bix V. Franklin Ins. Co., 20 Bixler v. Saylor, 1270 Black V. Jones, 27, 41 u. Shooler, 1058 V. Tricker, 87 V. Webb, 460, 517 Blackburn v. Reilley, 885 Blackman o. Dowling, 838 V. Johnson, 679 V. Pierce, 1176, 1180, 1187 Blackmore ;;. Shelby, 201, 204 Blacknall v. Parish, 421 Blackshear r. Burke, 1134 Blackstone v. Buttermore, 455 Blackstone Bank v. Hill, 1060 Blair v. Hamilton, 507 XXVI TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Blair i'. Laflin, (;2.'< V. Wilson, 104:; Blair Town Lot & Land Co. r. Walker, 241 Blaisdell v. Souther, 4114 Blake v. Cole, 240, 801 /■. Coleman, ">">'.) r. Hall, S.". r, Jones, 7(j'> Blakcley v. I3ennecke, 380 V. Patrick, 517 Blakeney !■. Goode, 237, 240 Blanchard v. Child, 474, 981 r. Cook, 201 r. Sheldon, 15, 16 V. Trim, 302 Blanding v. Sargent, 801 Blane v. Proudfit, 691 Blaney v. Hoke, 109 Blasdell v. Shuther, 10 Blaut V. Gabler, 727 Sleeker v. Hyde, 132 Blen V. Bear River &o Co., 666, 669 Blennerhassett v. Sherman, 731, 767 Bleundahl v. Horr, 476 Bligh V. James, 265 Blight V. Ashley, 114 r. Fisher, 109 Blinn v. Chester, 1060 Bliss r. Brainard, 215, 806, 821 1-. Negus, 618 V. Shwarts, 1043 Block r. Maas, 472, 516 V. McMurry, 807, 827 Blodgett V. Blodgett, 5 Blood V. Enos, 1002 ?■. French, 920 V. Goodrich, 360, 351 7-. Hardy, 351, 421 V. Harrington, 525 r. Palmer, 7 Bloodworth v. Jacobs, 1058 Bloom r. Richards, 826 V. Welsh, 249 Bloomfield v. Hancock, 13 Bloss V. Kittridge, 904 Blossom i'. Champion, 642 p. Griffin, 345 Bloyd V. Pollock, 980, 989, 1009 Blum v. Marks, 1169, 1178 Blunt r. Boyd, 239 V. Walker, 1065 Blydenburgh v. Welsh, 208, 720, 992, 998 Blythe ;;. Speake, 906 Blythwood v. Everingham, 90 Boardman v. Cutter, 237 ". Spooner, 275, 296, .306, 340, 349, 405,411,412,4.31,613, 917, 918, 955, 1136 PAGE 1060 1017 346 91 40, 41 53 136 685 1230 531 Bobes' Heirs v. Stickney, Bock V. Healy, Bogert /■. Cauman, I-. Gulick, Boggs r. Fowler, liohn r. Cleaver, Boit ('. May bin, Bokee r. Walker, Boles c. Vincent, Bolin !■■ Huffnagle, BoUes !•. Stearns, 8S8 p. Walton, 381 Bollinger v. Tliurston, 13 Bollman v. Loomis, 788 Bolton !■. Riddle, 842, 980, 992 Bonaffe v. Woodberry, 1058 Bond V. Clark, 906 V. Coke, 243, 244 V. Greenwald, •>38 V. Ramsey, <''28 Bondurant ?■. Crawford, 084 V. Owens, 55.3 Bonesteel v. Mayor &c. N. Y., 143 Bonito V. Mosquera, 44, 47 Bonn V. Haire, 468 Bonnell r. Chamberlain, 146 V. Jacobs, 1273 Bonney v. Reardin, 69, 78 V. Smith, 455 Bonsey v. Amee, 203 Boody V. McKenney, 62, 73, 76, 77, 604 Booker v. Jones, 197, 201 Bool V. Mix, 73, 74, 75 Booman i\ Clemmer, 915 Booming Co. v. Underbill, 1134 Boon D. Moss, 206, 476 Boone v. Hardie, 727 V. Mo. Iron Co., 877 Booream v. Crane, 474 V. Jenkins, 668, 918, 941, 956, 959 Booth V. Bierce, 149 i\ Spuyten Duyvil, 846 V. Spuyten Duyvil Mills Co., 851 V. Spuyten Duyvil R. R. Co., 1233 u. Spuyten Duyvil Rolling Mill Co., 1249, 1255 V. Tyson, 142 V. Wonderly, 396 Boothby c. Brown, 731 r. Plaisted, 806, 941 I-. Scales, 920, 967, 1010, 1251 Bordwell v. Collie, 668, 1271 Borland v. Guffey, 113, 114 Borneman v. Sidlinger, 14, 15 Borr 1-. Fisher, 613 Borrekins v. Bevan, 896, 941, 1263 Borrowscale r. Bosworth, 297, 298, 299 Bosse V. Thomas, 732 Boston Bank r. Chamberlain, 74, 75 TABLE OF AMEUICAX CASES. XXVU [UcferenceB Hre to the bottom paging." Boston Ice Co. w. Potter, 148,167, 169, 170, 171, 606, 609 Boston & M. R. R. v. Bartlutt, 104, 105, 106, 120, 121, 123, 124, 177 V. Warrier Mower Co., 7 Boston & W. R. R. Corp. v. Dana, 146 Bostwick V. Atkins, 277 V. Burnett, 728 V. Leach, 244, 240, 256, 257 Boswell V. Green, 307, 493, 1009 Bott V. McCoy, 44, 46 Bottomley v. United States, 347 Bouetiell v. Clary, 63 Boughton V. Standish, 669, 1017 Bouker v. Randies, 1271, 1272 Bourne v. Shapleigh, 113, 116 Bouslough V. Bouslough, 766 Boutelle v. Melendy, 833 V. Smith, 794 Boutwell V. O'Keefe, 303, 324 Bowdell V. Parsons, 843 Bowden v, Bowden, 729 Bowen v. Burk, 1131, 1134 V. Frick, 477 V. Sullivan, 148, 150, 152, 153 V. Weber, 775 Bower v. Fenn, 628, 679, 686, 703, 714 r. Peabody, 1136 Bowerbank v. Morris, 186 Bowers u. Anderson, 272, 313 v. Bowers, 256, 788 V. Johnson, 677 V. Whittle, 793 Bowker v. Hoyt, 141, 142, 621, 1002 Bowman v. Carithers, 626, 627 V. Conn, 248, 261, 267 V. Cunningham, 156 ■». Herring, 731 V. Wood, 39 Bowser v. Bliss, 792, 794 Boyce v. Brockway, 642 V. Grundy, 628 V. Owens, 88 V. People, 774 V. Washburn, 248, 256 Boyd V. Anderson, 936 V. Bopst, 936 V. Brotherson, 163 V. Browne, 629 V. Eaton, 268, 269, 755, 77(1 V. Gunnison, 90, 993 V. Meighan, 852 V. Moseley, 1134 V. Satterwhite, 199 V. Whitfield, 935, 1270 V. Wilson, 941, 942, 956 Boyden v. Boyden, 61, 62, 73, 77 Boyer v. Pack, 149 PAGE Boyinton r. Hubbard, 205 Boyle V. Rankin, 732, 764 Boynton v. Hazleboora, 713 ?■. Libby, 475 r. Payrow, -39 i: Veazie, 277, 309, 311, 485, 489, 978 V. Willard, 20, 990 Bozeman v. Rose, 1234 Bozza !■. Rowe, 235 Brabin ,•. Hyde, 272, 322, 323, 325, 326, 327 Brackett i\ BuUard, 24 V. Crooks, 1085 V. Edgerton, 776 r. McNair, 1075 r. Walte, 765 Bradbury i: Dwight, 208 Bradeen i\ Brooks, 1047 Bradey v. Michael, 1131 Bradford v. Bush, 908, 919 V. Eox, 1043, 1047 V. Manly, 127, 344, 896, 918, 941, 948, 1263 V. Marbury, 1009 V. Stewart, 13 Bradley v. Coolbaugh, 724 V. Gelkison, 198 V. Hale, 105, 116 V. Luce, 628 V. Michael, 1022 V. Obear, 640 V. Pratt, 63, 64, 65 V. Rea, 826, 833, .271, 1272, 1278 V. Washington, A. & G. Steam Packet Co., 344, 346 u. Washington, 347 W.Wheeler, 303,473,484,491, 509, 908 Bradshaw v. Warner, 26, 476 Brady i\ Barnes, 663 V. Cassidy, 208 V. Hill, 1060 V. Whitney, 145, 147 Bragg V. Morrill, 959, 962 Brainard c. Turner, 381 Braman v. Dowse, 213 Brame v. McGee, 91 Branch v. Palmer, 817 Brand v. Brand, 313, 325 V. Focht, 273, 275, 313, 318 Brantley v. Thomas, 667, 941, 957, 1251, 1263 Brasher v, Davidson, 1235 Brawley i,'. United States, 1004, 10(17 Brayley v. Kelly, 411 Breadwell v. Getman, 241 Breckenridge v. Duncan, 345 ,-. McAfee, 19, 23 V. Ormsby, 82 XXVlll TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Bredin, Appeal of, 775 Breed v. Cook, 322, 1051 r. Hurd, 1027 V. Judd, 63, 05, 08 !'. Millhouse, 615 Brelien v. O'Donnell, 980. 981 Breitung v. Lindauer, 1066 Brent II. Bank of Metropolis, 346 u. Green, 426 V. Richards, 1231 Brenton ?>. Davis, 959 Brett V. Carter, 198, 201, 202, 203, 728 Brewer v. Christian, 904 V. Housatonic R. R. Co., 207 V. Knapp, 1060 V. Marshall, 792 I'. Mich. Salt Ass., 472 V. Salisbury, 296, 485, 491 V. Smith, 517 Brewster v. Bours, 1051, 1066 V. Burnett, 604 V. Leitli, 309, 469 V. Taylor, 272 V. Vail, 42 Brick V. Brick, 348 Brickel v. Sheets, 776 Bricker v. Hughes, 249, 254, 481, 516 Bridgford v. Crocker, 1074 Brigg V. Hilton, 105 Brigg Sarah Ann, Tlie, 19, 42 Briggs V. A Liglit Boat, 541 0. Munchon, 359 <■. New York &c. R. Co., 1243 V. Parkman, 195 V. Parsons, 1044 1'. Partridge, 359 Brigliam v. Faucett, 731 V. Hawley, 668 V. Mead, 817 Brink v. Gould, 15 Brinley v. Spring, 1011 V. Tibbets, 667 Brisban v. Boyd, 104, 112, 128. 1.30, 181, 183 Briscoe v. Bronaugh, 603 Bristol i\ Burt, 520 Bristol Milling & Manuf. Co. v. Probasco, 1063 Brittain v. McKay, 249, 254 Britton v. Phillips, 129, 130 V. Turner, 1002, 1083 Broadwater v. Dame, 84 Broadwell v. Howard, 8, 731, 1012 Brock V, Jones, 426 i: Knower, 274, 303 '■. O'Donnell, 10, 500 V. Smith, 243 Brockenbrougli v. Ward, 838 Bronson v. Wiman, 221 PAGE Brooke Iron Co. v. O'Brien, 1187 Brookings v. White, 100 Brooklyn i: Brooklyn R. K. Co., 160 Brooklyn Bank v. De Grauw, 1035 Brookman v. Metcalf, 1110 Brooks /•. Hubbard, 12-36 r. .Martin, 764, 779, 819, 1066 V. StoUey, 614 V. Weaver, 724 Brother v. Saul, 39 Broughton v. Mitchell, 804 V. Silloway 1043 Brower v. Lewis, 941 V. Peabody, 49, 50, 53, 642, 1214 Brown r. Allen, 198 V. Bateman 504 P. Bellows, 109, 210, 211 V. Bigelow, 908, 911, 915 V. Bolton, 1076 V. Brooks, 460 V. Brown, 15, 359, 1151 V. Butchers' & Drovers' Bank, 374, 410, 411 V. Castles, 629, 631, 6.32, 672, 679, 713 V. Cobb, .345 V. Cole, 209 V. Combs, 199, 200 V. Cronise, 322, 1047, 1066 V. Curtiss, 239 V. Dunckel, 1066 V. Dysinger, 1030 V. Everhard, 350 V. Pagan, 618 V. Finley, 766 V. Finney, 114 r. Fitch, 475, 476 r. Foree, 729 u. Foster, 157, 158, 159, 160, 161, 348, 349, 494, 887 V. Gilmore, 1035 V. Gray, 672 V. Hall, 265, 266 V. Haynes, 474,-506 V. Hermann, 101 V. Hitchcock, 5 V. Holbrook, 7 y. Langford, 779 «. Leach, 632 V. Leckie, 1043 V. Mahurin, 667 !'. Maxwell, 61 t. McCune, 61 0. Montgomery, 680, 031 V. Morgan, 460 V. Morris, 244, 259 V. Murphee, 959, 1260 I'. Nevitt, 214 V. New York Cent. R. R. Co., 114 TABLE OF AMERICAN CASES. [References are to the bottom paging.] XXIX PAGE wn V. Olmsted, 1044, 1045, 1065, 1066 V. Phelpa, 204, 817 V. Pierce, 29, 639, 935 V. Rice, 123 V. Riley, 729 V. Runals, 12 V. Rundlett, 387 V. Russell, 108 V. Sanborn, 221 249, 261, 267 V. Sayles, 959, 960, 961, 1260 V. Scott, 1067 V. Slater, 162 V. Smith, 1271 V. Speyers, 816 V. Stanclift, 248, 250, 252 V. Thompson, 815 0. Thurber, 342 V. Tuttle, 6-28, 906 V. Wade, 278, 325, 468, 979 V. Ward, 38 V. Warren, 304 V. Wellington, 22 V. Whipple, 363, 377 V. Wood, 1278 Browne v. Hayns, 506 V. McDonald, 139 Browning v. Hamilton, 472, 515, 516 V. Magill, 23, 27, 28, 34 Brownlee v. Bolton, 1010, 1017, 1074, 1076 Brower v. Lewis, 1263 V. Peabody, 22, 51, 643 Brua's Appeal, 816,817,819 Bruce v. Bishop, 105, 106, 108, 116 V. Burr, 627 V. Pearson, 106, 110, 112, 132, 620 V. Tilson, 843 Bruff V. Mali, 634, 637 Brugman v. McGuire, 1062 Brurnmel v. Stockton, 731 Brundage r. Camp, 4, 49, 475, 639, 730 Bruner v. Kelsoe, 13 !). Wheaton, 113 Brunswick & Balke Co. v. Hoover, 467, 475, 506 r. Martin, 472 Brush ?'. Keeler, 816 V. Scribner, 36, 37 Bryam u. Hunter, 615 Bryan r. Baldwin, 38 r. Stiiith, 195 Bryant r. Booze, 127, 130, 1.34, 181 V. Com. Ins. Co., 42 V. Crosby, 249, 254, 672, 681, 906 r. Isburg, 604, 613, 667 V. Moore, 920 V. Osgood, 42 o. Pember, 618, 619 PAGE Bryant v. Whitcher, 22, 26, 27, 40 Bryce v. Parker, 906 Bryson v. Rayner, :]'.) Buchenau v. Horney, 605, 666 Buclier ;;. Ream, 100, 101 Buchtel V. Mason, 918 Buck V. Albee, 774 V. Doyle, 897 II. Gilson, 101 V. Grimshaw, 49 V. Ingersoll, 39 V. Pickwell, 248, 254, 255, .002, 365, 373, 401, 406 Buckbee v. Brown, 380 Buckenheiraer v. Angevine, 625 Buckingham v. Moss, 91 Buckley r. Artclier, 638, 649 r. Beardsley, 362, 375 /•. Furniss, 1141, 1177, 1178, 1181, 1187, 1203 V. Packard, 44 Buckmaster v. Consumers' Ice Co., 156, 163, 1258 V. Smith, 475 V. Thompson, 156 Bucknam v. Goddard, 935 Buckner v. Davis, 91 V. Smitli, 74, 75 Budd V. Hiler, 146 Buel V. Miller, 351 Buell V. Chapin, 1024 Buffalo Barb Wire Co. v. Phil- lips, 912 Buffington v. Curtis, 193 V. Gerrish, 642 V. Ulen, 468 Bufium !;. Deane, 41 V. Merry, 6 Bugbee v. Blood, 101 ('. Stevens, 476 Bulkeley v. Welch, 39 Bulkley !'. Andrews, 5, 6 V. Morgan, . 648 Bull !■. Griswold, 249, 254 BuUard i'. Burgett, 476 V. Wait, 306, 314, 091, 1136 Bullis I'. Borden, 725 Bullitt r. Taylor, 765 Bullock V. Babcock, 61 V. Finley, 1083 Bunker v. McKenney, 474 Bunn V. Riker, 815 V. V.-illey Lumber Co., 1134 Burbank v. Crooker, 168, 474 Burbridge v. Seeiey, 727 Burch V. Breckenridge, 92 V. Spencer, 905, 074 Burdick v. Gill, 766 !■. Green, 1044 Burge V. Cone, 306, 732, 1132, 1136 XXX TABLE OF AMERICAN CASES. [References are to the bottom paging.] PA8E PAGE Burge V. Stroberg, 911 Butler r. Tufts, 935 Burger r. Limbach, 1055 V. Van Wyek, 727 Burke v. Haley, 426, 427 V. White, 731 1-. His Creditors, 156 Butt V. Ellett, 192, 196, 198, V. Winkle, 90 201, 203 Burkliolder v. Beetem, 773, 774, 807 Butterfleld v. Baker, 192 Burleigh r. White, 764 V. Clemence, 42 Burley v. Russell, 61,62 V. Lathrop, 6 Burnet v. Bisco, 107 Butters v. Haughwout, 49, 640 V. Hawpes, 92 Butterworth v. Kennedy, 39 Burnham v. Allen, 163 V. McKinlay, 493 !'. Roberts, 1230 Buttrick r. Holden, 843, 995 Burns v. Hill, 62 Butts V. Burnett, 39 0. Mays, 472 u. Collins, 1075 Burr V. Brown, 1235 V. Dean, 1045, 1064 V. Wilcox, 240 V. Screws, 332, 478 0. Williams, 470, 483, 493 Buxton V. Hamblen, 814 Burrell v. New York &c. Salt Buzzell !■. Bennett, 72, 79 Co., 1233 Byan y. Dayton, 1002 Burrill v. Stevens, 650 Byars v. Doore's Adm'r 287 Burroughs !>. Richman, 84 Byasse (;. Reese, 246, 248, 256 Burrows i'. Whitaker, 470, 473, 491, Byerlee v. Mendel, 1002 517 Byers v. Chapin, 148 150, 602, 959 Burrus t'. Kyle, 201 Byrd ,.. Hall, 650, 651 Burt V. Bowles, 611, 616, 028 Byrne v. Jansen, 906, 907 !.. Dewey, 935, 1270, 2271 Byrnes v. Claffey, 1060 Burtis i\ Thompson, 1076 Byrnside v. Burdett, 930, 1271 Burton v. Baird, 1009 V. Curyea, 523, 11.36, 1152, 1150 Cabauga v. Seeger, 163 r. Sohermerhorn, 1272 Cabeen v. Campbell, 1181, 1201 V. Shotwell, 120, 124, 131 Cabot V. Christie, 671, 679 V. Stewart, 604, 666, 669 v. Winsor, 451 1-. Young, 904, 915 Cabot Bank v. Morton, 387, 388, 616, Bush V. Cole, 454 897 !!, Holmes, 275, 276, 295, 12.30, Cadwell v. Blake, 838 1234 Cahen v. Piatt, 886, 1017, 1233, 12.34 I'. Jones, 1002 Cahill V. Bigelow, 214, 217 '•■ Tiley, 347 Cain V. McGuire, 25G Buslinell t'. Wood, 724 Calahan v. Babcock, 1177, 1194 Busin v. Dougherty, 475 Calais Steamboat Co. V. Van Buskirk v. Cleveland, 267, 324, .325 Petit, 691 Bustiii V. Rogers, 827 Caldwell <•. Bartlett, 640, 642 BuswcU ;•. Bicknell, 8,888 V. Bridal, 806 Butcher i\ Carlisle, 13 V. Fifield, 42, 1045 Butler's Appeal, 661, (i62 V. Pray, 199 Butler V. Baker, 1234 V. Shepherd, 805 v. Butler, 1074 V. Wallace, 916 c. Collins, 038 V. Walters, 41,42 V. Dorman, 1052 Calhoun ;.. Curtis, 22 V. Haight, 322 V. Paul, 1010, 1016 i: Hildreth, 639, 048 California Bank v. AVebb, 1060 V. Lawshe, 474, 1009 California Nav. Co. v. Wright, 794 V. Lee, 832, 833 Calkin v. Falk, 266, 377 r. Maples, 691 V. Griswold, 148, 1.55 !■. Moses, 109, 111, 126, 162 ■!!. Lockwood, 200, 201, 279, 977, V. Murray, 43 978, 990 7'. Northumberland 666, 667, 668, Call V. Lothrop, 1041 774, 1.3.34 Callaghan v. Myers, 208, 458, 46(1 r. Smith, 339 Callahan v. Donnelly, 792 V. Thompson, 341 431, 451, 453 Callaway r. .Tones, 912 TABLE OF AMERICAN CASES. XXXI [Keferencefi are to the bottom paging.] Callmeyer v. Mayor, Calvert v. Carter, Calvit V. McFadden, Cambioso v. Maffett, Cameron v. Logan, V. Peck, V. Wells, Camfranque v. Burnell, Camors v. Gomila, Camp's Appeal, Camp V. Camp, V. GuUett, V. Hamlin, 1073, 1074, 1126, V. Woods, Campbell's Estate, In re, Campbell v. Findley, V. Kent, V. McClenachan, V. Parker, V. White, V. Young, Campbell Printing Press Co Walker, Canal Bank v. Bank of Albany, PAGE 1004 1058 1235 779, 784 41 774, 775, 827 403 993, 1014 215 1273 14 679 1062 1076, 1230 41,42 15 375 41 341 38, 39 94 834 479 387, Cane v. McGuire, Cannell o. McClean, Cantine v. Pliillips, Canton v. Folsom, Capen v. Peckham, Capron v. Porter, Carbon Iron Co. v. Groves, Cardigan v. Page, Cardinell v. Bennett, Carey v. GuiUow, Carkin v. Savory, Carleton v. Sumner, V. Whitcher, V. Woods, 388, 897 248 1075 59; 60, 71 1235 244 10, 1271, 958 788 457 1272 348 1133 268. 776, 788 265, 268, 269, 775, 776, 778 6 Carlisle v. Burley, V. GaskiU, V. Kinney, V. Rich, V. United States, V. Wallace, Carlton v. Buckner, Carmack r. Masterson, Carman v. Smick, Carraichael v. Buck, Carneal r. May, Carnochan v. Gould, Carondelet Iron Works v. Moore, 906 Carpenter v. American Ins. Co., 674 V. Carpenter, 60, 62, 78, 81 !■. Clark, V. Danfortli, Dodge 147 729 1131 765 777 , 107 1062 429 218, 272 625 905 725 979 661 15 PAGE Carpenter v. Galloway, 267, 350 V. Graham, 516, 727 r. Hale, 19, 20, 990 V. Mitchell, 92, 101 ^. Phillips, 720 V. Rogers, 84 First Nat. Bank, 468, 470 i: Scott, 4, 475, 476 V. Stevens, 189 V. Weller, 145 Carpentier v. Minturn, 620 Carr v. Clough, 76, 77 V. Duval, 106, 108, 110, 112, 113, 120, 121, 125 V. HoUiday, 82 V. Passaic, L. I. &B. Co., 401, 402 Carrier v. Brannan, 815 Carrington v. Smith, 195, 198, 1137 V. Ward, 11 Carroll v. Forsyth, 1061 V. Staten Isl. & K. R. Co., 827, 828 V. Welch, 1002 0. Wiggins, 476 Carruthers v. McGarby, 516 Carson v. Baillie, 1263 Carter v. Black, 906 V. Graves, 727 V. Grimshaw, 722 II. Hamilton, 334 V. Jarvis, 192 V. Kingman, 641 V. McNeeley, 143 V. Rutland, 16 ... Stanfield, 727 r. Walker, 604, 613 V. Willard, 279, 306, 314, 732, 978, 991, 1136 V. Wilson, 201 Cartland v. Morrison, 19, 990 Cartmel v. Newton, 111, 112 Cartwright v. McCook, 1235 „. Phoenix, 977, 978, 990 V. Wilmerding, 44, 46 Cartzell v. Stafford, 408 Carver v. Lane, 274, 277 V. State, 827 Cary v. Dixon, 100 r. Hotailing, 638 Case r. Boughton, 39 r. Edney, 672 V. Fisl), 201 ,.. Hall, 935, !i:J(J V. Seass, 1966 Case Manuf. Co. i\ Garvon, 23". Case of Market Overt, 27 Cash r. Hinkle, 1002 Cashman ;■. Martin, 10y"> Cason V. Chcely, 218, 221 Cass 1'. Gunnison, 472 V. Higenliotam, iiloo Cassard v, llinman, 204, 817 XXXll TABLE OF AMBEICAX CASES. [References are to the bottom paging.] PAGE Cassel V. Herron, 630, 720 Cassell V. Backrack, 981 Cassidy v. Begoden, 918 I'. LeFever, 1233, 1255 Castle V. Beardsley, 375 Castleman v. Griffin, 630 Caswell r. Gibbs, 156, 163 Gates V. Bales, 666 V. Woodson, 82 Catlieart v. Keirnaghan, 427, 429 Catlett V. Trustees, 834 Catlin V. Tobias, 1003 Cator V. Collins, 782 Cauble V. Ryman, 145 Caulk ii. Fox, 91 Caulkins v. Hellman, 136, 272, 273, 275, 277, 287, 311, 341, 343, 404 Cayuga Co. Bank v. Daniels, 1151 Cazeaux v. Mali, 637 Central Branch R. E. Co. v. Fritz, 244 Central ( )hio Salt Co. v. Guthrie, "88 Central K. R. Co. v. Burr, 510 Cessna v. Nimick, 102, 978 Chadsey )■. Green, 911 Chadwick v. Butler, 1014, 1230 Chaffee v. Fort, 650, 1084 Chaffin V. Doub, 993 Chaflin v. Carpenter, 253 Chalfant v. Williams, 335, 349 Chaliss V. McCrum, 897 Chamber of Commerce v. Sollitt, 843, 844, 1076, 1077, 1080, 1126 Chamberlain v. Black, 345 V. Blue, 1257 V. Dow, 279 V. Farr, 979 V. Rankin, 631 V. Robertson, 101 o. Smith, 4, 108, 476 Chambers v. Calhoun, 16 V. Short, 1052 i\ Spencer, 721 Champion v. Doty, 239 Champlin v. Laytin, 614 r. Parish, 421 r. Rowley, 143, 1003 Champiiey r. Blanchard, 15 V. Smith, 40, 41 Chance r. Commissioners of Clay Co., 625 Chancellor v. Wiggins, 035 Chanrlelor v. Lopus, 617 Chandler v. Coe, 359, 381, 384 V. Fulton, 1178, 1181, 1212, 1220, 1222 V. Johnson, 770 V. Simmons, 58, 75, 76, 78, 81, 604 Channnn v. Lusk, 521 Chapin V. Cram, 195, 198, 203 V. Dobson, 105, 335, 341, 344 PAGE Chapin v. Lapham, 107 «. Potter, 276,491,981 V. Schater, 81 Chaplin v. Rowley, 1003 Chapman v. Brooklyn, 149 i\ Chapman, 72, 75 ,. Cole 22, 23, 149, 162, 154, 602 V. Dease, 142, 143 r. Ingram, 1073, 1076, 1127 V. Lathrop, 13, 1133 V. Murch, 896, 905, 906, 907, 908 V. Searle, 10, 288, 302, ,300, 313, 526, 1092, 1111 i'.Shepard,458,461,463, 515, 516, 521, 1097 V. Turner, 12 V. Weimer, 194, 195, 202, 203 Chappel V. Brockway, 792, 796, 800, 803 Chappell V. Dann, 360 Charles v. Lasher, 1009 Chase i'. Chase, 766 V. Denny, 195, 198 V. Fitz, 214 0. Ingalls, 203, 474, 475, 476 V. Lowell, 361, 397 r. Pike, 476 V. Redding, 14, 766 V. Wasliburn, 6, 8, 521 V. Welsh, 1040 V. Willard, 300, 317, 468, 472, 1136 Chauncy v. Yeaton, 140 Cheney ti. Duke, 778 V. East, 475 Cheney-Bigelow Wire Works u. Sorrell, 1083 Cheongwo !'. Jones, 068 Cheshire r. Barrett, 74, 77 Cheshire Nat. Bank v. Jewett, 42 Chesley i: Josselyn, 194, 195, 203 Chester v. Dickerson, 677, 095 Chestnut v. Harbaugh, 827 Chetwood V. Brittan, .341 V. Greer, 1074 Chicago V. P. & P. Co., 348 Chicago B. & Q. R. R. Co. v. Painter, 1177 Chicago & A. R. Co. r. Derkes, 108 Chicago & G. E. R. R. v. Dane, 25 Chicago & N. W. E. Co. !•. Boiler, 804 Chicago Dock Co. v. Foster, 49, 039, 040, 641, 730, 1152 V. Kinzie, 214, 217 Chicago Packing Co. r. Tilton, 958 Cliild'y. Hug, 38 V. Pierce, 1235 Childs V. Fischer, 1085 Chiles V. Nelson, 127, 129, J.3li, 181, 1S3 TABLE OF AMERICAN CASES. [ReferenceB are to the bottom paging,] XXXIU PAGE 936 198, 476 Chism V. Woods, Chissom V. Hawkins, Chouteau v. Merry, 88 Christ V. Armour, 843 Christian v. Greenwood, 729 Christie v. Scott's App., 476 Christy v. Cummins, 605, 667 Chrystler v. Canady, 632 Chubb V. Peckham, 342 V. Upton, 705 Church V. Chapin, 721 V. Church, 345 V. Mar. Ins. Co., 58 V. Sterling, 58 Churcli's Adm'r v. McLeod, 25 Churchill v. Merchants' Bank, 995 V. Palmer, 920 V. Price, 1260 Chynoweth v. Tenney, 195, 196, 200 Cincinnati U. & F. W. E. Co. v. Pearce, 346 Citizens' Bank v. Carson, 322, 1066 City Bank of Racine v. Babcock, 40, 181 City Bank of Rochester v. Jones, 53 City Bank v. Rome, W. &. 0. i%. R. Co., 575, 585 City Council v. Van Roven, 90 City Fire Ins. Co. v. Olmstead, 1258 Claflin V. Boston & L. R. R. Co., 526 V. Carpenter, 246, 248, 256 V. Cottman, 641 V. Farmers' & Citizens' Bank, 277 V. Rosenberg, 732 V. Van Wagoner, 92 Claghorn i-. Lingo, 908 Claraorgan v. Lane, 74 Clanahan v. McKinley, 632 Clap, In re, 1062 Clapp V. Rogers, 732 V. Shemhard, 237 V. Thayer, 1040 Clark I'. Baird, ■ 713 V. Baker, 142, 349, 458, 469, 549, 604, 619, 620, 621, 1000 V. Bartlett, 769 V. Brisbin, 38 V. Caldwell, 84 V, Courtney, 455 V. Cox, 85 V. Crandall, 843 B. Dales, 104,111,112,130,181, 1075, 1231 V. Depew, V. Draper, V. Everhart, V. Foss, V. French, V. Gibson, V. Griflath, 765 977, 1066, 1131 626, 627 204 765 815 510 1075, 1231, 773 325, 327 993 Clark 0. Houghton, V. Imlay, 168 V. Jack, 4, 7 V. Lillie, 609, 769, V. Lynch, V. Marsiglia, V. Moore, V. Morse, V. New York Life Ins. i Trust Co., V. Nichols, 1'. Partridge, V. Pendleton, V. Pinney, V. Protection Ins. Co., V. Ralls, V. Rice, V. Ricker, V. Russel, V. Savage, V. Smith, V. Tucker, V. Weis, V. Wilson, V. Wright, Clarke v. Dutcher, V. Fairchild, ('. Foss, V. Griffith, I'. McGetchie, V. Russell, 350, V. Shee, V. Tappin, V. White, Clarkson v. Carter, u. Stevens, Clason V. Bailey, 373, 374, 408, 412, 431^ Clay V. Ricketts, V. Walton, Cleaver v. Scheetz, Cleaves i'. Foss, Clem V. Newcastle & D. R. R. Co., Clement c Boone, V, Clement, Clement & H. Manuf. Co. v. Mes- erole, 1075, 1081, 1230, Clements r. Yturria, Clemson v. Davidson, Cleu V. McPherson, 451 Cleveland v. Farley, V. Smith, u. Sterrett, 993, 996, V. Williams, Cleveland &c. R. R. Co. v. Kel- ley, Cleveland Rolling Mills v. Rhodes 1002, Cleverly i-. Brackett, FAQE 344 169 ,476 1177 769 1081 142 732 334 222 311 240 1235 , 782 906 888 775 116 1066 12 ,373 840 20 1017 610 13 817 516 1260 ,351 144 335 731 1023 511 411, ,450 111 239 90 426 028 073 839 1240 777 709 , 950 2o!l 278 1234 1000 1234 1015 39 XXXIV TABLK OF A.NEERICAX CASES. [References are to the bottom paging.] PAGE Clifford, In re, gO(i V. Luhring, 240 Cliquot's Champagne, 699 Clodfelter i-. Hulett, 609, 627 Clopton r. Cozart, 628 Closson V. Stearns, 374 Cloud r. Moorman, 610 Clough V. Davis, 832 r, Hoffman, 855 Clow V. Woods, 723 Clute V. Small, 164, 1049 Coal V. Transportation Co., 1047 Coates r. Sangston, 350, 993 Coats V. Robinson, 92 Cobb r. Arundell, 311 V. Cage, 41 r. Dows, 23, 24, 042 I'. Fogalman, 208, 072 1-. Hall, 840 -•. Hatfield, 025 r. Illinois C. E. R. Co., 585 V. Knapp, 384, 386 r. l-rell, 817 Coburn r. Kerswell, 1064 V. Odell, 65, 66, 773, 775 V. Pickering, 723, 732 r. Ware, 1272 r. Webb, 163 Cochran v. Ripy, 1136 r. Stewart, 0.59, 040, 041, 043 V. Toher, 1014 i-. Wheeler, 1047 Cochrane v. Halsey, 020 Cockburn v. Ashland L. Co., 1076, 1233, 1234 Cocke v. Campbell, 919 c. Rucks, 604 Cocker c. Franklin Hemp Co., 403, 989, 992 r. Franklin Man. Co., 141 Cockrill r, Kirkpatrick, 1030, 1040, 1041 Cocks V. Izard, 659 Coddington v. Goddard, .340, 34.3, 377, 396, 397, 405, 412, 431, 435, 450, 451, 452, 630, 674, 699 Codman v. Freeman, 97, 194, 195, 203, 205 Coo -•. Bicknell, 990 V. Turner, 614 Coffin 7.. Morrill, 101 !'. Reynolds, 843 Coffman r. Campbell, .348 V. Hampton, 265, 267. 1074, 1126 V. Harrison, 387 Cogel r. Kniseley, 632, 958 Coggill r. Hartford & N. H. R, R. Co., 50, 474, 538, 558, 641 Coghill !'. Boring, 19 Cogley !'. Cushman, 81 PAGK Cohen V. Stewart, 407 Coil V. Willis, 980, 985 Colt V. Schwartz, 1083- Colcock I-. Goode, 936 Colcord c. McDonald, 500 Colderwood v. McCrea, 817 Coldren v. Miller, 1235 Cole (,'. Berry, 475, 506 u. Blake, 1039 V. Cheovenda, 12.30 V. Howe, 345 V. Kew, 1012 V. Mann, 9, 476, 500 V. Milmine, 204, 810 V. Pennoyer, 01, 72 V. Sackett, 1045, 10()7 /■. Svvanston, 1022 Coleman r. Cooke, 730 r. First Nat. Bank of El- mira, 342, 384 V. Grubb, 009 n. Slielton, 11 V. Wooley, 92 Coles V. Bowne, 132, 427, 429 V. Clark, 24 r. Trecothick, 58 CoUanier r. Day, 815 r. Langdon, 1065 CoUender r. Marshall, 4 CoUette V. Weed, 904 Collier r. Faulk, 192 Collins r. Baumgardner, 124.3 V. Delaporte, 1074, 1081 o. Myers, 194, 199, 727, 72H V. Nevin, 782 r. Ralli, 48, 091 V. Taggart, 720 V. Townsend, 669 Colson r. Thompson, 877 Colton V. Wise, 7, 8' Coltraine r. Causey, 766 Columbia v. Amos, 1235 Columbia &c. Co. v. Halderman, 807 Colville V. Besly, 1067 Colvin !■. Currier, 100 V. Jones, 1243 0. Williams, 237 Colwell V. Keystone, 484 V. Peden,' 610 Combes r. Chandler, 641 Combs V. Bateman, 322 V. Scott, 920 Comer v. Cunningham, 475, 476 Comfort r. Kiersted, 460, 473, 514 Commerce Bank v. Kortright, 1235 Commercial Bank v. Bobo, 1067 V. French, .359 V. Norton, 691 V. Pfeifter 105, 142 TABLE OF AMERICAN CASES. XXXV [References are to the bottom paging.] Commercial Nat. Bank i>. Gil- lette, 480, 510, 516 Commiskey v. McPike, 1045 Commonwealth v. Call, 634 V. Clark, \ 2, 13 V. CuUins, 88 V. Devlin, 479 V. Emigrant Industrial Sav. Bank, 24, 36 V. Hantz, 63 V. Harley, 634, 637 V. Harrington, 777 V. Holbrook, 821 V. Jackson, 628 V. Nichols, 699 V. Packard, 4 V. Weiher, 73 Compton V. Parson, 1083 Comstock V. Sanger, 1010 V. Scales, 192, 195, 198, 203 V. Smith, 1064 V. Rayford, 727 V. Ward, 241 Conable v. Lynch, 7, 9 Conard v. Atlantic Ins. Co., 312, 383, 998, 1212 Conawingo Pet. Co. v. Cunning- ham, 993, 996 Concord v. Delaney, 774, 776 Concord Bank v. Gregg, 677 Conderman v. Smith, 192, 199 Condon v. Walker, 783 Cone V. Baldwin, 37 Congar v. Chamberlain, 904 Conklin v. Ogborn, 76 Conlin v. Cantrell, 91 Connecticut v. Coburn, 59, 60, 78 Connecticut Trust & S. D. Co. v. Melendy, 1064 Connell v. Chandler, 766 Conner v. Coffin, 243, 244 V. Henderson, 142, 604, 613, 621, 625 Connihan v. Thompson, 648 Connolly v. Hull, 60, 63, 70 Connor v. Eddy, 1271 V. Trawick, 14 V. Williams, ' 239 Conover v. Walling, 707 Conrad v. Atlantic Ins. Co., 1151 V. Lane, 61, 62 V. Shomo, 101 Continental Bank v. Nat. Bank, 1104 Converse v. Hartley, 721 V. Hartzfeldt, 348 Converseville Co. v. Chambers- burg Co., 7, 9 Conway r. Bush, 981 Conyers v. Ennis, 650 Conyngham's Appeal, 12, 38, 40 Cook r. Anderson, 407 V. Beal, 43 V. Brandeis, 1126 V. Castner, 678, 1271, 1272 V. Corthell, 195, 199, 203 V. Doggett, 218 V. Ferral, 1023 V. Gilman, 604, 667 V. Gray, 996 V. Johnson, 766, 792, 794 V. Logan, 517 I V. McCabe, 845 V. Moseley, 906 V. Parker, 82 V. Toumbs, 73, 75 Cooke V. Graham, 604 V. Husbands, 92 V. Millard, 221, 294, 313, 491 V. Woodrow, 19 ; Cool V. Peters Box Co., 249 I Cooley V. Gilan, 477 ! V. Perrine, 920 V. Weeks, 1030 Coolidge V. Brigham, 127, 604, 666, I 668, 897, 935 V. Melvin, 721, 725, 732 Coombs V. Bristol & E. R. Co., 278, 284 V. Emery, 806 V. Gorden, 27, 40 Coon V. Spaulding, 989, 992, 993, 1014 Cooper V. Altimus, 104 V. Berry, 146 V. Bill, 308 V. Brewster, 816 V. Brock, 6 V. Cleghorn, 350 V. Dedrick, 362 V. Levering, 629, 631, 632, 672, 679, 681 V. Merritt, 628 V. Ray, 40 V. Shuttelworth, 210 V. Whitmer, 345, 467 Coover ;;. Johnson, 477 Copeland v. Copeland, 153, 1110 Copland v. Bosquet, 475 Coppell V. Hall, 788, 807 Copper Co. v. Copper Mining Co., 1234 V. Powell, 1047 Corbett V. Gilbert, 686 V. Underwood, 348, 817 Corbin v. Tracy, 1258 Corcoran v. White, 111 Cornelia v. Ellis, 64, 65 Cornelius v. Molloy, 720 Cornell v. Clark, 473, 515 V. Green, 1041 V. Moulton, 995 XXXVl TABLE OP AMERICAN CASES. [References are to the bottom paging.] PAGE Cornett v. Williams, 777 Corning v. Abbott, 806, 813 0. Colt, 106, 110, 113, 298 V. Strong, Corninger v. Crocker, Cornwall v. Gould, V. Haight, V. Hoyt, Cortelyou v. Lansing, Corwith V. Colter, Coryell v. Perine, Costar V. Davies, Costelo V. Cave, Costigan v. Hawkins, Cothran ;'. Scanlan, Cotten V. McKenzie, V. Willoughby, Cotterill v. Stevens, 11 1055 549 1064 1131 86 12, 38 989, 993 460 1062 1067 936 1035 807 192, 199 309, 323, 325, 327 5 Coty V. Barnes, Cotzhausen v. Simon, 679 Couch !i. IngersoU, 838 Coughlin V. New York C. & H. E. R. R. Co., 804 V. Ryan, 87 CouiUard !>. Johnson, 304 Council Blufis Iron Works v. Cuppey, 989 Count V. Bates, 59 County of Jackson v. Hall, 1085 County of Montgomery u. Robin- son, 107 County of Morgan a. Allen, 703 Coursin's Appeal, 511 Courtenay v. Fuller, 352 Courtis V. Cane, 22, 232 Courtois V. Carpenter, 215 Courtright v. Leonard, 481, 517 Courtwright v. Stewart, 221, 233 Couse V. Tregent, 475 Cousinery ;,'. Pearsall, 942 Coutant V. Schueler, 15 Covanhovan v. Hart, 731 Covell V. Hill, 47 V. Hitchcock, 1177, 1181, 1187 Covely V. Fox, 1067 Covin V. Hill, 28, 44, 53 Cowan )'. Dodd, 618, 619 Coweta F. M. Co. v. Rogers, 1233 Cowles V. Bacon, 152 V. Marks, 101 V. Pollard, 91 Cowley V. Davidson, 1243 Cox V. Baldwin, 1064 V. Hankinson, 1066 V. Jackson, 105, 116 u. Long, 1273 V. Reed, 1068 V. United States, 215 Cox's Adm'r v. Wood, 92 Cozzins V. Whitaker, Crabtree v. Messersmith, Craddock v. Riddlesbarger, Craft V. Isham, » V. McConoughy, V. Rolland, Cragin !•. Coe, Craig V. Godfrey, V. Harper, 104, 107 V. Marsh, !'. Missouri, v. Ward, Cramer v. Bradshaw, V. Reford, Crane v. Knubel, V. McDonald, V. Partland, c. Pratt, V. Roberts, Cranson r. Goss, Crapo V. Seyboly, Crary v. Hoffman, !■. Sprague, Crater v. Binninger, Cravath v. Plympton, Craver v. Hornburg, Crawford's Appeal, Crawford v. Dean, V. Kirksey, V. Morrell, V. Smith, 237 PAGE ,935 844, 1076 257 141 ,792 91 475 427 120, 125 731 779 677, 695, 699 906 765 1003 1045 163 1025 904, 843, 249, 788, 426, 110, 121, 640, 156, 826, 829, 832, 833 516 906 688 1233 140 959 16 359 726 19, 268 459, 468, 481, 517, 526 V. Wick, Crawshaw v. Eoxbury, Creel v. Kirkham, Creery v. Holly, Creighton v. Comstock, 1004, V. Sanders, Cremer v. Higginson, Crenshaw v. Slye, Cressemer v. Welch, Cresson c. Stout, Cressy v. Sabre, 194, 199 Crill V. Doyle, Crine v. Tifts, Crisler v. McCoy, Crist V. Kleber, 4, 7 Crittenden v. Posey, Crocker v. Crocker, 45, 49, 54, V. Franklin &c. Co., V. Gullifer, 8, V. Higgins, V. New London W. & P. R. R. Co., 106, 107, Crockett v. Moore, V. Scribner, Crofoot V. Bennett, 19, 272, 473, 492, 508, 521: 515, , 990 793 107 146 1151 1273 22 132 907 75 243 ,200 457 201 1060 , 506 1270 , . Holmes, 209 Crooks V. Moore, 1127 Crookshank v. Burrell, * 221, 230, 235, 514 Groom v. Shaw, 920 Crosby v. Berger, 215 V. Grant, 36 V. Redman, 1064 V. Ross's Adra'r, 765 Crosier v. Acer, 344 Crosland v. Hail, 714 Cross V. Brown, 766 V. Huntley, 618 V. O'Donneil, 265, 284, 294, 296, 311, 1009, 1224 V. Peters, 649, 650 Crouse v. Holman, 83 Crowley v. Pendleton, 342 Crowley's Case, 215 Crown V. Carriger, 631 Crowtiier v. Rol^ndson, 82, 83 Croyle v. Moses, 630, 668, 720 Crucier v. Pennock, 1051 Cruess v. Pessler, 668, 714 Crump V. United States Mining Co., 699 Cruzan v. Smith, 691 CuUen V. Bimm, 956 CuUum V. Wagstaff, 344 Culver V. Bigelow, 381 Cumberland Bone Co. v. Atwood Lead Co., 113, 993 V. Andes Ins. Co., 515 Cumberledge v. Cole, 23 Cummer v. Butts, 156, 162, 163 Cummings v. Arnold, 360, 351 V. Dennett, 221, 230, 376 V. Noyes, 145 V. Powell, 69, 73, 75 V. Putnam, 350 Cummins v. Griggs, 470, 483, 492 CundeU v. Dawson, 814 Cunningham v. Ashbrook, 19, 208, 209, 273, 459, 463, 468, 486 V. Asterbrook, 3 V. Brown, 207 V. Cunningham, 788 P. Hall, 911, 917, 959, 962 V. Irwin, 60 V. Jones, 143 V. Soules, 387, 388 Cupples V. Whelan, 1052 Currie r. White, 10, 11, 467 PAGE Currier v. Knapp, i, 203, 470 Curry v. Lackey, 210 V. Powers, 15 Curtin v. Patton, 62, 74, 76, 78 Curtis V. Blair, 141 V. Gokey, 794 V. Hall, 84 V. Hubbard, 1064 V. Leavitt, 774, 776, 778 V. Wilcox, 199 Curtiss V. Howell, 625 Cushan, The, 1068 Cushing V. Breed, 8, 306, 307, 461, 493, 516, 521, 732, 1012, 1136 V. Wells, 1230 V. Wyman, 666, 1060 Cushman v. Hayes, 38, 40 u. Holyoke, 470, 484, 493, 511, 961, 990 V. Jewell, 607 V. Libbey, 143 V. Marshall, 666 Cushwa V. Forrest, 668 Cutler V. Pope, 246, 248, 249, 254, 256 Cutter V. Powell, 1260, 1264, 1272 Cutting V. Grand Trunk K. R. Co., 1075, 1230, 1243 Cutts V. Guild, 148, 149, 150, 153, 602 Dabovich v. Emeric, 1270 Dacosta v. Davis, 215 Daggett V. Johnson, 159, 160, 334, 888 Dailey v. Green, 1273 V. Jessup, 628 Dakin v. Williams, 792 Dalby v. India Life A. Co., 815 V. Stearns, 1075 Dale V. Roosevelt, 614 DaLee v. Blackburn, 672, 703 Daley v. Carney, 167, 609 Dallas V. Heard, 92 Dalton V. Laudahn, 200 Dambman v. Schulting, 626, 661 Dame v. Baldwin, 23, 27, 28 V. Dame, 244 Damon v. Osborn, 275, 295, 472, 521, 1096 Dana r. Baldwin, 27 V. Boyd, 911 V. Fielder, 163, 345, 1075, 1231, 1254 V. Hancock, 340, 341, 350 V. King, 840 V. Monro, 149 V. Short, 111 Dance v. Seaman, 727, 767 Dando v. Poulds, 7 Danforth v. Dart, 640, 731 XX.XVU1 TABLE OF AMBRICAX CASES. [References are to the bottom paging.] Danfortli ;•. Evans, 816 V. Streeter, 806 V. Walker, 273, 276, 303, 992, 998, 1074 Daniel v. Mitchell, 613, 614, 837 Daniels v. Bailey, 248 V. Newton, 844, 1081 V. Pond, 243 Dannefelser v. Weigal, 476 Darby v. Callaghan, 94 Darden v. Lovelace, 17, 493 Dardene v. Hardwick, 729 Dargin i;. Richardson, 129 Darnall v. Morehouse, 1045 V. Smith, 92 Darst V. Brockway, 936 V. Thomas, 706 Darwin v. Handley, 727 Dater v. Earl, 777 Davenport v. Buckland, 691 V. Wells, 1235 David v. Betz, 668 Davidson i'. Portland, 826 Davies v. McLean, 986 Davis, Estate of, 1044 Davis V. Adams, 980, 981, 1023 V. Barger, 826 V. Barney, 792 V. Bemis, 695, 699 (■.Bradley, 475,575,1151 V. Caldwell, 59, 60, 64, 65, 69 V. Eastman, 265, 273, 276, 295 V. Emery, 475 V. Funk, 37, 38, 40 V. Handy, 153 V. Hill, 473, 480, 490, 1085 V. Inseoe, 217 V. Jones, 979, 998, 1012 V. Lane, 186 V. Maxwell, 619 V. McCready, 36 V. McFarlane, 249 V. Meeker, 126 u. Moore, 141, 265, 275, 295, 324, 338, 1047 V. Ney, 14 V. Richardson, 1075 V. Robertson, 336, 420 V. Rowell, 235, 426, 427 V. Russell, 998, 1136, 1156 V. Sliarron, 804 V. Shields, 340, 362, 365, 397, 406, 408, 412, 431, 450, 45:!, 454, 1075, 1076, 1231 V. Smith, 935 V. Somerville, 826 V. Spencer, 325, 327 V. Stewart, 651 V. Turner, 727 r. Wilkerson, 92, 93 Davis Sewing Machine Co. v. McGinnis, 844, 1022, 1085 Davison v. Seymour, 788 Davou !•. Fanning, 57 Dawes v. Peebles, 959 Dawson r. Coles, 237 u.' Miller's Admr., 426 V. Susong, 27, 41 Day V. Bassett, 23, 193, 476 V. Cooley, 723 V. Dox, 1231, 1234 V. Elmore, 302 V. McAllister, 827, 833 V. New York Cent. R. R. Co., 213 V. Pool, 951, 1251, 1260, 1268, 1273 V. Raguet, 941, 12C.3 V. Thompson, 1065 Dayton v. Hooglund, 941, 962 V. Monroe, 637, 669, 686 V. Trull, 1047 V. Wilkes, 206 Dayton W, V. & X. Tump. Co. V. Coy, 3 Deal V. Maxwell, 221 Dean v. Dean's Estate, 15 V. Emerson, 793, 801 V. Mason, 904, 917 V. Morey, 911 V. Roesler, 381 V. Thatcher, 42 V. Yates, 149, 172, 173, 607, 641, 643 Dearborn t'. Cross, 842 V. Eastman, 74 V. Turner, 8, 888 Deason v. Boyd, 74, 76, 77 De Berski v. Paige, 268, 269 Decan v. Shipper, 148, 172, 173, 606, 643, 1214 Decell V. Lewenthal, 59, 65, 807 Decker v. Furniss, 10, 11, 460, 473 DeCordova v. Smith, 408 Deering v. Boyle, 92 V. Chapman, 774, 775, 779 V. Cobb, 196, 198 Defenbaugh v. Weaver, 1273 Defiance Machine Workst.'.Trisler,477 De Fonclear v. Shottenkirk, 2, 105, 468 Defreeze v. Trumper, 120, 936 De Goer v. Kellar, 1041 De Graff v. Byles, 489 Delafield c. Illinuis, 691 Delamaterr. Chappell, 887, 1017 Delancy v. Root, 249, 256 Delano r. Blake, 74 Delaware, The, 349 Delaware & H. C. Co. v. Pennsyl- vania Coal Co., 210 TABLE OF AMERICAN CASES. [References are to the bottom paging.] XX.KIX Delaware, L. & W. R. R. Co. v. Sanderson, 467 Delaware Bank v. Jarvis, 617 DeLisle v. Priestman, 39 De Livillian v. Evans, 15 Dellone v. Hull, 648, 1085 Delventhal v. Jones, 279 Deming v. Bailey, 691 V. Chase, 920 V. Foster, 166, 958, 9G7 V. Grand Trunk R. R. Co., 1075, 1230, 1244 Dempsey v. Gardner, 732 Demuth v. American Institute, 106, 113 Denman v. Cherokee Iron Co., 980, 989, 1014 Denmead v. Glass, 280, 206 Denn v. Sparks, 765 Denney v. Williams, 275 Dennie !•. Hart, 1051 Dennis v. Alexander, 473, 493 V. Stoughton, 1017 Dennison v. Gibson, 92 Denniston v. Cook, 816 Denny v. Oilman, 679 V. Willard, 19 V. Williams, 7, 272, 277, 278, 295, 463, 470, 484, 493 Densmore v. Tomer, 727 Depew V. Keyser, 8 V. Robards, 27 Derby v. Johnson, 1081 DeRidder v. McKnight, 470, 484 Dermott v. Jones, 143, 877, 1002 Derosia v. Winona & St. P. R. R. Co., 1014 Des Arts v. Leggett, 1073 Descadillas t'. Harris, 1064 Deshon v. Bigelow, 50, 474, 475 V. Fosdick, 131 Dethlefs v. Tamsen, 795 Detroit II. D. & R. R. Co. v. Forbes, 244 Devane v. Fennell, 208, 459 De Veries v. Conklin, 92 Devine !'. Edwards, 529, 620 Devlin v. Chamblin, 322 V. Mayor and Aldermen of New York, 1255 V. O'Neill, 475, 476 V. Pike, 642 Devoe v. Brandt, 631, 639, 640, 651, 686 Devonshire v. Gauthreaux, 727 DeVoss r. Riclimond, 077 Uewees v. Manhatten Ins. Co., 342 Dewey v. Alpena School District, 848 «. Erie IJorough, 888 PAGE Dewey v. Long, 765 Dewing v. Perdicaries, 777 Dewitt V. Walton, 381 De Wolf V. Babbett, 109(! V. Gardner, 44, 46, 532, 575, 979 V. Harris, 193 Dexter v. Bevins, 491, 492, 516 V. Norton, 189, 190, 457, 473, 851 Dey V. Dox, 1075, 1076 De Yampert v. Brown, 1()4.3 Deyo V. New York C. R. R. Co., 1274 Dial V. Neuffer, 90 Diamond Match Co. v. Roeber, 793 Dias V. Chickering, 45 Dibblee v. Slieldon, 648 Dick p. Cooper, 659 Dickenson v. Gay, 956 Dickerson v. Evans, 640 Dickey v. Linscott, 846 Dickins v. Jones, 610 Dickinson c. Boyle, 1233 V. Dickinson, 302 u. Gay, 349 V. Hall, 618 V. Lee, 631 V. Richmond, 826 Dickson v. Jordan, 208, 905 V. Thomas, 817 Dietz's Assignee v. Sutcliffe, 1086 Dike V. Reitlinger, 451, 863, 941, 1260 Dill V. O'Farrell, 604, 1251 Dillard v. Moore, 632, 911 Diller v. Brubaker, 38 Dillon V. Allen, 806 Dilworth v. Bradner, 629, 685 Dingley v. Oler, 845 Distilling Co. v. Nutt, 776, 777 Ditson r. Randall, 54, 639, 640, 641, 730 Dittmar >;. Norman, 10 Diver V. Diver, 100 Divine !•. McCormick, 973, 074 Dix V. Shaver, 121 Dixie V. Abbott, 774 Dixon V. Blondin, 473, 478 V. Buck, 998, 1012, 1136 V. Fletcher, 1015 V, Myers, 482 r. Olmstead, 774 Doak r. Snapp, 1231, 1234 Doane i: Dunham, 348, 1010, 1273 Dobbin v. Hubbard, 91 Dobson !■. Racey, 58 Dock V. Hart, 268, 333 Dodd V. Adams, 723 V. Farlovv, 349, 450, 451, 955 r. Kirk, 957 r, McCraw, 663, 765 xl TABLE (JF AMERICAN CASES. [References are to the bottom paging.] Dodds V. Wilson, 82 Dodge, In re, 193 V. Emerson, 1064 V. Meyer, 575, 583 V. Morse, 318 Dodson ;;. Harris, 827 Doe V. Abernathy, 74 Doebling v. Loos, 1066 Dogan V. Ashby, 1067 Doggett '1. Emerson, 602, 613, 614, 627, 668, 677, 837 Dole !'. Lincoln, 14, 15 V. Stimpson, 27, 272, 275 DoUiver v. Ela, 244 Domestic Sewing Machine Co. v. Anderson, 4 V. Arthultz, 26, 476 Dominick v. Michael, 73, 75 Dominion St. Co. ;'. Burckhardt, 640 Donaldson v. Farwell, 54, 643, 649, 651, 665 V. McRoy, 707 V. Newman, 935 Donallen i\ Lenox, 774, 779 Donath v. Broomhead, 1181, 1195 Donley v. McKiernan, 723 Donnell v. Hearn, 221 Donohoe v. Gamble, 39, 40 Donovan's Appeal, 101 Donovan v. Willson, 221, 230 Dooley v. Eilbert, 272 Doolin V. Ward, 658 Doolittle V. Lyman, 818, 821 Dorman v. Bigelow, 375 Dorr V. Fisher, 142, 604, 935 V. Munsell, 84 Dorrance v. Scott, 85 Dorrell v. Hastings, 60 Dorsey v. Watson, 615 V. Wayman, 333 Doty V. Mitchell, 92, 93 V. Wilder, .33.3, 421, 426, 427 Dougal V. Cowles, 1066 Dougherty v. Jack, 765 Doughty !'. Manhattan Brass Co., 303 Douglas !>. Merceles, 1234 V. Shumway, 249, 250, 985, 1133 Douglass Axe Manuf . Co. v. Gard- ner, 1273 V. Howland, 302 !'. McAllister, 1070 V. Spears, 408 Dounce r. Dow, 166,959,961,1251, 1273, 1277 Dow V. Sanborn, 649, (550 V. Worthen, 322, 325, 327 Dowling f. McKenney, 13, 221 Downer v. Smith, 637, 666, 007, 668 V. Sinclair, 1041 PAGE Downer v. Thompson, 473, 617, 549, 553, 1001, 1015 Downing v. Brown, 104, 124 v. Dearborn, 95!) r. O'Brien, 91 Downs 11. Donnelly, 609- ,.. Marsh, 298, 1015. c. Ross, 218, 221 Dows r. Cobb, 1151 V. Greene, 51, 583, 639, 640, 642, 643, 731 V. Griswold, 60(i, 667 V. Kidder, 475- V. Morewood, 979, 1060 I'. National Exchange Bank, 43, 51, 53, 558, 1185 -•. Perrin, 51, 172, 173, 643, 649, 1185, 1212, 1214 V. Rush, 639, 730, 731 Dox I'. Dey, 839' Doxey v. Miller, 815 Doyle V. Dixon, 240, 801 V. Mizner, 650' V. Orr, 101 I'. White, 239- Drain v. Doggett, 1065. Drake v. Hill, 852 r. Ramsay, 74 !'. Seaman, 396 e. Webb, 2r,7 V. Wells, 246, 240, 256. Draper i'. Hitt, 1036 !). Pattina, 373,411,412 V. Rice, 1062 V. Snow, 346 V. Stouvenel, 04 V. Sweet, 1273, 1274 Dressel r. Jordan, 407, 408 Dresser v. Ainsworth, 930- f. Dresser, 16, 241 Dresser Manuf. Co. v. Waterson, 10. Drew !i. Claggett, 667 V. Kimball, 1110 r. Smitli, 476 !'. Towle, 1272 Driver v. Jenkins, 201 Drumond v. Couse, 729 Drummond v. Hopper, 83 Drury v. Hervey, 476 r. Young, 363, 364, 412 Drydon v. Kellogg, 035 Dubios V. Kelly, 244, 260 V. Delaware & Hudson Canal Co., 12, 1083 Dubose V. Wheddon, 60, 63 Duchman r. Hagerty, 776 Dudley i\ Abner, 474, 476 V. Dan forth, 728, 731 r. Demiiig, 114 V. Hawley, 23, 24 TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Dudley v. Little, ii58 Dufe !■. Snider, 240 V. Williams, 629 7'. Wynkoop, 41 Duffany v. Ferguson, 628 Duffiee V. Mason, 908 Duffy V. Shockey, 801 Dugan V. Anderson, 843 V. Nichols, 980 !■. Sprague, 39 V. United States, 386 V. Vattier, ^ 730 Duke V. Asbee, 788 V. Harper, 804, 806 V. Sliackleford, 506 Dulaney v. Rogers, 679, 685 Dumont v. Williamson, 617, 897 Dunn V. Hewitt, 525 V. Oldham, 679 V. White, 685 );. Wright, 1052 Dunbar «. Boston & P. R. R. Co., 148 V. Johnson, 265 V. Marden, 618 V. Meyer, 100, 101 V. Rawles, 475, 476 Duncan v. Baher, 1002 V. Baker, 143 <.. Blair, 268 r. Jeter, 625 V. McCullough, 84, 626 V. McMahan, 1231 r. Niles, 387 V. Stone, 475, 476 V. Tophani, 133 Dundas r. Muhlenberg's Execu- tors, 146 Dung !). Parker, 387 Dunham v. Pettee, 307, 1012 Dunkart v. Rinehart, 517 Dunklin v. Wilkins, 19 Dunlap V. Berry, 516, 1000 V. Hales, 76 V. Gleason, 475 V. Shanklin, 1068 Dunlop V. Gregory, 792, 794 V. Munroe, 345 Dunning v. Pike, 100, 101 Duparquet v. Knubel, 335 Duplex Safety Boiler Co. v. Gar- den, 159 Durant v. Rogers, 677, 699 Diirbrow r. McDonald, 991 Durell V. Haley, 638, 640, 672, 730, 731 Durfee v. Jones, 150 Durgin v. Dyer, 773, 806, 814 Durgy C. & U. Co. «. O'Brien, 1173 1177, 1178 Durrell v. Evans, 426 Durrett v. Simpson, 625, 626 Durst V. Burton, Dustan v. McAndrew, 1073, Dustin V. Cowdry, Dutchess Co. v. Harding, Dutton V. Gerrish, 340, 918 V. Tilden, Duvall V. Craig, Dvvight v. Hamilton, 794 D'Wolf V. Harris, Dyckman v. Valiente, Dyer v. Cady, V. Libby, 301, 302, 458, • 470, V. Rich, a. Thorsted, Dykers v. Tovvnsend, 359, 381, 408, xll PAGE 696 1126 639 1204 ,961 341 382 , 795 1151 460 152 463, , 472 1234 477 383, ,454 Eads v. City of Carondelet, 113 Eagan r. Call, 905 Eagle V. Eichelberger, 468 V. Smith, 107 Eagle F. Co. c. Lent, 73, 70 Eames !'. Svveetser, 69, 85 Earle v. Reed, 59, 63, 73, 79 V. Rice, 339 Eastbrook v. Gebhardt, 240 Easter v. Allen, 641 Easterlin v. Ryander, 209, 210 Eastern R. R. Co. v. Benedict, 359, 383, 1235 Eastland v. Longshorn, 1035 Eastman v. Porter, 1065 Easton v. Worthington, 27, 28 Eaton V. Cook, 1041 c. Gay, 549 V. George, 85 V. Hill, 61, (32 V. Kegan, 814 Eaton, Cole & B. Co. v. Avery, 634, 637 Eberle v. Mehrbach, 826 Eberts v. Selover, 113, 077 Echols V. New Orleans J. & G. N. R. Co. 993 Eckert v. Renter, 100 Eckstein v. Frank, 61 Eddy V. Capron, 788 V. Clement, 848 Edelen v. Gough, 361, 362, 363, 375 Eden v. Parkinson, 019 Edgell r. Hart, 195, 199, 7:i8 V. McLaughlin, b^lo Edgerly i: Shew, 74, 7', Edgerton v. Hodge, 323, .324 Edick V. Crim, i>-W Edmond v. Caldwell, ".-jO Edmunds v. Digges, 897 V. Merchants' Des. Trans. Co., 148, 149 xlii TABLE Oi' AMEUICAN CASES. [References are to the bottom paging.] 2, IJ 679, 685, 37, 731 458, 459, Edwards v. Cottrell, r. Dayies, V. Grand Trunk R. Co., 218, 222, 256, 272, 275, 286, 287, V. Hartt, V. HathawEty, V. Marcy, V. Sanborn, V. Stevens, V. Trulock, Egdell V. Hart, Ege V. Koohtz, Eggleston v. Wagner, 106, 110 Eichelberger v. McCauley, 219, Eigleberger v. Kibler, Einstein v. Marsliall, Eiseley v. Malchow, Elder v. Cordray, V. Rouse, Elderkin v. Fellows, Bldredge v. Benson, I'. Kuehl, Eldridge p. Phillipson, I'. Wadleigh, Elfe V. Gadsden, Elgee Cotton Cases, Eliason v. Hensliaw, 106, 110, 111 113, 118, 120, 129, 132, Elkins V. Kenyon, EUicott V. Peterson, EUinger v. Crowel, Elliot V. Giese, 361, 362, V. Sleeper, Elliott V. Bass, V. Edwards, V. Hewitt, V. Horn, V. Jackson, V. Stoddard, V. Swartwout, Ellis r. Andrews, ( . Baker, a. Deadman, V. Grooms, r. Hammond, V. Jones, Ellison ?'. Bernstein, V. Brigham, V. Jackson Water Co., EUmaker v. Franklin Fire Co., Elmore !■. Simon, Elrod B. Myers, Elsass !'. Moore's Hill Institute, Elwell ('. Cliamberlin, 077, 696, V. Martin, Elwood !■. Monk, r. Western Union Tel. Co., Ely V. Adams, 494 10, 364, 396 221 Ins. 14 8« 221, 27:1, 1016 1014 956 908 1240 100 1066 194 610 ,421 , 221 765 686 217 101 1035 1035 5,9 2,3 , 767 935 ,406 461 112, , 183 907 240 721 375 322 1040 , 611 853 765 146 , 724 610 632 92 ,427 897 827 794 650 , 260 361 344 201 75 628 699 01 239 149 347 PAGE Ely r. James, 1045, 1064 V. Muniford, 668 V. Ormsby, 272, 313, 314, 324, :!26, 327 Emerick v. Sanders, 323 Emerine v. O'Brien, 1067 Emerson v. Brigham, 905, 935, 974 V. European &c. R. Co., 194 V. Graff, 114 V. McNamara, 146 V. Slater, 350, 35] r. White, 1041 Emery v. Irving Nat. Bank, 1151 V. Smith, 241 Emerv's Sons i\ Irving Nat. Bank, 558, 575, 586 Emma Silver Mining Co. Lim. v. Emma Co. of N. Y., 648, 686 Emmons v. Moore, 630 V. Murray, 74, 77 Enders v. Board of Public Works, 1235 V. Scott, 906 V. Williams, 721 England v. Martland, 989, 991 Englow r. Klein, 4, 7, 476, 506 Ensign v. Kellogg, 795 Entz r. Mills, 429 Epperson v. Nugent, 59 Episcopal Church of Macon v. Wiley, 426 Erb V. Cole, 724, 729 Erben !'. Lorillard, 214, 268 Erie Comity Savings Bank i\ Roop, 1110 Erie K. R. Co. v. Union Loco- motive & Ex. Co. 775, 776 V. Union L. & E. Co. 793 Erskine v. Townsend, V. riummer, Ervart r. Nagel, Erwin v. Erwin, !'. Maxwell, Eskridge v. Glover, 106 Esniay v. Gorton, Espy i\ Anderson, Estabrook r. Swett, Estell V. Myers, Esty I'. Aldrich, V. Read, Etheridge v. Palin, Eubanks i'. Peak, Evans i'. City of Trenton, 776 l: Gale, 667 !'. Hamilton, 729 V. Harris, 469 V. Herring, 764 ('. Kittrell, 214 !>. Lamar, 197 c. Miller, 145, 146 246, 248, 266 90 1C3 905, 907 120, 121, 131, 176 113 350 1044 679 241 669, 1251 340, 341 74, 77 TABLE OF AMERICAN CASES. [References are to the bottom paging.] xliii Evans v. Montgomery, 668, 669 V. Scott, . 732 Evansville & T. H. R. K. Co. r. Erwin, 1214 Everett v. Coffin, 24 V. Hall, 474, 506 V. Parks, 311 Everingham v. Meigham, 816, 817 Everit v. Strong, 237 Everman v. Robb, 198 Everson v. Carpenter, 73, 77, 79 Ewing V. French, 6 V. Medlock, 359 V. Runkle, 729 Exchange Bank v. Heath, 690 V. Monteath, 691 Ezell V. English, 998 V. Franklin, 920 Facklek v. Ford, 778 Fairbanks v. Eureka Co., 474 V. Meyers, 108 V. Phelps, 474 Fairchild v. Holly, 1060 Fairfield v. Madison Manuf . Co., 8, 888 Fairfield Bridge Co. v. Nye, 7.32 Fairfield Savings Bank v. Chase, 699 Fairmont & A. St. Passenger Ry. Co. V. Stutler, 63 Fake v. Smith, 618 Fales V. Roberts, 476 Fall River Nat. Bank v. Buffing- ton, 1110 Falls V. Gaither, 104, 112, 120, 123, 128, 129, 130, 181, 183, 1022 Falsom v. Batchelder, 52 Fanny, The, 22 Fareira v. Gabell, 816, 817, 819 Farfield Bridge Co. ;;. Nye, 504, 723 Fargo V. Buell, 1060 Faris v, Lewis, 1278 Farley v. Cleveland, 239, 323 Farlow v. Ellis, 1083 Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 677 V. Erie R. R. Co., 47, 349 Farmers' & Mechanics' Nat. Bank V. Champlain Trs. Co., 1136 V. Logan, 558, 569, 1185 Farmers' Loan & T. Co. v. Com- naercial Bank, 195 V. Long Beach Improvement Co., 199 Farr v. Sims, 638 V. Stevens, 1065 V. Sumner, 74, 76, 78 Farrar v. Stackpole, 243 Farrel v. Colevvell, 730 Farrell !'. Corbett, 66, 667 V. Patterson, 100 Farrell v. Perry, Farris v. Ware, Farson's Appeal, Farwell v. Grier, V. Kennett, V. Price, V. Rogers, Fassett v. Smith, Fatman v. Thompson, Faulkner v. Hebard, Favor v. Filbrick, Faw V. Marsteller, Fawcett v. Osborn, PAGK 16 066 408, 428 1066 1234 1233 995 641, 643 919, 955 104, 121, 124, 131, 176 810, 1243 346 22, 27, 28, 149, 605, 639, 730 Fawkes v. Lamb, 334 Faxon v. Mansfield, 144 Fay V. Burditt, 82 V. Oliver, 604 Feamste- v. Withrow, 1068 Fear v. Jones, ' 155, 602 Fears v. Brooks, 92 Feger v. Kroh, 41 Feigley v. Feigley, 770 Feineman v. Sachs, 777 Feldman v. Beier, 1067 Fell V. Muller, 1074, 1075 Fellowes v. Gordon, 211 Fellows V. Hartford & N. Y. Sav- ings Boat Co., 186 V. Prentiss, 129, 130 Felton V. Fuller, 468 Fenby v. Pritchard, 642 Fenly r. Stewart, 408 Fenn v. Curtis, 637 Fenner v. Tucker, 659 Fenno ;;. Weston, 104, 113 Fensler v. Prather, 1043 Fenton i: Braden, 104, 208, 1015 V. Clark, 1002 V. Perkins, 1234 Ferguson v. Bell, 75 V. Clifford, 821, 918 V. Hosier, 1273 ti. Louisville City Nat. Bank, 515, 521 V. Northern Bank of Ken- tucky, 470, 480, 481, 510, 517 r. Spear, 731 Ferrier v. Storer, 127 Ferris i'. Adams, 788 V. Barlow, 1076 ;•. Comstock, 1233, 1277 V. Irons, 724 c. Irving, 455 Person v. Sanger, 614, 677 Fesler v. Love, 1231 Fetch i: Taylor, 213 Fetrow v. Wiseman, 61, 72, 76, 78 Fettyplace e. Dutch, 11, 19, 979 xliv TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Fickett V. Swift, 221, 222 Fickling v. Brewer, 1065 Field r. Holland, 1061 V. Kinnear, 951, 950 i\ Mayor of New York, 205 V. Moore, 494, 515, 517 V. Nickerson, 110 V. Runk, 279, 295 V. Stearns, 149, 642 Fifield v. Elmer, 475 Fifth National Bank of Chicago t. Bayley, 585, 1185 V. Bensley, 553 Filkiiis V. Whyland, 470, 484, 493, 525, 918 Filley v. Pope, 863 V. Register, 721 Filson r. Himes, 775, 776, 779, 788 Finch V. Mansfield, 134, 136, 239, 806 Finn v. Clark, 1010 V. Donahue, 826, 833 Finney v. Apgar, 218, 221, 229 Fiquet r. Allison, 146, 521 First Nat. Bank v. Bensley, 553 First Baptist Church v. Bigelow, 427 First National Bank v. Kelly, 580 V. McManigle, 1025 V. Northern R. R., 575, 1151 V. Railroad Co., 998 V. Thomas, 19 V. Yocum, 668 First Nat. Bank of Cairo v. Crocker, 19, 557, 582, 584, 585, 1012 First Nat. Bank of Green Bay v. Dearborn, 5.35, 582, 586, 1012 First Nat. Bank of Marquette v. Crowley, 514 First Nat. Bank of Memphis r. Pettit, 553, 1212 First Nat. Bank of Peoria v. Northern Railroad, 1021 First Nat. Bank of Quincy v. Hall, 1,32 First Nat. Bank of Toledo v. Shaw, 43, 47, 48, 586, 1185 Fish V. Benedict, 9 V. Cleland, 627 V. Hubbard, 347 V. Payne, 650 Fishback v. Miller, 627, 671 V. Van Dusen, 6 Fisher v. Budlong, 661, 662, 720 V. Kersey, 707 f. Kuhn, 363, 405 V. Marvin, 1065 V. Mellen, 629, 630, 679 V. Moore, 1040 V. Pollard, 911, 912 V. Rieman, 898 < . Seltzer, 104, 124, 125 PAGE Fisher v. Worrall, 70-J Fishkill Savings Ins. Co. v. Fish- kill Bank, 677 Fisk p. Tank, 959, 1273 V. Wright, 101 Fiske V. McGregory, 429 Fitch V. Archibald, 9M\ V. Beach, 272, 459, 517 V. Burk, 463, 470, 484, 403 V. Fitch, 205 V. Remer, 216 Fitts v. Hall, 01, 62, 74 Fitz V. Bynum, 666, 667 Fitz's Sons Manuf. Co. v. Poror, 887 Fitzgerald v. Reed, 82, 83 V. Vestal, 205 Fitzhugh K. Jones, 104,112 Fitzpatrick r. Beatty, 156 V. Fain, 517, 981, 1023 Fitzsimmons v. Joslin, 149, 642, 674, 677 Flagg V. Mann, 212 Flake v. Nuse, ' 1035 Flanagan v. Demarest, 876, 1004 Flanders v. Fay, 350 V. Maynard, 476, 494 V. Putney, 142, 1083 Fleck V. Warner, 506 Fleeman v. McKean, 475, 981 Fleetwood v. City of New York, 609 Fleig !■. Sleet, 1043 Fleming v. Bevan, 206 V. Gilbert, 842 V. Hill, 388 V. Slocum, 905 Fletcher v. Drath, 842 V. Howard, 20, 990 V. Ingram, 307, 458, 459, 461, 470 r. Willard, 918 !'. Young, 912 Flexner v. Dickerson, 201 Flick V. Wetherbee, 897, 1277 Flinn v. St. John, 834 Flint !'. Corbett, 221 V. Gibson, 852 V. Rawlings, 1132 Flowers v. Sproule, 14 Floyd i: Browne, 145, 147 V. Wiley, 145, 146 Flynn v. Allen, <)?,{; V. Powers, 77 Foard v. McComb, 070 Foglesong i\ Wickard, 14 Foley II. Mason, 340 Folk V. Wilson, lOOG Foil's Appeal, 1257 FoUansbee r. Adams, 843, 844, 1076, 1077, 1234 Follett r. Steele, 1005 TABLE OF AMERICAN CASES. , [References are to the bottom paging.] xl\ PAGE FoUiard v. Wallace, 160 Folsom V. Batchelder, 49, 54 Fonda v. Van Home, 61, 81 Fondren v. Durfee, 915 Fontaine r. Columbian Ins. Co., 4-3 Fonville v. Casey, 192, 203 Fogs v. Sabin, 1074, 1075 Foot, In re, 1181 Foot V. Bentley, 918, 941, 1251 V. Jones, 649 V. Marsh, 510, 517, 1001 V. Tewksbury, 84 Foote V. Emerson, 774 V. Palmer, 1041 Forbes v. Marsh, 104, 475 V. McDonald, 788 V. Shattuck, 521, 522 Forcheimer v. Stewart, 558, 1010 Ford V. Aiken, l(j V. Caldwell, 147 V. Chambers, 470, 483, 40:J V. Mitchell, 1065 V. Phelps, 73, 74, 75, 76, 77 V. Stuart, 237 V. Williams, 194, 359, 384, 729 Forelander v. Hicks, 1058 Foreman v. Ahl, 827 V. Drake, 507 Forkner v. Stewart, 727 Form an v. Proctor, 198 Forster v. Fuller, 381 V. Thurston, 774 V. Woods, 344 Forsyth v. Hastings, 74 Forsythe v. Ellis, 935 V. Kimball, 345 Forth V. Parsley, 42 Fosdick V. Car Co., 470 V. Schall, 5, 476 V. Van Husan, 1030 Foss V. Hildreth, 83, 85 V. Lowell Five Cents Savings Bank, 14 Foster v. Caldwell, 908 V. Drew, 1038 V. Hill, 1066 V. Lumberman's Mining Co., 208, 325 V. Mabe, 244 V. Magill, 477, 978 V. McO'Blenis, 240 V. Persche, 239 V. Pettibone, 5 V. Rockwell, 311 V. Ropes, 10, 167, 466, 472, 494, 609 V. Smith, 381, 384, 387 Foulk V. Eckert, 668 Fowle V. Bigelow, 162 Fowler i'. Lewis, 333 PAGE 1064 192 342 Fowler v. Ludwig, V. Merrill, V. Redican, 0. Scully, ; i a Fox V. Everson, 912 V. Kitton, 843, 844, 1070, 1077, 1081 V. Mackreth, 57, 661 V. Mensch, 826 0. Northern Liberties, 147 0. Prickett, 145 V. Scard, 795 V. Turner, 106, 111, 112, 117 V. Webster, 54, 648, 050 Foxworth V. Bullock, 101 Foy V. Haughton, 627 Foye V. Southard, . 814 Fraley w. Bisphara, 941 Frances, The, 569, 583 Francliot t>. Leach, 1076 Francis v. Rankin, 728 Frank v. Lienfeld, 164 V. Miller, 341, 363 !'. Playter, 472 Franklin v. Long, 154, 351, 450, 613 V. Osgood, 455 Franklin Sav. Int. v. Pree- torius, 39 Frary v. Booth, 87 Fraschieris v. Henriques, 1195 Eraser i\ Hext, 1067 Frazer v. HiUiard, 200, 204, 468 V. Robinson, 832 V. Thatcher, 729, 767 Frazier v. Brownlow, 93 V. Fredericks, 707, 777 V. Harvey, 904 V. Howe, 396 V. Thompson, 775 Frear v. Hardenbergh, 221, 249 Frecking v. Rolland, 101 Freeholders of Middlesex w Thomas, 1043, 1066 Freeman v. Boston, 107, 108 V. Bridger, 59, 64 V. Burnham, 721 V. Caldwell, 41 V. Cooke, 105 r. Nichols, 980, 1134 V. Rawson, 728 Freeport v. Bartol, 342, 363 Freer v. Denton, 843, 844 French v. French, 84, 85 V. Griffin, 341 ;;. Hall, 732 <.. Price, 1045 ( . Vining, 629, 630, 904, 956, 959, 961, 974, 1260 Frenzel r. Miller, 626, 672, 679 Freyman v. Knecht, 1273 xlvi TABLE OF AMBKICAN CASES. [References lire to the bottom paging.] Frick I'. Hillard, Fridge r. State, Frieber r. Stover, Frisbee r. Fitzsimons, Frith V. Lawrence, Frohreich !'. Gammon, Frost r. Blanchard, r. Hill, /■. Tarr, V. Woodruff, Frostburg Mining Co. England Glass Co., PAGE 472 1040 101 029 333 1233, 1273 917 426, 429 240 472 . New 136, 273, 277, 280, 283, 287, 296, 582, 1010 Fry V. Mobile Savings Bank, 510 Frye v. Maine Cent. R. R. Co., 1233 Fugate !>. Hansford's Ex'rs, 3,73 Fugerson v. Bell, 73 Fullager v. Reville, 0007 Fuller V. Bean, 209, 210, 212, 458, 463, 470, 473, 480, 481, 484, 480, 400, 491, 493, 494, 517 V. Buswell, 6, 7 !'. Duren, ' 12, 13, 140 i: Hooper, 359, 383, 410 V. Little, 007 V. Reed, 208 Fullerton v. Dalton, 148, 149, 153, 602 Fulmore v. Burrows, 727 Fulton V. Norton, 243 V. Robinson, ' 376 Fultz V. AVyckoff, 1233 Furbish r. Goodnow, 240 Furlong v. Polleys, 12.30, 1233, 12.34 Furnian r. Clark, 1267 r. Parke, 107 I'. Titus, 031 Furness v. McGovern, 92 V. Meek, ,348 Furniss r. Hone, 1133 Fusting's Ex'rs r. Sullivan, 353 Gaddis v. Leeson, .327 Gadsden v. Lance, 220, 237 Gaff V. Homeyer, 298, 1014 Gage J'. Chesebro, 731 1-. Epperson, 641 r. Gates, 92 i\ Meyers, 1083 Gails r. Schooner Osceola, 1064 Gaines v. McKinley, 919 Galbreath v. Cook, 720 Gale r. Kalamazoo, 792 !■. Nixon, 338 r. Tappen, 455 Galena & C. U. R. R. r. Menzies, 198 Gallagher v. Roberts, 1068 f. Waring, 941, 950 Gallop V. Newman, 1012 Galloway ;■. Week, 516 Galpin r. Atwater, 917 Gait c. Dibrell, '2/ c. Galloway, 45o Galveston R. R. Co. v. Cowdry, 196 Galvin r. Bacon, 22, 23, 45, 51 V. Prentice, 213 Gambling i\ Read, 475 Gammage r. Alexander, 494 Gammell v. Gunby, 956, 959, 961 Gammon r. ,\braliams, 1017 Gangwer's Estate, In re, 85 Gans V. Renshaw, 731 Ganson r. Madigan, 1001, 1074, 1070, 1086, 1126 Gant V. Slielton, 911 Garbracht r. Commonwealth, 10, 130 Garbutt r. Bank of Prairie du Chien, 050 V. Watson, 234, 235 Garcia i\ Gray, 978 Gardet r. Belknap, 318 Gardiner r. Corson, 838, 840 V. Morse, 658, 659 r. Siiydam, 517 Gardner !'. Adams, 19 f. Allen, 47 V. Clark, 981 p. Commercial Bank, 767 V. Dutch, 515, 516, 521 ,: Hoag, 198 -■. Rowland, 193, 312, 532, 593, 1012, 1136 V. Joy, 221, 222 V. Lane, 2, 3, 147, 150, 152, 154, 468, 602 !■. Levasseur, 1064 V. McEwen, 195, 199, 203 Garfield v. Paris, 273, 274, 279, 284, 285, 308 Garland r. Lane, 530, 682 u. Rives, 730 V. Salem Bank, 617 Garlick v. James, 11, 38, 39 Garman v. Cooper, 725, 732 Garr v. Gomez, 210 Garred v. Macey, 210 Garretson c Selsby, 1010 Garrett r. Crooks, 460 Garrison /-. Memphis Ins. Co., 345 Gartner r. Barnitz, 001 Gartrell r. Stafford, 407 Gary r. Jacobson, 704 Gasden r. Lance, 222 Gaskell v. Morris, 1127 Gaskins i:. Wells, 1003 Gassett /•. Godfrey, 582 Gaston V. Barney, 1058 I'. Drake, 788 Gately '■. Irvine, 345 Gates r. Bliss, 666, 667, 668 V. Burkett, 106O TAHLK OF AMERICAN CASES. xlvii [References are to the bottom paging.] Gates V. McKee, :!7o r. Thompson, -fZ, 43 V. Winooski Lumber Co., 1096 Gatling v. Newell, 625, 066, 669, 941, 1073 Uault V. Brown, 142, 241, 265, 266, 267, 301, 324, 3.50, 351, 620 Gautier v. Douglass Mfg. Co., 9yy, 1271, 1272 Gay r. Alter, 605 V. Ballou, 63, 76, 77 ,'. Bidwell, 194 ('. Hardeman, 113, 1086 V. Moss, .38, 39, 40 V. Smith, 41 Gaylord v. Soragen, 776, 777 Gaylord Manuf. Co. v. Allen, 618, 956, 1017, 1264 Gazley v. Price, 877 Gee V. Lancashire & Y. K. Co., 1245 Geer v. Putnam, 826 Geller v. Seixas, 1067 Gelston v. Sigmond, 156 Genet v. Rowland, 38 Genin v. Tompkins, 1023 George v. George, 827 V. Glass, 1127 u. Joy, 346 V. Kimball, 640 :•. Norris, 726 V. Stubbs, 470, 474, 484 German Bank v. Meadowcroft, 8 Gerrish !>. Towne, 344 Gerst V. Jones, 958, 959, 1234 Getchell v. Chase, 604, 666, 667, 1043 r. Jewett, 407 Getman r. Oswego Bank, 767 Getty V. Rountree, 905, 941 Gheen v. Johnson, 810 Ghirardelli v. McDermott, 456 Gibbons v. Luke, 4 V. Robinson, 467 r. United States, 1017 Gibbs V. Benjamin, 272, 273, 275, 277, 484, 486, 490 V. Estey, 244 V. Insurance Co., 852 f.. Jones, 475 u. Linabury, 112 ,;. Neely, 42 Gibson r. Cranage, 157, 158, 159, 160 c. Crehore, 766 ,-. Hill, 727 r. Love, 731 r. Moore, 6.39, 730 V. Pelkie, 147, 150, 154 V. Soper, 76, 78, 604 V. Stevens, 27, 306, 309, 312, 317, 532, 583, 586, 979, 998, 1011 r. Tobev, 1045 Gibson v. Vail, 888 Giddey v. Altman, 475, 600 Gieger v. Cook, 618 Giffert r. West, 617 Gifford V. Carvill, 668, 669 Gilbert v. Decker, 723 '■. Gaugar, 817 r. Hoffman, 038 '■. Holmes, 804 r. Hudson, 042 V. New York Cent. E. R Co., 472 ('. Thompson, 474, 475 /■. Vachon, 826 Gilchrist v. Hilliarc , 930 u. Marrow, 900 c. Ward, 1058 Giles V. Morrison, 1231 V. Simonds, 246, 249 250, 257 Gill V. Bicknell, 409 427, 429 1-. Bradley, 1023 V. Hewett, 427 r. Kaufman, 941, 951 V. Pavenstedt, 985 V. Tison, 388 V. Vogler, 852 Gillespie v. Durand 307 IK Edmonston, 128 Gillet a. Maynard, 214 V. Stanley, 73, 75 V. Hill, 517 Gilliam v. Brown, 773 Gillighan v. Boardman, 361 362, 370 GiUis V. Hall, 792, 795 Gilly V. Henry, 1073 Gilman v. Dwight, 792, 794 V. Hill, 218, 221, 222, 265, 266, 1 273 301 473, 990 r. Kibler, 362, 375 V. Peck, 897 !'. Stevens, 214 Gilmore v. Bussey, 1064 V. Lewis, 107 r. Newton, 22, 23, 24, 51 V. Pope, 359 V. Wilbur, 669 7-. Woodcock, 815 Gilpin V. Howell, 12 Gilson V. Bingham, 1273 '■. Spear, 62 Girard r. Taggart, 359, 553, 1074, 1076, 1126 (lirard Fire & M Ins. Co. V. Marr, 1047 Girdner v. Beswick, (467, 1002, 1009 Gittings V. Hall, 345 V. Nelson, 192 194, 199, 20i) Givens v. Calder, 15(; Glacius V. Black, 161 Glasgo V. Stevenson , 1004 Glasgow r. Nicholson, 309, )78, 1012 xlviii TABLE OF AMERICAN CASES. [References are to the bottom paging.} PAGE Glen V. Rogers, 214 V. Whitaker, 296 Glenn v. Smith, 1045, 1066 Glidden v. Bennett, 243 Gloucester Bank v. Salem Bank, 616 Glover v, Austin, 192 V. Ott, 59, 60, 64, 69 Glyde v. Keister, 100 Godchaux v. Mulford, 312 Goddard v. Binney, 221, 230, 234, 466, 468, 489, 614, 980, 988 V. Merchants' Bank, 149 Godfrey v. Brown, 42 Godwin u. Merrill, 142 Goembel v. Arnott, 472 Goetz V. Piel, 1060 Gokey v. Knapp, 677 Golden v. Levy, 359 0. Prince, 215 Golder v. Ogden, 461, 515, 617 Goldrieh v. Ryan, 974 Goldsmith v. Bryant, 506, 981, 1133 V. Worthington Methodist Church Trustees, 38 Gompers i'. Rochester, 792, 795 Goqch V. Holmes, 236, 237 Goodell V. Fairbrother, 4 Goodenow v. Dunn, 1011 V. Tyler, 46, 920 Goodheart v. Johnson, 728 Goodling i\ Morgan, 609 Goodman v. Griffiths, 401 V. Simonds, 36, 37 Goodnow V. Howe, 1047 Goodrich v. Jones, 243 V. Longley, 350 V. Tracy, 1051 Goodridge v. Ross, 78 Goodsell 1'. Myers, 73, 74, 76, 79 Goodwin V. Clark, 265, 778 V. Gilbert, 212 V. Holbrook, 988 V. Merrill, 143 V. Morse, 1272 c. Scannell, 1111 V. Wells, 1015 Goodwyn v. Douglas, 583 Gookin v. Graham, 936 Gorden v, Buchanan, 691 Gordon v. Butler, 628 0. Massachusetts F. & M. Ins. Co., 42 V. Norris, 1074, 1075, 1076, 1085, 1230 V. Parmelee, 632 V. Price, 1067 V. Sims, 426 Gorham v. Fisher, 221, 222, 272, 490 o. Holden, 507 Gosman v. Cruger, 91 PAGE Goss V. Dysant, 1270 V. Whitney, ^32 Gossler v. Eagle Sugar Co., 714, 968, 961, 1200 V. Schepeler, 1170 Goudy V. Gebhart, 776 Gough V. Dennis, 720 V. Edelen, 468, 526, 732 Gould V. Cayuga Co. Bank, 667 ('. Davidson, 649 f. Town of Oneonta, 322 Gove V. Wooster, 151 Gowen v. Klous, 402 Gower v. Halloway, 1066 Gowing V. Knowles, 103, 105, 106, 113 Grace v. Hale, 59, 60, 64, 65, 77 r. Mercer, 153 Grady v. Crook, 107 Graff V. Fitch, 249, 483, 491, 493 r. Foster, 941, 942 Graffenstein v. Eppstein, 632 Grafton v. Cummings, 361, 377, 379 Grafton Bank v. Flanders, 410 o. Woodward, 350 Graham v. Duckwall, 381, 386 K. LaCrosse & M. R. R. Co., 723 V. Sykes, 1044 Grand Tower Co. v. Phillips, 1234, 1241, 1254 Granger v. Ilsey, 94 V. Olcott, 149 Grant «. Law, 637 V. McLester, 788 V. Merchants' Bank, 992 V. Monticello, 1063 V. National Bank, 767 V. Naylor, 132 0. Steiner, 201 V. Ward, 764 Grasselli v. Lowden, 795 Grau V. McVicker, 1076 Graver v. Scott, 335 Graves v. Spier, 677, 695 Gravett v. Mugge, 472 Gray v. Agnevv, 44, 46 V. Angler, 1041 c. Central R. R. Co., 157, 158, 160 V. Davis, 275, 279, 280, 977 c. Green, 845 V. Griffith, 140 I'. Harper, 344 V. Hook, 788, 834 V. McCallister, 728 V. Sullivan, 732 u. Walton, 996 c. Wilson, 855 Gray don v. Patterson, 1055 Greaner ti. Mullen, 769 Greely v. Bartlet, 43 Green, In re, 204, 817 TABLE OF AMERICAN CASES. xlix Green v. Armstrong, V. Banks, V. Brookins, V. Campbell, V. Collins, V. Merriam, V. North Carolina R. R. Co., 217, 249 V. Rowland, 732 V. Stuart, 618, 619 <;. Trieber, 732 "Greenawalt v. Kohne, 335, 341 Greene v. Bateman, 112, 148, 165, 156, 163 V. Dingley, 669, 933 V. Godfrey, 827, 832 Greening v. Patten, 2 Greenman v. Cohee, 804 Greenough v. Balch, 782 Greensfield's Estate, 765 Greenthal v. Schneider, 906, 1017 Greenwood v. Curtis, 774 V. Keator, 1052 Greer v. Burnam, 1060 V. Church, 4, 5, 475, 506, 507 Gregg i'. Fitzliugh, 1235 V. Sauford, 198 ■ V. Wynian, 773 Gregory v. Gleed, 361 V. Logan, 375 V. MclJowel, 1075 V. Morris, 1134 V. Paul, 86, 87, 88 V. Sehoenell, 626, 640, 673 V. Stryker, ■ 494 V. Thomas, 1067 V. Underhill, 911 V. Wattowa, 817 V. Wendell, 606, 816, 817 V. Wilson, 807 Greneaux v. Wheeler, 37 Greve v. Dunham, 1176 Grey v. Cary, 310 Gridley v. Bingham, 729 V. Watson, 721 Griel v. Lehman, 201 Grier v. Stout, 6 Grierson v. Mason, 339 Griffin V. Colver, 1233, 1240, 1254, 1255, 1277 Griffith V. Fowler, 27, 28, 41 V. Grogan, 1044, 1066 V. Ingledew, 630, 557, 683 Griggs V. Howe, 164 Grimes v. Van Vechten, 136, 279, 280, 299, 322 Grimm !'. Warner, 795 Grippen V. New York Cent. R. E. Co., 514 [ReferenceB are to the bottom paging.] PAGE 248, 249, 256, 258 727 237 48 777 311, 314, 318 Griswold v. Golding, V. Hayen, V. Sabin, V. Sheldon, Grizewood v. Blane, 214 677, 699 1074, 1076 194, 728 816 Groat V. Gile, 493, 509, 616, 1012 Groff v. Belehe, 538 Groot V. Story, 334 Groover v. Warfield, 408 Grose v. Hennessey, 1270 Gross V. Kierski, 936 Grossman v. Lauber, 60 Grotenkemper r. Achtermeyer, 104, 124 Grout V. Hill, 8, 769, 1169, 1224 Grove V. Brien, 306, 317, 528, 532 Grover v. Grover, 14, 16 V. Warfield, 386 Grum V. Barney, 731 Grussy v. Schneider, 1023 Grymes v. Sanders, 605, 668 Guenther v. Birkicht, 145 Guerand v. Dandelet, 793, 794, 801 Guerney t'. Atlantic &c. R. R. Co., 127, 951 Guernsey v. Cook, 386, 788 V. Miller, 767 Guilford v. McKinley, 507 ... Smith, 1187 Guion V. Doherty, 1045, 1066 Gulick V. Grover, 920 V. Ward, 658 Gunby v. Sluter, 626, 027 Gunderson v. Richardson, 773, 828 Gunter v. Leckey, 12, 13 V. Williams, 91 Gunther v. Atvvell, 941, 942 Gurney !>. Atlantic, &c. R. R. Co., 1263, 1271, 1273 V. Collins, 129, 473, 480 V. Howe, 1025 Guthman v. Kearn, 1027 Guthrie i\ Morris, 62, 63, 72 V. Murphy, 70 V. Wickliffe, 146 Guyon v. Lewis, 382 Gwinn v. Simes, 834 Gwyer v. Figgins, 764 Haak v. Linderman, 476 Haas r. Meyers, 127 Haase v. Mitchell, 666, 667 V. Nonnemacher, 604 Hackett v. B, C. & M. R. R., 1243 !•. Callender, 642 Hadley v. Clarke, 190 V. Clinton Co. Importing Co., 626, 661, 906 0. Prather, 904, 1017 Hadwin o. Fisk, 44 TABLE OF AMERICAN CASES. [References are to the bottom paging.] Hagan v. Domestic Sewing Maeliine Co., 345, 3(31 Hagar v. King, 235, 302 Hagee v. Grossman, 027, 030 Hagcr i;. Catlin, 78 Hagey v. Hill, 344 llaggorty v. Palmer, 49, 475 Hague V. Porter, 553 Hahn v. Doolittle, 906, 907 o. Fredericks, 473, 517 Haine v. Tarrant, 5i*, 00 Haines c. Fearce, 1044, 1000 V. Tucker, 843, 844, 885, 1074, 1076, 1081, 1126, 1127 Halves V. Hotclikiss, 334 Haldeman r. Duncan, 481, 515, 517 V. Simonton, 794 Hale V. Broadman, 239 V. Gerrisli, 76, 77, 78 V. Huntley, . 459, 473, 486, 490 V. Omaha Nat. Bank, 1134 V. Pliilbrick, ■ 714 r. Smith, 935 /■. Wall, 1055 Hall's Appeal, 795 Hall V. Boston & W. R. R. Corp., 510, 521 V. Bradbury, 686 V. Butti-rfield, 01 V. Costello, 239, 265, 832 V. Corcoran, 829, 832 I.. Davis, 344, 347 V. Dimond, 1195 V. Eecleston, 92 V. Franklin Ins. Co., 42 IK Freeman, 615 c. FuUerton, 668, 609 c. Gaylor, 1009 V. Hale, 37 V. Hinks, 54, 6.39, 640, (i41 c. Joiner, 1258 r. Marston, 1058 7-. Meriwether, 888 I'. Ousterout, 1041 i\ Plassan, 127, 941 r. Richardson, 309, 311, 322, 467, 979, 990 V. Robinson, 19 r. Sands, 765 !'. Snowhill, 727 ". Soule, 408 v. Stewart, 801 i: Weir, 69 '•. Wilson, 36 Halleck !■. Mixer, 146 Hallett c. Oakes, 81, 83 Hallenbeck v. Cochran, 272, 309, 313 Halliday v. Hamilton, 558, 1212 Hallidie v. Sutter St. R. R. Co., 1 .-,7 PAGK Hallock V. Commercial Ins. Co., 127, 131, 134, 177, 181, 187, 188 Hallowell v. Skinner, 16 Halloran v. Whiteomb, 1110 Halsa ;;. Halsa, 376 Halsey v. Warden, 586 Halterline v. Rice, 282, 460 Ham V. Boody, 101 V. Smith, 788 V. Van Orden, 272, 313, .324 Hambright v. Stover, 912 Hamet c. Letcher, 149, 605, 007 Hamilton v. Ganyard, 956, 1231, 1234 V. GreenAvood, 7(i5 o. Hamilton, 659 u. Lycoming Mut. Ins. Co., 128, 131, 181, 183, 188 c. McPherson, 1274 c. Rogers, 103, 194, 195, 203 <,-. Russell, 727, 732 V. State Bank, 38, 40 Hamilton's Adm'r v. Blackvvell, 724 Hamilton College v. Stewart, 107 Hamlett v. Tallman, 201, 1041 Hammatt i\ Emerson, 837 V. Wyman, 41 Hammer v. McEldowney, 156- Hammond i-. Allen, 106 V. Buckmaster, 604, 605 V, Gilmore, 855 V. Pennock, 145, 669, 679 Hanauer v. Doane, 775, 776, 777, 781, 783 o. Gray, 770, 778 (.. Woodruff, 773, ^77, 783 Hanaur v. Bartels, • 466 Hanchet v. Birge, 343 Hancock r. Fairfield, .360. 381 Hand v. Baynes, 190, 848 Haney v. Schooner Rosabelle, 460 Hanford v. Artcher, 727 H.anks ;;. McKee, 720, 950 H.Tnna r. Rayburn, 626, 028 Hannay r. Eve, 77!) Hansen !■. Dennison, 102 Hanson r. Busse, 941, 1263 r. Edgerly, 629, 630, 631, 073, 714, 720 V. Meyer, 490 /•. Millett, 14 r. Rounsavell, 1058 Hapgood V. Shaw, 840 Happy r. Mosher, 460 Harbison r. Lemon, 83 Harden v. McClure, 218, 220,221,222 Hardesty i: Smith, 618 Harding v. Commercial Loan Co., 1030 ('. Tifft, 1060 Hardwick v. Burtz, 201 TABLE OF AMBKICAN CASES. [References are to the bottom paging.] PAGE Hardy v. Metzgar, V. Norton, 27,28 627 B. Potter, 732 V. Van Harlingen, I!. Waters, 92 72,76 llargous V. Ablon, 149 Stone, 127, 941, 942, 958 Hargraves v. Dusenberry, 616 Hargroves v. Cooke, 361, 362, 1060 Harker v. Addis, 995 Harkinson's Appeal, 792, 795 Harkness v. Russell, 26, 476, 477 V. Sears, 244 Harlan c. Maglaughlin, 723 V. Wingate, 1066 Harley v. Golden State & M. Iron Works, 904 Harlow v. Boswell, 346 V. Curtis, 113 V. Green, 713 V. Hall, 732 V. Putnam, 618, 619 Harman v. Hoskins, 728 Harmon v. Magee, 1027 Harmony v. Bingham, 189, 190, 847, 851 Harney v. Owen, 68 Harper r. Grain, 810 r. Bougherty, 1011 c. Fairley, 1001 «. Little, 50, 455 r. Miller, 325 V. Eagan, 359 Harran v. Foley, 155 Harralson v. Stein, 141, 1075, 1230 Harrell i: Miller, 248, 250 Harrington v. King, 203 V. Mayor, 1004 V. Stratton, 1271, 1272 Harris v. Alcock, 649 V. Burns, 724 u. Evans, 42 )•. Frink, 249 V. Harris, 92, 93 V. Horner, 640 V. Johnston, 918 <•. Nichols, 189 „. Pratt, 1169, 1181, 1220, 1224 V. Rodgers, 1231 r. Runnels, 776, 806, 813 ,-. Smith, 981 V. Turabridge, 349, 816, 817 V. Tvson, 662, 720 V. Waite, 959 v. Woodward, 477 Harris Manuf. Co. v. Marsh, 1074, 1076 Harrison i\ Adcock, 76 V. Charlton, 1230 | !•. Colton, 834 j , . (ilover, 20S PAGE Harrison r. Johnston, 1060 V. Lane, 333 V. Ross, 1052 r. Savage, 686 V. Stewart, 87 Harriss v. Williams, 843 Harrod v. Myers, 72, 75 Harry v. Coombe, 296 Harsha v. Reid, 368 Hart r. Barney, &c. Manuf. Co., 476 V. Boiler, 1067 V. Bush, 582 V. Carpenter, 475 u. Hammett, 344 V. Hart, 145, 159 V. Rust, 766 V. Tallmadge, 630 V. Taylor, 1010 V. TenEyck, 39 V. Tyler, 1074, 1085 V. Woods, 426, 4211 V. Wright, 905, 974 Harteau v. Gardner, 324 Harter r. Donahoe, 720 Hartfeild v. Roper, 61 Hartford Manuf. Co. v. Bush, 159, 160 Hartford & N. H. E. R. Co. v. Jackson, 112, 147, 155, 167 Hartford Sorghum Co. v. Brush, 888 Hartley v. Varner, 239 Hartman v. Kendall, 73, 77 Hartwell v. Bissell, 249 Harvey v. Dakin, 618 V. Harris, 147, 150, 152, 154, 602 V. Stevens, 377, 378, 401, 412, 426, 427, 429 V. St. Louis Butchers' Asso- ciation, 212 V. Troup, 615 V. Varney, 764 Hasbrook v. i?addock, 162 Hasbrouck v. Lounsbury, 475 V. Tappen, 350, 351 V. Vandervoort, 12 Hasheagan v. Specker, 92 Haskell i>. Hunter, 1076 V. McHenry, 1073, 1074, 1120 V. Rice, 1089, 1097, 1141 Hasket v. Wootan, 815 Haskill V. Sevier, 911 Haskins v. Patterson, 38 V. Warren, 348, 349, 466, 980, 981, 1134 Haskit V. Elliott, 699 Haslack v. Mayer, 1003 Hasse v. Mitchell, 603 Hassell v. Borden, 990 Hastings p. Levering, 387, 896, 941 Hatch I.-. Baylev, 306, 521, 991 Hi TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Hatch V. Douglas, 816 V. Lincoln, 306, 317, 521, 528, 1186 V. Standard Oil Co., 458, 459, 460, 583 Hatfield v. Baldwin, 1041 Hathaway v. Bennett, 206 Hatton V. Jones, 14 Hatstat V. Blakeslee, 731 Hatzfleld v. Gulden, 788 Haugh V. Blythe's Ex'rs, 101 Hause v. Judson, 1176 Hauselt u. Vilnier, 728, 767 Hausman v. Nye, 280, 296, 1002 Haven v. Brown, 344 V. Foster, 198 Haviland v. Johnson, 4, 506 Hawes v. Barker, 345 V. Marchant, 165 Hawkins v. Chase, 361, 362, 407, 412, 413, 421 i'. Davis, 640, 641, 731 V. Pemberton, 896, 905, 906, 1277 Hawley v. Cramer, 277 V. Keeler, 275, 323, 324, 328 V. Upton, 705 Hayden v. Demets, 978, 991, 1012, 1073, 1118, 1126 V. Eeynolds, 842 Haydock v. Stowe, 454 Hayes v. Campbell, 45 Hayman v. American Pat. Sponge Co., 324 Haynes v. Crutchfield, 658 v. Fuller, 350 V. Nice, 217, 268, 269 V. Thorn, 1040 Haynie v. Hall, 672 Hays r. Doane, 244 V. McClurg, 1044, 1065, 1067 V. Mouille, 1177, 1178, 1181 V. Eiddle, 40 V. Shannon, 41 Haywood v. Haywood, 1234 Hazard v. Day, 833 V. Fisk, 44, 47, 49, 575, 1136, 1151 u. Hamlin, 458 0. Irwin, 837 V. Loring, 918, 1027 V. New England Marine Ins. Co., 110,111, 112,155, 156,163 Hazelbaker v. Goodfellow, 87 Hazen r. Bearden, 230 Head v. Goodwin, 193, 194, 195, 198, 200, 204 V. Providence Ins. Co., 113 Headley v. Kirby, 16 Headrick r. Erattain, 198 Heagy v. Umberger, 345 Heald V. Builders' Ins. Co., 191, 192 Healy v. Utley, V. Young, 669 335 Heard v. Bowers, 842 V. Lodge, Heartt v. Rhodes, 843 1043 Heath v. Heath, 241 V. Mahoney, V. Randall, 61, 62 256, 257, 474 V. West, 76, 77 V. White, 1067 Heatherly v. Record, Heaton v. Knowlton, 350 666 Heckle v. Lurvey, Hedge's Appeal, Hedge v. Lowe, 23 112 792, 794 Hedges v. Hudson R. R. Co., 669 V. Wallace, 776 Heermance v. Taylor, 287, 294 V. Vernoy, 125, 245, 936 Hefflin r. Bell, 476 Hegler v. Eddy, 476, 506, 507 Heichew v. Hamilton, 794 Heilbruner v. Wayte, 905 Heilbutt V. Hickson, 1268 Heinbockle v. Zugbaum, 477 Helfenstein's Estate, 16 Heller v. Crawford, 834 Helphrey v. Chicago, &c. R. R. Co., 1032 Hemraenway v. Wheeler, 42 Hemmer v. Cooper, 632 Hempstead /:. Johnson, 726 Henderson v. Brooks, 766 V. Fox, 60 c. Johnson, 362, 363, 375 V. Lauek, 7, 538, 981 Hendrick v. Brattain, 192 Hendricks v. Goodrich, 605 V. Mount, 730 Hendrickson v. Hendrickson, 604 V. Ivins, 256 Hening v. Powell, 980, 989 Henkel c Welsh, 1017 Henline v. Hall, 990 Hennequin v. Naylor, 54, 648, 650, 651 Henry v. Daley, 639 V. Gamble, 13 F. Patterson, 4 V. Root, 60, 74 V. Warehouse Co., 49, 585 Henshaw v. Bank of Bellows Falls, 195, 197 V. Robins, 714, 896, 897, 906, 907, 941, 1263 Henson v. King, 906 V. Westcott, 640 Hepburn v. Auld, 1036 V. Griswold, 1030 V. Sewell, 145, 147 Herd r. Bissel, o4ri TABLE OF AMEKICAN CASES. [References are to the bottom paging.] liii Herkelrath v. Stookey, Herman v. Babcock, V. Haifenegger, Hermitage, The, Heron v. Davis, Heroy v. Kerr, Herrick v. Belknap Estate, V. Carter, V. Graves, V. Whitney, Herrin v. Butters, FAGIi: 720 108 603 346 157 491 852 13 41 897 241 V. Libbey, 668, 669 Herring v. Boston Iron Co., 344 V. Hoppoek, 9, 475, 476, 981 V. Sanger, 1045 V. Skaggs, 919 Hersey v. Benedict, 026, 586 Hershey v. Metzgar, 249 Hershhorn v. Stewart, 1017 Hersom v. Henderson, 335, 918 Hervey v. Rhode Island Loco- motive Works, 4, 5, 506 Heryford v. Davis, 5, 7, 506 Hess V. Dille, 1045, 1068 V. Young, 603, 604, 618, 631 Hessing v. McCloskey, 729 Hester v. Wilkinson, 765 Hetfield v. Dow, 239 Hewer v. Cox, 752 Hewes v. Doddridge, 44 V. Jordan, 273, 275, 284, 287 Hewitt V. Brown, 350 V. Clark, 639 V. Davies, 691 V. Miller, 1076 Hewson v. Tootle, 728 Hexter v. Knox, 1233 Heysham i: Dettre, 244 Heywood v. Heywood, 1235 V. Stiles, 259 Hickcock V. Hoyt, 1083 Hickman v. Jones, 777 V. Perrin, 194 V. Shimp, 1010 Hickok V. Buell, 731 Hickox V. Lowe, 5 Hicks V. Cleveland, 323, 341, 347, 351 V. Cram, 1110 V. Shouse, 209 V. Whitmore, 411, 427 Hidden v. Jorden, 214 Higdon V. Thomas, 359, 407 Higgins V. Bicknell, 628 V. Chessman, 10, 472 ii. Delaware & Lack. R. R,, 517, 880, 885, 989 V. Moore, 1052 V. Murray, 221, 494, 514, 989, 1009, 1010 V. Perrine, 765 PAOK Higgins V. Wortell, 322, 1066 Hight V. Bacon, 166 V. Ripley, 218, 220, 221, 222, 230 Hildreth v. Fitts, 732 V. O'Brien, 339, 918 Hill V. Anderson, 74, 76, 77, 78 V. Andrews, 69 V. Beebe, 1043 r. Blake, 863 V. Bowman, 731 V. Davis, 145, 146 V. Dunham, 832 V. Ely, 345 V. Freeman, 1083 i;. Green, 610 V. Hayes, 24 V. Heller, 272, 550, 1015 ;;. Hill, 13 p. Hobart, 669, 093 V. Hooper, 240 V. Hovey, 839 V. Jamieson, 240 V. McDonald, 279, 1017 V. Miller, 381, 452, 690 0. North, 912 V. Perrott, 145 V. Place, 1040, 1041 V. Porter, 1066 y. Rewee, 344,619 V. Robbins, 1060 V. Roderick, 333 V. Sewald, 243 V. Sheibley, 14 u. Sleeper, 1063 V, Sloan, 1063 V. Southwick, 1272 r. Spear, 239, 776, 777, 780, 782, 784, 806 V. Syracuse, B. & N. Y. R. R. Co., 346 Hilliard ;;. Cagle, 727 Hillimbrand v. Wittkemper, 207 Hillman v. Wilcox, 906 Hills V. Bannister, 381 V. Hays, 24 V. Snell, 24, 147, 148, 153, 167, 169, 170, 171, 602, 609 Hillyer v. Bennett, 74, 76 Hilton V. Houghton, 832 V. Southwick, 107 Hinckley c. Merchants' Nat. Bank, 28 V. Pittsburgh Steel Co., 843 v. Southgate, 241 Hinds V. Chamberlin, 77.'> Hine v. Roberts, 4, 479, 506, 507 Hinely v. Margaritz, 76, 78, 79 Hinesburgh i'. Sumner, 775, 779 Hinkley v. Arey, 431 iXV TA BLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE PAGE Hinneman t'. Rosenback, 348 Hollfield !■. Black, 1010, 1015 Hintermister v. Lane, 475 Holliday v. Marshall, 211 Hinton v. Nelms, 765 HoUingsworth r. Fry, 162 Hippie V. Rice, 773 V. Napier, 49, 306, 978,1136,1152 Hirscliorn v. Canney, 50, 474, 1083 Hollis V. Chapman, 1002 Hirshfield v. Waldron, 1052 HoUoway v. Griffith, 843, 844. 1076 Hirshliorn v. Stewart, 1017 HoUowell V. Horter, 101 Hitch V. Davis, 14 Holman v. Bailey, 5 Hitchcock V. Hunt, 1271 Holmes v. Bailey, 553, 575, 1151 Hoaglard v. Segur, 794 V. Clark, 765 r. Moore, 1083 V. DeCamp, 322, 1044 Hobart v. Lemon, 90 V. German Security Bank, 553, V. Littlefield, 216, 221, 349, 530, 575, 1151 557, 568, 583 V. Holmes, 1027 Hobbs V. Carr, 732, 990 t;. Martin, 79i! Hochster v. Baruch, 121 V. Pratt, '- 1060 Hodgdon v. New York, N. h:. & V. Simons, 845 H, R. R. Co., 848 Holt V. Green, 807, 813 Hodgeden v. Hubbard, 54, 639, 650, V. Holt, 476 665 V. O'Brien, 265, 821 Hodges V. Harris, 10, 193 Holton I'. Brown, 1035 V. Hunt, 77 r. Smith, 44 V. Richmond Man'f Co., 'Ml Holtz V. Schmidt, 604, 609 Hodgson V. Barrett, 981, 1043, 1090 Holtzman v. Blillaudon, 112 Hodson V. Davis, 92 Hombcck r. Vanmetre 727 V. Warner, 476 Home Life Ins. Co. v. Pierce, 856 Hoe V. Sanborn, 672, 936, 959, 960, Home Lightning Rod Co. e. 961, 962, 974, 1251, 1277 Nefl, 941 Hoeflinger v. Wells, 1065 Homer r. Perkins, 632 Hoffman v. Carow, 22, 23, 24, 27, 28, Homesley v. Hogue, 40 394, 641, 642 Hooban v. Bidwell, 468, 990 V. Culver, 306, 481 Hood V. Fahnestock, 641, 730 V. Gallaher, 157, 160 V. Manhattan Ins. Co., 469 V. King, 516 Hoodless V. Reid, 1063 V. Noble, 44, 54, 639 , 640, 641, 730 Hook V. Gray, 778 V, Strohecker, 41, 42 V, Turner, 668 Hogan V. Shorb, 359 Hooker v. DePalos, 773, 775, 776 Hoggins V. Becraft, 668 (.'. Knab, 204, 322, 817 Hogins I'. Plympton, 344, 904 Hooper v. Chicago & N. W. R. Hoit r. Hodge, 815 Co., 1009 V. Underbill, 76, 77, 78 Hoopes r. Strasburger 604, OGO, Hoitt V. Holcomb, 631 1051, 1066 Holbrook v. Armstrong, 8 Hoover v. Peters, 974 V. Burt, 627, 669, 671 (/. Pierce, 774 v. Conner, 632 V. Tibbits, 1181, 1194 V. Waters, 792 Hope V. Balen, 335 Holcomb V. Danby, 827 Hopkins v. Sanford, 1233 V. Weaver, 788 V. Langton, 729 Holden c. Burnham, 724 V. Young, 162, 839, 842 r. Dakin, 126, 684, 905 Horacek i-. Keebler, 826 V. Lake Co., 1233 Horn V. Batchelder, 1083 Holden Steam Mill Co. v . Wester- V. Buck, 906, 908 velt, 12, 1003 Home V. Planters' Bank, 1060 HoUacher r. O'Brien, 724, 727 Hornish v. Peck, 077 Holland v. Cruft, 706 Hornton v. McCarty, 427 V. Miller, 83 Horr i: Barker, 515, 516, 1012 r. Rea, 1004^ 1073, 1126, 1127 Ilorton V. Bufiinton, 773, 774, 776, V. Swain, 641 827, 832 V. Tyus, 1025 r. McCarty, 427 HoUender v. Koetter, 941 Hosack i,'. Weaver, 27, 28 TABLE OF AMERICAN CASES. [References are to the bottom paging.] Iv Hosley v. Scott, 1083 Hosmer v. Wilson, 1074, 1077, 1081 Hotchkiss V. Barnes, 346 u. Hunt, 468, 474, 980, 990 ?'. Oliver, 205 Houbis V. Volkening, 1023 Houdlette v. Tallman, 313, 317, 472, 990 Hough V. Mtna. Life Ins. Co., 1063 V. Brown, 128 V. Rawson, 840 V. Richardson, 631, 837 Houghtaling v. Ball, 215, 217 Houghvvout V. Boisaubin, 123, 996 House V. Fort, 912 V. House, 145 Houser v. Kemp, 5 V. Reynolds, 74 Plousehold Fire Ins. Co. v. Grant, 136, 140 Houston, &c. R. R. Co. v. Adams, 149 Hovey v. Hobson, 82 V. Pitclier, 387 Howard v. Borden, 272 V. Burgen, 240 V. Cadwalder, 604 V. Daly, 128, 843, 844 V. Emerson, 904, 974 V. Fessenden, 244 V. Gould, 661, 662, 679, 720 V. Harris, 13, 207, 828 V. Hoey, 956, 959, 1251 V. Jones, 322, 1066 u. Rogers, 345 V. Williams, 765 Howatt II. Davis, 1174 Howe, In re, 202 Howe V. Batchelder, 248, 249, 254, 256 V. Hayward, 322, 328, 329 V. Huntington, 993, 1014 V. Walker, 340 V. Waysman, 730 V. Wildes, 85 Howe Machine Co. v. Reber, 1271 ,1. Willie, 506, 616 Howell V. Biddlecom, 630, 672, 681, 714 V. Pugh, 516 Howie r. Rea, 1251, 1271 Howland v. Harris, 193 V. India Mut. Ins. Co., 42 V. Leach, 162, 838, 877 V. Rench, 1058, 1060 V. Woodruff, 43, 44, 46, 47 Hoxie V. Price, 765 Hoyle V. Stowe, 74, 75 Hoyt V. Byrnes, 1030 ,.. Casey, 60, 70 i\ Hartford Ins. Co., 515 Hoyt r. Holly, 794 L-, Sheldon, 639, 730 Hubbard y. Bliss, 19, 990, 1271 V. Cummings, 76,77 V. George, 941, 952 V. Marshall, 341 V. Martin, 610 V. Miller, 794, 796 V. O'Brien, 296, 494 Hubbell V. Meigs, 686 Hubbert v. Borden, 359 Hubler v. Gaston, 481, 517 Hudgins r. Perry, 911 Hudnal v. Teasdall, 765 V. Wilder, 765 Hudson V. Bradley, 1045, 1004 !i, Warner, 195 r. Weir, 237, 459 Hudson Iron Co. v. Alger, 207 Huff V. Broyles, 1272 f. Hires, 5iri o. McCauley, 246, 248, 249, 256 V. Wright, 91 Huffman v. Hummer, 341 Huggins V. Perrine, 765 Hughes V. Bank, 967 V. Bray, 941 V. Cory, 728 V. Gallans, 59, 62 V. Israel, 1066 V. Mercantile Mut. Ins. Co., 110 V. Robertson, 904 <■. Sloan, 6.30 V. United States, 1017, 1081, 1127 V. Wheeler, 1067 V. Wiley, 473 Huling V. Cabell, 200 Hull r. Adams, 344 V. Hull, 192 !>. Peters, 1041 Hultz V. Gibbs, 85 C-. Wright, 345 Humaston v. American Tel. Co., 210, 211, 853 Humphreys v. Comline, 906, 908, 974 Humphry v. Douglass, 61 Hundley v. Buckner, 1023 Hungate v. Rankin, 310 Hunn V. Bowne, 272, 1096, 1097 Hunt V. Adams, lUo, 397 i: Boyd, 1062, 1064 V. Bullock, 195, 203 V. Butterworth, 766 V. Carr, 347 V. Livermore, 840 V. Rousmanier, 346, 347, 455, 450 V. Sackett, 9.35 V. Smith, 132 V. Thurman, 980, 989 V. Wyman, 6, 7, 8, 115, 173, 887 Ivi TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Hunter v. Bilyeu, 347 I'. Bosworth, 195, 201, 203 v. Giddings, 338, 359, 407, 40S 0. Hudson R. I. & M. Co., ti38, 640, 649, 0!I5 V. Hunter, 15 V. Jameson, 920 V. McLaughlin, 618, 907 V. Moul, 1045, 1047, 1067 V. Nolf, 788 V. Talbot, 1131 V. Wetsell, 322, 324, 328, 989, 1043, 1073, 1126, 1127 V. Wright, 307, 311, 529, 682, 1009 Hunters v. Waite, 721 Huntingdon v. Hall, 936, 936 Huntington v. Chisholm, 197,201,616 V. Gilmore, 15, 766 V. Knox, 359, 360, 380, 387, 609 Hurd V. Cass, 100 V. Cook, 458, 461 V. Hall, 617 V. West, 8 HurfE V. Hires, 461, 470, 480, 516, 525, nil Hurlburt v. Simpson, 468, 99U Hurley r. Brown, 156, 163, 359, 396 V. Hollyday, 1066 Hurst V. Bell, 192 V. Kirkbride, 35, 345 Huse V. Alexander, 1064 Hussey v. Home Payne, 339 0. Jewett, 59, 63 V. Manuf., &c. Bank, 1058 V. Roquemore, 827 V. Sibley, 1051 V. Thornton, 4, 474, 1089, 1133 Hussman v. Wilkie, 342 Husted V. Ingraham, 1133, 1134 Huston V. McCloskey, 631 V. Plato, ' 911 Hutcheson a. Blakeman, 11, 110, 112, 113, 115, 127, 128, 130, 134, 181 Hutchings v. Hunger, 507 Hutchins v. Colby, 92 V. Gilchrist, 309, 473, 485, 490, 979, 991 V. King, 25(i V. Olcutt, 1062, 1065 Hutchinson v. Brown, 83 V. Commonwealth, 549 V. Ford, 192, 198 u. Horn, 729 r. Hunter, 459, 461, 481, 484, 510, 515, 517 V. Kelly, 765 V. Sandt, 85 V. Underwood. 91 . Hutchinson r. Watkins, ^ 640 Huthmacher i-. Harris's Adm'r, 2, 148,150, 162, 163 Hutton V. Moore, 210, 211 r. Padgett, 362 Huyler v. Atwood, 101 Hyatt B. Argenti, 38- V. Boyle, 613, 896, 904. 956 Hyde v. Booraem, 877 ('. Cookson, 5 V. Ellery, 642 ('. Gocidnow, 216 V. Lathrop, 473, 486, 403, 526, 991 V. Noble, 147 V. Wrench, 131 Hyer v. Hyatt, 63 Hyland v. Slierman, 974 Hylton V. Symes, 959 Hyman v. Cain, 59 Hynds i\ Hays, 775 Hynson v. Dunn, ' 626 IDE r. Stanton, 218, 333, 338, 342, 362, 363, 402, 408 lianis r. Hoffman, 429 Illinois Cent. R. R. Co. v. McCIel- lan, 124.3- lUion Bank, The, v. Carver, 66a lUsley y. Jewett, 1064 Ilsley V. Merriam, 381 ImhofE V. Whitmer, 84, 85 Imlay v. Huntington, 91 Indiana Man'f. Co. v. Porter, 240 Indianapolis, P. & C. R. R. v. Maguire, 480, 615, 516, 1074 Indianapolis P. & C. R. Co. v. Tyng, 384, 677, 699 Ingalls r. Herrick, 723, 726, 732 Inge !'. Bond, 930 Inglebright v. Hammond, 538 Ingledew v. Northern R. R., 1243 Ingraham v. Baldwin, 82 V. Mitchell, 818 V. Wheeler, 728, 312 Ingram v. Morgan, 672 Inslee v. Lane, 1177, 1178, 1194 Insurance Co. i'. Kiger, 44, 46, 49 Iron Cliffs Co. v. Buhl, 100, 516, 549 Irons V. Kentner, 5 Irvine v. Irvine, 61 V. Stone, 268 Irwin /■. Paulett, 1058 V. Thompson 918 Islay V, Stewart, 41 Ives V. Farmers' Bank, 103 V. Hartley, 6 V. Hazard, 361, 397, 406 Ivey V. Lalland, 214 Ivory v. Murphy, 407, 408 TABLE OF AMERICAN CASES. Ivii [References arc to the bottom paging.] Jack v. Des Moines & i"t. D. R. Co., 907, 1260 V. Naber, 346 .liickson v. Bailey, 1058 V. Burchin, 74 V. Burtis, 455 V. Cadwell, 41 V. Carpenter, 74, 75, 76 V. Collins, 627, 671 V. Covert, 218 I'. Ferris, 455 V. Laiigston, 967 V. Maliii, 450 V. Mayo, 77 V. Morter, 658 V. Town, 765 V. Wetherell, 703 Jacobs V. Featherstone, 85, 90 Jaffrey y. Cornish, 1066 Jagers v. Griffin, 1234 Jagger Iron Co. v. Walker, 1065 James o. Adams, 843,845,855,1074,1077 V. Burchell, 838 V. Hodsden, 671 V. Josselyn, 806, 807 V. Mechanics' Bank, 767 V. Muir, 208, 339, 400 V. Patten, 412 V. Stewart, 88 Jameson v. Gregory, 7, 777 Jamison v. Collins, 1058 Janes v. Buzzard, 147 Janvrin v. Maxwell, 311, 313 Jarman v. Davis, 1044 V. Wilkerson, 92 Jarrat ;-•. McDaniel, 201 Jarvis v. Palmer, 344 V. Peck, 775, 803 V. Rogers, 11 Jeffords v. Ronggold, 62 Jeffrey v. Bigelow, 1278 o. Underwood, 13 Jelks V. Barrett, 336, 363 Jellison i'. Jordan, 213 Jemison v. Woodruff, 666, 667 Jenkins v. Clement, 765 V. Eichelberger, 1158 V. Eldridge, 214 V. Frink, 659 IK Hogg, 426, 659, 711 p. Jarrett, 466, 468 V. Jenkins, 72, 75 V. Ricliardson, 208 V. Stetson, 205 V. Temples, 792, 793, 794, 801 u. Thompson, 667 Jenners !■. Howard, 84 Jenness i'. Mount Hope Iron Co., 106, 107, 110, 112, 113, 114, 115, 117, 132, 340, 341, 366 PAGE Jenness v. Wendell, 235, 265, 267, 620, 1085 Jennings t;. Camp, 12, 143 V. Flanagan, 321, 481, 517, 524 V. Gage, 4, 49, 54, 460, 461, 475, 604, 639, 640, 666, 667, 730 V. Gratz, 154, 941, 9-37 V. Lyons, 1003 c. Merrill, 46 i,'. Webster, 272 Jepherson v. Hunt, 240 Jerechi v. Philharmonic Society, 244 Jermon v. Lyon, 40 Jerome v. McCarter, 07 Jessup V. Steurer, 381 Jewett r. Carter, 677 V. Cook, 724 I'. Lincoln, 20 V. Petit, 604 V. Pleak, 1003 c. Warren, 309, 472, 978, 979, !)91 Jilson V. Gilbert, 241 Jolm I'. Hendrickson, 069 Johnson v. Alden, 73 V. Babcock, 40 V. Blackman, oS T'. Brown, 820 V. Browne, 6 V. Buck, 235, 342, 363, 365, 367, 377, 397, 401, 421, 426, 427, 428, 429 V. Carley, 7li4 V. Chissom, 101 V. Cleaves, 1060 ,•. Cope, 904 V. Cranage, 1035 V. Cummins, 91, 92 r. Cuttle, 275, 277, 280, 295, 290 V. Dodge, 333, 421 0. Dray, 826 D. Farnum, 1047, 1134 V. Fessler, 116 V. Filkington, 104,123 V. Granger, 405 V. Gwinn, 793 !'. Harder, 207 I". Hoover, 2.39 V. Houston, 101 V. Hunt, 494 V. Johnson, 1051, 1060 V. Jones, 85 V. La Motte, 659 I!. Lines, 60, 63, 64, 70 V. Luxton, 668 V. Matthews, 1248 V. McLane, 7, 107, 605, 625 V. xMonell, 649, 660, 651, 1084 r. Peck, 54, 640, 665 V. Phoenix Ins. Co., 852 V. Reed, 140, 838, 877 Iviii TABLE OF AMERICAN CASES. [References are to the bottom paging.] Johnson v. Rockwell, 72, 75 r. Ronald, 402 ' . Runyon, 100 r. Sharp, 129 V. Smith, 387 V. Southworth, 691 ''. Spies, 15 r. Stephenson, 106, 111, 113 V. Stoddard, 529, 582 V. Titus, (304 V. Trinity Church Society, 373,404 V. Vale, 91 ('. Weed, 1045, 1067 V. Whittemore, 507 i: "Willis, 774 Johnston v. Browne, 7, 8 V. Fessler, 104, 107, 113, 125 V. McConnell, V. Salisbury, Joliiffe (.-. Collins, Jones V. Alley, r. Brewer, !'. Butler, p. Caswell, r. Colvin, V. Crosthwaite, c. Earl, r. George, (/. Hathaway, V. Heiliger, r. Hoar, V. Hodgkins, V. Johnson, V. Kemp, ('. Marsh, V. McNeil, 806 146 618 918 517, 584 77 658 70 100, 101 1205 1277 628 1044, 1047 12, 146 45, 50, 53 1007 1126, 1127 147 r. Mechanics' Bank, 273, 275, 279, 280, 296, 1016 V. Murray, 974 V. Nellis, 27, -''7 r. Palmer, ' 375 V. Pearce, 472 -•. Richardson, 194, 195, 197, 200, 204 V. Shawhan, V. Simpson, V. Syer, V. Thurmond, I'. United States, r. Webster, r. Williams, <■. Wright, i\ Young, Jordan v. Anderson, r, Coffield, r. Deaton, V. Easter, ('. Foster, r. James, 998, c. Lissiter, 1067 723 707 12 846, 993, 1058 198 1058 888 765 1064 60, 67 156 475 911 1012, 1169, 1224 209 Jordan v. Parker, r. Warren Ins. Co., Joseph !'. Levi, Joshua Barker, The, Joslin V. Caughlin, V. Cowee, Josselyn v. Edwards, Jowers V. Blandy, Joy ;'. Sears, Joyce r. Adams, V. Murphy, Judah V. Potter, Judd V. Day, V. Dennison, Judge V. Fiske, Judkins v. Walker, Judson !>. Connolly, Junkins v. Simpson, Justh V. Halliday, Justice !>. Croft, V. Lang, Juzan V. Foulmin, PAGE 642 43 728 43 1270 648 629 476 1011 470 10 1063 125 1272 1067 68 765 666 817 1257 364, 405, 407 679 Kahn v. Klabunde, 8, 888, 1017 Kalamazoo N. M. Works v. Mac- . alister, 339 Kane v. Drake, 727 V. Hood, Kantrowitz v. Prather, KaufEman v. Beasley, Kaufman v. Broughton, V. Hamm, V. Stone, Kaufmann v. Schilling, Kay V. Curd, Kean v. Davis, Kearney v. Doyle, V. Taylor, 838, 92, 516, 362, 397, Keel V. Larkin, Keeler i\ Field, V. Goodwin, V. Taylor, V, Vandervere, Keely v. Turbeville, Keen v. Sprague, Keene v. Thompson, Keeney v. Macey, Keiler v. Tutt, 840 100 46 1061 b26 472 538 401 410 142 6.59 1065 49 510, 517, 985, 1099, 1137, 1152, 1180 792 265, 473, 491 911 , 388 616 16 459 Kein v. Tupper, 143, 272, 459, 473, 491, 494, 515, 1003 Keisselbrack v. Livingston, 347 Keiwert v. Meyer, 280 Kellam v. McKinstry, 989 Keller u. Strasburger, 1076, 1077, 1084 V. Webb, 341, :;43 V. Ybarru, 108, 112 Kelley r. Upton 460 Kellojji} V. Aherin, 730 V. Clark, 241 TABLE OF Ai [References are t PAGE Kellogg V. Denslow, 688, 12?;! V. Larkin, 801, 803 V. McGaiin, 729 r. Turpie, 1085 V. Witherhead, 221, 272 Kelly V. Terrill, 241 V. Upton, 10 V. West, 1040 Kelsea v. Haines, 142, 458, 463, 485, 489, 490, 493 Kelsey v. Kendall, 476 0. Rosborough, 1067 Kelso V. Tabor, 91 Kelty V. Owens, 146 Kemmerer's Appeal, 1067 Kemmil v. Wilson, 346 Kendall v. Fitts, 732 V. Hughes, 731 V. Lawrence, 73, 75 V. May, 81, 83 V. Wade, 1055 V. Wilson, 071 Kennedy v. Doyle, 73 V. Duncklee, 42 V. MeKay, 695 Kennel v. Muncey, 1067 Kenner v. Harding, 906, 911 Kenney v. Tucker, 205 Kenniston v. Avery, 1047 Kenny v. First Nat. Bank, 1051 Kent V. Bernstein, 386 V. Friedman, 976, 1273 i,-. Ginter, 1235 V. Kent, 240, 241 V. Miltenberger, 817 Kentucky Mut. Ins. Co. v. Jenks, 127, 188 Kenworthy v. Stevens, 1271 Keough V. Leslie, 699 V. McNitt, 322 Kephart v. Butcher, 1044, 1066 Kepner v. Keefer, 826 Kerby v. Miller, 493 Kermeyer v. Newby, 1043 Kern v. Thurber, 639, 641, 730 Kerr v. Hutchins, 727 V. Shaw, 375 V. Shrader, 267 Kerschmann v. Lediard, 1234, 1235 Kerskey v. Snedecor, 723 Kessel v. Albetis, 236 Ketchum v. Bank of Commerce, 12 V. Brennan, 507 V. Catlin, 148, 149, 153, 154, 602 V. Evertson, 143 V. Stevens, 148 V. Watson, 731 ,■ Wells, 959,960 V. Zeilsdorff, 842 AMERICAN CASES. Kettle V. Harvey, 144 Key V. Vattier, 804, 805 Keyser v. Karbeck, 640 Kibbe v. Hamilton Ins. Co., 677 Kibbey v. ,Tones, 1066 Kidder v. Knox, 1064 Kidney v. Persons, 39 Kilgore v. Jordan, 78 Killmore v. Hewlett, 221, 248,250, 256 Kimball, The, 1068 V. The Anna Kimball, 1004 r. Cunningham, 142, 604, 613, 621, 625, 648, 666, 668, 686, 1093 V. Leland, 14 Kimball, &c. Co. v. Vroraan, 1251, 1260 Kimbell v. Moreland, 629, 673 Kimberly v. Patchin, 461, 480, 510, 515, 516, 520, 991 Kimble v. Lull, 346 Kimbrough v. Lane, 775 Kimm v. Weipert, 92 Kinder v. Shaw, 22, 44 King i: Bates, 475, 476 V. Brown, 214, 2i;K V. Eagle Mills, 622, 686, 672, 673, 685 !■. Finch, 1023, 1041 V. Goodwin, 41 V. Green, 774, 832 V. Harrison, 1041 V. Jarman, 278, 306, 998 V. King, 345 V. Phillips, 838, 649 V. Woodbridge, 1244 King Philip Mills v. Slater, 838, 885 Kingman v. Holmquist, 515, 1000, 1001 V. Perkins, 14 Kingsbury v. Kirwan, 816, 817 V. Smith, 641 V. Suit, 817 V. Taylor, 672, 904 V. Balcome, 239 V. Holbrook, 248, 249, 253, 254, 256 V. Johnson, 911 V. Wallis, 067, 669 Kinley !'. Fitzpatrick, 906, 907, 908 Kinloch v. Savage, 373 Kinney v. Farnsworth, 1110 V. Kiernan, 60, 625, 637 V. McDermot, 773, 827, 828, 832 Kinniston v. Ham, 211 Kinsey v. Leggett, 43, 47, 043 Kintzing r. McElrath, 861, 662, 720 Kipp V. Meyer, 1017 Kirby /■. Johnson, 272, 273, 277, 313 r. Studebaker, 1022 TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Kirk V. Hiatt, 1055 Kirkpatrick v. Alexander, 855 V. Bonsall, 816, 817, 204 c. Stainer, 381, 387 Kirksey v. Snedecor, 705 Kii-tlaiid V. Moore, 158, 852 Kitchen v. Lee, 74, 77 V. Place, 164 V. Spear, 1177 Kittredge i\ Woods, 243 Kitziiiger v. Sanborn, 123, 848, 1234 Kleckley v. Leyden, 806 Kleeman v. Collins, 373 Klein v. Rector, 650, 073 Klein y. Seibald, 18, 22 Kleinpeter v. Harrison, 3 Klinck V. Kelly, 19, 978, 998 Kline n. Baker, 54, 239, 529, 049 V. Beebe, 73, 77 Kline V. L'Amoureux, 60, 70 Klopenstcin v. Mulcahy, 650, 651 Knaggs V. Mastin, 92 Knapp V. Alvord, 456 V. Hobbs, 23, 24 P. Simon, 384 V. Smith, 94, 101 Kneass v. Schulykill Bank, 619 Knight V. Abbott, 1027 V. Cooley, 128 V. Mann, 136, 272, 277, 288, 289, 295, 312, 318 V. New Bng. W. Co., 142, 258, 838, 839, 980 Knittle v. Gushing, 506, 507 Knowles v. Lord, 638 Knowlton v. Congress & Empire Spring Co., 773, 774 V. Oliver, 1075 Knox !■. Flack, 61 t'. King, 342 r. Jordan, 92, 93 V Lee, 777, 1030 V. Perkins, 500 Koch V. Branch, 22, 24, 394 V. Godshaw, 1230 Kohl V. Lindley, 468, 472, 956, 958 Koliler !'. Hayes, 4, 506 Kohls V. Kohls, 85 Koones i'. District of Columbia, 1043 Koop V. Handy, 127, 918 Kornegay >\ White, 915 Kornemann i\ JNIonaghan, 1052 Koltwitz V. Alexander, 773, 775, 770 Kountz !'. Kirkpatrick, 208, 1074, 1231, 1234 Kraft V. Hurtz, 988 Kramer v. Faulkner, 24 Kraus v. Thompson, 1084 Krause ;■. Commonwealth, 7, 475 Kreiss v. Seligman, 774 Kribs I'. Jones, 341, 350, 351, 848, 1230, 1234 Krohn v. Bantz, 322, 325, 408 Krone v. Krone, 1061 Krulder v. Ellison, 529, 1014 Krumbhaar c. Birch, 720, 936 Krumm v. Beach, 668 Kuhl (>. Mayor of Jersey City, 1043 Kuhn V. Stansfield, 721 Kunkle v. Mitchell, 989 Kuutzman v. Weaver, 1270 Kurtz ?'. Cunimings, 342 Kusenburg v. Brown, 51 Kyger v. Hull Skirt Co., 101 Kyle V. Kavanagh, 147, 152, 602, 614 Labaree v. Colby, 94, 101 Labdell v. Baker, 54 Labeaume v. Hill, 140 Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 249 Ladd V. Dillingham, 774, 770, 778 V. King, 350, 351 V. Moore, 049 V. Rogers, 146, 153, 827, 832, 833 V. Wiggan, 765 V. Wilson, 340 Lafon V. De Armas, 990 Laidlaw v. Organ, 630, 661, 662, 663, 717, 720 Laing v. Lee, 361, 362, 375 V. McCall, 773, 775, 781 Laird v. Hodges, 214 Lake )'. Campbell, 42(i V. Morris, 1137 Lamb v. Crafts, 221, 222, 233, 234, 268, 918, 959 V. Durant, 20, 21, 193 V. Erolaski, 1002 Lambert v. McCloud, 475 Lamkin r. Crawford, 1120 Lamm v. Port Deposit Home- stead Assoc, 673, 677, 699 Lamme v. Gregg, 907 Lamprey v. Lamprey, 15 V. Sargent, 515 Lamson v. Patch, 253 Lancaster i'. Dolan, 705 Lancaster Co. Bank t>. Moore, !^3 Landauer v. Cochran, 54 Landis v. Royer, 240 Landon v. Piatt, 244 Lane v. Jackson, 769 I'. Lantz, 127.3 ij. Latimer, 669 V. Old Colony & F. R. R. Co., 1141 V. Robinson, 0."i(> V. Romer, !)3!i V. Sleeper, 300, :;17 Lanfear v. Sumner, 20, i'-' TABLE OF AMERICAN CASES. [Hefereucee are to the bottom paging.] Ixi Lang's Appeal, 511 Lang V. Henry, ,341 V. McLaughlin, 405 V. Stockwell, 732 Lange v. Werk, 776, 792, 793, 795, 803 Langdon v. Buel, 39 V. DeGroot, 619 Langdon v. Doud, 1110 Langstaff v. Stix, 1202 Langston v. Nicholson, 402 Lanier ?■. Auld, 967 V. Ross, 100 Laning v. Cole, 407 Lansing v. Lansing, 816 Lantry v. Parks, 143 Lanz V. McLaughlin, 113 Laphain v. Green, 359 Larey v. Taliaferro, 836 Larkin v. Buck, 1003 V. Mitchell, 1001 Larinon o. Jordan, 104, 124 Larned v. Andrews, 810, 813 Larrabee v. Talbott, 1066 Larrowe i>. Lewis, 349 Larson v. Wyman, 239 Laskey v. Board of Education, 775 Lassell v. Reed, 243 Latham v. Blakly, 243, 244 V. Hartford, 1035 V. Morrow, 706, 711 V. Sumner, 500 Lathrop v. Amherst Bank, 805 Lattin v. Davis, 1075 Laubach i>. Laubach, 1076 Lauman ii. McGregor, 26 Laurence's Lessee v. MoArthur, 61 Laussatt v. Lippincott, 44 Leval V. Rowley, 41, 42 Law r. Grant, 699 V. Hatcher, 998 V. Henry, 843 V. Stokes, 1052 Lawrence v. Burnham 732 V. Dole, 351 V. Gallagher, 431, 454 V. Hand, 677, 699 V. Kidder, 792, 795, 796, 803 V. Maxwell, 11 u. Spear, 87 V. Taylor, 421 Lawrenceburgh Nat. Bank v. Stevenson, 1050 Lavvson r. Lovejoy, 73, 74, 77 Lawton v. Keil, 900 Lavette i'. Sage, 663 Lazear v. National Union Bank, 341 Lazell V. Pinnick, 84 Leabo v. Goode, 1066 Leach !'. Fobes, 1257 V. Smith, 1234 PAGE Leadbetter v. TEtna Ins. Co., _ 852 League v. Waring, 1045 Learning v. Wise, 668, 66!) Lear v. Friedlander, 1047, 1060 Learned v. Johns, 35!) Leasure v. Coburn, 727 Leath u. Uttley, 25 Leavitt ;'. Blachford, 77H V. Fletcher, • 9U V. Palmer, 778, 779 Leaycrott v. Hedden, 92 Leekey v. Cunningham, 85 Lecky v. McDermott, 51 Ledwich !'. JlcKim, 897 Ledyard v. Hibbard, 7, 8 Lee V. Ashbrook, 1002 V. Bank of the United States, 92 V. Clark, 201 V. Early, 1058 V. Hills, 340, .341 V. Kimball, 641, 642, 1222 V. Lee, 707, 711 0. Mahony, 342, 363, 373 V. Matthews, 23 V. Pennington, 843, 844 V. Portwood, 641 V. Selleck, 21,', V. Stuart, 610 Leeds v. Dunn, 110 Lees V. Richardson, 475 Lefever v. Mires, 731 Lefils V. Sugg, 65 Legg !■. Willard, 307, 970 Leggat r. Sands Brewing Ale Co., 1010 Lehman v. Warren, 466 Leigh ;;. Mobile & O. R. R. Co., 108, 457, 472 Leischer v. Dignon, 731 Leisherness v. Berry, 978 Lemberg v. Biberstein, 723 Lemme v. Gregg, 908 Lennox v. Eldrcd, 91 Lenox v. Fuller, 686 V. Noterbe, 85 Lent V. Padelford, 407, 855 Leonard v. Davis, 309, 468, 484, 979, 991, 1047 V. Dyer, 838, 1002 ;;. Fowler, 941, 954, 1263 V. Vredenburgh, 2,39, 240, 361, 362, 375, 397 V. Winslow, 460, 517 Leopold V. Van Kirk, 959, 961, 962 Leppoc V. Nat. Union Bank, 339 Lerned v. Wannemacher, 336, 338, ,342, .363, 365 Lerow v. Wilmarth, 764 Lesassier v. Southwestern, 1222 Leschigk v. Addison, 765 Ixii TABLE OF AMERICAN CASES. [References are to tbe bottom paging.] Lestapies v. Ingraham, 779 Lester v. East, 10, 463, 457, 466, 468, 472, 480, 516 r. McDowell, 459, 461, 586 r. Palmer, 618, 619 fjetourno v. Ringgold, 203 Levant v. Parks, 359 Levasseur v. Gary, 467 Leven v. Smith, 981 Leverick v. Meigs, 359 Levering v. Heighe, 64, 73, 77 Levet V. His Creditors, 832 Levy V. Cohen, 127, 128, 129, 130, 134, 181, 183 u. Merrill, 362, 376 Levystein r. Whitman 1060 Lewis !■. Brehme, 1066 V. Browning, 130, 187 V. Culbertson, 253 V. Davisson, 1067 V. Graham, 38 V. Greider, 1073, 1126, 1127 V. Knox, 788 V. Latham, 777 V. Littlefield, 61, 62, 815 ;;. Lofley, 201, 517 V. Love's Heirs, 765 11. Lozee, 1067 V. Lyman, 191 ?'. McLemore, 614, 837 <•. Mott, 39, 40 <•, Palmer, 640, 731 I. Rountree, 1251, 1273, 1278 o. Seabiiry, 335 c. Varnum, 38 V. Welch, 782, 810, 828 V. Yale, 91 Lexow ?•. Julian, 608 Libby r. Downey, 806, 807, 814 Lickabarrovv v. Mason, 64.'! Liddle v. Needham, 408 Liddell v. Sims, 141 Light 7.'. Lane, 101 Lightbody v. North American Ins. Co., 691 Lile r. Hopkins, 935 Lilliird I'. Turner, 92 Lilley v. Randall, 668 Lillie V. Dunbar, 248 Lincoln v. Buckmaster, 82 1-. Crandell, 381 ( . Krie Preserving Co., 108, 377, 405 r. Gallagher, 1010 V. Johnson, 17 V. Rowe, 92 V. Wilber, 767 Lindsay i;. Lamb, 935 r. Smith, 775 Lindsey v. .McClelland, 1065 Lindsey v. Rutherford, &c., 813 V. Stone, 777 Lindon v. Eldred, 1127 Lines i\ Smith, 935 Linforth, In re, 7, 9, 888 Lingham v. Eggleston, 458, 473, ^ ^^ 490,979 Link V. Clemmens, 827 Linn v. Ligsbee, 794, 801 Linn Boyd Tobacco Warehouse Co. V. Terrill, 426, 427 Linnen v. Cruger, 642 Linsley v. Lovely, 918 Linton v. Butz, 7, 306, 732, 113G V. Housh, 699 Linville v. Holden, 346 Lippincott v. Whitman, 335 Lishy V. O'Brien, 1067 Lisk V. Slierman, 214 Litchfield v. Hutchinson, 679 Littaur r. Goldman, 617, 618 Littell !'. Nichol's Adm'r, 1023 Little !'. American Button Hole 0. S. S. Co., 1051 V. Nabb, 361 V. Page, 475 ,•. Woodworth, 906, 911 Littlefield v. Winslow, 162 Livermore v. Rand, 1060 I'. White, 150, 154 Livingston v. Arrington, 911 i\ Livingston, 1075 V. Pei-u Iron Co., 662 Lloyd V. Brewster, 650, 1084 - . Bruce, 723 !■. Malone, 658 V. Wright, 280, 296 Lobdell V. Baker, 49, 617, 632, 713, 897 V. Hopkins, 988 V. Stowell, 480, 516, 1235 Lober v. Connit, 409 Locander v. Lounsbery, 341 Locke V. Smith, 63 V. Stearns, 699 Lockhard v. Beckley, 765 Lockhart v. Bonsall, 1001 Lockwood 1-. Barnes, 241 Loeb V. Flash, 649 V. Peters, 1169, 1178, 1220, 1222 Loeschigk v. Hatfield, 721 Logan !>. Mason, 1061 !■. Musick, 204, 817 Logue V. Gillick, 1041 Lokerson v. Stillwell, 150 Lonergan v. Stewart, 6, 8 Long V. Colburn, 410 V. Hartwell, 351, 353, 421 r. Hickingbottom, 935, 936 r. Hicks, 911 c. Miller, 1061 TABLE OF AMEUICAN CASES. [Heferences are to the bottom paging.] Ixiii PAOE Long V. Towl, 792 V. Warren, 631 V. White, 92, 244 Longworth v. Mitchell, 120, 124, 141 Looker i;. Peckwell, 194, 203 Loomis V. Bragg, 4, 479 V. Newhall, 268, 333, 775 V. People, 48 ('. Simpson, 48 . . Smith, 104 V. Tifft, 766 V. Wainwright, 13 Loose V. Loose, 615 Loper V. Robinson, 686 Lord V. Belknap, 839 (.. Goddard, 629, 673, 686, 686 0. Grow, 897, 905 L'. Parker, 100 V. Wheeler, 845 Loring v. Boston, 107, 110, 141 V. Cooke, 1035, 1036 I'. Mulcahy, 24 Lothrop V. Otis, i) ' 1, 1263 Lott V. Swezey, 149 Loucketts V. Townsend, 37- Louden v. Birt, 618 Love V. Moynehan, 87 Love joy v. Lovett, 347 i\ Murrav, 145, 147 r. Whipp"le, 832, 834 Lovelace v. Stewart, 4lii) Low ?;. Andrews, 215, 217 '•. Austin, 4(i0 c. Freeman, 460 V. Pew, 193, 194, 197, 200, 205 Lowber v. Connit, 341, 408 r. LeRoy, 344 Lowe ». Gist, 73, 75 V. Lehman, 346 Lowell V. Boston & L. R. R. Co., 773, 774, yio V. Lewis, 619 Lower v. Winters, 221 Lowry v. Fisher, 721 V. McMehaflEy, 408 Loyd V. Brewster, 54 Lucas V. Campbell, 4, 5 475, 506, 507 V. Nichols, 989 V. Wilkinson, 1070 Luckett V. Townsend, 11 Ludden, &c. Music House v. Dusenberry, 507 Ludlow 0. Bowne, 530, 583, 1224 Ludwig I'. Fuller, 309, 977, 998 V. Kipp, 196, 203 Luey V. Bundy, 210, 475, 604, 625, 981 Lufkin V. Mayall, 69 Lukens v. Freiund; 959, 974 Lungstrass i'. German Ins. Co., 104, 127 Lupin y. Marie, 54,466,1131,1134 PASE Lyle V. Palmer, 244 Lyman v. Bank of United States, 1068 u. Becannon, 460 I'. Robinson, 104, 111, 114 •Lynch t\ Beecher, 641 0. O'Donnell, 527 i Lynde v. McGregor, 6.50 Lynn v. Baltimore & 0. R. R. Co., 158 Lyon [•. Betr.'im, 604, C05 r. Culbertson, 204, 348, 816, 817, 1080 V, Huntingdon Bank, 345 u. King, 240, 801 V. Lenon, 8, 551 V. Strong, 827 Lyons v. Miller, 897 Lytle >: Bird, 631, 713 '■. State, 804 Mace v. Putnam, Mackaness v. Long, Mackey r. FuUerton, r. Mackey, Mackey r. Swartz, Mackie i-. Cairns, 826 2, 980, 981 1060 109 1010, 1017 268 Mackinley r. McGregor, 648, 649 Macky v. Dillinger, 46 Maclay e. Harvey, 106, 110, 125, 130, 131, 132, 181 V. Love, 91 MacNamara v. Bdminister, 470 Macomber v. Parker, 10, 40, 309, 458, 463, 469, 470, 472, 483, 490, 491, 492, 493, 514, 516, 980, 991 Mactier's Adm'r v. Frith, 104, 128, 129, 130, 131, 134, 183, 188, 333, 672 Maddox v. Simmons, 82 Madison v. Zabriskie, 411 Madison Avenue, &c. v. Baptist ! Church, 2 j Madison & I. R. R. Co. v. Nor- { wicli Savings Co., 677 i Mafflyn v. Hathaway, 888 ! Magee v. Badger, 37 i V. BiUingsley, 127, 237, 941, 951, ! 990, 1263 ' Magruder c. Gage, 311, 582, 1009 Mahan v. United States, 15 Maher v. Riley, 1234 ' V. Swift, 764 Mahler v. Schloss, 8 JIalion V. Gormley, 100 Mahone v. Reeves, 603, 67!t Mahoney v. McLean, 381 Maiben v. Robe, 91 Maitland ?■. Wilcox, 113 Makepeace r. Harvard College, 839 Malcolm v. Loveridge, 639, (i40 Mallett V. Parham, 85, 100 Ixiv TABLK OF AMBRICAK CASES. [References are to the bottom paging.] Mallory v. GlUett, 239, .361 V. Lord, 1076, 1231 ,^ Willis, 5 Malone ii. Dougherty, 335, 353 Malone v. Keener, 240 V. Plato, 313 Manahan v. Noyes, 666, 667, 668 Manchester v. Sahler, 91 Manrlel v. Buttles, 1260 Mandeville v. Welch, 237 Maneely ;'. McGee, 1064 Maney v. Kilbough, 727 Mann v. Everston, 961 f. Locke, 146 V. Richardson, 388 V. School Dist., 346 V. Smyser, 346 Manning v. Johnson, 62, 452 Manny v. Harris, 1040 Manwell v. Briggs, 210 Mansfield v. Conyerse, 5 V. Trigg, 620 Manson v. Felton, 83 Miinsur v. Hill, 479 Manufacturers', &c. Bank v. Farmers', &c. Bank, 640, 730 Manwell v. Briggs, 210 Many v. Beekraan Iron Co., 797 Maple V. Kussart, 1110 Maples I,'. Wightman, 59, 76 Marble v. Moore, 468, 470, 472, 483, 493, 510 Marbury v. Brooks, 731 March v. First Nat. Bank of Mobile, 630 Marchesseau v. Chaffee, 1075 Marden v. Babcock, 195 Marey v. McLure, 76 Marfleld v. Douglass, 456 Marie v. Garrison, 659 Marine Bank of Buffalo v. Fiske, 47, 53, 586, 1185 Marine Bank of Chicago v. Wright, 585, 586 Marion v. Faxon, 104 Marland v. Stanwood, 1000, 1002 Marnlock v. Fairbanks, 673 Mark v. Insurance Co., 852 Market Overt, Case of, 27, 28 Markham v. Jaudon, 38, 304, 1235 Markle v. Hatfield, 616, 617, 897 Marks v. Cass Co. Mill Co., 341 V. Russell, 995 Markwald v. Their Creditors, 1187 Marquand r. Hipper, 239, 362 Marquette Mfg. Co. v, Jeffery, 475 Marqueze v. Caldwell, 408 Marsden v. Cornell, 145, 147 Marsh r. Bellew, 351, 358 V. Falker, 679, (i8B Marsh v. Hyde, 275, 289, 295, 301, 302, 312, 324, 838 V. Keating, 23 V. McPherson, 1271, 1272 V. Pier, 145, 147, 648 V. Rouse, 272, 273, 275, 307, 310, 318, 990 V. Rulesson, 143 V. Titus, 6 II. Webber, 631, 1278 V. Wickham, 8 Marshal v. Beeber, 51 Marshall i'. Baltimore & 0. E. R. Co., 788 V. Davis, 24 V. Drawhorn, 911 V. Duke, 935 V. Fowler, 629 V. Ferguson, 249, 254, 257, 279, 1234, 1235 V. Marshall, 1065 V. Perry, 348, 1273 V. Pierce, 1110 V. Stephen, 93 V. Thruston, 817 Marshuetz r. McGreevy, 951, 1271, 1273 Marston v. Baldwin, 4, 1089 V. Knight, 1234 V. Simpson, 605 Martendale v. FoUet, 1049 Martin !•, Adams, 10, 468, 888, 1137 u. Berens, 335 V. Black, 110, 125, 141 I,'. Byron, 73, 76 V. Clarke, 804, 806 I'. Draher, 1058 V. Hill, 141 V. Hurlburt, 990 !>. Farnswortli, 691 V. Frith, 106 V. Funk, 15 V. IngersoU, 615 V. Martin, 760 V. Mathiot, 7, 49, 214, 475 V. Maxwell, 1273 V. Mayo, 59, 73, 74, 775 V. McMillan, 777 V. Oliver, 194, 765 u. Pennock, 1051 u. Ranlett, 659 V. Roberts, 604 V. Root, 760 V. Terrell, 815 !'. Wade, 788 V. Whisler, 104 Marton v. Dean, 342 Marvin Safe Co. u. Norton, 215, 477, 487 Mary and Susan, The, 583 TABLE OF AMERICAN CASES. Ixv [References are to the bottom paging.] Maryland F. & M. Co. v. Lorentz, 842 Mason v. Bridge, 210 V. Chapell, 673, 907, 958 V. Crosby, 614, 627, 665, 837 V. Decker, 336, 405, 407, 408, 1073, 1126 V. Lothrop, 13 V. McDonald, 202 V. Phelps, 209 V. Eaplee, 628 V. Thompson, 10, 104, 472, 538 V. Wilson, 1176 V. Wright, 59, 60, 64, 65, 71 Massey v. State, 2, 13 Massie v. Enyart, 729 Masson v. Bovet, 604, 625, 667, 668 Mast V. Pearce, 341 Masteron v. Mayor, 1277 Masters v. Freeman, 347 Masterton v. Brooklyn, 1234 Mastln V. Marlow, 205 Matasce v. Hughes, 1062, 1064 Matheny v. Mason, 935, 1271 Mather v. Robinson, 628, 714 Matlock V. Todd, 907, 908 Mathewson v. Fitch, 804 Matthews u. Bliss, 626, 630 V. Cowan, 61, 341 V. Hartson, 95, 959 V. Hobby, 981 V. Jordan, 728 V Light, 153 V. Poythress, 35, 37 Matthiessen & Weichers' Refin- ing Co. V. McMahon's Adm'r, 83, 273, 295, 313, 314, 322, 327, 536 Matteson v. Ellsworth, 1049, 1065 V. Holt, 669 V. Scofleld, 104, 112, 128, 131, 132 Mattice v. Allen, 323, 325, 326, 327 Mattingly v. Nye, 723 V. Wulke, 724 Mattox V. Craig, 13 Mauri v. Heffernan, 387, 388 Maxton V. Gheen, 816, 817 Maxwell v. Brown, 273, 275, 280, 286, 287, 296, 318, 582, 1009 V. Day, 1063 May V. Gamble, 1066 V. Hoaglan, 481, 515, 517 V. Tallman, 978, 990 u. Walter, 727 V. Ward, 221, 222 Mayer v. Adrian, 340 V. Clark, 726 V. Dwinell, 1260 i: McLure, 73 Maynard v. Maynard, 630, 720 y. Pease, 1233 PAGE Maynard v. Tabor, , 110 Mayor v. Child, 236 Mayor of Alexandria v. Patten, 1058, 1061 McAleer v. Horsey, 626 McAlister v. Read, 1271 V. Safley, 1083 McAuley v. Carter, 210 McBain v. Austin, 1083 McBlair v. Gibbes, 779, 819, 831 McBean v. Fox, 639, 699 McBride v. McClelland, 732 McCabe v. McKingstry, 936 V. Morehead, 936 McCaffrey v. Woodin, 194, 195, 196 200, 201 McCall V. Caphart, 804 V. Corning, 897 V. Powell, 115, 475 McCandlish v. Newman, 209, 493, 517 McCann v. Meyer, 731 McCarren w. McNulty, , 8,157,158, 159, 161, 888 McCarthy v. Nash, 275, 295 McCarty v. Blevins, 192, 199 V. Henderson, 59 V. Kerraan, 81 McCarver v. Greene, 1055 McCauley v, Davidson, 46 McCeney v. Duvall, 1273 McClay v. Hedge, 1002 McClellan v. Parker, 384 McClintock's Appeal, 256 McClintock v. Laing, 156 McClung V. Kelley, 470, 472, 484, 956, 979 McCluny v. Jackson, 1068 McClure v. Briggs, 157, 160 V. Jeffery, 618 V. Williams, 1127 McClurg's Appeal, 795, 801 McCoUum V. Gushing, 132 McComb V. Wright, 387, 388, 426, 427 McComba v. McKenuan, 353, 1023, 1074, 1127 McConihie v. New York & E. R. R. Co., 459, 460, 494, 1074 McConnell v. Brillhart, 333, 361, 376, 397, 427 V. Hughes, 207, 209, 210, 485, 487 V. Stettinius, 1063 V. Wilcox, 729 McCord V. Williams, 1074 McCormick v. Basal, 843, 844, 1077 V, Drummett, 217 V. Hadden, 4, 475, 979 V. Hamilton, 1074 V. Kelley, 911 V. Littler, 62, 82 V. Vanatta, 1233 IXTl TABLE OF AitfBEICAN CASES. [References are to tbe bottom paging.] McCotter v. Mayor, 112 McCoy V. Artcher, 905, 936 V. Houghman, 69 McCrae v. Young, 10, 11, 472 McCrary v. Carrington, 322, 1065 McCraw v. Gilmer, 1047 II. Welch, 731 McCrea v. Longstreth, 618 McCreary v. Gaines, 44 McCrillis v. Allen, 14!) V. Bartlet, 60, 88, 84, 85 V. How, 03 McCuUoch V. Eagle Ins. Co., 115, 128, 131, 132, 134, 177, 183 V. Girard, 346 V. McKee, 1055 V. Scott, 625 McCuUough V. Wainwright, 347 McCuUy V. Swackhamraer, 727 McCurdy v. Rogers, 388 McCutcliin !'. Piatt, 114 McDaniel v. Cornwell, 90 McDermid ;•. Redpath, 12.30 McDerraott v. United States Ins. Co., 345 McDonald v. Bewick, 408 V. Hewett, 10, 11, 460, 473, 480, 981 V. Hodge, 1076, 1234 V. Lord, 58 V. McDonald, 205 V. Pickett, 1058 V. Trafton, 626, 629 McDonald Manuf. Co. v. Thomas, 908 McDonalds v. Titus, 724 McDonough v. Webster, 815 McDowell v. Chambers, 373, 412 V. Glass, 1041 V. Keller, 1030 V. Sims, 707 V. Wood, 90 McEachron v. Randies, 38 McElroy v. Buck, 405 McEntyre v. McEntyre, 8 McEwen v. Morey, 208 McFarland v. Boston & L. R. Co., 346 V. Farmer, 475 V. Febiger, 672 V. Newman, 672, 703, 906, 908 McFarlane i'. Moore, 345 McFarson's Appeal, 405, 408 McFerran v. Taylor, 907 McFetridge v. Piper, 1180 McGarvey v. Hall, 1258 McGavock v. Puryear, 776, 777 McGee v. Bast, 211 McGehee v. Posey, 1234 McGhee v. Ellis, 41 McGibbon v. Schlessinger, 116, 1127 McGirr v. Sell, 26 PAGE McGoldrick v. Willitts, 22, 53, 617, 637 McGoon V. Ankeny, 19 McGoren v. Avery, 147, 602 McGrann v. Korth Lebanon E. R. Co., 350 McGrath v. Brown, 106 V. Clark, 163 !'. Robertson, 90 McGraw r. Fletcher, 958, 967 McGregor v. Brown, 256 V. Penn, 906 McGrew v. Browder, 23 McGritfen ;•. Baird, 935 ]Mc(;uire v. Bidwell, 1067 JkHose V. Fulmer, 1234, 1256 Mcintosh V. Hill, 477 Mclntyre v. Kennedy, 1043, 1044, 1067 i'. Klein, 494 r. Parks, 136, 777 McKanna v. Merry, 59, 60, 65, 67, 70 McKay v. Clapp, 731 ;;. Hamblin, 988 McKee i: Bassick Min. Co., 720 I'. Commonwealth, 1060 V. Eaton, 618 V. Garcelon, 575, 583, 732, 998, 1012, 1151 V. Judd, 19 V. Manice, 815 V. Stroup, 1058 McKeithen v. Pratt, 201 McKenny v. Haines, 1235 McKercher v. Curtis, 1230 McKesson v. Sherman, 339 McKibben v. Martin, 732 McKibbin v. Brown, 106, 110, 114, 120, 156 McKindly v. Dunham, 1052 McKinley v. Watkins, 106 McKinney v. Andrews, 776, 777 c. Bradley, 8, 888 V. McKinney, 241 V. Ehoads, 129 McKinzie v. Lampley, 197 McKnight v. Devlin, 776, 935 V. Dunlop, 143, 273, 276, 296, 301, 303, 324 McKnight v. Morgan, 649, 766 McKown V. Furgason, 679 McLagan v. Brown, 40 McLane v. Johnson, 722, 766 McLaren v. Hall, 1066 McLaughlin v. Lange, 727 V. Johnson, 243 t). Piatti, 480,516 McLean v. Richardson, 1073, 1120 McLees v. Hale, 241 McLennan v. McDermid, 1083 McLester v. Somerville, 201 TABLE OF AJIERICAK CASES. Ixvii [References are to the bottom paging.] McMahon v. Sloan, 45, 51, 5o McMarlin v. English, 732 McMaster v. Insurance Co., 342 McMicken o. Perin, 819 McMillan c Malloy, 110, 143 V. Vanderlip, 143, 1003 McMiUon v. Schweitzer, 473 McMinn v. Phipps, 659 V. Richmond, 59, 63 McMuUen v. Rafierty, 1001 V. Riley, 268 McMurdrie v. Bennette, 156 McMurray v. Taylor, 322, 1044, 1066 McNab V. Young, 640 McNail V. Zeigler, 1047, 1134 McNamara v. Edmister, 980 McNaught V. Dodson, 1075 McNaughter v. Cassally, 1074 McNeal v. Emerson, 256, 257 McNeil !'. McCamley, 1067 V. Tenth National Bank, 38, 39, 52, 53, 642, 643, 691 McPherson v. Cox, 240, 806 V. Gale, 521, 523, 1012 V. Walker, 843, 1076, 1081 McQueen v. Gamble, 1083 McRae v. Merrifield, 21, 477, 479, 480 McRaven v. Crisler, 163 McTyer v. Steele, 1151 Mc Williams v. Phillips, 773 Meacham v.CoUignon, 640, 642, 649 Mead v. Bunn, 628 V. Case, 202, 221 I'. Degolyer, 143, 1003 V. Gregg, 765 V. Hughes, 87 V. Noyes, 731 Meader v. White, 826, 827 Meadows v. Meadows, 156, 375, 402, 426, 427, 429 Meads v. Lansingh, 345 Meagher v. HoUenberg, 506 Means v. Williams, 313 V. Williamson, 312, 317, 468, 980, 988, 990 Mears v. Waples, 348, 639, 641, 650, 730 Mechanics' Bank v. Bank of Co- lumbia, 346 V. New York & N. H. R. R. Co., 23 V. Seton, 1257 Mechanics' & Traders' Bank v. Farmers' & Mechanics' Nat. Bank, 43, 47, 48, 53, 1185, 1235 Medbury r. New York & E. R. R. Co., 1243 V. Watrous, 69 V. Watson, 630, 632, 635, 685, 713 Meech v. Bennett, 658 PAGE Meech v. Smith, 239 Meeker v. Claghorn, 239, 381, 384 Meguire v. Corwin, 775, 788 Mehan v. Thompson, IMlil Mehilberg v. Tucker, 1062 Mehlberg v. Fisher, . 1047, 1065 Meickley v. Parsons, 911 Meigs' Appeal, 243 Meincke v. Falk, 220, 222 Melchert v. American U. Tel. Co., 816, 817 Melchoir v. McCarty, 834 Meldrum v. Snow, 7 Melendy v. Keen, 628 Melick V. Dayton, 1004 Melledge v. Boston Iron Co,, 897, 1045, 1064 Mercer Co. v. Pittsburg & E. R. R. Co., 124 Merchant v. Chapman, 311, 582 Merchants' Bank v. Good, 104, 1068 V. Livingston, 691 V. Sells, 673 o. Spicer, 409, 410 c. Union R. R. & T. Co., 575, 586, 1151 Merchants' Fire Ins. Co. v. Grant, 73,75 Merchants' Nat. Bank v. Bangs, 458, 468, 470, 483, 526, 528, 538, 553, 557, 558, 582, 584 V. Sells, 628 Merchants' & Manuf. Bank of Detroit v. Hibbard, 481, 521, 1136, 115G Meredith v. Ladd, 788 Merehin v. Ball, 1010, 1017 Merrey v. Lynch, 456 Merrick v. Boury, 1049, 1067 V. Bradley, 915 Merrick's Estate, 47, 147 Merrifield v. Baker, 5 Merrill v. Chase, 5 V. Downs, 827 V. Houghton, 12 V. Hunnewell, 515, 517, 1099 V. Nightingale, 949, 1271, 1272 V. Parker, 468, 979, 990 V. Swift, 129 V. Wilson, 387, 388 Merriman v. Chapman, 941 0. Cunningham, 59, 61, 62, 64, 09 V. Field, 918, 941, 957, 967 V. Granite Bank, 37 V. Lapsley, 110, 111, 112 V. Pine City Lumber Co., 027, 673 V. United States, 1004 V. Wilkins, 76, 77, 78 V. Wolcott, 616, 617, b07 Merritt i'. Clason, 373, 374, 411, -131 TABLE OF AMEltlGAN CASES. [References are to the bottom paging.] PAGE Merritt v. Earle, 826 V. Jolmson, 459, 480, 494, 511 V. Judd, 244 V. Millard, 774 V. Robinson, 667, 826 Merservey v. Gray, 777 Merwin v. Arbuckle, 626, 629, 632, 075 Messenger v. Pratt, 941 Messer v. Woodman, 267, 275, 473, 482, 494, 515, 517, 1074, 1085, 1137 Messmore v. New York Shot & Lead Co., 344, 896, 12.33, 1248, 1255, 1277 Metcalf V. Cook, 93 Methudy v. Ross, 116 Metz «. Albrecht, 840, 980, 981 Meyer v. Amidon, 679 V. Barker, 387 V. Johnston, 201 V. Funk, 628 V. Meinrath, ^ 827 Meyers v. Smith, " 130 Mhoon r. Greenfield, 140 Micheal v. Bacon, 776 Michell V. Worden, 649 Michener v. Bale, 10 Michigan Cent. R. R. Co. v. Dun- ham, 609 V. Phillips, 49, 52, 279, 586, 980 Michigan State Bank v. Gardner, 46, 362 V. Leavenworth, 139 Michigan Ins. Co. v. Leaven- worth, 164 Michoud !'. Girond, 57, 58 Middlebrook v, Corwin, 243 Middlebury College v. Chandler, 59, 60, 64 Middlesex Co. v. Osgood, 988, 990 V. Tliomas, 1045, 1047 Middleton v. Findla, 410 ;;. Frame, 1060 Miesell v. Globe M. L. Ins. Co., 159 Mihills Maniif. Co. v. Camp, 677 0. Day, 1233 Milburn v. Belloni, 920, 1277 V. Walker, 92 Mildern v. Pennsylvania Steel Co., 116 Miles V. Miller, 1230 V. Oden, 639, 730 V. Richards, 765 V. Roberts, 350, S53, 088 Mill Dam Foundry v, Hovey, 838, 839, 844 Millard v. Hewlett, 74, 75, 76, 77 V. Ramsdell, 150 Millar V. Savings Bank Assoc, 585 Miller ;;. Baker, 253 V. Barber, 628, 668, 686 V. Brown, 92 PAGE Miller v. Cook, 363, 375 V. Cotten, 156 V. Ferguson, 958 V. Fitchthorn, 350 V. Plenderson, 335 V. Irvine, 363, 376 V. Jones, 981 V. Kirby, 729 V. Larson, 77li V. Lord, 609 V. Lumsden, 1044 o. McDonald, 910 V. McMannis, 104 V. JliUer, 146, 765 V. Morgan, 727 V. Newton, 91 V. Pancoast, 727 V. Plumb, 243 V. Post, 806, 807, 814 V. Scherder, 974 V. Schneider, 44 V. Smith, 65, 81, 302 V. State, 246, 249, 254 V. Stevens, 343, 344, 349, 359 V. Van Tassel, 935, 1271 V. Williamson, 92 V. Young, 628 Millett V. Marston, 341 Millhiser v. Erdman, 479 Miliken v. Whitehouse, 1064 Millikin v. Dehon, 38 V. Thorndike, 630, 703 V. Warren, 985, 1023, 1086, 1089, 1097, 1131, 1143 MiUiman r. Neher, 192, 195, 199 Mills V. Camp, 486, 978, 990 V. Gore, 237 V. Gould, 1126 V. Hunt, 265, 266, 267, 303, 359, 386, 387, 388, 427, 430, 620, 979 V. Lee, 672 V. Mills, 788 V. Ross, 361 Milner v. Patton, 777, 780 Milton V. Haden, 773 V. Hudson R. S. Co., 1274 V. Rowland, 1273 Minard v. Mead, 382 Miner v. Bradley, 142, 620, 066 Minneapolis & St. L. R. Co. v. Columbus Rolling Mill Co., Ill, 112 Minneapolis Har. Works v. Ilally, 507, 616 Minnesota Oil Co. v. Collier Lead Co., 110, 125, 130, 131, 133, 141 Minor v. Kelly, 604 Minter v. Pacific R. R. Co., 690, 691 Minturn v. Baylis, 156 V. Main, 386 TABLE OF AiMERICAN CASES. Ixix [References are to the bottom paging.] PAGE Misner v. Granger, 956 Mitchel V. Berry, 721 Mitchell V. Black, 195, 198 w. Culver, 164 V. Cunningham, 979 V. Dall, 1058, 1059 V. Georgia Banking Co., 1023 V. Gile, 12, 13 V. McDougall, 629 V. McLean, 978 V. Otey, 100 V. Scott, 1083 V. Smith, 101, 806, 807 V. West, 727 V. Winslow, 192, 196, 200, 201, 202, 203 V. Zimmerman, 672, 837 Mittnacht v. Kelley, 199 Mixer v. Coburn, 904 V. Howarth, 218, 221, 222, 230, 614 Mizell V. Burnett, 217 Moale V. Buchanan, 342, 363 Mohley v. Morgan, 467 Mockbee v. Gardner, 935 Moffatt V. Green, 481, 516 Mohn V. Stoner, 1040 Mohney v. Evans, 59, 65, 67, 71 Mohr V. Boston & A. E. R. Co., 1102, 1180, 1187, 1201, 1224 Moline S. Co. v. Beed, iSs, 514, 1083 Molitor V. Robinson, 727 MoUer v. Tuska, 648 Moncrieff v. Goldsborough, 706, 711 Monell ti. Golden, 713 Monroe v. Pritchett, 679 V. Smith, 723 Montague v. Dent, 244 Monte Allegre, The, 920 Montgomery v. Bucyrus Machine Works, 643 V. Hunt, 978, 990 Montgomery Co. v. American Emigrant Co., 602, 604 Montpelier & W. R. R. Co. v. Langdon, • 1110 Moody V. Blake, 22, 149, 172, 173, 005, 606, 640, 641 p. Brown, 459, 494, 553, 667, 1074 V. Wright, 10, 194, 195, 197, 198, 201, 202, 205 Moon V. Harder, 1083 Mooney v. Miller, 631, 632 Moore v. Adams, 774 V. Abernathy, 72, 76, 77 V. Bixby, 272 V. Byrum, 195 V. Fleming, 1234 V. Floyd, 727 V. Fox, 241 Moore v. Goodwin, 157 V. Hudson E. R. Co., 1235 V. Kendall, 827 V. Kiff, 1061, 1085 V. Love, 274 V. McKinlay, 941 V. Meacham, 346 V. Miller, 640, 642, 730 V. Murdock, 6, 826, 827 V. Newbury, 1131 V. Piercy, 8 V. Pierson, 127 V. Smith, 163 V. Stevenson, 87 V. Tubeville, 713 V. Waldo, 838 Moorehead v. West Branch Bank, 1059 Moral Sch. Tp. v. Harrison, 1009 Moran v. King, 480 Mordis v. Kennedy, 1043 More V. Bonnet, 776, 792, 793 V. Lott, 1177, 1178, 1181 Morehead v. Murray, 335 V. Hunt, 711 V. Hyde, 1234 Morehouse v. Comstoek, 957, 1273 V. Yeager, 629 Moreland v. Myall, 249, 254 Morford v. Peck, 648 Morgan v. Bailey, 833 V. Bain, 1131 V. Beaumont, 816 V. Bitzenberger, 1045, 1066 V. Bogue, 727 V. Dod, 38 V. Elam, 93 V. Gath, 1002 V. Gregg, 521, 622 V. Hefler, 1233 V. King, 979 r. McKee, 620, 669 ,'. New Orleans M. & T. R. E. Co., 215 V. Olvey, 724 V. Perhamus, 795 ;•. Powers, 906 V. Raynor, 456 V. Richardson, 1024 V. Skidmore, 686 V. Skiddy, 626, 637, 702 V. Smith, 1011 V. Stell, 186 Moriarty v. Stofieran, 626 Jloriii V. Martz, 408 Jlorrill V. Aden, 62, 77, 605 V. Blackman, 649, 660 V. Noyes, 201 V. Tehama C. M. & M. Co., 104, 113 V. Wallace, 908, 941 Ixx TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Morris v. Edwards, 347 V. French, 244 V. Morris, 766 V. Rexford, 476, 648 Morris Run Coal Co. v. Barclay- Coal Co., 781, 788 0. Shryock, 1177 V. Thompson, 632, 935 V. Tillson, 728 V. Woodward, 6-59 Morris Canal Co. v. Emmett, 627 Morrison v. Baker, 239 V. Dingley, 472, 515, 516, 521, 524 r. Koch, 632 V. Lods, 667, 608 V. Lovejoy, 1248 V. Norman, 100 V. Rogers, 146 V. Rossignol, 156 V. Smith, 1044, 1062, 1063 V. Solomon, 91 V. Woodley, 480, 515, 516, 521 V. Welty, 322 Morriss v. Harveys, 1067 Morrow v. Camplsell, 493 V. Reed, 459, 470, 493 Morse «. Brackett, 141, 142, 349, 604, 613, 620, 021, 625, 1271 V. Copeland, 351 V. Pitman, 911 V. Shaw, 650 j;. Sherman, 463, 466, 468, 470, 472, 482, 484, 514, 980, 981, 1085 V. Wheeler, 75 Morse Twist Drill & Machine Co. V. Morse, 794 Morss v. Stone, 7 Morton v. Dean, 156, 163, 235, 362, 363, 364, 401, 406, 409, 426, 427, 428, 429 V. Ragan, 731 V. Steward, 59, 63 Moseley v. Shattuck, 475, 576 Moser v. Hoch, 1271 V. Libenguth, 345 Moses V. Arnold, 146 V. Mead, 126, 127, 941, 074 V. Stevens, 69, 144 V. Trice, 1068 Moss V. Green, 335 V. Livingston, 381 V. Meshew, 481, 517 Mott V. Havana Nat. Bank, 507 V. Mott, 795 Mottram v. Heyer, 1152, 1195, 1205 Moulding v. Prussing, 335 Moultou V. Kershaw, 104, 108 V. Trask, 1083 Mount Hope Iron Co. v. Bufflng- ton, 489, 494 Mowatt V. Wriglit, 148, 149, 610 Mowbray v. Cady, 8, 475, 887 Mowrey v. Walsli, 27, 28, 51, 52, 54, 639, 640, 641, 731 V. Kirk, 992 V. Wliite, 195 V. Wood, 38 Moxley v. Moxley, 125 Moyer ;■. Mclntyre, 478 V. Schomaker, 604 Moynahan v. Moore, 1035 Muckey v. Howenstine, 514 Mudd V. Harper, 1066 V. Reeves, 616 Mudge V. Oliver, 147, 168, 606, 609, 764 Mudgett V. Day, 1055 Mueller v. State, 827 Muldon V. Whitlock, 322, 1067 iMulhall V. Quinn, 205 MuUain v. Thomas, 917, 967 Mullen V. Old Colony R. R. Co., 666 V. Wilson, 723 MuUer ;'. Bayiey, 92 V. Eno, 1273, 1274 Mullikin v. Miller, 651 Mulvany v. Rosenberger, 911 Mumford v. McPherson, 341, 918 V. Whitney, 256, 257 Mumper v, Rushmore, 19 Mundorff v. Wickersham, 677, 699 Munn V. Commission Co., 691 Munroe v. Perkins, 350 Munsell v. Lewis, 205 Munsey v. Goodwin, 145 Munson v. Washband, 60, 64 Murch V. Wriglit, 4, 5, 475 Murchison v. White, 237 Mure V. Donnell, 127 Murphy v. Gay, 906 V. Simpson, 827, 828 V. State, 481, 516 V. St. Louis, 1002 V. Swadener, 42 V. Toner, 1015 Murray v. Brooks, 919 V. Burling, 4 V. Carothers, 388 V. Gouverneur, 322, 1067 D. Harway, 112 V. Judah, 897 V. Smith, 906, 907, 1251 V. Toland, 298 V. Windley, 1041 Murry v. Ocheltree, 816 Muselman v. Stoner, 350 Musgat V. Rumpelly, 5 Musgrave v. Beokendorff, 1235 TABLE OP AMERICAN CASES. [ReferenceB are to the bottom paging.] Ixxi Mustard v. Wphlford, 73 Mutual Life Ins. Co. v. Hunt, 82, 83 Myatts V. Bell, 1065 Myer v. Car Co., 606 0. Wheeler, 941 Myers v. Baymore, 43 V. Harvey, 4, 7, 476 V. Keystone Mut. L. Ins. Co., 113 V. Kinzie, 729 c. Meinrath, 773, 774, 776, 826, 828, 832, 833 V. Sander's Heirs, 78 V. Smith, 11, 110, 128, 130, 132, 181, 1066 V. Turner, 618 V. Vanderhalt, 373 Naested v. Scott, 104 Nance v. Metcalf, 2, 19, 183, 190, 207, 467, 515 Nantz V. Lober, 1041 Napeir v. French, 128, 405 Nash V. Lull, 618 V. Mosher, 24 V. Towne, 359, 1234 National Bank of Cairo v. Crocker, 575 National Bank of Green Bay v. Dearborn, 3, 48, 1185 National Bank v. Hall, 106, 112 National Bank of Metropolis v. Sprague, 124, 659 National Bank of Newburgh v. Bigler, 1060, 1067 National Fire Ins. Co. v. Loomis, 707, 711 Naugatuck Cutlery Co. v. Bab- cock, 634, 642 Naylor y. Dennie, 1178, 1180, 1194 Neaffle v. Hart, 1017 Neal V. Williams, 640 Neblett v. Macfarland, 667 Needham v. Allison, 243 Needles v. Needles, 205 Neel V. Clay, 1234 Neelson v. Sanborne, 362, 375 Neff V. Clute, 1235 Negley v. Jeffers, 351 Neidefer v. Chastain, 618 Neil V. Cheves, 353 Neldon v. Smith, 863, 998 Nellis V. Clark, 776 Nelson v. Biggers, 916 V. Boynton, 239, 240 V. Brown, 7, 8 V. Chicago, &c. R. R. Co., 560 V. Cowing, 920 V. Hudson R. R. Co., 691 V. Luling, 673 V. Nelson, 249 PAGE Nelson v. Robson, 1032 V. Sun Mutual Ins. Co., 346 V. Wood, 714 Nesbit V. Burry, 459, 461, 524 Nettleton v. Billings, 162 0. Sikes, 246, 248, 256, 257 Newall V. Hussey, 1064 Newbery v. Garland, 634 V. Wall, 375, 401, 404, 431, 451, 453, 946 Newbiggin v. Pillans, 90 Newby v. Rogers, 407, 408, 996 Newcomb v. Boston & L. R. R. Co., 558, 585, 1012, 1185 V. Brackett, 842, 843 V. Cabell, 481, 515, 517, 978, 1012 V. Ramer, 249 Newell V. Horn, 630, 631, 713 V. Sibley, 42 V. Turner, 603 New England Insurance Co. v. The Sarah Ann, 43 Newhall v. Central Pacific R. R. Co., 1012 V. Dunlap, 387 V. Langdon, 516 V. Vargas, 1089, 1169, 1170, 1173, 1174, 1176, 1205, 1224 New Hampshire Ins. Co. v. Noyes, 59, 60, 64, 75 New Haven & N. Co. v. Camp- bell, ■ 1141 New Jersey Steam Manuf. Co. v. Merchants' Bank, 359 Newkirk v. New York & H. R. R. Co., 669 Newlan v. Dunham, 209, 211 Newlm V. Freeman, 93 Newman v. Meek, 658 V. Sylvester, 388 V. Morris, 218 Newmarket Iron Foundry v. Harvey, 1074, 1085 Newton v. Porter, 37 New York Cent. Ins. Co. v. Na- tional Protection Ins. Co., 277 New York & E. R. R. Co. v. Gil- christ, 239 New York Fireman Ins. Co. v. DeWolf, 1023 New York & N. H. R. R. Co. v. ■ Ketchum, 396 Nichol V. Bate, 164 Nicholas v. Ward, 765 Nichols V. Allen, 361, 375 V. Hail, 855 V. Johnson, 333, 361, 362, 376, 377, 401, 456 V. Michael, 626, 649 V. Mitchell, 322 Ixxii TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Nichols V. Morse, 302, 582, 980, 000, 1014, 1085 V. Patten, 1137 V. Pinner, 649, 650, 1084 Nicholson v. Taylor, 458, 459, 461 V. Wilborn, 60 Nickerson v. Darrow, 43, 46 Nicklaus v. Koach, 1002 Nickley v. Thomas, 630 Nicol V. Crittenden, 640, 641, 724 NicoUs V. Eodgers, 215 Nielson v. Nielson, 41 Nightingale v. Withington, 76 ,.. Chafee, 1067 Nimmo v. Kuykendall, 724, 728 Nims V-. Bigelow, 92 Nixon V. Beard, 1063 V. Brown, 45, 52, 53 V. Downey, 384 V. Palmer, 691 V. Rose, 92 Noakes v. Morey, 322, 430 Noble V. Bosworth, 243, 244 V. Smith, 15 Nobles V. Bates, 792 Noe V. Hodges, 1030 V. Preston, 13 Noel V. Karper, 85 V. Morton, 628 V. Murray, 1045, 1067 Nofsinger v. King, 852 Nolan f. Jones, 62 Noles V. Marable, 11 Noonan v. Lisley, 1235 Norrington v. "Wright, 863, 886, 1002 Norris !■. Badger, 164 V. Blair, 341, 397, 401, 405, 426, 427, 428, 429 V. Harris, 620 V. SpoECord, 207 V. Vance, 74 North V. Forest, 236, 237 V. Mendel, 363 V. Phillips, 817 North River Bank v. Aymar, 077 North Western Iron Co. v. Meade, 106, 110, 113 Northam i'. Gordon, 104, 114 Northern v. State, 249 Northern Mut. Life Ins. Co. v. Elliott, 183 Northern Pac. R. R. v. United States, 778 Northington, Ex parte, 82, 83 Northrup v. Cook, 1074, 107G V. Foot, 215, 828 Norton v. Doolittle, 731 V. Gale, 210, 211, 401 V. Harden, 609 V. Simonds, 217, 351 PAGE Norton v. "Woodruff, 6,8 143 V. Young, 666 Nourse v. Prime, 12 Nowlan v. Cain, 628 Noyes v. Canfield, 343 346 V. Humphries, 268 V. Jenkins, 194 197 V, Loring, 146 387 V. Marsh, 1258 V. Patrick, 667 V. "Ward, 1110 Nunan v. Bourquin, 993 Nunez ;>. Dantel, 210 Nuim V. Givhan, 91 Nutter V. Harris, 727 V. "Wheeler, 7,9 Nutting V. Dickinson, 209, 211 ,213 Oakes v. Moore, 210 Oakland Savings Bank «. Apple- garth, 1032 Oakley v. Morton, 143 Oakwood Retreat Association v. Ratlibone, 158, 162 Oatman v. "Walker, 995 Ober V. Carron's Ex'r, 473 V. Carson, 517 V. Smith, 1009 Obermier v. Core, 1086, 1134 O'Brien v. Chamberlain, 724, 731 V. Gilchrist, 1151 V. Jones, 491 ;;. Norris, 1176, 1178, 1205 Ocean Ins. Co. v. Carrington, 113 Ockington D. Richey, 256,463,481, 483, 493, 494, 517, 1085 O'Conneley v. Natchez, 146 Odell V. Boston & Maine R. R.. 489, 529 Odione v. New Eng. Ins. Co., 348 O'Donnell v. Leeman, 235, 340, 342, 362, 401, 427 V. Sweeney, 827 Oelricks t;. Ford, 349, 381 O'Gara v. Lowry, 720 Ogburn v. Ogburn, 604 Ogden K. Des Arts, 806 V. Lathrop, 38 V. Raymond, 383 Ogilvie V. Knox Ins. Co., 705 O'Harra v. Hall, 345 Ohio & M. R. E. Co. V. Kerr, 49, 639, 640, 641 O'Keefe v. Kellog, 19, 990 Okley V. Pound, 92 O'Kelly D. O'Kelly, 7 Old Colony R. R. Co. ;;. Evans, 407, 713, 1073 Old Dominion Steamship Co. v. Burkhardt, 641 TABLE OF AMERICAN CASES. Ixxiii [References are to the bottom paging.] PAGE Oldham v. Kerchner, 1278 Oliver v. Houdlet, 81 V. Oliver, 345 Olmstead v, Beale, 144 V. Niles, 248, 256 Olney v. Howe, 10, 457 Olttnan v. Moak, 78 Olyphant v. Baker, 19, 91, 314, 468, 485, 491, 510, 516, 980, 990 Ombony v. Jones, 244 O'Neal V. Bacon, 906 Oneida Manuf. Co. v. Lawrence, 26, 905, 941, 950 V. Garrett, 1176 V. New York & S. P. Min. Co., 221 O'Neill V. James, 104, 112, 134 Onondaga v. Briggs, 010 Ontario Bank v. Hanlon, 1163 V. Lightbody, 897 V. New Jersey Steamboat Co., 586 Oothaut V. Leahy, 239 Orcutt V. Nelson, 8, 58, 167, 168, 170, 239, 311, 490, 606, 609, 777, 1137 O'Reer v. Strong, 146 Oregon Steam Nav. Co. v. Win- sor, 792, 795, 801 Oriental Bank v. Haskins, 639 Ormsbee v. Machir, 473, 517 Ormsby v. Vermont Copper Min. Co., 1235 O'Rourke v. O'Rourke, 826 Orr V. Bigelow, 1076, 1230 Orrand v. Mason, 617 Orrok v. Com. Ins. Co., 42 Ortman v. Green, 473 Orvis V. Kimball, 77, 78 Osborn v. Gantz, 941, 1023 «. Moss, 730 V. Nelson, 87 V. Nicholson, 911, 919 V. Phelps, 362, 376, 377 V. Rawson, 807 Osborne !'. McQueen, 1010, 1015 Oscanyan v. Winchester Repeat- ing Arms Co., 774, 776, 788 Osgood V. Hutcliins, 162 V. Lewis, 896, 906, 907, 908, 935 Osterhout v. Roberts, 145, 147 Oswalt V. Moore, 91 Oswego Starch Factory v. Lend- rum, 649 Otis V. CuUum, 1271 a. Raymond, 630 V. Sill, 194, 195, 198, 199 Otts V. Alderson, 905, 906 Ottoman v. Moak, 74 Outon V. Rodes, 788 Cutwater v. Dodge, 10, 11, 277, 280, 286, 296, 318, 473, 491 Overstreet v. Gallagher, 1083 PAGE Overton v. Phelan, 959 V. Williston, 19 Owen ". Cawley, 100 Owens V. Lewis, 249, 256, 257, 313 0. Sturgess, 1017 V. Weedman, 981, 1047, 1131 Oxford V. McFarland, 145 Ozley V. Ikelheimer, 91 Pacific Guano Co. v. Mullen, 603, 806, 958 Pacific Iron Works v. Long Island R. R. Co., 302, 982, 989, 1014 V. Newhall, 958, 959 Pacific Steamboat Co. v. Com'rs. of Taxes, 460 Packard v. Dunsmore, 279, 977, 978 V. Getman, 530 V. Richardson, 362, 370, 397 V. Wood, 20, 732, 990 Packer v. Willson, 363 Packet Co. v. Sickles, 801 Paddock v. Strobridge, 630, 662, 720 Paddon v. Taylor, 640, 641 Padfield 'v. Green, 1055 Page V. Bent, 629, 630, 072 V. Carpenter, 468, 1001 1.. Clough, 302 V. Monks, 268 V. Parker, 629, 673, 713 Paige V. McMillan, 1017 V. O'Neal, 639, 641, 729 V. Ott, 143, 620 Paine v. Uwinel, 1064 V. Pulton, 323 V. Sherwood, 1230 V. Voorhees, 1065 V. Wilcox, 141, 145 Palmer's Appeal, 619, 658 Palmer v. Forbes, 243 V. Graham, 795 V. Hand, 981, 1131 V. Hatch, 920 V. Phcenix Mut. Life Ins. Co,, 1024 V. Rankins, 91 V. Stebbins, 792, 794 V. Stepliens, 409, 410, 411 0. York Bank, 1233 Palo Alto, The, 131, 133, 134, 139, 181, 221 Pam u. Vilmar, 7, 9 Panton t-. Tefft, 347 Parcell v. Macomber, 143, 1002 Parham v. Riley, 23, 41 Parham Sewing Machine Co. v. Brock, 1064 Parisli V. Stone, 16, 620 Park V. Darling, 41 IXXIV TABLE OF AMERICAN CASES. [References are to the bottom paging.] Park V. Wiley, 1041 Parker v. Brancker, 38 V. Byrnes, 649, 651, 1096 V. Coburn, 207 V. Crittenden, 1097 V. Davis, 1030 V. Jacobs, 192, 199 V. Lombard, 24 V. Marquis, 626 V. Mitchell, 490, 494, 1085 V. Parmlee, 840 V. Pitts, 826, 827 V. Pringle, 1271 V. Schenck, 221 V. Staniland, 258 V. Willison, 375 Parker's Heirs v. Bodley, 427 Parkhani v. Thompson, 258 V. Welch, 765 Parkhurst u. Cortland, 344 V. Cunimings, 1064 V. Van Cortlandt, 333, 345 Parkinson v. State, 2 Parkist v. Alexander, 58 Parks V. Comstock, 130 V. Hall, 1089, 1097, 1131, 1141 V. Ingram, 1060 V. Morris Axe & Tool Co., 1251, 1260, 1273 Parlange v. Paures, 897 Parmlee v. Adolph, 669, 673, 679 Parnum v. Randolph, 614 Parr v. Brady, 20 Parris v. Roberts, 475 Parrish v. Koons, 150 Parrott v. Colby, 1043, 1044, 1067 Parry v. Spikes, 402 Parsliall v. Egbert, 40 Parsons v. Camp, 243 V. Dickinson, 20 V. Loucks, 221 V. Smith, 256 V. Sutton, 1230 V. Taylor, 817 V. Webb, 22 Partee v. Bedford, 1045, 1066 Parton v. Yates, 729 Partridge v. Davis, 374 V. Menck, 795 V. Wooding, 990 Pasley v. Preeman, 675 Passaic Manuf. Co. v. Hoilman, 221, 1126 Passinger v. Thorburn, 896, 1233, 1273, 1277 Patapsco Ins. Co., The, o. South- gate, 43 t'. Smith, 1045, 1066 Patchin v. Swift, 361 Pate V. Wright, 833 PAGE 936 361 806 240 3 1224 815 1004 720 817 248, 249, 256 1051 54 784 686 104 92 244 779 162 906 998, 1012 911, 1270 92 221 617 732 626, 661 981 91 793 1230 26 935 243, 244 794, 803 V. Speyers, 236, 237, 364, 373 Peake v. Conlan, 827 V. La Baw, 10 Pearce v. Blackwell, 714 Pearl v. McDowell, 82 Pearley v. Balch, 1260 Pearsoll v. Chapin, 146 Pearson v. Howe, 672 V. Mason, 1074 V. Eockhill, 729 Pease ;;. McClelland, 631 V. Sabim, 958, 959, 1251 V. Copp, 1015, 1017 V. Smith, 22, 24, 394, 477 Peaslee v. Barney, 730 V. Gee, 713 Peck V. Batchelder, 244 V. Briggs, 805 V. Carpenter, 22 V. Land, 727 V. Miller, 109, 114 V. Vandemark, 363 Pecker v. Kennison, 268, 269, 776 Peden v. Moore, 1271 Patee v. Pelton, Patmore v. Haggard, Pattee v. Greely, Patten v. Hicks, V. Smith, Patten's Appeal, Patterson v. Clark, V. Judd, V. Kirkland, Patterson's Appeal, Pattison's Appeal, Patton V. Ash, V. Campbell, V. Gilmer, V. Gurney, f. Hassinger, V. Kinsman, V. Moore, V. Nicholson, Patrick r. Grant, V. Leach, V. Meserve, V. Swinney, Patridge v. Stocker, V. Wilsey, Paul V. City of Kenosha, V. Crocker, V. Hadley, V. Reed, Paulk V. Wolf, Paxon's Appeal, Paxton V. Meyer, Payne v. June, V. Rodden, Pea V. Pea, Peabody v. Norfolk, TABLE OF AMERICAN CASES. Isxv [References are to the bottom paging.] Peers v. Davis, 346 Peet V. Chicago & N. W. R. Co., 1243, 1244 V. Spencer, 472 Pegram v. Carson, 44 Peirce v. Tobey, 77 Peltier v. Collins, 333, 340, 361, 450, 452, 453 Peltz V. Eichele, 801 Pemberton v. Hawkins, 127 V. Johnson, 101 Pembroke Iron Co. D.Parsons,876,1004 Pence v. Groan, 764 V. Langdon, 648, 667, 668, 669 Pendergast v. Reed, 1230 Penfield v. Dunbar, 639, 730 Penn v. Bornman, 773 ■V. Whiteliead, 92 Penniman v. Hartshorn, 407, 412, 460 Pennock's Appeal, 711 Pennock v. Coe, 194, 196, 197, 201 V. Stygles, 951 Pennsylvania Co. v. Holderman, 1009 Pennsylvania Coal Co. v. Blake, 1058 Pennsylvania R. Co. v. Hughes, 105 Pennsylvania R. R. Co. v. Titus- ville, &c. Co., 1234 Pennypacker v. Umberger, 1058 Pentz V. Simonson, 92 V. Stanton, 381 People V. Beebe, 238 V. Bristol, 199 V. Fisher, 781 V. Haynes, 296, 626, 1133, 1169 V. Howell, 1051 V. Johnson, 14, 16 V. Kendall, 61 V. Lord, 658 V. Manning, 189 V. Tiogo Common Pleas, 19 V. Walker, 996 V. White, 235 Peoples' Bank v. Gayley, 458 V. Gridley, 978 V. Kurtz, 897 Percival v. Harger, 968 Perdicaris v. Trenton, &c. Co., 74 Perkins v. Bailey, 64, 666, 668 V. Beck, 1035, 1036 V. Clay, 792, 794, 801 V. Cummings, 775 V. Douglass, 8, 888 V. Eaton, 815 V. Elliott, 92, 101 V. Hadsell, 407 V. Jones, 834 V. Lyman, 794 V. Perkins, 100 V. Savage, 776 V. Swank, 244 PAGE Perkins v. Thompson, 40 Perley v. Balch, 604, 61.3, 621, 625, 666, 667, 935, 1272 Perner w. Piercy, 252 Perrin v. Keene, 1064 V. Wilson, 60, 70 Perrine v. Cooley, 918 V. Serrell, 1260, 1273 Perry v. Aaron, 126 V. Craig, 12 V. Foster, ' 731 V. Mount Hope Iron Co., 133 Persons v. Jones, 897 Perth Amboy Manuf . Co. v. Con- dit, 381 Peru V. Turner, 125, 141 Peshine v. Shipperson, 1234 Peter v. Beverly, 1008 Peters v. Ballister, 575, 648, 998 V. Hilles, 626, 649, 650 V. Lord, 68 V. Westborough, 240 Peterson v. Christensen, 774, 776 Petillon V. Hippie, 815 Pettengill v. Merrill, 494 Pettibone v. Stevens, 663 Pettigrew v. Chellis, 629, 673 Pettingill v. Elkins, 732 Pettis V. Kellogg, 192, 193, 199, 203 Peugh V. Davis, 348 Pew V. Lawrence, 1015 Phalen v. Clark, 773 Phelps V. Cutler, 301, 7.32, 979, 991 V. Hubbard, 476, 838, 980, 981, 989, 1073, 1074, 1126, 1127 V. McGee, 996 V. Murray, 193, 197, 199, 200, 201, 203 V. Pond, 15 V. Seely, 358 V. Sheldon, 144 V. Willard, 494 V. Worcester, 59, 60, 65, 70 Philadelphia W. & B. R. R. Co. V. Woelpper, 201 Philbrook v. Belknap, 364 Phillips V. Alleghany Car Co., 838 V. Berger, 1257 V. BuUard, 1043 V. Gallant, 167 V. Graves, 92 V. Gray, 239 V. Green, 72, 74, 75 V. Hunnewell, 272, 460 V. Ives, 815 V. Moor, 104, 112, 467, 468 V. Ocmulgee Mills, 204, 275, 279, 280, 295, 306, 338, 364, 515, 516, 521, 817 V. Preston, 345 Ixxvi TABLE OF AMERICAN CASES. [References jire to the bottom paging.] PAGE Phillips V. Reitz, 7:i7 V. Winslow, 201 Phillips & C. C. Co. V. Seymour, 1002 Philloe V. Sandwich Manuf. Co. 1017 Phippen v. Stickney, 058, 059, 7U Phipps V. Boyd, 704 V. Buckman, 626, 027, 0:j0 1'. Hope, 15, 10 f. Jones, 1 r. McFarlane, 221, 233 Phoenix Ins. Co. v. Allen, 322 Piatt V. Oliver, 050 V. United States, 210 Piazzek v. White, 461, 510 Pickard v. McCormick, 13 Pickering v. Bardwell, 1120 v. Cease, 204, 816, 817 V. Fisk, 216 Pickett r. Bullock, 1133 Pickler v. Slate, 60, 01 Picot V. Sanderson, 15 Pickrel V. Rose, 105 Pidgeon v. Williams, 1055 Pierce v. Drake, 1051 V. Duncan, 607 V. Emery, 197, 198, 199, 21)3 V. Fuller, 792, 7i)4 V. Milwaukee & St. P. R. R. Co., lilS J). Norwicli, &c. R. R. Co., 201 V. Ocean Ins. Co., 12 V. Schenck, 6 V. Van Dyke, 24 !>. Wilson, 666, 07O V. Woodward, 792, 7!)4 Pierrepont v. Barnard, 249, 256, 257 Pierson v. Crooks, 1010 u. Hoag, 981 r. McCahill, 347 V. Morch, 107 V. Spaulding, 479 Piesche v. Dickson, 340 Pigg V. Corder, 166 Pike V. Baleh, 235, 426, 058 V. Bright, 140 V. Brown, 213 !■. Fay, 340, 344, 359, 681, 685 V. King, 828 V. Thomas, 792 V. Vaughan, 484, 494 Pilmer v. State Bank; 340 Pindall V. Northwestern Bank, 016 Pinkerton v. Manchester, &c. R. R. Co., 1234, 1235 Pinkham r. Crocker, 43 V. Mattox, 275, 277, 278, 279, 284, 293, 319, 320, .321 Pinney v. Andrus, 912, 1278 V. St. Paul & Pac. R. R. Co., 1014 Pioneer, The, 779 Pipkin V. .Tames, Piper V. True, Pippen V. Wesson, Piser V. Stearns, Pitcher v. Hennessey, V. Livingston, PAGE 333 346 85, 92, 93 642 334 1075 Pitkin V. Noyes, 218, 221, 222, 235, 249, 250, 256, 202 Pitney v. Glen's Falls Ins. Co., .325 Pitts V. Mower, 359 r. Pitts, 145 Pittsburg, C. & St. L. R. Co. v. Barrett, 530 V. Heck, 1073, 1074, 1076, 1230 u. Rothschild, 215 Pitzer V. Harmon, 1063 Pixler V. Nichols, 1002 Pixley V. Boynton, 204, 816, 817 Place V. Rhem, 764 Plaisted v. Palmer, 828, 833 Plant Seed Co. v. Hall, 106, 110, 113 Planters' Bank v. Union Bank, 779 Piatt V. Brand, 1081 V. Hawkins, 91 Platz V. Cohoes, 827 Pleasants v. Pendleton, 105, 312, 458, 401, 469, 480, 515, 510, 521 Plimpton V. Curtiss, 241 Plumer o. Lord, 166, 1110 Plummer v. Penobscot L. Assoc, 1243 V. Shirley, 476 Poland V. Brownell, 031 V. Miller, 959 Polhemus v. Heiman, 348, 906, 907, 1002, 1261, 1272 Polk V. Anderson, 335, 445 Pollen V. James, 92, 93 V. LeRoy, 345, 1075, 1126, 1127 PoUmen v. LeRoy, 346 Pollock v. Fisher, 515 Pomeroy v. Bailey, 721 V. Manhattan Life Ins. Co., 92 V. Manin, 346 Pond V. Carpenter, 85, 92, 100 ;;. Williams, 1061 Poole w. Houston &T.C.R. Co., 1021 V. Rice, 1065, 1068 Poor ;;. Oakman, 246 V. Woodburn, 149, 625, 639, 642, 666, 668 Pooser !'. Tyler, 345 Pope V. AUis, 1270 V. Reals, 810 o. Cheney, 978 V. Filley, 1076 V. Linn, 833 V. Nance, 1051 V. Nickerson, 43, 215 V. Pope, 642 V. Porter, 863, 1002 TABLE OF AMEEICAN CASES. Ixxvii [References are to tbe bottom paging.] Pope V. Terre Haute Car & Manuf . Co., 877 Port V. Williams, 631 Port Carbon Iron Co. v. Groves, 959 Porter v. Gorman, 795 V. Parks, 31, 53 . Trimble, 609 Raines v. Jones, 1027 Rainsford v. Fenwick, 70 Rainwater v. Durham, 59, 60, 64, 65 Rake v. Pope, 241 Ralph V. Chicago, &c. R. Co., 1234 Ramsay v. Warner, 1061 Ramsdell v. Soule, 1051 V. United States, 941 Rand v. Mather, 217, 268 V. White Mountains R. R. Co., 1074, 1075, 1076 Randall v. Crook, 727 V. Farnura, 631 V. Hazelton, 630, 635, 637 V. Johnson, 209, 210, 993 V. Kehlor, 919 ! V. JSfewson, 962 V. Paramore, 1060 V. Phillips, 346 V. Rhodes, 333, 341, 918 V. Sweet, 59, 60 ;;. Thornton, 906, 907 V. Turner, 214 Randolph Iron Co. v. Elliott, 146, 149, 517, 606 Randon v. Barton, 1231, 1285 Rankin v. Holloway, 727 V. McCuUough, 38 V. West, 92 Ranney v. Higby, 583, 1009, 1138 V. Warren, 668 Rapelye v. Mackie, 473, 480, 490, 517 Rapp V. Palmer, 51 Rappleye v. Adee, 277, 301, 311, 312, 313, 3J4, 538 Rasch V. His Creditors, 37 Raspberry ;;. Moye, 1272 Ratcliffe v. Collins, 101 V. Sangston, 643 V. Smith, 773 Rateau v. Bernard, 640, 642, 730 Rathbone v. Budlong, 387 Rathbun v. Rathbun, 818 Ratlife V. Trout, 375 PAGE Rattary v. Cook, 980, 990 Rawdon v. Blatchford, 650 Rawley, The M. K., 530 Rawls V. Deshler, 45, 49, 53, 475, 642, 1212 V. Saulsbury, 474 Rawson v. Harger, 628, 669, 673 V. Tuel, 476 Ray !:. Catlett, 828 V. Light, 148, 150, 152, 153 V. Thompson, 8 Rayburn v. Day, 1044 Raymond v. Baar, 616 V. Bearnard, 12, 142 V. Crown & Eagle Mills, 386, 387, 388 V. Howland, 686 V. Raymond, 340 V. Squire, 456 V. White, 243 Rea V. Alexander, 727 V. Durkee, 85 Read v. Decker, 852 V. Moor, 143 V. President, &o. of H. & D. C. Co., 349 V. Robinson, 129 Reade v. Livingston, 721, 764, 766 Reaney !'. Culbertson, 691 Redd V. Burrus, 192, 197, 198, 201, 1009 Redfield v. Buck, 663 Redington v. Chase, 1040 V. Roberts, 650 Redlich v. Doll, 163 Redlon v. Barker, 243 Redman ;;. Sanders, . 805 Redmond v. Packenham, 42 V. Smock, 1127 Reed v. Abbey, 6 V. Batchelder, 73, 79 V. Boardman, 1058 I'. Boshears, 74 V. Chambers, 351 i: Evans, 361, 363, 376 0. Hastings, 907 V. Johnston, 257 V. Jones, 344 r. McGrew, 351, 604 V. Peterson, 677, 699 V. Randall, 1015, 1017, 1260 V. Reed, 732 u. Richardson, 348 V. Spaulding, 15 V. Upton, 1064 V. AVood, 904, 918 Reeder v. Sayre, 249 Rees V. Coats, 201 !'. Overbaugh, 456 Reese v. Cochran, 92 TABLE OF AMERICAN CASES. Ixxix [References are to the bottom paging.] PAGE 11 156 833, 834 396 5 Eeese v. Harris, V. Reese, Keeves v. Butcher, V. Pye, V. Sebern, Refining & Storage Co. v. Miller, 586 Reichart v. Felps, 410 Reimers v. Ridner, 863, 1017 Reinicker v. Smith, 83 Reissner v. Oxley, 9 Reitz's Appeal, 505 Ilemick v. Sandford, 273, 275, 277, 284, 286, 286, 302, 340, 435, 450, 451 Rennell v. Kimball, 207, 339 Renner v. Bank of Columbia, 346 Renshaw v. Gans, 341 Rentch v. Long, 221 Resor v. Johnson, 145 Rew V. Barber, 936 Reynolds v. Boston & M. R. R., 1173, 1178, 1205, 1224 V. Carpenter, 375 V. Dechaums, 711 V. Ferree, 1055 V. Insurance Co., 345 V. Magness, 342 V. Palmer, 941 V. Waller, 84 Rhea v. Rhenner, 86, 87 Rheel d. Hicks, 149 Rheem v. Naugatuck Wheel Co., 686 Rhoades v. Castner, 342, 363, 365 V. Rhodes, 207 V. Thomas, 350 Rhorle v. Stidger, 38 Rice V. Codman, 468 t;. Churchill, 988 V. Dwight Manuf. Co., 152, 154, 191, 602, 609 V. Forsyth, 917, 935, 959, 960, 961 t>. Gist, 815 V. Groffman, 1052 V. Manley, 628, 637, 1234 V. Nixom, 8 V. Stone, 193, 194, 197, 205 Richard v. Strong, 84 Richards v. Allen, 213 V. Shaw, 142, 1002 Richardson v. Boright, 77 V. Boston Chemical Labra- tory, 1035, 1036 V. Bright, 75 V. Cambridge, 5 V. Cooper, 350, 351 V. Cramer, 727 V. Goddard, 826 V. Grandy, 907, 1260, 1273 V. Hooper, 350 V. Johnson, 911 PAQB ichardson v. Kelly, 815 V. Mason, 919 V. Olmstead, 6 V. Peacock, 794 V. Rowland, 804, 805 V, Squires, 276 V. Stodder, 100 V. Strong, 82 V. Tipton, 935 Richmond v. Dubuque & S. C. R. R. Co., 1233 V. Gray, 713 Richmond Iron Works v. Wood- ruff, 489, 991 Rick V. Starbuck, 163 Rickards v. Cunningham, 217 Ricker v. Cross, 312, 977 Ricketts v. Hays, 106 Rickey v. Tenbroeck, 273, 296, 1073, 1074, 1127 Ricks V. Dillahunty, 679, 906, 935 Riddle v. Backus, 240, 241 ,). Coburn, 474 V. Gage, 1272 V. Varnum, 10, 273, 313, 317, 458, 403, 469, 470, 472, 484, 492, 493, 516, 985, 991, 1089 Rider v. Kelley, 273, 494, 1234 Ridgway v. Bowman, 334 V. Ingram, 342, 363, 364, 397 Ridgeway v. Kennedy, 475, 476 Ridgeway Stove Co. v. Way, 477 Riford V. Montgomery, 22 Rigby V. Norwood, 375 Riggs V. American Tract Soc, 83 V. Magruder, ' 237 Righter v. Roller, 629, 632, 673 Riley w. Boston Water Power Co., 22, 23 V. Jordan, 775, 776 V. Mallory, 69 V. Van Houten, 796 V. Wheeler, 981 Rindskopf v. De Ruyter, 136 Rinker v. Rinker, 15 Rinschler v. Jeliffe, 974 Ripley v. Paige, 243 Ritchie v. Boynton, 814 Rivers v. Gregg, 63 Rives V. Guthrie, 995 V. Porter, 42 Rix V. Dalyhunty, 127 Roades v. Castner, 346 Robards v. Price, 90 Robarts v. Church, 198 Robbins v. Chipman, 517 V. Clark, 852 V. Eaton, 74, 77, 79 ,.. Harrison, 980, 1022 Ixxx TABLE OP AMERICAN CASES. [References are to the tottom paging.] PAGE Eobbins v. Mount, 61 V. Oldliam, 249, 723, 731 Robert v. West, 92 Roberts v. Beatty, 143, 460 V. Dillon, 127, 042 V. Fisher, 1051 V. Hughes, 904 V. Jenkins, 915 V. Morgan, 906 V. Rockbottom Co., 240 V. Savannah F. & W. R., 477 !■'. Svkes, 12 V. Ward, 619 Robertson v. Bruner, 92, 93 u. Clarkson, 911 V. Cloud, 186 V. Hayes, 855 0. Lynch, 12, 142 . Ruckman, 764 Sally Magee, 1151 Eudoff V. Winters, 816 Salmon v. Boyken, 863, 1002 Rudulph V. Wagner, 1027 Salmon Falls Manuf. Co. v. God- Ruff V. Jarrett, 626, 1271 dard, 340, 341, .344, 345, 349, .359, Ruffee !'. United States, 998, 1017 361, 362, 363, 365, 377, 396, 398, Ruffler 1-. Womack, 5 401, 402, 403, 406, 409, 411, 412 Ruggles V. Gatton, 239 Salomon v. Hathaway, 1083 Ixxxii TABLE OF AMBKICAN CASES. [References are to the bottom paging.] Salomon v. Pioneer Co-operative Co., 1066 V. Webster, 106, 111 Salter «, Burt, 995 Saltmarsh v. Tuthill, 827, 832 Saltus V. Everett, 22, 24, 49, 60, 52, 64, 149, 605, 640, 641 i: Pruyn, 149 Samms v. Alexander, 42 Sampson v. Shaw, 73, 774, 770, 815, 816 Sams V. Stockton, 00, 6.3, 64 Samuel v. Cheney, 148 Samuels v. King, 1050 Sanborn u. Batchelder, 667, 668 V. Benedict, 192, 193, 855, 980, 989, 990, 1074, 1076, 1230 V. Flagler, 369, 377, 380, 397, 401, 406, 407, 409, 411 V. Kittredge, 27, 28, 41, 979 V. Neal, 388 u. Sanborn, 3(il Sander v. Hoffman, 792, 794 Sanders r. Chandler, 723 V. Clark, 207 !'. Hamilton, 146 V. Keber, 470 V. Lyon, 628 Sanderson v. Caldwell, 147 u. Jones, 91 V. Lamberton, 359 Sandford v. Handy, 677, 695, 713, 899 V. Newark & H. R. R., 343 V. Wiggins Ferry Co., 495 Sands V. Codwise, 730 V. Lyon, 996 «. Taylor, 127, 458, 469, 941, 942, 1076, 1086, 1126, 1263 Sanford v. Bulkley, 1035, 1036 V. Clark, 1060 V. Cloud, 673 V. Dodd, 603 V. Norton, 37 Sanger v. Fineher, 668 Sangston v. Maitland, 1055 Sankey v. First Nat. Bank of Miffinburg, 618 Sansee v. Wilson, 1136 Saratoga Bank u. King, 775, 792 Sargent v. Adams, 344 V. Butts, 833 V. Currier, 935 V. Cutterson, 713 V. Franklin Ins. Co 1235 V. Gile, 4, 60, 475 V. Graham, 1027, 1036 V. Metcalf, 474 V, Sturm, 641, 042 Sarle v. Arnold, 727 Sarward v. Stevens, 1151 Satterthwaite r. Elmey, Sattuck r. Green, Saunders v. Frost, y. Hatternian, Savage v. lUx, Savage Manuf. Co. v. Armstrong, Saveland r. Green, Savery v. Spence, Sawyer v. Chambers, Fislier, V. Gerrish, V. Hammatt, 50, 1181. 765 1270 1039 713 387 , 838 133 1257 1272 1134 192 403 1194 83 , 732 , 807 , 817 1060 243 , 834 344 1066 827 912 92 198 , 920 1067 349 918 105 810 667 V. Joslin, V. Lufkin, V. Nichols, 277 V. Smith, 806, V. Taggart, 816 V. Tappan, V. Tvviss, Sayles v. Wellman, 833, Sayre V. Peck, V. Sayre, V. Wheeler, Scarborough v. Reynolds, Schaforth v. Ambs, Scharfenburg v. Bishop, Schell V. Stevens, 384, 386, 4.30 Schemerhorn v. Loines, Schenck v. Griffin, V. Saunders, 5, Schenectady Stove Co. v. Hol- brook, Schermerhorn v. Talman, 3, 774, Sehiffer v. Dietz, 648, Scliindler v. Westover, 8 Schlesinger v. Stratton, 6, 8, 888 Schmidt v. Postel, 92 Schneider v. Kolthoft, 1063 Sclmitzer u. Oriental Print Works, 941, 956 Schoenfeld v. Brown, 239 Schomp V. Schenck, 804 Schonberg v. Cheney, 133 School Directors v. Trefethren, 104 School District No. 1 v. Dauehy, 189, 851 School Trustees of Trenton v. Bennett, 189 School Trustees v. Rodgers, 347 Schooner Mary Ann Guest, The, 641 Schoonmaker r. Vervalen, 727 Schuchardt v. Aliens, 167, 920, 941 Schuchmann v. Knoebel, 66S Schufeldt V. Schnitzler, 650 Schullz V. Astley, 164 „. Bradley, 360, 1126, 1127 ■J. Coon, 341 Schuyler v. Russ, 911 Schvvabacker r. Riddle, <)28 Schweizer v. Weiber, 147 TABLE OF AMERICAN CASES. [Refei-enceB are to the bottom paging.]. Ixxxiii Scobey v. Ross, 804 Scoby V. Woods, 1055 Seoggin i'. Blackwell, 241 Sc;ott V. Alford, 727, 728, 767 V. Billgerry, 1258 V. Boston & N. 0. S. Co., 1243 V. Buchanan, 75 ". Bush, 322, 408 ('. Cleveland, 1060 i;. Heilager, 736 V. Hix, 930 !'• King, 480, 516 V. Kittanning Coal Co., 885 V. McGrath, 690 !>. Messick, 387, 388 V. Perrin, 667 V. Ray, 1064 V. Reniek, 904, 958 u. Scott, 935 V. Wells, 458, 469, 484, 516 Scotten V. Sutter, 272, 301, 531 Scovill V. Thayer, 705 Scoville V. Canfield, 215 Scranton v. Booth, 149 0. Clark, 1271 Screws v. Roach, 192 Scroggln V. Slater, 244 Scruggs V. Alexander, 139 V. Cass, 1051 Scudder v. Bradbury, 489, 980, 1134 V. The Calais Steamboat Co., 511 V. Worster, 481, 515, 517, 521 Scull V. Shakespear, 511 Seabrook v. Brady, 91 Seaman v. Hasbrouck, 239 V. O'Hara, 350 Searing v. Lum, 673 Sears v. Brink, 361, 362, 363, 375, 397 V. Wright, 209 Seaver v. Dingley, 666 V. Phelps, 82, 83 Seawell v. Henry, 1030 Secomb v. Nutt, 1178, 1201, 1203 Seckle v. Scott, 468 Second Nat. Bank v. Walbridge, 1136 Security Bank of Minnesota v. Luttgen, 557 Sedgwick v. Cottingham, 980, 989 V. Stanton, 804, 805 See V. Bernheimer, 1009 Seed V. Lord, 769 Seeds v. Kahler, 101 Seeger v. Pettit, 244 Segond v. Garland, 92 Seidenbender v. Charles, 806, 807 Seigworth v. Leffel, 1271, 1273 Seiple V. Irwin, 1052 Seixas v. Ockershausen, 868 Seixas v. Woods, 126, 127, 684, 905 Selden v. Beale, 7 t>. Myers, 345, 347 o. Hickok, 522 Self V. Cordell, 794 Seligman v. Kalkman, 650 Sellar r. Clelland, 629 Sellers v. Dugan, 827 Selser v. Roberts, 941, 942 Semmes v. Boykin, 1058 V. Wilson, 1051 Sentell v. Mitchell, 142 Sessions v. Hartsook, 1260 V. Moseley, 14, 16 Sewall V. Fitch, 218, 221, 230 Seward v. Jackson, 764 Sewell V. Eaton, 458, 459, 461, 470, 493 V. Henry, 474 Sexton V. Graham, 7, 9 V. Wheatou, 723 Seybel v. National Currency Bank, 36, 37 Seymour v. Brown, 6 V. Canandaigua & N. F. R. R. Co., 196 V. Davis, 221 V. Delancy, 84 V. Marvin, 1061 V. Montgomery, 460 V. Newton, 558, 1138, 1163, 1170, 1177, 1185, 1194, 1224 Shaddon v. Knott, 459 Shaferman v. O'Brien, 804 Shaffer v. Sawyer, 474 Shakespeare r. Markham, 163 Shand v. Hanley, 723 Shankland v. Mayor, &c. of Washington, 346 Shannon v. Bartholomew, 92 Shapley v. Garey, 995 Sharp V. Carroll, 978, 979, 1012 V. Gray, 147 V. Jones, 641 V. New York, 677, 695 V. Parks, 23, 25 V. Teese, 806 Shattuck V. Green, y35, 1271 Shaver v. Ehle, 897 Shaw V. Badger, 142 V. Barnhart, 666, 667 V. Bill, 201 V. Carbrey, 244 1-. Clark, 817 V. Coffin, 61 V. Finney, 421, 431 I.. Levy, 20, 458 V. Nudd, 10, 421, 460, 472, 1075 V. Republic Life Ins. Co., 843, 844 r. Sears, 1035 Ixxxiv TABLE OP AMERICAN CASES. .[References are to the bottom paging.] Shaw I'. Stine, V. Stone, V. Williams, V. Carpenter, Sliawhan v. Van Nest, PAGE 626, 671, 686 920 827 778 553, 1073, 1076, 1126 Shearer i\ Barrett, 64, 642 Shearick v. Huber, 41 Shedd V. Wilson, 1060 Sheedy i: Roach, 14 Sheehy i: Mandeville, 322, 1068 Sheeren c. Moses, 839 Sheffield v. Ladue, 387 Sheilds i: Pettie, 460 Sheldon v. Capron, 148, 149, 152, 154, 602 Shelton v. Franklin, 493 u. French, 1235 r. Marshall, 215 !,•. Merchant's Transportation Co., 691 Shepard v. Cross, 507 v. Pressej', 265 Shepardson v. Cary, 1009 Shephard v. Butterfield, 42 Shepherd v. Gilroy, 917 V. Hampton, 1076, 1231 V. Jenkins, 618, 619 V. Milwaukee Gas L. Co., 1233 V. Naylor, 1151 V. Pressey, 265, 272, 273, 275, 277, 286, 296 I'. Reese, 780 V. Temple, 604, 1212 Sheppard v. Steele, l060 Sherburne v. Shaw, 156, 33.3, 361 Sheredine v. Gaul, 1027 Sherman v. Barnard, 151 V. Champlain Trans. Co., 241, 936 V. Kitmiller, 163 V. Rugee, 1177 SherriU Hopkins, 215 Sherrod v. Langdon, 1278 Sherry v. Picken, 249, 254, 257 Shewalter v. Ford, 912, 915 Sherwin tj. Mudge, 10 Sherwood i: Haight, 1058 V. Meadow V. M. Co., 23 V. Salmon, 614 !•. Stone, 430 V. Walker, 149, 150, 151 Shields r. Keyes, 101 !•. Pettie, 863 V. Reibe, 941, 1015 Shindler v. Houston, 272, 275, 279, 285, 302, 312, 318, 326, 458, 469, 977 Shinn v. Bodine, 620 Ship Packet, The, 43 Shipman v. Cook, 1045, 1047 PAGE 77 649, 650 475, 476 407 Shipman r. Horton, V. Seymour, Shireman r. Jackson, Shirley r. Shirley, Shisler r. Baxter, H&« Shonk !■. Brown, 100 Short v. Battle, 91, 100 Shriver r. Pittsburg, 136 Shubar r. Winding, 129 Shufehlt V. Pease, 640, 641, 642, 731 !■, Suhnitzler, 651 Shughart v. Moore, 339 Sliultz L\ Bradley, 303 Shuman v. Shuman, 827 Shuniat r. Commonwealth, 816 Shumway v. Reed, 1064 I'. Rutter, 732 Shape V. Galbraith, 115 Shurtleff r. AVillard, 979, 1137 Sibley c. Holden, 839 i>. Tie, 724, 990 Sickles i.\ Pattison, 143 Sides !'. Hilleary, 630 Sigerson r. Harker, 979 V. Kahmann, 985, 990 Sigworth V. Laffel, 1251 Sikes V. Johnson, 61 Silkstone Co. r. Joint Stock Coal Co., 12.30 Sillers V. Lester, 196, 199, 201 SiUiman v. Wing, 610 Silsby Manuf . Co. v. Chicago, 157, 158 Silver Bow & Co. v. Lowry, 477 Silvernail u. Cole, 151 Silveus V. Porter, 101 Sime, In re, 640 Simmons ;•. Cin. Sav. Soc, 15 V. Green, 840, 1023 Simpson i'. Krumdick, 277, 284 u. McKay, 916 Sims c. Clark, 1051 V. Eiland, 627, 673, 679 !'. Everhart, 61 r. Klein, 016 y. McLure, 82 V. Norris, 70 V. Sims, 14 V. Wilson, 476 Sinclair r. Hathaway, 974 c. Healy, 54, 640, 641, 730, 731 Singer Manufacturing Co. r. Cole, 4, 506, 507 V. Graham, 4, 606, 507 r. Sanimons, 641, 1134 V. Treadway, 506 V. Holcomb, 4, 508 Single r. Phelps, 195 Singerly v. Thayer, 158, 160 Singstack v. Harding, 426 TABLE OF AMERICAN CASES. [References are to the bottom paging.] Ixxxv PAGE Sipe V. Earman, 727, 776 Sissont!. Cleveland, &c.Il. R. Co., 1233, 1243 V. Donnelly, 164 Sitterly v. Gregg, 1061 Sixbee u. Bowen, 101 Skidraore v. Eomaine, 82, 83 Sldlling V. BoUman, 1151, 1163 Skinner v. Conant, 239 V. Dodge, V. Gunn, V. Henderson, V. Hendrick, Skipwith V. Cunningham, Skrainka v. Scharringhausen, Slade V. Leonard, Slaighter v. Green, Slater v. Maxwell, Slaughter v. Cunningham, Slaymaker ;■. Irwin, Slayton v. McDonald, Sledge V. Scott, 44 919 776 345 129 794 14 6 659 72, 75 104, 108 12, 13 626, 672, 679, 686 641 659 1143 Sleeper v. Chapman, SlinglufE V. Eckel, Sloan V. Kingore, Sloan Saw Mill & Lumber Co. v. Gutshall, 301 Slocorab V. Lurty, 1045 Slocum II. Seymour, 248, 254, 256 Sloo !;. Law, 58 Slowey V. McMurray, 6 Slutz V. Desenberg, 8 Small V. Franklin Mining Co., 1043 V. Quincy, 334, 343 Smalley r. Edey, 322, 1063 V. Greene, 241, 794 Smallwood v. Worthington, 345 Smart v. Batchelder, 473, 515 Smethurst v. Woolston, 1235 Smith's Appeal, 408 Smith V. Acker, 727 V. Andrews, 714 Smith V. Arnold, 343, 362, 396, 402, 421 427 806, 807 V. Atkins, 191 192, 198 V. Babcock, 614 631, 837 V. Bank of Washington 129 V. Bean, 773, 827, 828, 832 V. Beattie, 5 V. Beatty, 662, 672 V. Benson, 257 V. Berry, 1075, 1230, 1234 V. Bettger, 1045, 1063 V. Bittenham, 605, 667 V. Boston & M. E. R., 840 V. Bouvier, 816, 817, 819 ,;. Brady, 143, 1003 V. Brittain, 625, 628 PAOE Smith V. Bryan, 24S ,.249,256,258 V. Case, 834 V. Central R. R. Co., 234 V. Champney, 731 V. Chicago, &c R. R. Co., 1233 0. Chrisman, 732 V. Clark, 6, 8, 107 V. Conlin, 241 V. Countryman t 628, 632, 661 V. Dallas, 469 V. Davenport, 998, 1012 V. Dennie, 1137 V. Dunlap, 1235 V. Evans, 69, 76, 78 V. Foster, 475, 833 V. Friend, 616, 549 V. Gillett, 988 V. Godfrey, 215, 777 r. Gowdy, 3, 104, 105, 106, 107, 108, 405 V. Greenlee, 658 V. Griffith, 1231 u, Henry, 100, 727 V. Hewett, 100 V. Hoffman, 346 V. Jones, 363 364, 426, 429 V. Justice, 907 V. Kay, 627 V. Keels, 1035 V. Kelley, 60, 74, 77, 78, 79 0. Lamb, 840 0. Lewis, 619, 840, 843, 844, 877, 1000, 1080 V. Love, 905, 951 V. Lockwood, 1044 V. Lozo, 475 V. Lynes, 49, 475, 640, 1133 V. Mace, 1049 V. Martin, 43 V. Mayer, 1230, 1271, 1272 V. Mayo, 59 73, 74, 75, 76 V. McColI, 905 V. Miller, 907, 1043 V. McNair, 897 V. Milliken, 279 V. Montgomery 16 V. Moynihan, 342 V. Myers, 145 V. Neefus, 427 V. Nevitt, 1035 !>. New Haven & N. R. R. Co., , 1243 V. Newton, 626, 627, 679 V. New York Cent. R. R. Co., 221 D. Niles, 4 V. Odom, 244 V. Owens, 322, 1086 V. Painter, 41 V. People, 48 Ixxj TABLE OF AMERICAN CASES. [References are to the bottom paging.] Smith V. Pette, 863, 1001, 1073, 1126 V. Poythress, 91 V. Price, 243 V. liicbards, 614, 628, 630 V. Kogers, 1051 V. Rowley, 322 V. Ryan, 1067 V. Sawyer, 2, 139 V. Screven, 1061 V. Silence, 87 V. Skeary, 731 V. Smith, 146, 153, 218, 268, 322, 407, 530, 582, 604, 605, 626, 649, 650, 1066 V. Spooner, 85 V. Stoller, 273 V. Thompson, 805 V. Tracy, 920 V. Vilie, 1277 V. Vodges, 723, 765 V. Waggoner, 244 V. Walton, 1023 I'. Ware, 149 V. Weaver, 108, 126 c. Welch, 727 V. Wetherell, 104 V. Wheeler, 989 V. Wilcox, 828 V. Wyckoft, 164 V. Young, 59 Smither v. Calvert, 609, 686 Smitherman v. Kidd, 1067 Smithers v. Bircher, 127 Smithpeters v. Griffin, 59, 65 Smithurst v. Edmonds, 196, 201, 203 Smock i\ Pierson, 618 Smoot's Case, 843 V. United States, 844 Smull I'. Jones, 659 Smyth L-. Craig, 210, 456, 458, 459, 469 ;;. Ex'rs of Ward, 348, 515 Sneathen v. Grubbs, 530 Snedeker v. Warring, 243 Snell V. Moses, 126 Snelling v. Hall, 348 Snow V. Judson, 637 V. Miles, 106, 110, 113, 118 V. Perry, 691, 1030 V. Shomaker Manuf. Co., 959 !'. Ware, 142 V. Warner, 272, 277, 280, 205, 296, 312 Snyder v. Christ, 723 V. Leibengood, 116 V. Quarton, 1040 V. Reno, 617, 897 V. Riley, 36 r. Van Doren, 164 i: Willey, 775 Soles V. Hickman, 361, 362, 365, 375, 401, 402, 406, 428 Solomon v. Dreschler, 1058 Somberby v. Buntin, 237, 801, 1258 Somers v. Pumphrey, 82 V. Wright, 1230 V. Brewer, 639, 640, 7:!0 Sortwill V. Hughes, 530, 583, 777 Sourwine v. Truscott, 100 South Australian Ins. Co. v. Ran- dell, 521 Southard r. Banner, 728 Southbridge Saving Bank r. Exe- ter Machine Works, 244 South Carolina Society c. John- son, 345 Southern Express Co. u. Van Meter, 148 Southern P. Co. r. Stanard, 1152 Southern Life & Trust Co. v. Cole, 237 Southern Life Ins. Co. v. Lanier, 625 Southwell ;;. Beezley, 515 Southwestern Freight Co. v. Plant, 980, 1023, 1131, 1134 V. Stanard, 473, 985, 1023, 1131 Southwick V. Smith, 888 Southworth v. Sebring, 1011 Sovereign v. Ortman, 353 Spade V. Burner, 41 Sparling j;. Marks, 906 Sparmann v. Keim, 631 Spaulding v. Brewster, 649 V. Day, 94, 101 V. Warner, 1041 Spear v. Atkinson, 1007 V. Hart, 342 Spears v. Ward, 349 Spence u. Bowen, 3H Spencer i\ Blackman, 4 t). Cone, 221,222,230,514 V. Darlington, 2(4 V. Hale, 277, 280, 296, 20.1, 311, 1009 V. Jones, 788 Spickler v. Marsh, y87 Spier's Appeal, 87 Spiers V. Halstead, 1240 Spies V. Boyd, 199 Spiller V. Scribner, 1110 Spivey V. Wilson, 727 Spooner v. Holmes, 23, 24, 36, 37 Spoor V, Spooner, 669 Sprague v. Blake, 276, 296, 303, 324 Spratt ('. Merchants' & M. Nat. Bank, 108 Sprigg !'. Bank of Mt. Pleasant, 346 Spring V. Coffin, 50 V. Haskell, 1243 TABLE OF AMERICAN CASES. [References are to the bottom paging.] Ixxxvii Spring V. Hight, 765 Spring Co. v. Knowlton, 773 Springfield Bank v. Merrick, 808 Springsted v. Lawson, 915 Sprinkle v. Martin, 1061 Sprott II. United States, 777, 783 Spurr V. Benedict, 152, 614 Squires v. Payne, 979 V. Biggs, 765 St. Joze Indiano, Tlie, 1224 St. Louis L. & W. E. Co. v. Mad- dox, 385 St. Louis Ins. Co. v. Homer, 343 St. Louis & S. B. E. E. Co. v. Eice, 629 St. Paul Eoller Mill Co. v. Great Western Dispatch Co., 575 Staats V. Bristow, 41 «. Hewlett, 363 Stackpole v. Arnold, 346 V. Symonds, 832 Stacy V. Deshaw, 724, 728 V. Kemp, 918, 1272 V. Eoss, 111 Stadtfeld v. Huntsman, 475 Stafford v. Eoof, 81 0. Pooler, 1017 V. Walter, 529, 1009, 1010 Stage Co. V. Peck, 844 Stagg V. Compton, 111 Staines v. Shore, 672, 707 Stallings v. Harold, 201 Stange v. Wilson, 1014 Stanley v. Chamberlin, 773, 774 V. Gaylord, 22, 23, 51 Stanton v. Austin, 990 V. Eager, 470, 528, 529, 530, 631, 538, 558, 582, 1137, 1169, 1224 V. Kirsch, 100 V. Miller, 156, 163 V. Small, 1076 V. Willson, 59, 60, 64, 69 Staples V. Emary, 243 Stapleton v. King, 1235 Star Glass Co. v. Longley, 155, 167 1). Morey, 141, 142 Stark V. AKord, 1231 V. Parker, 144 Starnes v. Brwin, 908 Starr v. Anderson, 985 V. Bennett, 713 V. Starr, 15 V. Taylor, 90 Startup V. McDonald, 1010, 1015 State V. Chadwick, 1060 V. Collins, 90 V. Delano, 820 V. Greenleaf, 821 V. Intoxicating Liquors, 302 PAOE State V. King, 995 V. McCauley, 604 V. O'Neil, 2 V. Plaisted, 818 V. Bevels, 208 V. Eichards, 410 V. Salyers, 41,42 V. Vinson, 208 State Bank v. Mettler, 239 Staton 11. New, 100 Steamboat Thompson v. Lewis, 1022 Stearns v. Barrett, 794 V. Dillingham, 145 V. Gafford, 201 V. Gage, 642 V. Hall, 351 V. Marsh, 37, 39 V. Washburn, 246, 253, 1074, 1085 Stebbins v. Eddy, 627 V. Leowolf, 995 V. Peck, 829 V. Smith, 1051 Stedman v. Lane, 911 Steel V. Fife, 336 V. Miller, 113 Steel Works v. Dewey, 516, 989, 992 Steele v. Curie, 876 D. EUmaker, 711 V. Taft, 408 V. Ward, 729 Steelyards i'. Singer, 642 Steeples v. Newton, 143 Steigleman v. Jeffries, 1272 Steinfeld v. Levy, 774 Steinhart v. Boker, 36 Steinhaur v. Witman, 618 Stephens v. Beard, 143 V. Chappell, 915 V. Orman, 631 V. Pence, 198 V. Santee, 461, 979 V. Tucker, 192, 197, 198, 201, 515 V. Winn, 362, 375 Stephenson v. Cady, 1081 V. Clark, 732, 979 V. Osborne, 85 V. Pacific Ins. Co., 42 Sterling v. Baldwin, 248, 256 V. Eipley, 727 Stern v. Drinker, 239 V. Filene, 1085 V. Henley, 732 Stetson V. Gurney,, 44 Stevens v. Anderson, 1063 V. Austin, 604 V. Bell, 38 V. Boston & W. R. E. Co., 470, 528, 538, 558 V. Brennan, 641, 642 Ixxxviii TABLE OF AMERICAX CASES. [References are to the bottom paging.] PAGE Stevens c Cooper, 344, 350, 358 V. Cunningham, 888 V. Eno, 482, 517 V. Fuller, 630, 662, 720 c. Haskell, 341, 346 V. Hurlburt Bank, 38, 40 V. Hyde, 625, 638 V. Johnson, 1271, 1272 V. Lyford, 1076 V. Park, 1043 v. Bainwater, 628 V. Smith, 961 V. Stevens, 15 V. Stewart, 279 V. Wheeler, 1201 V. Wilson, 44, 46 Stevenson v. Burgin, 1000, 1073 V. State, 13 Steward v. Scudiler, 349 Stewart v. Ball, 100 o. Challacombe, 801 V. Doughty, 249, 254 V. Emerson, 54, 153, 626, 639, 649, 651, 665 V. Hinkle, 240 V. Hopkins, 1058 V. Inglehart, 730 V. Jenkins, 94, 101 V, Kearney, 766 V. Keith, 1059 V. Many, 838 V. Power, 1230, 1248 V. Rogers, 721 Stidham v. Matthews, 101 Stiles V. McClellan, 408 V. White, 630 Stillman v. Hurd, 43 Stinson v. Clark, 732, 977 V. Ross, 40, 41 Stith I'. Patterson, 87 Stitt V. Little, 629 Stockett V. Watkins, 146 Stockham v. Stockham, 127, 134 Stockwell V. United States, 638, 699 Stoddard v. Graham, 239, 604 V. Ham, 148, 166, 172, 609 Stoddart v. Smith, 267 Stogdell V. Fugate, 19 Stokes V. Brown, 74, 75 V. Frazier, 39 Stollenwerk v. Thatcher, 43, 48, 558, 586, 691, 1214 Stone V. Browning, 136, 272, 273, 275, 279, 287, 294, 313, 318, 375, 401, 404, 1010 V. Dennison, 59, 60, 69, 213 !•• Denny, 629, 672, 679, 837, 906 r. Ebberly, 41 >.. Frost, 618 0. Hackett, 14, 15 PAGE Stone V. Nichols, 1085 o. Peacock, 458, 459, 463, 470, 472, 483, 484, 493, 494, 517, 990 V. Perry, 475 V. Swift, 575, 998, 1151 V. Seymour, 1061 V. Talbot, 1061 V. Wood, 381 Stoolfoos V. Jenkins, 61, 62 Stoops V. Smith, 334, 343, 344, 359 Storey v. Agnevv, 19, 728 V. Krewson, 1035 Storm V. Livingston, 24 V. Smith, 935 Storrs V, Barker, 1110 Story V. Elliot, 826 V. Flournoy, 201 V. Hamilton, 212 V. Salomon, 346, 816, 817 Stoudt ». Hine, 240 Stoutenburgh «. Konkle, 648 Stoveld V. Eade, 1059 Stover V. Eycleshimer, 205 Stow V. Rus"sell, 1041 V. Yarwood, 668 Stowell V. Eldied, 359, 380 V. Read, 1040, 1041 Strain v. Wright, 62, 74, 77 Strange v. Wilson, 993 Straus V. Minzesheimer, 493, 731 V. Ross, 457, 472 Street v. Hall, 1044 V. Chapman, 103, 95!1 Strickland v. Barrett, 169 Strong V. Blake, 1027, 1035 V. Dodd^, 311, 530, 1009 V. Doyle, 244, 258 V. Foote, 60, 64 V. Linington, 628 Strong V. jSational Banking As- soc, 38, 40 V. Taylor, 476 V. Saunders, 142 Stroud V. Pierce, 907, 908 Stubbs V. Lund, 1180, 1224 Stucky V. CIvburn, 912 Studwell V. Shapter, 61, 62 Sturgeon v. St. Louis, K. C. & N. R. Co., 1244 Sturges V. Bank of Circleville, 902 V. Bissell, 1243 (', Keith, 1235 Sturtevant v. Ballard, 727 V. Orser, 769 Suffolk Bank v. Worcester Bank, 1040 Suit V. Woodhall, 2.39, 489, 529, 775, 776 Sullins V. Goodyear Dental Vul- canite Co., 842 TABLE OF AMERICAN CASES. ^RefqreDces are to the bottom paging.] Ixxxix Sullivan v. Byrne, V. Tuck, Summeril v. Elder, Summers v. Bean, V. Mills, V. Roos, V. Sleeth, V. Vaughan, V. Wilson, Sumner v. Cottey, V. Gray, V. Halst, V. Hamlet, V. Jones, I). Parker, V. Saunders, V. Williams, V. Woods, PAGE 855 1257 583 1258 3, 110, 111 727 840 904 74,77 4, 475, 506 1270 40 458, 463, 469, 472, 490 832, 833, 834 604, 667, 839 1062 162, 387, 388 474, 475 Supervisors of Onondago v. Briggs, 149 Surtell V. Brailsford, 90 Sutliff V. Atwood, 1067 Sutphen v. Cushman, 5 Sutton V. Ballou, 731, 979 V. Bowker, 344 V. Campbell, 494, 506 V. Madre, 209 V. Sutton, 347 Suydara v. Clark, 132, 151, 154, 452, 453 Swain v. Frazier, 1066 V. Seamens, 350, 351, 353 Swan V. Scott, 773 Swanzey v. Parker, 897, 936 Swart's Appeal, 816 Swasey v. Adm'r of Vander- heyden, 59 Swayze v. Hull, 788 Sweenev v. Owsley, 468, 990 V. Smith, 92 Sweet !i. James, 1067 V. Titus, 1043 Sweetman v. Prince, 1271 Swett p. Colgate, 126, 896, 905, 907, 986 V. Poor, 805 V. Shumway, 343, 346, 896, 956 Swift V. Barnes, 1075 v. Bennett, 59, 60, 64, 70 V. Gilford, 349 V. Holdridge, 641 V. Opdike, 1015 V. Pierce, 239 V. Powell, 817 V. Thompson, 731 V. Tyson, 36 Swigartu. McGee, 301 Swikehard v. Russell, 628 Switzer v. Skiles, 659 PAGE Sydnor v. Roberts, 730 Sykes v. Gerber, 1049 Symington v. McLin, 44 Symmes r. Prazier, 107 Symns v. Scliotten, 1196 Symonds v. Hall, 40 Syracuse B. & N. Y. R. R. Co. V. Collins, 1043 Taber v. Cannon, 386, 387 Tabor v. Peters, 911 Taft V. Brewster, 381 V. Montague, 144 V. Pike, 76,78 !:. Sergeant, 74,75 V. Tiede, 1233 Taffts V. Manlove, 41,42 Taggy. Tennessee Nat. Bank, 677, 699 Tagiasco v. Molinari, 411 Taintor v. Pendergast, 380, 387, 388 Talbot V. National Bank of Com- monwealth, 617 V. Wilkins, 342 Talcott V. Henderson, 650, 651 Talmage v. Third Nat. Bank, 691 Tallman v. Pranklin, 235, 342, 362, 363, 396, 401 V. Turck, 625, 638 Talty V. Freedman's Savings & Trust Co., 11, 39 Tamplin v. Addy, 54 Tandy v. Masterson, 76 Taney v. Bachtell, 333 Tarleton !■. Baker, 815 Tate V. McCorniick, 727 V. Smith, 1041 Tatum V. Kelly, 777 Tay loe v. Merchants' Fire Ins. Co., 11, 121, 128, 131, 133, 134, 181, 188 I'. Riggs, 334 V. Sandiford, 1059 Taylor v. Blanchard, 792, 794, 803 V. Cole, 959, 988, 1010 V. Coleman, 1061 V. Finley, 507 V. Fleet, 148, 627 V. Gilman, 805 r. Guest, 627 V. Henry, 14 V. Huff, 618 V. Leitli, 673 V. McClung, 132 V. Patrick, 83 V. Pratt, 361, 375 ,.. Rennie, 113, 130, 131 V. Richardson, 978 V. Ross, 362, 375 V. Rundell, 73, 75 ,-. Saurman, 792, 793 xc TABLE OP AMERICAN CASES. [References are to the bottom paging.] Taylor v. Shelton, 91 V. Turner, 585, 586 i-. Twenty-five Bales of Cot- ton, 468 I'. Wetmore, 132 r. Wilson, 1043 Taymon v. Mitchell, 904 Teague v. Irwin, 628, 632 Teal V. Spangler, 1063 Tear t'. Mathews, 58 Teohmeyer i\ Waltz, 41 Tedford v. Wilson, 196 Teed v. Teed, 325, 326, 327 Tegler v. Shipman, 777 Telford v. Adams, 764 Tenbrook v. Brown, 15 Tennessee Nat. Bank v. Ebbert, 194, 200, 727, 728 Tenney v. I?oote, 744 V. Poor, 766 Terhune v. Colton, 1059 Territt v. Bartlett, 806 Terry v. Belcher, 727 V. Bissell, 617, 897 V. Wheeler, 458, 461, 468, 470, 473, 484, 485, 493, 516, 526, 989 Tetz V. Butterfleld, 158, 161 Tewkesburj' v. Bennett, 907 Texas v. White, 777 Textor v. Hutchings, 843 Thacher v. Dinsnaore, 1064 Thacker v. Saunders, 764 Thallhimer v. Brinckerhoff, 805 Thames, The, 1I5I, 1162 Tharey o. Gallup, 239 Tliarp i: Farquar, 359 V. Feltz, 333 Thatcher v. Phinney, 723 Thayer v. Brackett, 1036 V. Lapham, 468, 470 V. Luce, 3, 363, 408, 418 V. Manley, 145, 147 V. Meeker, 1041 i'. Middlesex Mut. F. Ins. Co., 106, 129, 130, 183 f. Peck, 1043, 1051 V- Rock, 268, 333, 775 K. Turner, 604, 639 Thing V. Libbey, 74, 76, 77, 78 Third Nat. Bank, &c. v. Arm- strong, 507 Thomas v. Adm'r of Miles, 801 V. Blackman, 111 I'. City of Richmond, 777 0. Cronise, 816 c. Dickinson, 1235 V. Dike, 69 V. Hammond, 240, 402 V. Kelly, 1067 PAGE Thomas r. Knowles, 610 I'. Mead, 730 V. Miles, 792 V. Shoemaker, 995 V. Todd, 1051 V. Tolford, 989 V. Winchester, 637 V. Winters, 26, 476, 981, 1251 Thomason v. Cooper, 1049 V. Poullain, 201 Thompson ;;. Alger, 237, 275, 321, 324, 1074, 1076, 1085 V. Baltimore & 0. R. R. Co., 308, 309, 979, 990 B. Bertrand, 912, 915 I'. Botts, 912 V. Cincinnati W. & Z. R. Co., 1009 V. Conover, 517, 526, 990 V. Davies, 658 V. Pranks, 459, 470 V. Gould, 154, 191, 845 V. Hall, 375 !'. Hamilton, 81 li. Ketcham, 215 . V. Lay, 73, 75, 76, 77 D. Lee, 54, 640, 668, 731 c. Libby, 474, 918 V. Marshall, 804 V. McCuUough, 897 V. Means, 794 V. Menck, 303, 338, 405 V. Patrick, 11 V. Phelan, 1060 V. Rose, 54, 642, 649, 650 V. Reynolds, 804 V. Russey, 888 V. Stewart, 691 u. Wedge, 1047,1133,1134 r. White, .345 V. Wilhite, 240, T.'Sl V. Williams, 832 Thomson v. Davenport, 387 V. White, 345 !'. Bank of British N. A., 1043 V. North America Bank, 1067 Thoreson c. Minneapolis, 1273 Thorington v. Smith, .'US Thorndike v. Bath, 20, 469, 494, 7.32, 990 r. Locke, 1074 Thorne v. Deas, 211 V. MoVeagh, 1278 V. Prentiss, 628 Thornton v. Williams, 1063 V. Wynn, 613 Thorp, Matter of, 58 V. Burling, 23 Thorpe v. Fowler, 475 V. White, 143 TABLE OF AMEKICAK CASES. XCl [References are to the bottom paging.] Thoubborron v. Lewis, 1015 Thouvenin v. Lea, 241 Thrall v. Hill, 193, 194, 197 V. Newell, 617, 897, 936 c. Wright, 60, d4 Thruston v. Thornton, 105, 106, 116 Thurlow V. Gilmore, 78, lOBO Thurman v. Wilson, 1074, 1076, 1126 Thurston v. Blaisdell, 1041 0. Blanchard, 604, 625, 1093 V. Ludwig, 344, 351 r. Percival, 805, 1051 V. Spratt, 935, 1271 V. Thurston, 3 Tibbetts v. Towle, 50, 474 Ticknor v. McCleland, 249, 731 Tiedeman v. Knox, 1214 Tilden v. Minor, 576, 998, 1012, 1151 Tileston v. Newell, 839 Tilghman v. Tilghman, 346 Tillinghast v. Wheaton, 15 Tillman v. Shackleton, 94 Tilson V. Terwilliger, 727 Tilt y. La Salle Silk Manuf. Co., 105, 1126 Tilton Safe Co. v. Tisdale, 54, 958 Timmerman v. Dever, 793 Tlmmons v. Nelson, 1003 Timrod v. Shoolbred, 905 Tinney v. Ashley, 840 Tippets V. Walker, 381 Tipton V. Feitner, 143, 265 Tisdale v. Buckmore, 604 V. Harris, 237 Titcomb v. Seaver, 359 V. Vantyle, 81 V. Wood, 639, 640, 730 Titus V. Kyle, 359 V. Mabee, 195 V. Phillips, 920 Tobey v. Barber, 1045, 1067 V. Robinson, 774 Tobias v. Lissberger, 848 Tobin V. Galvin, 87 Todd V. Campbell, 5 V. Fambro, 626 V.Lee, 92, 109 V. Taft, 1258 Tolan V. Hodgeboom, 146 Toledo W. & W. R. Co. v. Bod- ri'Tues, 690, 691 "v. Gilvin, 981, 990, 1096 Tolman v. Johnson, 775, 776 Tome V. Dubois, 19, 457, 990 0. Parkersburg Branch R. R., 699 Tonilinson v. Greenfield, 201 (.. Miller, 421 V. Roberts, 475 V. Savage, 711 Tompkins v. Batie, 1035 PAGE Tompkins v. Dudley, 143 190, 267, 469, 1074 0. Haas, 267, 1074 V. Nichols, 724 V. Wheeler, 731 Tone V. Wilson, 629, 673 Tool Co. V. Norris, 788 Toole V. Davenport, 714 Topping V. Root, 855 Torkelson v. Jorgenson, 907 Torrey v. Bank of Orleans, 277 V. Baxter, 1065 V. Corliss, 629 Torry v, Hadley, 1045 V. Holmes, 387, 388 Touner v. Hills, 192 Touro V. Cassin, 215 Tourtellott v. Pollard, 640 Towell V. Gatewood, 904 , 906, 907 Towle V. Blake, 269, 775 V. Larrabee, 827, 828 V. Leavitt, 707 Town V. Trow, 1027 Towne u. Collins, 27,28 V. Wiley, 61 Towner v. Bliss, 476 Townsend v. Bogart, 649 V. Hargraves, 213, 214, 217, 273, 279, 295, 302, 306, .307, 324, 336, 364, 368, 373, 404, 419, 466, 468, 472, 1136 V. Henry, 1024 V. Long, 240 , V. Newell, 39 V. Shepard, 153 V. Van Tassel, 427 Townsends v. Stevenson, 1067 Towsley v. Moore, 214 Towson V. Havre de Grace Bank, 1030 Tracy V. Keith, 92,94,100 V. Talmage, 774, 776, 777, 778 Traft V. Travis, 208 Train v. Gold, 107 Trainer v. Trumbull, 60 Traslier v. Everhart, 214 Traub v. Milliken, 46 Traugh's Estate, 16 Travellers' Ins. Co. v. Chappelow, 1063 Traver v. Halsted, 1076 Treadwell v. Anglo-American Packing Co., 558 V. Moore, 1058 V. Reynolds, 1017 Treasurer v. Commercial Coal Min. Co., l-'o8 Treat v. Schoninger Melodeoii Co., 7U4, 801 Trevor v. Wood, 100, 128, 129, 131, 133, IHl, 363 Trick V. Hillard, 479 XCll TABLE OF AMERICAN CASES. fReferences are to the bottom paging.] PAGE 1011 936 967, 1271, 1272 408 198 522, 531 775, 779, 788 827, 834 Trieber v. Andrews, Trigg V. Faris, Trimraier ;'. Thompson, Tripp V. Bisliop, V. Brownell, V. Riley, Trist u. Ciiild, Troewert v. Decker, Trotter v. Heekscher, 886 Trougjiton v. Hill, 86, 88 V. Johnston, 711 Troup !•. "Wood, 658 Trout V. Kennedy, 1231 Trovigner v. McBurney, 774 Trowbridge v. Holden, 14 Troy Iron & N. Co. v. Corning, 346 Trua.x v. Slater, 236 Trublood v. Trublood, 61 Trudo V. Anderson, 1055 True V. International Tel. Co., 1233 Trull V. Eastman, 205 V. Fuller, 243, 244 Truman r. Hardin, 476 Trunick w. Smith, 732 Truscott V. King, 1060 Trust V. Delaplaine, 658, 707 Trustees u. Brooklyn Fire Ins. Co., 241 Trustees of Church in Hanson v. Stetson, 343 Tryon v. Whitmarsh, 672, 686 Tucker v. Aiken, 788 V. Buffington, 1011 v. Daly, 237 ' r, Jewett, 146 r. Moreland, 61, 75, 76 V. West, 826, 827, 834 r. Woods, 104, 106, 107 Tuckerman v. Hinkley, 827, 833 Tufts V. MoClure, 992, 1015 0. Tufts, 363 r. Plymouth Gold Mining Co., 364, 373 Tull i\ David, 421 Tupper );. Cadwell, 59, 64, 65 Turley v. Bates, 516 Turner v. Bank of Fox Lake, 1043 1'. Brown, 15 V. Cofiln, 166 V. Cooliilge, 1011 r. Gaither, 78 V. Huggins, 631 t). Langdon, 981, 990 V. Moore, 479 Turton r. Burke, 230 Tuthill V. Babcock, 298, 614, 837 V. Morris, 101 Tuttle V. Brown, 906, 908 V. Holland, 766 Tuttle V. Love, 106, 112, 132 Tuxworth V. Moore, 11, 19, 306, 307, 314, 317, 732, 978, 1136 Tyler v. Ames, 157, 159 V. Strang, 491, 492, 516, 743 Tymason v. Bates, 345 Tyner '•. Stoops, 1063 Tyng r. Com. Warehouse Co., 1235 Tyron v. Whitmarsh, 629 Uesdell !'. Cunningham, 210 Ueberroth v. Riegel, 104 Uhl I'. Robison, 217, 468 Uhler V. Farmers' Nat. Bank, 240 Ullman v. Barnard, 46, 289, 312 Ullmann v. Kent, 1073, 1074, 1126, 1127 Underbill v. North Am., &c., 128, 130, 132 Underwood ;>. Campbell, 361, 375 V. Simmons, 343 Union Bank v. United States Bank, 617 Union Trust Co. v. Whiten, 105 United Society of Shakers v. Brooks, 515 United States v. Bradbury, 1061 )'. Gooding, 699 V. January, 1058 V. Kirkpatrick, 1060 v. Lapene, 777 u. Lutz, 1131 «. New Orleans R. R. Co., 196 V. Peck, 842 ('. Robeson, 853 V. Wilkins, 211 V. Woodruff, 481, 487, 524 United States Bank v. Donnally, 800 United States Express Co. v. Haines, 1243 Updike !'. Campbell, 777 r. Ten Broeck, 241 Upham r. Lefavour, 1060 Upton V. Sturbridge Cotton Mills, 980 i-. Suffolk Co. JliUs, 919, 920 V. Tribilcock, 628, 603, 705 r. Vail, 686 Usher r. McBratney, 779 Utica Ins. Co. v. Kip, 782 Utley V. Donaldson, 3, 106, 112, 113, 132, 133, 148, 183, 897, 936 Utter V. Stuart, 604 Vatl v. Foster, 1045, 1007 V. Strong, 12, 13 Valentine v. Ford, 88 Vallier v. Ditson, 1051 Van ALstine v. Wimple, 333 TABLE OF AMERICAN CASES. [References are to the bottom paging.] XClll PAGE Vati Alstine v. Howard, 630 Vanamee v. Bank of Troy, 642 Van Arsdale v. Joiner, 01 V. Hundel, 1233 Van Blarcom v. Broadway Bank, 11 Van Bokkelen v. Taylor, 346 Van 3raehlin v. Fonda, 973 Van Brack v. Peyser, 686 Van Brunt v. Pike, 309, 978 Van Baskirk v. Warren, 727 Vance v. Scliroyer, 604 Van Cleef v. Fleet, 54 Vancleef ». Therasson, 322 Vandal v. Thompson, 215 Vandenheuvel v. United Ins. Co., 918 Vanderhost i'. McTaggart, 1017 Vandennark v. Vandermark, 15 Vanrtewalker v. Osmer, 627, 628, 911 Van Dazer v. Howe, 164 Van Duzor v. Allen, 475, 641 Vandyke v. Christ, 7 Van Epps v. Harrison, 668 Van Eps v. Dillaye, 1045 V, Schenectady, 267 V. Van Eps, 277 Van Hassell v. Borden, 19 Van Hoozer v. Cory, 192, 194, 199 Van Horn v. Kucker, 1073, 1126, 1127 Van Home v. Hann, 83 Van Hoyen v. Irish, 833 Van Husen v. Radcliffi, 195 Vankirk v. Skillman, 101 Van Kleek v. Leroy, 649 Van Liew v. Johnson, 666, 667 Van Marter v. Babcock, 794 Van Ness v. City of Washington, 345 V. Facard, 244 Van Neste v. Conover, 638, 649 Van Nostrand v. Wright, 73, 75 Van Ostrand v. Keed, 341, 918, 1067 Van Patten v. Burr, 767 Van Schoick r. Niagara Fire Ins. Co., 911 Van Sickle v. Ayres, 1060 Van Staphorst v. Fearce, 359 Van Sycle v. Dalrymple, 334, 341, 358 Van Wick v. Brasher, 85 Van Winkle v. Ketchutn, 59 Van Woert v. Albany & S. R. R. Co., 273, 296, 303, 324 Van Wyok v. Allen, 896, 959, 961, 1233 !•. Seward, 721 Varner v. Nobleborough, 1064 Varney v. French, 827 Vassar v. Camp, 104, 111, 127, 129, 130, 131, 181, 188 Vates V. Cornelius, 912 Vaughan v. Marable, 804 V. Parr, 73 Vaughan and Telegraph, The, 583 Vaughn v. Hopson, 475 Vaugn V. Parr, 75 Vaupell v. Woodward, 238 Vawter r. Griffin, 237, 238 Veasey v. Doton, 631, 0.32 V^eazie v. Holmes, 494 V. Somerby, 20, 732 y. Williams, 667,699,707,711 Veet V. Spencer, 478 Vent V. Osgood, 63, 68 Ventress v. Smith, 22, 23, 27, 28, 41 Vermilye v. Adams Express Co., 23, 36, 37 Vibbard v. Johnson, 935, 936 Vicary c. Moore, 350 Vick r. Smith, 1061 Vickery v. Welch, 794, 803 Vicksburg & M. B. R. Co. v. Ragsdale, 1243 Victor, &c. Co. V. Rheinschild, 920 Viele V. Goss, 686 Vielie v. Osgood, 412 Vincent v. Cornell, 23, 474 D. Germond, 276, 277, 279, 314, 324 V. Leland, 904, 1260, 1273 Vining v. Bricker, 813 V. Gilbreth, 279, 732, 977 Violett V. Fatten, 362 Vogt V. Ticknor, 92 Voorhees v. Coombs, 105 V. Earl, 625, 666 V. Voorhies, 74 Voorhis v. Freeman, 243 V. Olmstead, 1104, 1156 Vorebeck v. Roe, 256 V. Bovve, 248 Vose V. Stickney, 727 Voss V. McGuire, 941 Vreeland v. New Jersey Stone Co., 705 Vulcanite Paving Co. v. Philadel- phia Traction Co., 853 Wabash, St. L., &c. R. Co. V. Shryock, 649 Wade V. Colvert, 84 r. Moffiett, 468 Wadleigh v. Bevelling, 806 V. Janvrin, 24S Wadlington v. Covert, 1045, 1066 Wadsworth v. Sharpsteen, 84 V. Williams, 723 Wagenblast v. McKeen, 1035 Wagner v. Eggleston, 106 "e. Watts, 203 Wailing v. Toll, 59, 60, 70 Wait I-. Axford, 45 V. Brewster, 1065 II. Green, 475 TABLE OF AMERICAN CASES. [References are to tbe bottom paging.] PAGE Wakefield v. Litgow, 1024 V. Stedraan, 343 Wakeman v. Dalley, 637, 686, 690, 702 Walan v. Kerby, 774 Walden v. Bodley, 58 V. Murdock, 279, 470 Waldo !■, Belcher, 482, 515, 517 V. Davis, 346 Waldron v. Brazil, 838 !•. Chase, 141, 312, 461, 467, 468, 493, 510, 516, 521, 525, 990 V. Romaine, 583, 990, 1137 Walke V. Moody, 41 Walker v. Atwater, 215 V. Bank of New York, 387, 388 V. Blake, 8 V. Brown, 105, 142, 1035 V. Butterick, 6, 7, 9 V. t^oUier, 731 c. Davis, 61, 83 V. Denison, 614 I'. Ellis, 77 :: Gooch, 1126 V. Halsington, 916 r. Johnson, 240 t: Lovell, 265, 268, 269, 775, 778 V. Mitchell, 475 !■. Pue, 958 r. Richards, 239 V. Russell, 192 r. Sherman, 243 ( . Simpson, 85 V. Supple, 236 r. Tucker, 845 r. Vaughn, 195 Wall r. Charlick, 779 r. Hines, 244 Wallace /■. Agry, 1064 V. Baker, 335 /■. Lark, 766 V. Leais, 72, 75 V. McConnell, 1041 V. Rodgers, 918 Wallis V. Barkwell, 59 Walls r. Bailey, 1136 Walrath r. Ingles, 323, 494 V. Richie, 324, 325, 327 Walsh L'. Barton, 711 V. Blakley, 306, 530, o84 c. Carter, 905 r. Kennedy, 15 V. Lennon, 1044, 1063 V. Powers, 62 Walter v. Ross, 359, 1212 Walther v. Wetmore, 46 Walton ». Bemiss, 1064 I'. Black, 1014 r. Cody, 959, 967 V. Reager, 41 Wanamaker v. Yerkes, 1096 Wangler v. Franklin, 475 Wanser v. Messier, 935, 1271 Waples V. Hastings, 61 Ward, In re, 15 ;;. Bourne, 1062, 1064 r. Fellers, 142 !■■ Haggard, 897 t.'. New York Cent. R. R. Co., 123.3, 1241, 1243 l: Shaw, 10, 11, 469, 461, 490, 494, 617, 1085 r. Smith, 1030, 1055 V. Taylor, 1010 r. Whitney, 1151 V. Wiman, 713 Warden f. Fosdick, 713 Warden r. Marshall, 468, 990, 1137 Warder v. Fisher, 1273 Ware v. Cartledge, 61 V. Curry, 778 r. Sharp, 93 r. Simmons, 201 Ware River R. Co. v. Vibbard, 985, 1131 Warehani Bank v. Burt, 848 Warfield v. Booth, 794, 842, 1066 Waring v. Mason, 387, 388, 668, 941, 942, 956, 959, 1273 Warner v. Daniels, 614, 631, 677, 837 p. Dove, 704 V. Martin, 44, 46, 48 (,-. Norton, 727 Warnock r. Campbell, 84, 85 Warren /,-. Buckminster, 210, 480, 490, 510, 515, 516 V. Chapman, 258, 265, 775 V. Hewitt, 817, 818 r. Jones, 793, 794, 795 V. Leland, 248, 256 u. Mains, 1030 r. Milliken, 306, 307, 493, 515, 1012, 1136 V. Philadelphia Coal Co., 906, 907 V. Tyler, 666, 668 r. AVheeler, 340, 403, 877, 1230, 1234 Warren Glass Works v. Key- stone Coal Co., 958 Warriner v. People, 1043, 1051 Wartnian c. Breed, 7, 277 Washburn v. Cuddihy, 916 V. Fletcher, 128, 129, 336 r. Gould, 160 V. Pond, 37, 38, 49 Washburn Iron Co. v. Russell, 980, 986 Washington v. Johnson, 8, 888 Washington Ice Co. v. Webster, 273, 401, 405 Washington, &c. Steam Tucket Co. !•. Sickles, 240 TABLE OF AMERICAN CASES. XCV [References are to the bottom paging.] PAGE Water's Heirs v. Brown, 156 Water Commissioners of Jersey City V. Brown, 123 Water Patent Heater Co. o. Smith, 668 Waterbury v. Graliam, 362 V. Russell, 907 Waterliouse v. Citizens' Bank, 1055 Waterman v. Brown, 12 V. Buckland, 817 V. Meigs, 163, 221, 222, 362, 377, 401 V. Williamson, 237 Waters v. Cox, 475, 476 Waters Heater Co. v. Mansfield, 888 Waters P. H. & Co. v. Smith, 887 Watkins v. Hill, 1051 V. Hodges, 351 V. Paine, 582, 1009, 1017 V. Stevens, 70 V. Wyatt, 192, 199 Watrous v. Blair, 774, 776 Watson V. Byers, 163 V. Cresap, 897 V. Cross, 67 V. Hensel, 63 I'. LeKow, 765 V. McLaren, 362 V. McNairy, 13 V. Murray, 777, 778 V. Owens, 1067 V. Poulson, 713 V. Randall, 239 r. Rickard, 388 V. Rodgers, 731 V. Sttver, 146 «. Walker, 855 Watt V. Huch, 1061 V. Watt, 455 Watts V. Hendry, 493, 516 V. Van Ness, 828 Waul V. Kirkman, 362 Way V. Davidson, 40 V. Foster, 773 V. Wakefield, 13 Waydell v. Luer, 1067 Weakly v. Bell, 1067 Weare v. Gove, 387 Weart v. Hoagland, 13 Weatherford v. Fisliback, 630 Weaver v. Barden, 53, 641, 642 V. Jones, 72 V. Lapsley, 475 V. Nixon, 1043 Webb V. Odell, 147, 152, 617, 618, 719, 897 V. Stone, 604, 667 Webber v. Davis, 19, 410, 457, 468, 990 ,.. Donnelly, 776, 777 V. Minor, 990 Weber v. Armstrong, 728 Webster !■. Anderson, 727 0. Bailey, 727 V. Drinkwater, 146 V. Ela, 156, 333, 361, 377 V. Granger, 941 V. Howe Machine Co., 214 V. Lamed, 672 V. Massey, 215 V. Sturgis, 817 V. Sanborn, 820 V. Zeilly, 324, 338 Weddigen v. Boston Elastic F. Co., 1043 Wedford v. Patterson, 313 Weed i>. Black, 779 i). Boston & Salem Ice Co., 458 V. Snow, 1066 Weeks v. Burton, 629 i-. Hull, 995 V. Leighton, 69 r. Medler, 335 V. Prescott, 732 V. Robie, 666, 667, 669 V. Sego, 92 Weiden v. Woodruff, 123 Weiger u. Gould, 956 Weightman v. Caldwell, 237, 403, 450 Weil V. Golden, 214 Weiland v. Kobick, 60 Weimer v. Clement, 668, 672, 703, 905, 906, 907 Weiner v. Whipple, 381 Weist V. Grant, 026 Weiss V. Maunch Chunk Iron Co., 13 Welch w. AUington, 1066 V. Bagg, 146 V. Frost, 10-30 !'. Goodwin, 384 V. Sackett, 114 V. Wesson, 773 Weld V. Came, 288, 489, 980, 989, 990, 1092 V. Cutler, 521, 1099 Weldin v. Porter, 375 Wellauer v. Fellows, 141, 142, 145 Weller v. Hersee, 800 Wells V. Abernethy, 1075, 1230, 1235 V. Bailev, 346 V. Calnan, 845 V. Day, 267 V. Miller, 1137 V. Morrison, 1043 o. Spears, 967 V. Thorman, 91 Welsh V. Bell, 1089, 1131 V. Carter, 127 V. Gossler, 993 V. Welsh, 766 Welshbilling d. Dienhart, 628 XCYl TABLE OF AMERICAN CASES. [References are to the bottom paging,] Wemet v. Missisquoi Lime Co., 1065 Wemple v. Knopf, 339, 408 Wendt V. Ross, 1060 "Wentworth v. Day, 107 V. Dows, l-i72 West V. Bolton, 475 !'. Cunningham, 904, 1073 V. Moore, 61, 62 V. Piitcharrt, 1075, 1230, 1234 V. Wentworth, 1235 V. West, 92 West Branch Bank v. Moore- head, 1059 West Jersey K. R. Co. v. Trenton Car Works, 494, 511 West Kep. M. Co. v. Jones, 941 Westbrook v. Davis, 1055 V. Eager, 249, 258 Westcliester Ins. Co. v. Earle, 350 Westcott V. Ainsworth, 629 V. Thompson, 6, 7 Westerlo i-. De Witt, 15 Western R. R. v. Babook, 713 Western Transportation Co. v. Marshall, 48, 49, 51, 52, 639, 640, 643, 730, 731 Western Union R. R. Co. v. Wag- ner, 46, 49, 52 V. Burlington & S. R. Co., 803 Western Union Tel. Co. v. Chi- cago & P. R. R. Co., 105 V. Meyer, 148 u. Union Pac. R. R. Co., 774 Westervelt v. Ackley, 101 Westfall !;. Peacock, 1120 Westfield Bank v. Cornen, 676 Westlake o. Bostwick, 848 Westmoreland !'. Dixon, 905 Weston's Case, 116 Weston u. Grand T. R. Co., 1243 V. McMillan, 384 V. Weston, 244 Wetherbee v. Potter, 376 Wetherell v. Joy, 1058 !i. Neilson, 905 Weymouth v. Sanborn, 1066 Whaley v. Peak, 145 Whalon v. Aldrich, 1244 Wliallon V. Kauffman, 162 Wharf V. Roberts, 029 Wharton v. Stoutenburgh, 109 Wlieadon v. Olds, 149 Wheat V. Cross, 121, 128, 131, 134, 148, 164, 602, 618 Wheatly v. Miscal, 68 Wheaton v. Baker, 625, 638, 6-39, 666 c. East, 73, 75, 77 Wheelan v. Sullivan, 156 Wheeler v. Cropsey, 1060 V. Guild, 36, 37 PAGE Wheeler r. Knaggs, 1030 V. Nevvbould, 37, 38, 39, 40 V. Nichols, 978, 979 V. Randall, 673 r. Reed, 384 V. Russell, 806 V. Scliroeder, 1067 V. Spencer, 214 V. Wheeler, 14, 205 Wheeler & Wilson Manuf. Co. v. Givan, 1055 V. Teetzlaff, 506 Wheelwright v, Depeyster, 27, 28, 53 Whelan r. Boyd, 853 ... Lynch, 1076, 1231 V. Sullivan, 163 Whipple V. Foot, 249, 254 V. Parker, 401 V. Thayer, 314, 978, 979 Whitaker v. Cone, 805 V. Eastwick, 905, 936 c. Groover, 1058 V. Sumner, 11, 19, 39, 978 V. Williams, 1110 Whitbeck v. \'an Ness, 322, 1051 V. Whitbeck, 240 Whitcher v. Dexter, 1066 Whitcomb v. Denio, 669 V. Hungerford, 981 c. Joslyn, 61, 62 V. Kephart, 240 V. Whitney, 470, 473, 514 V. Woodworth, 4, 476 White V. Allen, 323 L'. Branch, 78 V. Buss, 776, 782, 806 V. Carlton, 1063 V. Chouteau, 386 r. Corlies, 114, 132 V. Cox, 83 r. Crew, 426 u. Drew, 322 V. Flora, 73, 75 V. Foster, 246, 248, 254, 256 V. Franklin Bank, 773, 774, 806, 810, 818 V. Fuller, 349 V. Hanchett, 240 V. Hewitt, 143 V. Jones, 795, 1063 r. Knapp, 302 V. Lang, 826 u. Madison, 387 V, Mann, 845 V. McDowell, lOlM V. Merritt, 630 V. Miller, 896, 958, 959, Vlll V. Mitchell, 1177, 1178 V. Phelps, 24 u. Philbrick, 145, 147 PAOE White 11. Salisbury, 1236 V. Sawyer, 678 V. Seuyler, 1258 V. Skinner, 381 V. Thompkine, 13 V. Welsh, 985, 991, 1096, 1131, 1169 White Mts. E. E. v. Buy State Iron Co., 12 Whiteiield v. McLeod, 905 V. United States, 777 Whitehead v. Root, 194, 204 V. Tuckett, 691 V. Woodruff, 731 Whitehouse t;. Frost, 516, 521 Whitely v. Stewart, 92 Whitesides v. Cannon, 92 Whiting V. Barrett, 15 V. Gould, 341 V. Sullivan, 142 Whitley v. Murray, 144 Whitlock V. Hay, 1156 Whitman v. Merrill, 642 Whitmarsh v. Conway, i 347 V. Hall, 69 V. Walker, 248, 253, 256, 257 Whitmore v. Alley, 108 V. Coats, 1075, 1076, 1230 V. South Boston Iron Co., 132, 917, 941, 955, 956, 958, 959, 960, 961 Whitney h. Allaire, 713 V. Boardtnan, 340, 347, 349, 714, 1126 V. Brunette, 727 V. Dutch, 61, 73, 75, 76, 81 V. Eaton, 474 V. Goin, 1066 V. Heywood, 935, 1271 V. Kenyon, 766 V. Lee, 211 V. Lynde, 732 V. National Bank of Potsdam, 617, 618, 897 V. Slay ton, 792, 793, 794 V. Sutton, 906, 908 V. Taylor, 916 V. Thacher, 908, 911 V. Whiting, 866 V. Wyman, 396 Whiton V. Spring, 1052 Whitsett V. Forehand, 1234 Whittaker v. Hueske, 941, 1263 Whittemore v. Gibbs, 237 Whitwell V. Brigham, 39 V. Carter, 815 I.. Vincent, 210, 476 Whitworth v. Carter, 93, 100, 101 Whorton v. McMahon, 421 Wichter v. Wilson, 92, 93 TABLE OF AMBRICAN^ CASES. [Befeiences are to the bottom paging.] Wickham v. Martin, Wicks V. Mitchell, Widoe V. Webb, Wiener v. Whipple, Wigand v. Sichel, XCVU PAGE 641 92 775 341, 380 637 Wiggin I'. Day, 642, 649, 650 V. Foss, 604 V. Goodwin, 350 I). Sweet, 730 Wiggins Ferry Co., The, 611 Wigglesworth v. Steers, 84 Wigton V. Bowley, 528, 557, 558 Wilbur V. Cartwright, 906 V. How, 658 V. Jernegan, 1067 Wilcox V. Green, 1009 V. Hall, 956, 959 V. Henderson, 628, 702, 703 V. Howard, 941 V. Hunt, 806 V. Owens, 959 V. Eoath, 73, 76, 77 V. Wood, 346 Wilcox Silver Plate Co. v. Green, 280, 296, 298, 311 Wilder v. Cowlee, 387, 388, 897 V. Wilson, 21 Wildey v. School Dist., 1002 Wiles V. Robinson, 1066 Wiley V. Baumgardner, 793 V. Kelly, 313 Wilhelm v. Schmidt, 1044 Wilkes V. Ferris, 306, 312, 977, 978, 1136 Wilkie V. Day, 467 Wilkins v. Duncan, 387, 388 V. Reed, 1064 V. Vashbinder, 249, 258 Wilkin's School District v. Milli- gan, 244 Wilkinson's Appeal, 41 Wilkinson v. Cheatham, 91, 101 V. Heavenrick, 408 V. Holiday, 458, 463, 472, 484, 490, 493, 517 V. Ketler, 192 V. Tousley, 815 V. Williamson, 155, 602 Willard v. Eastham, 91, 92 V. Randall, 632 Willet V. Willet, 12, 146 Willey V. Hall, 350 Williams, Ex parte, 1067 V. Adams, 470, 484, 493 V. Avery, 765 V. Bacon, 338, 342, 359, 364, 380, 383 V. Birch, 640 V. Briggs, 194, 195, 196, 199, 203 V. Brown, 81 XCVlll TABLE OF AMERICAN CASES. [References are to the bottom paging.] PAGE Williams v. Byrnes, 378 V. Cannon, 679 V. Carpenter, 102i V. Carr, 816, 817, 819 V. Christie, 360 V. Cummins, 40 V. Davis, 7, 9, 10 V. Evans, 307 V. Given, 54, 640, 641, 731 V. Godwin, 1126, 1127 V. Gray, 1136 V. Hathaway, 149 r. Hugunin, 92 V. Hutchinson, 145 V. Ingram, 911 V. Jackraan, 296, 494, 511 V. Jones, 1073, 1074, 1076 V. Mabee, 77 V. Mabel, 74 V. Merle, 22, 23, 24, 26, 53, 640, 730 V. Miller, 40 V. Porter, 727 V. Powell, 669 V. Rawlinson, 1059 V. Robinson, 336, .387, 338, 361, 375, 376, 397, 405, 407 V. Rorer, 1030 V. Slaughter, 905 V. Spafford, 941, 942, 1263 V. Threlkeld, 364 V. Tiedemann, 817 V. United States, 855 V. Walker, 691 V. Waters, 340 u. Winsor, 201 V. Woods, 450, 456 Williamson e. Barry, 2 e. Bechham, 02 V. Berry, 12, 13, 207 V. Dodge, 101 V. Ewing, 795 1'. Mason, 641 V. Russell, 639, 641, 730 V. Sammons, 935, 1271 V. Urmston, 92 Willingham v. Veal, 209 Willings V. Consequa, 215, 1076 Willington o. West Boylston, 144, 839 Willis V. Hobson, 2 V. Willis, 459, 467, 468, 469, 990 Williston V. Perkins, 209 Willoughby, Ex parte, 1042 V. Moulton, 667, 669 Wills ;'. Brown, 240 V. Ross, 239 Wilmerding v. Mitchell, 5 Wilson V. Binford, 897 V. Brown, 87 V. Clements, 125 Wilson V. Cooper, 6. 8,521 V. Crokett, 22 V. Davis, 1231 V. Deen, 334 V. Eaton, 1085 V. Ferguson, 912 V. Force, 1051 V. Franklin, 41 V. Fuller, 640, 641 V. King, 1271 V. Kohlheim, 764 V. Little, 38, 39, 40, 1235 I). Lott, 731 V. Marsh, 918 V. Nason, 522, 642 V. Russell, 10 .,. Stratton, 8, 775, 776, 777, 820 V. Troup, 162 V. Wagar, 141, 142, 1000, 1002 V. Wilson, 193, 194, 199, 201, 203 Wilt V. Franklin, 129 V. Welsh, 61 Wimberly v. Jones, 73, 77 Winchell v. Carey, 828 Winchester v. Charter, 723, 765 V. Howard, 147, 167, 168, 170, 359, 606, 606 V. Nutter, 815 Winchester Wagon Works & Manuf . Co. v. Carman, 21, ^6, 479 Wineland v. Coonce, 641 Wineman v. Walters, 83 Wing V. Clark, 459, 468, 529, 582, 990 V. Gray, 244, 14, 15 V. Marchant, 14, 15 V. Neal, 51 Wingate v. Neidlinger, 1051 Winn V. Columbus Ins. Co., 42 V. Cox, 334 Winne v. McDonald, 639, 642, 730 V. Niagara Ins. Co., 691 Winslow V. Leonard, 20, 458, 459, 461, 468, 469, 517, 732, 1096 V. Merchants' Ins. Co., 194, 195, 197, 243 Winsor v. Lombard, 905, 911, 974 Winter v. Bandel, 626, 628 V. Coit, 586 Winterbotham v. Paine, 1004 Wintermute v. Cooke, 1236 Winterport Granite, &c. Co. v. Schooner Jasper, 128, 183 ;;. Schooner Nickerson, 134 Wintz V. Morrison, 667, 1278 Wire B. S. Machine Co. v. Crowell, 479 Wiseman v. Lyman, 1045 Witherow v. Witherow, 143, 1003 TABLE OF AMERICAN CASES. XCIX [References are to the bottom paging.] PAGE Withers v. Green, 1272 V. Weaver, 15 Wittkowsky v. Reid, 1061 V. Wasson, 2, 208, 210 Witworth V. Carter, 92 Woburn Wheel Co. v. Philbrook, 209 Wolcott V. Heath, 204 V. Mount, 632, 896, 906, 907, 908, 958, 1233, 1251, 1277 Wolf V. Dietzsch, 605 V. Gerr, 1002 V. Marsh, 842 V. WiUits, 1076 V. Wolf, 207 Wolfe V. Luyster, 669, 707, 711 Wolff V. Koppel, 430 Wolsey V. Bailey, 1137 Wood V. Ashe, 967 V. Boynton, 160 V. Colvin, 41, 42 V. Davis, 376 V. Dudley, 5 V. Edwards, 105, 142 V. Fales, 521 ;;. Garland, 666 V. Hitchcock, 1035, 1036 V. Hudson, 659 V. Jackson, 765 V. Losey, 60 V. McCann, 788 V. Shaw, 729 V. Sheldon, 617, 897, 935, 1271 V. Shultis, 214 V. Terry, 101 V. Yeatman, 639, 641, 730, 1176, 1201 Wood M. & R. Co. V. Brooke, 475 Wood Reaping & Mowing Machine Co. V. Smith, 157, 158 Woodbury v. Larned, 1055 V. Long, 989 V. Robbins, 915, 916 0. Wolff, 396 Woodcock V. Bennett, 241 Woodford v. McClenahan, 919 V. Patterson, 301, 979 Woodrow V. Davis, 731 Woodruff V. Hinman, 775, 779 V. McGehee, 381 V. Noyes, 1010 V. Trapnall, 1041 V. United States, 493 V. Weeks, 911 Woods V. Armstrong, 806, 814 Woods V. Hall, 707, 711 Woods V. Hull, 732 V. McGee, 473, 481, 5^0, 515, 517 V. Swain, 344 Woodseel v. Mayers, 75 Woodson V. Perkins, 92 PAQE Woodworth v. Kissam, 54 Woolbright v. Sneed, 134 Woolsey v. Bailey, 530 Wooley V. Chamberlain, 1110 Wooster v. Sage, 302, 604 V. Sherwood, 22, 47, 49, 54 Wooton V. Hinkle, 658 Worcester v. Eaton, 73, 75, 773, 774 Worcester County Bank v. Dor- chester & Milton Bank, 36 Word V. Cavin, 936 Worland v. Kimberlin, 729 Worman v. Kramer, 732 Worrall v. Munn, 407, 421 Worth V. McConnell, 907 Worthen v. Wilmot, 1076, 1231 Worthington v. Cowles, 897 Worthy v. Jones, 240, 801 Wren v. Pearce, 362, 375 Wright V. Barnes, 1000 V. Behrens, 1032 V. Bircher, 203, 472 V. Brown, 649, 660, 651 t;. Cormick, 732 V. Davenport, 1260, 1272 V. Deklyne, 343 V. Germain, 77 V. Hart, 905, 968, 974 V. Lattin, 668 V. McPike, 339 V. O'Brien, 221, 460, 494 V. Pierce, 476 V. Ryder, 792 V. Solomon, 44, 46 V. Steele, 73, 79 V. Tetlow, 511 V. Willis, 167, 609 V. Wright, • 86, 88 Wyckoff V. Runyon, 1272 Wyer V. Dorchester & Milton Bank, 36 Wylie V. Kelly, 312, 325 Wylly V. Collins, 92 Wyman v. American Powder Co., 1234 V. Farnsworth, 149, 610 V. Fiske, 204, 817 V. Gray, 363, 375 V. Rae, 1066 Yale v. Dederer, 91, 100 V. Seely, 309 Yates V. Donaldson, 1066 V. United States, 1081 V. Valentine, 1063 Ybarra v. Lorenzana, 704 Yeager Milling Co. v. Brown, 115 Yeakle v. Jacob, 249, 256 Yerkes v. Salomon, 817 V. Wilson, 707 York V. Ver Planck, 1231 TABLE OF AMERICAN CASES. [References are to the bottom paging.] York County Bank v. Stein, 359 Youghiogheny Iron, &c. Co. v. Smith, 1273 Young V. Adams, 616, 617, 897 V. Austin, 482, 517, 1089, 1099 V. Bell, 73, 79 V. Blaisdell, 272, 273, 275, 318 V. Conant Manuf. Co. of Wakefield, V. CoTell, v. Ferguson, i;. Hall, V. Hawkins, V. Hibbs, .;. McClure, V. Mertens, V. Miles, V. Pate, V. Paul, V. Preston, 620 629 19 630, 671 13 1066 725, 732 1126 510, 516 727 85, 407 142 PAGE Young V. Scott, 44 V. Stallings, 729 Younge v. Harris, 628, 679 Youngs V. Stalielin, 1045 Yourt V. Hopkins, 421 Yulee V. Canova, 104 Yundt V. Roberts, 775 Zabeiske v. Smith, 20 686, 990 Zacharie v. Franklin, 411 Zachrission v. Poppe, .307 Zachrisson v. Aliman, 44,46 Zahm V. Fry, 767 Zaleski v. Clark, 157, 158, 159, 160, 161 494, 887 Zink V. People, 48 Zuchtmann v. Roberts, 165, 474 Zuck V. McClure, 1076 Zuller V. Rogers, 1273 TABLE OF ENGLISH CASES. [References are to the star paging.] PAOE Abbott v. Barry, 55, 443 Aoatos V. Burns, 15 Acebal v. 'Levy, 83, 143, 174, 214, 229, 770 Acraman v. Morris, 271, 275, 300 Adams v. Boughton, 55 V. Gay, 542 V. Graham, 481 V. Hall, 203 V. Lindsell, 48, 51, 69 V. Richards, 907 V. Royal Mail Co., 556 V. Addinel's case, 40 Agra and Masterman's Bank v. Leighton, 908 Alderson v. Langdale, 719 V. Temple, 493 Aldrich v. Cooper, 860 Aldridge v. Johnson, 304, 311, 312 Alewyn v. Pryor, 561 Alexander v. Brown, 703 V. Gardiner, 273, 306 V. Gibson, 617 V. Vanderzee, 177, 569 V. Worman, 59, 374 Allan V. Gripper, 845 V. Lake, 597, 607 AUatt V. Carr, 79 Allen V. Bennett, 188, 195, 216, 219 V. Cameron, 908 0. Deming, 541, 542 V. Hopkins, 631 V. Pink, 615 V. Thompson, 481 AUsopp V. Day, 464 V. Wheatcroft, 514, 519 Amory v. Brodrick, 550, 588 Ancona v. Rogers, 467, 468 Anderson v. Carlisle Horse Cloth- ing Co., 697 V. Clark, 308 V. Hilliss, 715 V. Morice, 274, 579 J,. Radcliffe, 520 V. Scott, 147 Andrews v. Durant, 292 V. Garrett, 40 Anglo-Egyptian Navigation Co. V. Rennie, 102, 283, 287, 552 Anglo-Italian Bank, He, 85 Anon. (Douglas, 382 a), 58 (Dyer, 363 a), 15 (12 Mod. 521), 7 Anthony v. Halstead, 609 Appleby v. Johnson, 40, 43 V. Meyers, 552 Appleton V. Campbell, 500 Archer v. Baynes, 191, 216 V. Marsh, 517 Archibald v. Sievewright, 247 Arkwright v. Newbold, 387, 426, 443 Armitage v. Insole, 549, 560, 671 Armstrong v. Stokes, 198 V. Toler, 541 Arnison, Ex parte, 467 Ash V. Abdy, 87 Ashby V. James, 701, 728 Ashcroft V. Morrin, 214 Ashlin V. Greaves, 772 Ashworth v. Outram, 37, 38c Arthur v. Wynne, 553 Arundel (Lady) v. Phipps, 460 Ashworth r. Bedford, 177 Askew's case, 443 Assignees of Burghall v. Howard, 817 Astey V. Emery, 125, 143 Aston V. Gwinnell, 535 Atkin V. Barwick, 498, 494 Atkinson v. Bell, 92, 93, 100, 278, 279, 326 V. Hawdon, 719 V. Horridge, 614 V. Maling, 688 V. Ritchie, 556 V. Smith, 581 Atkyns v. Kinnier, 512 Atlantic Insurance Co. v. Huth, 15 Attenborough v. London and St. Katherine's Dock Co., 393 V. Thompson, 482 cu TABLE OP ENGLISH CASES. [References are to the star paging.] Attorneys' and Solicitors' Act, Re, 520 Attwood V. Emery, 678, 679 V. Small, 387, 414 Aubert v. Maze, 500 Austen r. Craven, 270, 296, 298 Australasian Co. v. Morse, 15 Avery v. Bowden, 550, 738 Ayerst v. Jenkins, 498 Azemar v. Casella, 599, 636, 898 Babcock v. Lawson, 393 405 Bach V. Owen, 162 299 838 Bache v. Proctor, 58 Backhouse v. Harrison, 14 Baddeley v. Baddeley, O Badger v. Shaw, 469 Baglehole v. Walters, 450 Baggott V. Arnott, 502 Bagnall v. Carlton, 443 Bagshaw v. Seymour, 391 Bagueley v. Hawley, 629 Bahia and San Francisco Rail. Co., Re, 374 766 Bailey v. Forrest, 614 V. Goldsmith, 592 V. Sweeting, 173 217 V. Wallford, 422 Bailiffs of Tewkesbury t). Diston, 8 Baily v. De Crespigny, 553 Bainbridge v. Moss, 520 Baines v. Ewing, 237 ti. Jevons, 131 a. Swainson, 17, 19, 21 796 806 Baker v. Dening, 220 V. Firminger, 690 V. Gray, 287 Baldey v. Parker, 123 147 160 Ball, Ex parte. 11 V. Warwick, 520 Baltimore Railroad Co. V. Glenn, 402 Banbury v. White, 484 Bank of Bengal v. McLeod, 14 Bank of Montgomery v Rees, 893 Bankart v. Bowers, 582 Banner, Ex parte, 348, 353, 354, 818 Bannerman v. White, 598 Barbe v. Parker, 3 Barber v. Morris, 443 V. Taylor, 679 Barden v. Keverberg, 34 Baring v. Corrie, 721 Barker v. Hodgson, 553 V. Windle, 546, 684 Barnard v. Kellogg, 640 Barnes v. Chipp, 662 V. Freeland, 493 Barnett, Ex parte, 60, 63 403 V. Brandon, 55 Barningham r. Smith, 889 Barr v, Gibson, 77, 634, 650 Barrett v. Deere, Barrow, Ex parte, V. Arnaud, V. Coles, Barry v. Crosskey, PAGE 721 843, 845 735, 872 288 389 Bartholomew v. Markwick, 550, 740, 743 Bartlett v. Holmes, 809 V. Pentland, 724 V. Purnell, 235 V. Wells, 23 Barton v. Piggott, 523 Bartrara v. Farebrother, 494 Barwiok v. Buba, 550 V. English Joint Stock Bank, 428, 429, 436, 437 V. Read, 510 Bassett v. Collins, 614 Basten v. Butter, 905 Batchelor v. Lawrence, 820 Bateman v. Phillips, 175 r. Pinder, 28 Bath V. Sutton, 481 Batteman v. Morford, 71 Batterbury v. Vyse, 559 Batut V. Hartley, 853 Bauraann v. James, 175 186 Baxter v. Earl of Portsmouth, 32 Bayliffe v. Butterworth 617 Beak's Estate, In re. 3 Beales v. Tennent, 481 Beard v. Webb, 35 Seattle r. Lord Ebury, 379 Beauchamp (Earl) v. Winn, 375 Beaumont v. Brengeri, 131 156 Beavan v M'Donnell, 32 Beck's case. 41 Beckwitli v. Cheever, 66 Bedford v. Bagshaw, 391 Beer v. London and Paris Hotel Co., 198 2.34 V. Walker, 656 Begbie v. Phospate Sewage Co., 381 Behn v. Burness, 547 548 Belding v. Reed, 80 489 Bell V. Howard, 183 V. Moss, 807 V. Smith, 520 Belshaw r. Bush, 714, 717 732 Belton I'. Hodges, 27 Benjamin v. Andrews, 13 Bennett r. Bartlett, 631 ?'. Brumfitt, 221 Bensley v. Bignold, 521 520 Bentall v. Burn, 152 672 787 Benton v. Pratt, 392 Bergheim v. Blaenavon Iron Co., 07.5, 890 Berndtson ;;. Strang, 827, 829 860 Berolles v. Ramsay, 24 TABLE OF ENGLISH CASES. [References are to the star paging.] cm Berwick, Ex parte, 475, 477 Bessey v. Windham, 491, 492 Best V. Osborne, 614 Betterbee v. Davis, 705 Bettini v. Gye, 546, 547 Betta V. Gibbins, 788, 848 Bevans v. Rees, 705 Beverley v. Lincoln Gas Light Co., 692, 693 Bexwell v. Christie, 443 Bianchi v. Nash, 592, 693 Biddle v. Bond, 766 V. Levy, 406 Biddlecorabe v. Bond, 825 Bigg V. Whiskin, 148 Bigge V. Parkinson, 616, 649, 655 Biggs V. Lawrence, 503 Bilbie v. Lumley, 375 Bill V. Banient, 143, 147, 152, 160, 185, 787 Billson V. Crofts, 825 Bingham v. AUport, 722 Bird V. Boulter, 236 V. Brown, 825, 847 Bird's Trusts, 58 Birkmyr v. Darnell, 193 Bishop V. Crawshay, 278, 325 V. Rowe, 718 V. Shillito, 287 I). Small, 388 Bissell V. Beard, 177 Blachford v. Preston, 508 Black V. Bakers of Glasgow, 367 V. Smith, 705 Blackburn v. Smith, 370 Blackhouse v. Harrison, 12 Blackmore v. Shelby, 81 Blackwall v. England, 482 Blair v. Orraond, 165 Blandford u. Morrison, 525 Blenkinsop v. Clayton, 131, 157, 163 Bloomer v. Bernstein, 583, 668, 736 Blow V. Russell, 706 Bloxam v. Morley, 746 V. Sanders, 668, 691, 746, 764, 768, 770 Bloxsome v. Williams, 538 Bluett V. Osborne, 653 Blunt D. Heslop, 675 Boast V. Firth, 552 Bodenham v. Purchas, 727 Boggett V. Frier, 34 Bohtlingk v. Inglis, 668, 827, 829 Bold V. Raynor, 175, 258, 831, 850, 869 Bolden v. Brogden, 613 Bolton V. Lancashire and York- shire Rail. Co., 494, 791, 840 Bonnewell v. Jenkins, 43 Bonzi !'. Stewart, 795, 796 Bourman v. Nash, 735, 872, 873 PAGB Booth V. Hodgson, 500 V. Spuyten Duyvil Mills Co., 557, 887, 892, 883 Borries v. Hutchinson, 882, 886 Borrowman v. Drayton, 579 V. Free, 324, 688 Bos V. Helsham, 85 Boston Ice Co. v. Potter, 62, 371 Boston and Maine Railroad u. Bartlett, 67 Boswell V. Kilborn, 270, 735, 872 Boulter v. Arnott, 147, 792 Boulton V. Jones, 61, 371 Bourne v. Seymour, 67, 683 Boutelle v. Melendy, 542 Bowdell V. Parsons, 68, 550, 888 Bowen v. Owen, 709, 710, 711 Bowes V. Shand, 176, 569, 570, 596, 681 Bowlby V. Bell, 105 Bowry v. Bennett, 500 Boyd V. Lett, 581, 690 V. Siffkin, 560 Boydell v. Drummoud, 174, 192 Boyson v. Coles, 19 Bradford v. Williams, 548, 585 Bradley v. Holdsworth, 105 V. Wheeler, 290 Brady v. Oastler, 178, 879 V. Todd, 617 Bramwell v. Spiller, 203 Brandao v. Barnett, 258 Brandon v. Brandon, 820 V. Nesbitt, 503 V. Newington, 707 V. Scott, 712 Brandt ;•. Bowlby, 287, 331, 332, 353 V. Lawrence, 587, 681 Brantom v. Griffits, 466, 467 Brawley v. United States, 685 Breton's Estate, In re, 3 Brewster v. Kitchell, 553 Bridge v. Wain, 635, 844 Bridges v. Berry, 718 V. Garrett, 724 Briggs V. A Light Boa^, 292 V. Boss, 480, 482 V. Calverley, 698 Bright, Ex parte, 3 Brighty v. Norton, 679, 699 Brinsmead v. Harrison, 56 Bristol (Earl of) v. Willsmore, 394 British and American Telegraph Co. V. Colson, 50 British Columbia Sawmill Co. v. Nettleship, 874, 880, 881, 887 Britten v. Hughes, 492 Broderick «. Scale, 481 Brcennenburgh v. Haycock, 014 Brogden v. Marriott, 557 CIV TABLE OF ENGLISH CASES. [References are to the star paging.] Brogden v. Metropolitan Rail. Co., 39, 40, 43, 53 80, 3 24 526 727 287 522 649, 651, 652, 653 614 315, 342, 353 674 716 553 876, 889 730 Bromley v. Brunton, Brooker v. Scott, V. Wood, Brown v. Adams, V. Bateman, V. Duncan, V. Edgington, V. Elkington, V. Hare, V. Johnson, V. Kewley, u. Mayor of London, u. MuUer, V. Olmsted, Browning v. Halford, Brownlie v. Campbell, Bryan v. Lewis, Bryans v. Nix, Bryant v. Richardson, Bryson v. Whitehead, Buchanan v. Parnshaw, Buck I'. Pickwell, V. Spence, Buckman v. Levi, Budd !'. Fairmaner, Buddie V. Green, Bull V. Parker, V. Robinson, Butler, Ex parte, Bunn V. Guy, Bunney v. Poyntz, Burchell v. Clark, Burchfield v. Moore, Buriield v. De Pienne, Burgess v. Wickham, Burgess' case, Burghardt v. Hall, Burkinshaw v. Nicholls, Burnby v. Bollett, Burnyeat v. Hutchinson, Burrowes v. Lock, Burt r. Dewey, Burtis V. Thompson, Burton v. Great Northern Rail. Co 610, 608, 652, 536 427 80 307 24 514 907 218 568 687 609 691 710 687 536 512 789, 813, 848 58 380 170 442 2:3 766 654, 660 531 423 631 551 , 47 145 793 130, 735, Bushell V. Wheeler, Busk V. Davis, 270, 295, Butler V. Lee, 541, 542 Butterfield r. Burroughs, 612 Button V. O'Neill, 483 Buxton V. Rust, 191, 216 Byerley v. Prevost, 464 Byrne v. Van Tienhoven, 44, 45, 46, 48, 51, 71, 73 Bywater v. Richardson, 450, 610, 614, 616 Cadogan I'. Kennott, Caine v. Coulson, 456 700, 705, 715 Caine v. Smith, Calaminus v. Dowlais Iron Co., Calcutta Co. v. De Mattos, 266, 275, Calder v. Dobell, 184, Callender v. Howard, Caraac v. Warriner, 605, 607, 649, Camidge v. Allenby, 716, 717, 720, Cammell v. Sewell, Camp V. GuUett, Campbell v. Fleming, V. Hassell, V. Mersey Docks Co., 296, 298, Cannan r. Bryce, V. Meaburn, V. Wood, Capel V. Thornton, Card ('. Hope, Cargill V. Bower, 437, Carmarthen, &c. Rail. Co. v. Man- chester, &c. Co., Carr v. London and North West- 59, 374, 474, 477, 607, 157, Add. 578, 272, ern Rail. Co., Carrard v. Meek, Carrington v. Roots, Carroll v. Blencow, Carter, Ex parte, V. Crick, V. Scargill, I'. Toussaint, Case !'. Hall, Case of Market Overt, Mixed Moneys, Cassaboglou v. Gibbs, Cassidy v. Lefevre, Castle r. Downton, r. Playford, V. Sworder, 135, 141, 158, 160, Catlin, Ex parte, Caton V. Caton, 221, Catterall 0. Hindle, Cattling V. King, Caulkins v. Hellman, 128, Cave V. Hastings, 175, Challinor, ^.ryjoite, 475,477, Chalmers, Ex parte, 668, 736, 751, V. Harding, Chaniberlyn v. Delarive, Chambers v. Davidson, V. Kelly, V. Manchester and Midland Rail. Co., V. Miller, Champion v. Plummer, c. Short, Champlin v. Rowley, Chandelor r. Lopus, Chanter v. Hopkins, 59, 60, 572, 605, 633, 651, PAGE 550 890 207, ,318 , 199 701 654 718, 721 15 729 413 721 313 501 15 165 722 509 440 713 766 478 114 33 474 637 548 160 631 7 704 818 802 481 698 813 844 225 723 198 155 180 478 764 607 165 785 175 521 266 195 40 082 380 596, 653 TABLE OF ENGLISH CASES. CV [References are to the star paging.] PAOE Chanter v. Leese, 382 Chaplin v. Clark, 40 V. Rogers, 131, 155, 157, 688 Chapman, Ex parte, 481 V. Gwythe, 610 u. Morton, 693 V. Speller, 380, 625 Chappie V. Cooper, 23 Charing Cross Bank, Ex parte, 474, 477 Charlton v. Hay, 443 Chartered Bank of India v. Hen- derson, 864 Chase v. Westmore, 784 Cheeseman v. Nainby, 511 Cheminant v. Thornton, 710 Chicago and Great Eastern Rail. Co. V. Dana, 47, 70 Chichester v. Cobb, 221 Chidell V. Gallsworthy, 79 Child V. Morley, 65 Childers v. Wooler, 423 Chinery v. Viall, 56, 266, 768, 776, 780, 872, 895 City Discount Co. v. Maclean, 727 Clap, Be, 729 Clapham i'. Langton, 170 Clark V. BuUmer, 102 Clarke v. Alexander, 701 V. Dickson, 370, 412 V. Gardiner, 218 V. Hart, 766 V. Hutchings, 687, 788 V. Shee, 55 V. Spence, 279, 283 V. Watson, 558 V. Westroppe, 84, 558 Clay V. Yates, 93, 95, 100 Clayton's case, 727 Clayton v. Andrews, 89, 90, 91 Clever v. Kirkman, 173 Clifford V. Watts, 552 Clipsham v. Vertue, 546 Close V. Holmes, 17 Clough V. Davis, 542 V. London and North West- ern Rail Co., 392, 400, 413, 414 Clugas V. Penaluna, 503 Coates V. Railton, 835 V. Stevens, 612 V. Wilson, 24 Cobbold V. Caston, 125 Cochrane, Ex parte, 485 V. Retberg, 675 V. Willis, 67, 77, 371 Cockerell v. Aucompte, 683 Coddington v. Paleologo, 676, 891 Cohen w. Armstrong, 29 V. Hale, 714, 715 Cole V. Blake, 712 Cole V. Davis, 461 V. Kernott, 491 V. Kew, 688 V. North Western Bank, 16, 17, 19, 21, 795 Coleman v. Waller, 492 Coles V. Hulme, 57 V. Trecothick, 236 CoUard v. South Eastern Rail. Co., 880 Collins, Ex parte, 485 V. Blantern, 498 V. Collins, 84 V. Gibbs, 68 V. Locke, 519 Collis V. Tuson, 477 Collyer v. Isaacs, 489, 492 Columbus, The, 878 Commins v. Scott, 198 Concordia Chemical Co. v. Squire, 203 Conelly ;;. Steer, 485 Congreve v. Evetts, 79 Conning, Ex parte, 464, 465 Constantia, The, 825 Cooch V. Maltby, 713 Cook V. Clayworth, 32 V. Field, 520 V. Lister, 732 V. Riddelien, 903 Cooke V. Oxley, 44, 47, 49, 66, 67, 69, 70 Coombs V. Bristol and Exeter Rail Co., 135, 137 Cooper, Ex parte, 464, 789, 844, 845, 848 V. Bill, 163, 272, 814, 835 V. Elston, 89, 129 V. Law, 712 V. Neill, 529 V. Phibbs, 375 V. Shepherd, 65 V. Shnttleworth, 84, 85 u. Smith, 188, 196, 216 V. Willomat, 19 Coot V. Jecks, 465 Cope V. Rowlands, 521, 623 Coppin V. Craig, 723 V. Walker, 723 Corbett v. Brown, 443 Corcoran v. Prosser, 583 Cork and Youghal Rail., In re, 521 Cork Distilleries Co. v. Great Southern Rail. Co., 305, 362 Corking v. Jarrard, 55 Cornfoot V. Fowke, 416, 417, 427 Cornish v. Abington, 59, 374 Corporation of Liverpool v. Wright, 509 Cort V. Ambergate Rail Co., 549, 550, 696, 737 Cory V. Thames Iron Works Co., 878 CVl TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE 440 51, 494 Cornell !■. Hay, Cote, JCr parte, Cothay v. Tute, . Cottam V. Partridge, 701 Cotterell t\ Apsley, 102 Cotton r. Godwin, 707 Couston r. Chapman, 124, 368, 643, 693 Couturier v. Hastie, 77, 724, Covas r. Bingham, 565 Coventry v. Gladstone, 844, 858 Cowasjee v. Thompson, 715, 813, 831 Cowdy J'. Thomas, 007 Coweil V. Simpson, 7b4 Cowie V. llemfry, 254 Cox r. Prentice, 371 Coxe V. Harden, 330 Coxhead v. Mullis, 31 Craig V. Phillips, 443 Crane v. London Dock Co., 7, 8, 9 V. Powell, 192 Cranson v. Goss, 641 Craven v. Eyder, 331, 332, 753, 764, 813, 831 Crawcour, Ex parte, 289, 465 ,, gaiter 289 Crawshay v. Edes, 791, 845, 847 V. Horafray, 784 Credit Co. v. Pott, 475, 477 Crisp V. Churchill, 500 Crofoot )). Bennett, 289 Croft V. Lumley, 720 Crommelin v. The New York and Harlem Rail. Co., 783 Croockewitt i;. Fletcher, 546 Crook V. Jadis, 14 Crookshank v. Burrell, 103 V. Rose, 498, 531, 728 Cropper v. Cook, 184, 254 Crosby v. Wadsworth, 110, 112, 114 Cross V. Eglin, (i82 v. Grirdner, 607 c. O'Donnell, 155, 867 Crossley v. Maycock, 40, 43 Crouch V. Great Northern Rail. Co., 873 Crowder v. Austin, 444 Crowe r. Clay, 714, 718 Crowley's case, 87 Cuddee v. Rutter, 804 Cuffz'. Penn, 178 CuUiford v. De Cardenell, 635 Cuming V. Brown, 864 Gumming v. Roebuck, 242, 255, 2.j7 Cundell V. Dawson, 524 Cundy I.'. Lindsay, 403 Cunliffe v. Harrison, 147, 323, 680 Cunningham v. Dunn, 553 Currie v. Anderson, 133, 135 r. Misa, 714 Curtis V. Hannay, 896 Curtis V. Pugh, 144 Cusack V. Robinson, 135, 142, 144, 155, 168, 160, 686, 788 Cushman t!. Holyoke, 292 Cutter V. Powell, 545, 547, 550, 690, 896, 899, 906 Daley v. India Life Insurance Co., 528 Dana v. Fielder, 831 Daniell v. Sinclair, 376 Danks, Ex parte, 703 Danube Rail Co. i'. Xenos, 550 D'Aquila f. Lambert, 817 Darvill v. Terry, 461 Dauglisli V. Tennent, 455, 492 Davies v. Jones, 467 Davis, .E-r /(arte, 736 V. Gary, 553 V. Goodman, 479, 491 V. Hedges, 906 V. Jones, 176 V. Mason, 612 V. M'Lean, 671 V. Shields, 218 Dawes v. Peck, 155, 352, 686 Dawson v. CoUis, 896, 899 V. Remnant, 531, 728 Day V. McAllister, 542 V. Pool, 904 Dean v. James, 705 De Bussche ;:. Alt, 202 Deffell V. White, 483 De Gaillon ;;. L'Aigle, 33 De Medina v. Norman, 690 Dent V. Dunn, 719 Denton v. Great Northern Rail. Co., 447 D'Epineuil, Re, Add. 473, 489 De Sewhenberg v. Buchanan, 609 Devaux v. ConoUy, 381 V. Steinkeller, 407 Develin v. Mayor, &c. of New York, 892 De Wahl v. Braune, 34 De Woolfe V. Lindsell, 820 Dexter v. Norton, 552 Dickenson v. Gupp, 609 V. NauU, 631 Dickinson i\ Dodds, 45, 53 V. Follett, 614 0. Lilwall, 237 V. Shee, 702 Dickson v. Eeuter's Telegram Co., 423 V. Zizania, 614, 658 Dilk V. Keighley, 27 Dimech v. Corlett, 546, 548 Dimmock v. Hallett, 449 Dingle v. Hare, 617, 908 TABLE OF ENGLISH CASES. [RefereoceB are to the star paging.] evil PAOE Ditcham v. Worrall, 31 Divine v. McCormiok, 664 Dixon, Ex parte, T26 V. Baldwin, 495, 826, 833 V. Bovill, 758 V. Clarke, 706 V. Fletcher, 680, 691 V. Watkins, 713 V. Yates, 265, 666, 742, 754, 764, 788, 790, 792, 813, 822, 825, 848 Dobell V. Hutchinson, 192 V. Stevens, 449 Dodsley v. Varley, 160, 749, 764 Dodson V. Wentvvorth, 835 Doe V. Murlass, 15 V. Oliver, 59, 374, 765 V. Roberts, 498 V. Hugely, 491, 553 V. Thorn, 15 Donald v. Suckling, 746, 777 Donaldson v. Farwell, 412 Dorr V. Fisher, 631 Douglas V. Douglas, 3 V. Patrick, 703, 705, 712 Dracachi v. Anglo-Egyptian Nav- igation Co., 857, 859 Drake, Ex parte, 56 Drakeford v. Piercy, 726 Dresser v. Ainsworth, 631 Drinkwater v. Goodwin, 721, 722 Drury v. Defontaine, 537 DufE «. Budd, 394 Duke 11. Andrews, 40 Duncan v. Topham, 48, 50, 678 Duncroft V. Albrecht, 105 Dunkirk Colliery Co. v. Lever, 885, 887 Dunlop V. Grote, 740 0. Higgins, 48, 49, 50, 51, 887 V. Lambert, 155, 306, 320, 352, 680, 788 Dunmore v. Alexander, 48, 53, 76 Duppa II. Mayo, 116 Durnford i'. Messiter, 65 Durrell v. Evans, 222, 224, 230, 234 Dustan v. M'Andrew, 773 Dutton V. Solomonson, 305, 352 Dyer ;'. Pearson, 19 Dyster, Ex parte, 238 Earle r. Hopwood, 520 Early v. Garrett, 443, 606, 622 East India Co. v. Tritton, 375 Eckstein v. Reynolds, 709 Eden v. Dudfield, 130, 150, 787 V. Parkinson, 616 Edick v. Crim, 631 Edmunds r. Downs, 175 Edwards r. Brewer, 822 V. Edwards, 486 PAGE Edwards v. English, 485 V. Harben, 458, 461 Egerton v. Matthews, 212, 213 Eichholtz V. Banister, 379, 621, 626, 631, 901 Elbinger Co. v. Arastrong, 872, 874, 882, 884, 886, 887 V. Claye, 198 Eley V. Positive Assurance Co., 227 Elfe V. Gadsden, 218 Ellen V. Topp, 548, 549 EUershaw v. Magniac, 337, 340, 352, 353, 318 Elliott v. Pybus, 327 V. Richardson, 492, 519 V. Thomas, 148, 591 V. Von Glehn, 545 Ellis V. Andrews, 388 V. Hunt, 669, 688, 827, 849 V. Mortimer, 591 V. Thompson, 674 Elmore v. Kingscote, 174, 213 V. Stone, 155 Elphick V. Barnes, 591, 595, 908 Elton V. Brogden, 613 V. Jordan, 613 Elwes V. Crofts, 519 Emmanuel v. Bridger, 467 Emmerson v. Heelis, 114, 124, 234 Emmerton v. Matthews, 650, 655, 660, 661, 662 Emmett v. Dewhirst, 178 England v. Cowley, 208 English u. Marston, 65 Eskridge c. Glover, 66 Esposito V. Bowden, 556 Evans v. Bicknell, 423 V. Collins, 415, 420, 422 V. Edmonds, 425 V. Judkins, 710 V. Roberts, 110, 111 V. Trueman, 796 Everett v. Collins, 715 Eyles V. Ellis, 700 Faiknet v. Reynous, 499 Fairlie v. Fenton, 203 Falcke v. Gray, 894 Falk, Ex parte, 789, 831, 845, 848, 851, 858, 860, 861, 866 Falmouth (Earl of) v. Thomas, 109, 122 Farebrother v. Simmons, 234 Farina v. Home, 152, 787, 802 Farmer v. Robinson, 259 Farmiloe v. Bain, 758, 761, 765, 766 Farrant r. Thompson, 15 Farrars v. Countess of Granard, 33 r. Nightingale, 78 Faulkner v. Heberd, 66 CVIU TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Faulkner v. Lowe, 551 Favenc v. Bennett, 724, 729 Fawkes v. Lamb, 170, 184, 203 Fearon v. Bowers, 856 Featlierston v. Hutchinson, 498 Feise v. Wray, 818, 822, 823 Felthouse v. Bindley, Fenn t'. Harrison, Fennell v. Kidler, Fenton v. HoUovvay, Feret v. Hill, Ferguson v. Carrington, Fergusson v. Norman, Field V. Carr, ).'. Lelean, Fielder v. Starkin, Figlia Maggiore, The, Finch V, Boning, V. Brook, Findon ?■. Barker, Firth, Ex parte, Fischell v. Scott, Fish V. Kempster, Fisher v. Marsh, v, Marvin, V. Samuda, Fitch r, Jones, Fitt 1). Cassanett, Fitzmaurice v. Bayley, 174, 192 Flagg I'. Mann, Flarty v. l.)dlum. Fleet V. Murton, Fletcher, Ex parte, V. Heath, V. Taj'leur, Fliglit V. Leman, Flood V. Patterson, Foot v. Marsh, Ford r. Beech, V. Cotesworth, V. Kettle, V. Noll, i\ Yates, Fores v. Johns, Forman r. Wright, Foster v. Rowland, «. Taylor, Forsyth v. Jervis, Foster v. Charles, V. Frampton, V. Smith, Fowler v. HoUins, V. Knopp, V. McTaggart, Fox V. Mackreth, V. Nott, Fragano v. Long, France v. Gaudet, 42, 770 618 538 32 441 397 523 728 177 907 857 722 702 520 475, 476, 477, 478 562 721 203 730 907 530 771 194, 229 85 510 184, 201 467 796 877 520 6 291 714 553 480 710 172, 784 498 378 40 521, 527 3 416 130, 840, 846 60, 605 204, 403, 806 800 829 408 867 326, , 788 881 155, 273, 305, Francis v, Cockerell, V. Maas, Franklin v. Miller, Franklyn v. Lamond, Franks, Ex parte, V. De Pienne, Fraser v. Witt, Frazier v. Hillyard, Freedom, The, Freeman v. Baker, V. Cooke, V. East India Co. Freeth v. Burr, Freshfield v. Reed, Freshney v. Carrick, Fricker v. Tomlinson, Frost V. Knight, Fuentes v. Montis, Fulke V. Fletcher, Fuller V. Abrahams, V. Wilson, Furber, Ex parte, Furley t;. Bates, Furness v. Meek, Fydell v. Clark, Gabaekon v. Kreeft, Gadel v. Houghton, Gainsford v. Carroll, Gaitskill v. Greathead, Gale V. Burnell, ,v. Read, Galloway v. Matthew, Ganley v. Ledwidge, Garbutt v. Watson, Gardiner v. Gray, Gardner v. Grout, Garforth v. Fearon, Garment v. Barrs, Gath V. Lees, Geary v. Physic, PAGE 654 662 550 203 33 33 831 81 800, 857 450, 607 59, 374, 766 8, 15 586 480, 488 469 143 561, 737, 889 18, 20, 21, 796, 806, 806 343, 353 406 416, 419, 449 478 266, 276 176 720 296, 345, 352, 353 203 735 531 79 511 66 8, 13 89, 91, 99 637, 649, 663 129 607, 635 613 324 193, 221 Gee V. Lancashire and Yorkshire Rail. Co., George v. Skivington, Gerhard v. Bates, Gibbes, Ex parte, Gibbs V. Merrell, Gibson v. Carutliers, V. Holland, Giles V. Edwards, Gilkes V. Leonino, Gill V. Cubitt, Gillard v. Brittan, Gillett V. Hill, Gilliat V. Gilliat, Gilliatt V. Roberts, Gilmour v. Supple, Gimson v. Woodfall, 888 388, 390, 911 391 834, 848 22 817 106, 186, 193 379, 381 668 14 775, 776, 779, 895 296, 766 499 130 266, 271 11 TABLE OF ENGLISH CASES, [References are to the star paging.] CIX Girardey v. Richardson, Gladstone v. Hadwen, Glaholra v. Hayes, Glave V. Wentworth, Glazebrook v. Woodrow, Glover v. Coles, PAGE 500 394 546 491 547 117 Glynn v. East and West India Dock Co., 812, 854 Godbold's case, 5.36 Goddard v. Binnie, 103 V. Cox, 727 Godolphin v. Tudor, 535 Godts V. Rose, 153, 311, .315, 787 Godwin V. Francis, 236 Golding Davis & Co., Ex parte, 856, 860, 863 Goldshede v. Cottrell, 714 Gompertz v. Eartlett, 380, 601 V. Denton, 896, 899 Goodall V. Skelton, 162, 163, 792 Goodman v. Griffiths, 174, 215 V. Harvey, 14 Goodyear r. Mayor of Weymouth, 558 Goom V. Aiialo, 243, 255, 256 Gordon v. Ellis, 712 V. Harper, 670 V. Strange, 700 Gore V. Gibson, 32 Gorgier v. Mieville, 14 Gorrissen v. Perrin, 562 Gosbell V. Archer, 229, 286 Gosling V. Birnie, 766 Goss V. Lord Nugent, 177, 178, 183 V. Quinton, 285 V. Whitney, 541 Gouda, Ex parte, 844 Gough V, Everard, 467 Gover's case, 443 Governor of Kingston-upon-HulI V. Fetch, 42 Gower v. Van Dedalzen, 652 Graeme v. Wroughton, 537 Grafton v. Armitage, 93, 94 Graham v. Eretwell, 230 u. Furber, 457 V. Musson, 230 Grant v. Fletcher, 242, 257 V. Shavf, 481 II. Vaughan, 14 Grantham v. Hawley, 79 Gratitudiiie, The, 15 Gravely v. Barnard, 515, 517 Graves v. Legg, 547, 548, 568, 617 V. Tofield, 486 V. Weld, 118 Gray v. Cox, 653 Great Northern Rail. Co. v. With am, 47, 70 Great Western Rail. Co. v. Eed- mayne, 88:! Greaves v. Ashlin, 691, 769, 783, 784 V. Hepke, 275 Green v. Baverstock, 444, 448 V. Haythorne, 753 V. Price, 518 Gregson v. Rucks, 257 Greville v. Atkyns, 535 Grice V. Kendrick, 723 V. Richardson, 747, 752, 764, 790 Griffin i>. Colver, 891, 892 Griffith V. Hodges, 710 Griffiths V. Owen, 165, 714 0. Perry, 735, 750, 755, 764, 772, 780, 801, 872, 888 Grimoldby v. Wells, 139, 643, 645, 902 Grizewood v. Blane, 529 Groat V. Gile, 290, 689 Grout V. Hill, 867 Grove v. Dubois, 724 Groves v. Buck, 89, 90, 99 Guardians of Lichfield v. Green, 715, 716, 718, 720 Guerreiro v. Peile, 3 Gumm V. Tyrie, 353 Gunn V. Bolckow, Vaughan & Co., 714, 760, 765, 812 Gurney v. Behrend, 858 V. Womersley, 380, 601 Guthing V. Lynn, 57 Gwillim V. Daniell, 684 Hadley v. Baxendale, 873, 878, 879, 892, 911 Hagedorn v. Laing, 769, 771 Hagg V. Darley, 619 Haille v. Smith, 308 Haines v. Tucker, 590 Hale V. Metropolitan Omnibus Co., 401 V. Rawson, 564 Haliday v. Holgate, 2, 14, 777 Hall V. Condor, 606, 625 V. Wright, 551 Hallen r. Runder, 117 Hallett's Estate, In re, 728 Hallock V. Commercial Insurance Co., 67,76 Hamilton v. Chaine, 475 Hamlyn v. Betteley, 474, 477 Hammond v. Anderson, 275, 752, 789, 848 V. Barclay, 782 Hampson v. Fellows, 472 Hams, Be, 483 Hanauer v. Doane, 503 V. Woodruff, 503 Hands ;■. Burton, 3 V. Slaney, 24 Hanks v. Pulling, 82 Hansard v. Robinson, 719 Hanson v. Armitage, 143 ex TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Hanson i-. Meyer, 269, 314, 669, 752, 790, 793 Harding, Ex parts, 469 V. Davis, 703 Hardingham i>. Allen, 708 Hardman v. Bellho.use, 700 V. Booth, 63, 208, 403 Harman v. Anderson, 152, 787, 790 V. Fisher, 493 V. Reeves, 90, 125 Harmony v. Bingham, 557 Harms v. Parsons, 512 Harnor v. Groves, 381 Harper v. Goodsell, 2 Harrington v. Du Chastel, 508, 509 V. Victoria Graving Dock Co., 498 Harris' case, 48, 50, 53 Harris r. Fowle, 3 V. Pepperell, 373 V. Wall, 29 Harrison, Ex parte, 472 V. Elving, 220 V. Kloprogge, 536 V. Luke, 3 Harrow v. Grove, 174 Hart V. Bush, 144, 155, 686, 788 V. Frontino Gold Mining Co., 766 V. Middleton, 674 ;;. Mills, 54, 680, 691 V. Nash, 1(55 V. Prater, 24 V. Sattley, 144 V. Swaine, 425, 420 Hartley v. Nicliolson, 3 V. Wharton, 29, 175 Hartly v. Cummings, 517 Hartopp V. Hoare, 8 Harvey !•. Grabham, 178, 183 Haslock V. Ferguson, 407 Hastie v. Couturier, 77, 724 Hastings (Marquis of) v. Thorley, 709, 711 Hatfield v.- Phillips, 17 Hathesing v. Laing, 332, 820 Hatton V. English, 481 Haughton v. Morton, 189, 216 Haule V. Hemyng, 559 Havves v. Foster, 244, 256, 257 V. Humble, 660 V. Watson, 160, 7()(j Hawkins v. Rutt, 699 Hawse v. Crowe, 721 Haycraft v. Creasy, 415 Hayden v. Dewitz, 773 Hays r. M'Clurg, 730 Hayward v. Scougall, 563, 684 Hazelington v. Gill, 460 Head v. Diggon, 47, 70 L-. Tattersall, 594, 908 Heaven v. Pender, 388, 390, 911 Heilbutt V. Hickson, 262, 548, 639, 659, 695, 899, 903 Heinecke v. Erie, 493, 494 Helps V. Glenister, 527 V. Winterbottom, 714 Helshaw v. Langley, 220 Helyear v. Hawke, 617 Henderson v. Barnewell, 259 V. Lacon, 391 Henkel v. Pape, 56 Henniker v. Wigg, 727 Henwood v. Oliver, 710 Hern v. Nichols, 430 Heseltine v. Siggers, 105 Hesketh v. Fawcett, 707 Heugh V. The London and North Western Rail. Co., 396 Hewer v. Coxe, 480, 482 Hewison v. Guthrie, 785 Heyman v. Flewker, 16, 17, 19 V. Neale, 238, 241, 242, 255 Heyward's case, 303, 304 Heywood v. Pickering, 715 Heyworth v. Hutchinson, 896, 898, 900, 903 V. Knight, 253, 257 Hibblewhite v. McMorrin, 81 Hickman v. Haynes, 180, 183, 876 Hickox V. Adams, 576 Higgins V. Delaware Rail. Co., 584, 590 V. Pitt, 492 V. Senior, 184, 200 Higginson v. Simpson, 629 Higgons V. Burton, 18, 19, 63, 402 HiU V. Balls, 911 V. Dunham, 542 V. Gray, 443, 451 V. Kirkwood, 480 V. Perrott, 55, 406 V. Smith, i 8 Hilton V. Eckersley, 504, 505 V. Houghton, 542 Hinclicliffe v. Barwick, 595, 907 Hinde v. Gray, 513 V. Liddel, 884, 886, 887 V. Whitehouse, 104, 128, 134, 175, 187, 213, 234, 238, 240, 266, 276, 299, 768 Hine v. Cliampion, 424 Hiort I'. London and North West- ern Rail. Co., 778 Hithcock V. Coker, 513, 514, 516 V. Giddings, 82 V. Himifrey, 718 Hoadly v. McLaine, 40, 83, 178, 214 Hoare v. Rennie, 548, 584, 681 Hochster v. Delatoiir, 550, 737, 740, 889 Hodgedon v. Hubard, 411 TABLE OF ENGLISH CASES. [References are to the 8tar paging.] CXI Hodges V. Hodges, 38 Hodgson V. Davies, 241, 267, 721 V. Le Bret, 147 V. Loy, 669, 822 V. Temple, 500 Hoey V. Felton, 873 Holbird v. Anderson, 461 Hogartli V. Wherley, 724 Holland, Ex parte, 38 Holliday v. Morgan, 612, 614 Hollins V. Fowler, 204, 403, 806 HoUoway v. York, 370 Holman v. Johnson, 503 Holme V. Guppy, 549 Holmes v. Hoskin, 157, 160 V. Mitchell, 174 V. Wilson, 55 Holroyd v. Marshall, Hoist V. Pownall, Holt V. Clarancieux, V. Griffin, V. Ward, Homan, Ex parte. Homer v. Ashford, Honck V. Miiller, Honeyman v. Marryat, Hooper v. Keay, V. Stephens, Hope V. Hayley, Hopkins v. Hitchcock, V. Prescott, V. Tanqueray, 605, V. Ware, Hopper, Re, Horder v. Scott, Hore V. Millner, Hornby v. Lucy, Horncastle v. Farran, Home V. Hughes, V. The Midland Eail. Co., 585, 80, 489 846 22 766 22 467 5U 588 40 727, 729 165 79 597, 607 498, 536 606, 607 715 85 662 769 724 785 486 874, 721 880, 887 518 450, 453 542 Horner v. Graves, Horsf all v. Thomas, Horton v. Buffington, Horwood V. Smith, 9 Hosegood V. Bull, 389 Hotchkiss V. Oliver, 81 Hotham v. East India Co., 549 Hough V. Manzanos, 204 V. May, 700, 710, 715 Houghton V. Matthews, 724 Houldsworth v. City of Glasgow Bank, 431, 435 437, 438, 442 Household Fire Insurance Co. v. Grant, Howard r. Castle, V. Emerson, V. Shepherd, i\ Sheward, Howden v. Haight, 48, 50, 51, 53, 54 444 664 , 857 619 492 391 PAGE Howe V. Palmer, 160 Howell V. Coupland, 552, 553 Howes V. Ball, ' 161 Hoyle V. Hitchman, 662 Hubert v. Moreau, 220 V. Treherne, 224 Huggins V. Bainbridge, 534, 536 Hughes V. Dove, 531 c. Humphreys, 527 Humble v. Mitchell, 105 Hume V. Peploe, 708 Hunifrey v. Dale, 184, 201 Humphries v. Carvalho, 46, 68, 69 Humphry v. Pratt, 421 Hunt V. Boyd, 729 ;;. Hecht, 135, 136, 143 V. Massey, 22,29 V. Silk, 370 Huntington v. Hall, 631 Hussey v. Horne-Payne, 173 Hutchings v. Nunes, 821 Hutehins v. AUcutt, 729 Hutchinson v. Bowker, 40,41 V. Tatham, 184, 201 Hutley V. Hutley, 520 Hutton V. Bullock, 198 Huxham v. Smith, 710 Hyde v. Wrench, 41,42 Hydraulic Engineering Co. v. McHaffle, 678, 873, 879, 884, 885, 886 Idle v. Thornton, 560 Iley V. Frankenstein, 592 Imperial Bank v. London and St. Katharine's Dock Co., 201, 758, 820 Imperial Land Co. of Marseilles, In re, 48, 50 Inchbald w. West Neilgherry Coffee Co., 550, 740 Inglis V. Usherwood, 669, 829, 849, 869 Ingram's (Sir Arthur) case, 534 Ireland v. Livingston, 198, 573, 679, 818 Irons V. Smallpiece, 3 Irving V. Motley, 396 Isaacs V. Royal Insurance Co., 675 Isherwood, ^x parte, 471 V. Whitmore, 687, 691, 704 471, 472 581, 690 531 455, 492 703, 721 189, 216 827, 836, 840, 846 40 V. Union Marine Ins. Co., 546, 547 V. WooUey, 6 Jacob V. Kirk, 195, 221 Jackson, Ex parte, IK Allaway, V. Attrill, V. Duchaise, V. Jacob, V. Lowe, V. Nicholl, Turquand, cxu TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Jaffrey (Stein's Creditors) v. Allen, 870 Jagger Iron Co. v. Walker, 729 James, Ex parte, 370 V. Griffin, 493, 494, 826, 827, 839, 840,841, 846 V. Morgan, 555 V. Vane, 713 V. Williams, 714 Jaulerry v. Britten, 17 Jay, J'J.r parte, 467 Jeflcott r. North British Oil Co., 214 Jefferson r. Querner, 679 Jendwine u. Slade, 607, 008 Jenkins v. Beetham, 85 c. Brown, 2, 338, 353 V. Kevnolds, 194 Jenkyns {: Usborne, 18, 797, 805, 818 Jeniier v. Smith, Jennings v. Throgmorton, Jervis v. Berridge, V. Tomkinson, Jessopp I'. Lutvvyche, Jevvan v. Whitworth, Jezeph c. Ingram, Johnson v. Blumenthal, i;. Cre'dit Lyonnais Co., 322 GOO 173 556 529 794 400 797, 858 17, 19, 797, 858 V. Dodgsou, 143, 155, 686, 788 V. Gallagher, 38 V. Hudson, 521 V. Lancashire and York- shire Eail Co., 305, 776, 777, 778 V. Lansley, 528 V. McDonald, 501, 507 V. NicoU, 003 z>. Peek, 411 Johnson v. Pye, 22 V. Raylton, 62, 177, 602, 651 V. Royal Mail Steam Packet Co., 05 Johnston v. Kershaw, 679 ;;. Stear, 14, 777, 810 Jollit V. Bendell, 614 Jonassohn v. Young, 548, 585 Jones, Ex parte, 2t , 38, 38c; V. Arthur, 705, 713 V. Barkley, 540 V Bowden, 443, 452, 648 i\ Bridgman, 711 V. Bright, 649 651, 653 V. Cliff, 703 V. Clifford, 375 V. Flint, 114 V. Frankli) 410 J . Gibbon, 674, 691 V. Giles, 527 V. Gretton, 726 ti. Harris, 481, 482 V. Jones, 791, 848 PAGE Jones V. Just, 649, 909 v. Lees, 515 V. Littledale, 203 V. Lock, 3 V. Ryde, 600 V. Ryder, 380 V. St. John's College, 556 V. Victoria Graving Dock Co., V. Waite, !'. Yates, Jordan r. Norton, Jorden v. Money, Joseph V. Adkins, Josling V. Irvine, V. Kingsford, Joyce V. Swan, Juxton V. Morris, 227 498 712 40, 42 765 13 872 598, 634, 637 39, 266, 340, 353 535, 536 Kahen, Ex parte, 484 Kain v. Old, 596, 614 Karet v. Meat Supply Associa- tion, 487, 491 Kay V. Duchess de Pienne, 34 Kaye v. Brett, 721 Kearon r. Pearson, 553 Kearslake v. Morgan, 165, 714 Keates v. Earl Cadogan, 451 Keele v. Wheeler, 56 Kein v. Tupper, 682 Kelner v. Baxter, 210 Kemble v. Atkins, 237 Kemp r. Falk. See FaXi:, Ex parte. V. Watt, 714 Kempson v. Boyle. 258 V. Saunders, 380 Kendall v. Marshall, Add. 838 Kendrick v. Lomax, 714 Kennedy v. Panama Mail Co., 377, 601 Kent V. Huskisson, 132 Kenworthy v. Schofield, 104, 175, 188, 213, 234 Kershaw v. Ogden, 276 Keys V. Harvvood, 3 Keyser v. Suze, 805 Kibble, Ex parte, 30 V. Gough, 139 Kidd V. Rawlinson, 461 Kiddell v. Burnard, 612, 614 r. Farnell, 75 Kidwelly v. Brand, 677 Kimberly v. Patchin, 291 King (The) v. Inhabitants of Chillesford, 22 V. Waddington, 506 King ?'. Parker, 546 King Phillip Mills v. Slater, 590 Kingsford r. Merry, 18, 392, 400, 806 Kinloch v. Craig, 820, 821, 823 Kirby v. Duke of Marlborough, 727 TABLE OF ENGLISH CASES. [Refereoces are to the star paging.] CXIU PAHB Kirk V. Gibbs, 554 Kirkpatrick v. Gowan, 597 Klinitz V. Surrey, 129, 154 Knight V. Bowyer, 520 V. Cockford, 221 V. Comber, 529 V. Fitch, 529 V. Wiffen, 760, 766 Knightley, Sx parte, 480 Knott, lie, 473 Kreuger v. Blanck, 572 Krulder r. Ellison, 305 Lackington 11. Atherton. 152, 787 Laidlaw v. Burlinson, 280 .;. Organ, 387, 453 Laing v. Fidgeon, 649, 651, 653 V. Mender, 712 Laird v. Piin, 549, 739 Lamb v. Attenborough, 17 V. Crofts, 102 Lambton, Ex parte, 280 Lamert i\ Heath, 380,602 Lamond v. Duvall, 602, 735, 771, 779 Laniprell v. Billericay Union, 728 Lane v. Kirkwall, 32 Lang V. Smith, 14 Langdon v. Goole, 58 Langfort v. Tyler, 281, 300, 768 Langridge v. Levy, 388, 389, 660 Langton v. Higglns, 275, 313 V. Hughes, 500, 501 V. Waring, 14 Laporte v. Costick, 37 Larchin v. North "Western Deposit Bank, 480, 483 L'Apostre v. L'Plaistrier, 624 Latham v. Atwood, 121 V. Chartered Bank of India, 831 Latimer v. Batson, 459, 461 Laughter's case, 551 Law r. Hodson, 527 V. Law, 508, 535 Lawes v. Purser, 380, 382 Lawrence v. Knowles, 690 L^ycock V. Pickles, 728 Layng v. Payne, 536 Laythoarp r. Bryant, 192, 212, 213, 219, 228 Lazarus r. Andrade, Add., 489 Leask c. Scott, 864 Leatham v. Amor, 489 Leather Cloth Co. v. Hieronymus, 178, 183, 218 „. Lorsont, 513, 519 V. Simpson, 426 Leatherdales v. Sweepstone, 702 Leddell r. McDougall, 416, 425 Lee V. Bayes, 6, 10, 11, 13 V Gaskell, 105, 109, 118 Lee V. Griffin, 94, 97, 103 V. Jones, 387 Leeds v. Wright, 833 Leeming v. Snaith, 684 Leeson v. North British Oil Co., 550 Leicester v. Rose, 492 Leigh I'. Hind, 513 V. Patterson, 735 Leighton v. Wales, 512 Le Neve v. Le Neve, 485 Leonard v. Baker, 460 V. Fowler, 648 Leroux v. Brown, 106, 228 Lester v. Garland, 675 L'Evesque de Worcester's case, 7 Levy V. Green, 323, 680, 692 Lewis, JSx parte, 467 V. Brass, 41, 43 V. Lyster, 716 V. Peake, 909 Lickbarrow v. Mason, 800, 827, 853, 856 Liddard v. Kain, 610 Lidderdale v. Montrose, 510 Lightfoot V. Tennant, 501, 527 Lillywhite v. Devereux, 131, 151, 787 Linden v. Sharp, 460 Lindsay v. Cundy, 9, 10, 63, 394, 403 Litt V. Cowley, 849 Little V. Pool, 525 Littler v. Holland, 178 Liverpool Borough Bank v. Eccles, 218 Livingston v. Whiting, 701 Llansamlet Co., ^ar ^arte, 877,889 Lloyd V. Johnson, 500 I'. Lord Say and Seale, 58 Load V. Green, 398 Lobb V. Stanley, 29, 175, 222 Lock I'. Sellwood, 15 Lockett V. Nicklin, 172, 784 Lockhart v. Reilly, 820 Loekwood v. Ewer, 14 Lockyer r. Jones, 703 Loder v. Kekule, 874 Loeschman v. Machin, 19 Logan V. Le Mesurier, 270, 276, 300 Lomi V. Tucker, 609 London Chartered Bank v. Lem- priere, 38 London Loan Co. v. Chace, 481, 484 London and North Western Rail. Co. V. Bartlett, 352, 846 Long V. Hickingbottom, 631 V. Millar, 175, 186 Longmeid v. Holliday, 391, (i5i> Loome v. Bayley, 527 Lord V. Price, 670, 770, 779 Lorymer v. Smith, 590, 636, 691, 904 Loughnan v. Barry, 394 Lovatt V. Hamilton, 501 TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Lovejoy v. Whipple, 542 Lovell V. Newton, o7 Low V. Pew, 81 Lucas V. Dorrien, 152 766; 787 804 V. Wilkinson, 732 Lucy V. Mouflet, 691 645 Ludgater v. Love, 418, 427 428 Ludlow V. Bowne, 867 Lunn V. Thornton, 79 Lyde v. Barnard, 407 Lynch, Ex parte. 28 Lyon V Lamb, 194 Lyons v. Barnes, 592 t). J)e Pass, 7,9 V. Tucker, 485 Lysney i'. Selby, 449 Maber v. Maber, 165, 702 Maberley v. Shepherd, 131, 160 McAiidrew v. Chappie, 546 McBain v. Wallace, 368 McBlair i;. Gibbes, 541 McConnell v. Murphy, 084 McCoy V. Archer, 631 McCuUoch V. Eagle Insurance Co., 67, 76 McDona v. Swiney, 4;j0, 461 McEwan v. Smith, 751, 755, 764, 801 McHose V. Fulmer, 893 McHattie, Ex parte, 482, 484 McKean v. Mclvor, 396 McKellar v. Wallace, 701 McKinnell v. Robinson, 502 McMuUen v. Helberg, 174, 189, 236, 636 Macdonald v. Longbottom, 175 Macfarlane v. Taylor, 657 Mackay, Ex parte, 464 V. Commercial Bank, 431, 434, 436, 437, 439 V. Dick, 549 Maclay v. Perry, 685 Maclean v. Dunn, 229, 258, 259, 735, 769, 772, 779 MacMillan ;■. Venderlip, 682 Macnee v. Gorst, 794 Mactier's Administrator's v. Frith, 71 Mahalen r. Dublin and Chapel- izod Distillery Co., 175, 211 Maillard v. The Duke of Argyle, 714 Makin v. London Eice Mills Co., 692 0. Watkinson, 560 Mallalieu i'. Hodgson, 492 Mallan v. May, 517 Manning's case, 15 Manning ;•. Lunn, 711 Marble v. Moore, 291 Marby t'. Scott, 32 Margetson v. Wright, 610 Jlarine Mansions Co., Re, 473 Market Banking Co. v. Spoffen, 468 Marner i: Banks, 7 Marples v. Hartley, 484 Marryat v. White, 727 Marsden v. Goode, 709 V. Meadows, 464 Marsh v. Hutchinson, 33 V. Keating, 6, 11 V. Pedder, 715 V. Rouse, 154 Marshall r. Green, 109, 110, 116, 163, 155 V. Lynn, 177, 178 V. Rutton, 33, 34 Marten v. Gibbon, 529 Martin i'. Perchard, 459 V. Pewtress, 394 V. Read, 14 Martindale r. Booth, 460 V. Smitli, 266, 584, 742, 765, 780, 813, 815, 866 Martineau r. Kitching, 273, 098 Marvin v. Wallis, 141, 156, 792 Mason v. Crosby, 411 V. Lickbarrow, 669 Massey v. Sladen, 699 Master of Gunraakers v. Fell, 511 Masters, Re, 520 Matasee v. Hughes, 729 Mather v. Fraser, 466 Mathias f. Yetts, 425 Matthews v. Baxter, 32 V. Parker, 614 Matthewman's (Mrs.) case, 38 Mavor v. Pyne, 681 Mayer !'. Nyas, 720 Mayfield v. Wadsley, 117, 122 Mayor of Berwick v. Oswald, 556 Mayor of Dublin v. Hayes, 510 Mead v. Degolyer, 682 Medina r. Stoughton, 607, 623 Megaw V. Molloy, 59, 638 Mehilberg v. Tucker, 729 Meikelreid v. West, 829 Mellish V. Motteux, 450 Mercantile and Exchange Bank V. Gladstone, 824 Mercer v. Cheese, 710 Merchant Banking Co. r. Spoffen, 465 V. Phoenix Bessemer Steel Co., 758, 762, 764, 812, 822, 827, 830 Merchants National Bank v. Bangs, 304 Meredith v. Meigh, 133, 144, 155, 686, 788 Mersey Steel Co. r. Naylor, 582, 587, 589 Mertens v. Adcock, 769, 771 Mesnard v. Aldridge, 610 TABLE OF ENGLISH CASES. [References are to the star paging.] Messmore v. New York Shot Co., Methwold v. Wallbank, Meux V. Jacobs, 466, Mews V. Carr, Meyer v. Everth, Meyerstein v. Barber, 810, MidJleton v. Brown, Midland Insurance Co. v. Smith, Miles V. Gorton, 717, 747, 752, 782, 790, 813, 822, Milgate v. Kebble, 770, Miller v. Race, Mills V. Aurioi, V. Ball, 827, 846, V. Bayley, i: Fowkes, 726, Milnes v. Duncan, !). Gery, Mirabita v. Imperial Ottoman Bank, 350, 352, Mires v. Solesby, Mitchell V. Cockburn, !;. King, V. Lepage, 60, V. Newhall, V. Reynolds, Moakes v. Nicholson, 511, 79, 331, 352 Mody V. Gregson, 637, 642, 658, Moeller v. Young, Moens v. Heyworth, Mohr D. Boston Railroad Co., MoUett V. Robinson, 184 V. Wackerbath, Molton V. Camroux, Mondell v. Steel, 60, 605, 900, 906 Monk V. Whittenbury, 1' Montefiori v. Montefiori, Montgomery v. Middleton, Moore v. Campbell, 177, 183, 258, V. Moore, Moran o. Pitt, Morewood v. South Yorkshire Railway Co., 481, Morgan v. Bain, 494, 668, V. Birnie, V. Gath, 54, V. Mallison, Morison v. Gray, Morley v. Attenborough, 606, 620, I'. Boothby, Morris v. Cleasby, V. Levison, Morrison r. Gray, V. Smith, V. Universal Marine Insur- ance Co., Mortimer v. Bell, PAGE 892, 893 508 ,485 235 637 , 855 617 11 764, ,848 , 779 14 556 , 856 558 , 728 375 84 354 288 500 710 ,372 602 , 515 343, ,353 ,695 791 419 867 ,201 259 32 904, ,908 7, 18 498 560 ,683 3 13 491 736 558 682 3 818 621 194 723 684 818 729 402 448 Mortimer v. McCallan, Morton v. Dean, Morton v. Lamb, V. Tibbett, 130, Moses V. Mead, Moss V. Sweet, Mostyu V. West Mostyn Moufflet V. Cole, Moyce v. Newington, Mucklow V. Mangles, MuUett V. Mason, MuUiner v. Florence, Mumford v. Gething, Murphy v. Boese, Murray v. McKenzie, 1-. Mann, Mutton, Ex parte, CXV PAGK 81 218 581 133, 147, 160 664 64, 591 Coal Co., 370 512 10, 394, 399, 405, 412 278, 325 910 777 175, 512, 515 233 481, 482 412, 899 468 National Exchange Co. of Glas- gow V. Drew, 427, 428, 436 National Mercantile Bank, £x parte, 466, 474, 480 National Savings Bank v. Tranah, 719 Navulsha-w v. Brownrigg, Neate v. Ball, Neill V. Whitworth, Neilson i'. James, Nelson v. Duncombe, Nelson Mitchell v. City of Glas gow Bank, Nelson v. Stocker, Nepoter, The, NeviU, Be, 3, 592, 724 New Brunswick Rail. Co. v. Cony beare. New Sombrero Co. i>. 'Brlanger, New V. Swain, Newby v. Sharpe, Newcombe v. De Roos, Newell V. Radford, Newhall v. Vargas, Newington Local Board v. Cot- tinghan Local Board, Newmarch v. Clay, Newsom v. Thornton, 821, 825 Newtownards Commissioners v. Wood, 8 Nichol !'. Godts, 596 Nicholls !•. Plume, 147 V. Shelton, 515 V. Stretton, 519 Nichols V. Marsland, 553 Nicholson v. Bower, 142, 494 V. Bradfield Union, 680, 692 V. Cooper, 481 V. Hood, 537 Nickling v. Heaps, 10 Niell V. Morley, 32 Nix V. Olive, 851 798 493 561 540 32 540 23 857 436 443 813 553 54 196 867 553 727 CXVl TABLE or ENGLISH OASES. [References are to the star paging.] Noble V. Adams, V. Ward, Norfolk (Duke of) Norman r. Phillips, 394, 721 178, 183 Worthy, 443 143, 146, 165, 680, 788 North Brunswick Railway Co. v. Conybeare, 391 North Western Bank, Bx parte, 465 Northcote v. Doughty, 31 Northey v. Field, 827, 850 Nugent ('. Smith, 551 Nunes v. Carter, 492 Oakes v. Turquand, 392, 402, 404, 442 Oakford v. Drake, 818 Odell, i> parte, 464, 485 Odessa Co. r. Mendel, 498 Offley V. Clay, 722 Ogden V. Hall, 204 Ogg V- Shuter, 317, 347, 353, 354 Ogilvie 1'. Foljambe, 226 Ogle V. Atkinson, 331, 818, 827 r. Earl Vane, 179, 183, 875, 877 O'Hanlan v. Great Western Rail. Co., 883 Okell V. Smith, 691, 653 Olivant v. Bayley, 59, 661, 653 Oliver i'. Fielden, 546 Olyphant v. Baker, 291 Omoa Coal Co. «. Huntley, 829 Onslow !■. Eames, 613, 614 Oppenheim jj. Eraser, 548 V. Russell, 824, 846 Ord, Ex parte, 476 Ormrod r. Huth, 415, 422, 606, 623 Osborne r. Rogers, 65 Owen L-. Legh, 117 Owens r. Denton, 527, 701 V. Porter, 531 Owenson r. Morse, 714 Oxendale v. Wetherell, 54, 681 Packer v. Gillies, Paddock r. Strobridge, Page r. Cowasjee, 629, 778, Paget V. Perchard, Paice v. Walker, Palmer r. Bate, Paradine r. Jane, Parana, The, Paris Skating Rink Co., He, Parker v. Gossage, V. Palmer, !'. Patrick, V. Staniland, V. Wallis, 130, 132, Parkinson «. Lee, 453, 606, Parsons r. Sexton, !'. Thompson, 455 779, 780 459 203 510, 536 556 880 520 825 636, 693 9, 399 109 145, 147 333, 636, 660, 657 896, 899 508 PAGE Parton r. Crofts, 253, 256 Pasley v. Freeman, 386, 390, 407, 415, 417, 607, 623, 631, 660 907 600 818, 822, 823 485 46,49 791 8!ii) 720 502 715 57 323 758, 764 392, 404, 859 520 387, 389, 391, 416, 424, 438, 452 North Stafford. Rail. Co., 188 Pateshall r. Tranter, Paton V. Duncan, Patten v. Thompson, Payne, Ex parte, V. Care, !■. Shadbolt, IK AVhale, Peacock v. Russell, Pearce v. Brooks, c. Davis, V. Watts, Pearson, Ex parte, V. Dawson, Pease v. Gloahec, Pechell V. Watson, Peek V. Gurney, Peer v. Humphreys, Peelers v. Opie, Peirce v. Corf, 9, 175, 187, 213 Pellecat v. Angell, Pellew V. Wonford, l^emberton v, Vaughan, Pennell v. Dawson, Penwarden !'. Roberts, Peters v. Anderson, v. Fleming, Peterson v. Eyre, Petrie v. Hannay, Pettitt V. Mitchell, Phillimore v. Barry, Phillips V. Bateman, r. BistoUi, (>. Di.xon, V. Foxall, /•. Huth, Philpot V. Jones, Philpotts r. Clifton, V. Evans, V. Philpotts, Phcenix Steel Co., In re. Phosphate Sew:ige Co. v. Hart mont, Picard r, Hine, Pickaril v. Bretts, V. Marriage, V. Sears, Pickering r. Busk, [-. Dowson, Pierson v. Scott, Pigot V. Cubley, Pike K. Fitzgibbon, Pilkington r. Scott, Pince V. Beattie, Pitkin V. Noyes, 10, 11 645 191, 236 803 675 514 460 480 726 28, 24 872 499 692 221 194 57, 129, 160 820 387 17, 796 531, 728 708 i50, 735, 738 491 19, 617 736 443 38 481 467 765 618 460, 614 724 14 38rf 516 520 103 38, TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Pitt V. Smith, 32 Pitts «. Beckett, 174, 246 Planch^ V. Colburn, 550 Plating Co. v. Farquliarson, 620 Piatt V. Bromage, 375 Playford v. Mercer, 688 V. United Kingdom Tele- grapli Co., 391 Plevins v. J^owning, 180, 183 Plimley v. Westley, 714 Plumer v. Young, 727 Pole V. Cetcovitch, 556 Polhill V. Walter, 416 Polyglass V. Oliver, 705 Pontifex v. Wilkinson, 549 Poole V. Rice, 730 y. Tunbridge, 708 Pooley V. Brown, 601 V. Great Eastern Rail. Co., 764, 785 Poplett V. Stockdale, 498 Popplewell, ^x parte, 476,485 Pordage v. Cole, 545, 548, 586, 589 Porritt V. Baker, 527 Portalis v. Tetley, 795, 798 Portman v. Middleton, 883 Pothonier v. Dawson, 14 Potter V. Buffield, 197 V. Rankin, 546 V. Saunders, 48, 49 Poulton V. Lattimore, 896, 904, 906, 907 Poussard v. Spiers, 547, 552 Powell, Ex parte, 289 V. Devitt, 259 V. Horton, 607, 609, 637 V. Hoyland, 399 V. Jessop, 105 Power V. Barbara, 607, 008 V. Cook, 3 Pratt V. Willey, 726 Prescott V. Locke, 103 Price V. Dyer, 183 V. Hewitt, 22 w. Lea, 123 V. Price, 716, 717, 719 Prideau v. Bunnett, 59 Printing and Numerical Co. r. Sampson, 505 Proctor V. Jones, 147, 792 V. Nicholson, 531 V. Sargent, 512 Proprietors of the English and Foreign Credit Co. v. Arduin, 40, 44 Prosser v. Edmonds, 520 V. Hooper, 907 Puckford V. Maxwell, 714 Punnett, Ex parte, 471 Pust V. Dowie, 548 Pym V. Campbell, 173, 176 QoEEN CThe) V. Chawton, V. Kenrick, V. The Saddlers' Co., CXVll PAGE C74 449 825 Radford v. Smith, 888 Raffles V. Wichelhaus, 56, 176, 373 Rainsfnrd v. Fenwick, 27 Rainys, In re, 28 Ram Coomar Coondoo v. Chunder Canto Mookerjee, fvIO Raraazotti v. Bowring, 724 Ramsden v. Brearley, 30, 38 V. Lupton, 478 Ramshire v. Bolton, 421 Ramuz K. Crowe, 7U» Randall v. Hasleton, 392 t). Newson, 653,657,911 V. Raper, 883, !lOi) Ranger r. Great Western Rail. Co., io'-', Rankin v. Potter, 51(1 Rannie v. Irvine, .')12 Raphael i'. Bank of England, 14 Rashdall v. Ford, 378 Rawley v. Rawley, 30 Rawlins v. Wickham, 425, 426 Rawson v. Johnson, 581 Ray V. Barker, 691 Read v. Fairbanks, 279 V. Golding, 703, 710 V. Hutchinson, 3, 394, 720, 721 V. Runn, 54 Readhead v. Midland Rail. Co., 653, 654 Redgrave v. Hurd, 387, 414, 425, 426, 427 Reed v. Blades, 79 Reese River Mining Co. v. Smith, 392, 402, 426, 546 Reeves v. Capper, 14, 792 V. Whitmore, 80 Reg. V. Chawton, 674 V. Kenrick, 449 V. Wilson, 28 Reid V. Draper, 203 V. Hoskins, 550, 556, 738 Reuss V. Picksley, 218, 219 Renter v. Sala, 587, 680, 681 Rex V. Arnold, 527 V. Charretier, 530 V. Inhabitants of Chillesford, 22 V. Jackson, 394 V. Major, 527 V. Marsh, 444 V. Waddington, 506 Reynolds v. Boston Railway, 8G7 V. Hall, 469 Rice V. Baxendale, 883 Richards v. Delbridge, 3 V. James, 485 V. Porter, 189, 216, 217 CXVlll TABLE OF ENGLISH CASES. [References are to the star paging.] Richardson v. Brown, 608 V. Dunn, 51 V. Goss, 493 494 V. Jackson, 712 V. Maughan, 558 V. Mellish, 504 Riches v. Evans, 461 Rickard v. Moore, 140 Ridgway ;;. Wiiarton, 173 186 Rigg V. Burbridge, 904, 906 Ripley v. M'Clure, 550 735 738 Rishton v. Whatmore, 175 192 213 Ritchie v. Smith, 525 River Wear Commissioners v. Adamson, 553 556 Roberts v. Brett, 547 679 ■w. Watkins, 558 Robinson v. Briggs, 467 V. CoUingwood, 485 V. Cook, 706 V. Davison, 552 V. Ferraday, 712 V. Macdonnell, 79 V. Mollett, 202 V. Read, 715 V. Rutter, 723 0. United States, 689 V. Ward, 708 Robotham v. Tudor, 536 Robson V. Drummond, 550 V. Oliver, 718 Rodger v. The Compt oir d'Es- eompte, 864 865 Rodwell V. Phillips 107 114 122 Roe V. Bradshaw, 483 Rogers v. Hadley, 176, 258 V. Ingham, .376 V. Langford, 718 Rohde II. Thwaites, 302 306 314 326 Kolls V. Pearce, 3 Rolph, Ex parte, 476 477 Rolt V. Watson, 719 Romp, The, 462 Rondeau v. Wyatt, 39, 91, 99 Rook V. Hopley, 662 Root V. French, 406, 412 Roots V. Lord Dormer, 124 Roper V. Johnson, 889 Roscorla v. Thomas, 606 Rosevear Clay Co., Ex parte 827, 829 838 Rossiter v. Miller, 43 197, 236 Rough V. Hall, 662 Rourke v. Bullens, 291 r. Short, 530 Rousillon r. Rousillon, 505 514 519 Routledge v. Grant, to, 46, 69 r. Ramsay, 29 Rowe V. Hopwood, 29 V. Osborn, 257 Rowe r. Pickford, 826, 83 Rowley v. Bigelow, Ruck !.. Hatfield, 332, 813, Rugg V. Minett, 124, 269, 314, 552, !;. Weir, Russell II. Bandeira, V. Bangley, y. Carrington, V. Nieolopulo, Ryall V. Rowles, Ryder v. Wombwell, 867 831 698 549 723 291 638 624 23, 24, 25 Saffery, ^.r parte, 468 Sainsbury r. Matthews, 110 Sainter v. Ferguson, 517 Saint Jose Andiano, The, 867 Sale V. Lambert, 197 Salmon Falls Co. v. Goddard, 218 Salomons v. Nissen, 864 Salte V. Field, 75, 493, 494 Salter v. WooUams, 671, 672, 688, 804 Saltmarsh v. Tuthill, 541 Sandeman v. Scurr, 829 Sanders v. Jameson, 693, 903 Sanderson v. Graves, 178 Sandys r. Small, 540, 662 Sanson v. Rhodes, 674 Sard V. Rhodes, 716 Sargent v. Butts, 542 Sari V. Bourdillon, 175, 196, 213 Saunders v. Topp, 142, 143, 147, 160 V. Wakefield, 194 Saunderson v. Jackson, 188, 222, 224 Savage v. Canning, 370 Sawdon v. Andrew, 873 Scarfe v. Morgan, 539 Scattergood v. Sylvester, 9, 10 Schackell v. Rosier, 498, 520 Schneider v. Heath, 449 V. Norris, 223, 224 Schnitzer «. Oriental Print Works, 048 Scholefield v. Robb, 614 Scholey r. Walton, 701 School District v. Dauchy, 557 Schotsman v. Lancashire and Yorkshire Rail. Co., 338, 353, 828, 831, 867 Schroeder v. Mendl, 424, 426 Scott 11. Dixon, 391 V. Eastern Counties Rail. Co., 90, 148 V. Gillmore, 498, 531 II. Kittanning Coal Co., 590 ('. Littledale, 59 V. Lord Ebury, 210 V. Petti t, 826, 833, 849 V. Uxbridge Rail. Co., 711 Scovell II. Boxall, 115 Seal r, Claridg;, 467, 480, 488 0. Dent, 14 TABLE OP ENGLISH CASES. [References are to the star paging.] CXIX Searles v. Sudgrove, Seear v. Lawson, Seeger v, Duthie, Selby V. Selby, Semenza v. Brinsley, Seymour o. Newton, Shackell v. Rozier, Shand v. Bowes, Shardlow v. Cotterell, Sharman v. Brandt, Sliarp V. Birch, Sliattock V. Shattock, Shaw V. Pioton, Shears v. Jacobs, Sheldon v. Cox, Shepherd v. Harrison, V. Kaine, V. Pybus, Shepley v. Davis, 708 520 546 220 726 867 498 176, 569, 570, 596, 681 175, 186, 198 203, 230 480 38 727 483 3 287, 344, 352, 353, 354 596, 607, 635 649, 651, 654 270, 296, 793 Sheppard v. Union Bank of Lon- 857, 18, 20, 806 528 467 859 203 550 175 3 716 173, 175, don, Sherborne v. Colebad, Sheridan v. Macartney, Short V. Simpson, V. Spakeman, V. Stone, Shortrede !>. Cheek, Shower v. Pilch, Sibree v. Tripp, Sievewright v. Archibald, 247, 255, 257, 258 Siffken v. Wray, 494, 819, 856 SiUcstone Coal Co. v. Joint Stock Coal Co., 735, 739, 872 Simeon v. Watson, 552 Simm V. Anglo-American Tele- graph Co., 765, 766 Simmons v. Swift, 265, 270, 277, 790, 792, 848 V. Wilmot, Simon v. Lloyd, V. Motives, Simonds v. Braddon, V. Fisher, Simpson v. Crippin, V. Eggington, V. Lamb, V. London and N Co., 711 714 104 563, 564, 607 129 585, 889 7.32 520 V. Margitson, V. Nicholls, V. Potts, Sims V. Marryat, Simson v. Ingram, Slim V. Croucher, W. Rail. 874 674 539 614 626, 628 726, 727, 729 423 Slubey v. Heyward, 752, 788, 789, 848 Smale v. Burr, 478 Smart v. Sandars, 75 PAGE Smeed v. Ford, 879 Smidt V. Tiden, 56 Smith V. Baker, 655 659, 662 V. Bean, 541, 542 I'. Chadwick, 387 , 425, 426 V. Chance, 671 V. Cheese, 481 o. Ferrand, 715 V. Field, 494 V. Goss, 824, 835 V. Green, 911 V. Hudson, 48, 138, 141, 144, 147, 155 686 788, 835 V. Hughes, 387 451, 453 0. Kay, 387 V. Mawhood, 523 V. Mercer, 718 V. Myers, 77, 664 V. Neale, 218, 625 V. Page, 701 V. Sparrow, 538 u. Surman, 92, 100, 109, 160, 191, 216 0. The New York Central V. Railroad Co., 102 V. Thomas, 873 V. Wall, 467 V. White, 500 Smoot V. The United States, 550 Snee v. Prescott, 817 Soles V. Hickman, . 218 Somes V. British Empire Shipping Co., 782 South Australian Insurance Co. V. Randell, 3 Southall V. Rigg, 378 Southam , Ex pai-te, 485 Southern v. Howe, 612 Southwell V. Bowditch, 184, 204 Soward v. Palmer, 718 Spackman v. Miller, 469 Spalding v. Ruding, 860 Sparkes v. Marshall, 306 Sparrow v. Carruthers, 33 Spartali v. Benecke, 266, 670, 784, 785 Spence v. Smith, 531 Spicer v. Cooper, 170 Spottswood V. Barrow, 690 Spring Co. v. Knowlton, 497 Springwell v. Allen, 606, 622 Sprott V. United States, 503 Sprye i'. Porter, 519 Stackpole v. Simonds, 541 Stainton v. Wood, 679 Stancliffe v. Clark, 649 Stanley v. Dowdeswell, 41 V. Jones, 519 Stansfield v. Cubitt, 469 Stanton v. Austin, 560, 671 cxx TABLE OF ENGLISH CASES. {References are to the star paging.] PAGE Stanton v. Richardson 548 Stapleton, Ex parte, 668, 736 Startup V. McDonald, 675, 687, 691 Stead r. Dawber, 177 Stedinan v. Gooch, 714 Steel c. Brown, 45!) Steele v. Haddock, 176 Stephens ;■. Elwall, 208 r. Wilkinson, 774, 779, 780 Steplienson v. Hart, .395 Stevens, JSx parte, 478 <•. Lynch, 375, 378 Stevenson v. McLean, 41, 44, 45, 46, 48, 51 r. Newnham, 392, 399 Stewart 7'. Aberdein, 723 V. Eddowes, 176 r. Emerson, 412 V. Stewart, 375 Stock r. Inglis, Add. Stockton Iron Co., Re, 471 Stockwith V. North, 536 Stokes V. Lariviere, 827 r. Lewis, 65 I'. Moore, 226 Stonard n. Dunkin, 765 Stone V. City and County Bank, 442 r. Godfrey, 376 V. Marsh, 6, 10, 11 Story V. Waddle, 370 Stovelde v. Eade, 727 V. ^lughes, 753, 764 Stowell V. Robinson, 177 Street r. Blay, 377, 412, 591, 605, 896, 899, 903, 908 Strickland v. Turner, 77, 371 Strong V. Hart, 715 V. Harvey, 710 Stuart V. Nicholson, 511 Stubbs V. Lund, 867 Stucley V. Bayley, 605, 607, 608 Sturdy v. Arnaud, 701 Sullivan v. Mitealfe, 443 Sully V. Fearn, 370 Summers v. City Bank, 37, 38c Sumner v. Jones, 541, 542 Sutherland v. AUhusen, 560, 671 Sutton V. Bath, 481 V. Hawkins, 709 V. Page, 701 Swain v. Shepherd, 288, 591 Swan !■. Pliillips, 407 Swanwick v. Sothern, 271, 766, 793 Sweet V. Lee, 175, 221 V. Pym, 820 Sweeting v. Turner, 266 Swift ('. Jewsbury, 434 V. Winterbotham, 434 Swinyard v. Bowes, 718 Swire c. Francis, 431 Sykes r. Giles, Symons v. Hughes, Tadman r. I^ubbock, Tallis c. Tallis, Talver r. West, Tamplin v. Millar, Tamvaco ;■. Lucas, PAGE 722 497 706 519 129 . 38 579, 581 Tanner r. Sovell, 788, 790, 848 V. Smart, 29 Tansley v. Turner, 153, 271, 789, 814 Taplin v. Florence, 672 Tapp V. Lee, 443 Tarling r. Baxter, 266, 742 r. O'Riordan, 323, 680, 692 Tarrabocliia ?■. Hickie, 546 Tasker !■. Sliepherd, 551 Tayloe r. Merchants' Fire Insur- ance Co., 71, 7(i Taylor r. Ashton, 420 V. Bowers, 497 !;. Bullen, 597, 607 V. Caldwell, 551 I'. Chambers, 7 V. Chester, 502 V. Hare, 382 I'. Jones, 51 ('. Kymer, 796 V. Wakefield, 48, 149, 787 Teal w. Auty, 115 Teed v. Johnson, 375 Teesdale v. Anderson, 600 Tempest !■. Fitzgerald, 156, 160, 792 !'. Kilner, 105 Tetley v. Shand, 201 Tennent ;•. City of Glasgow Bank, 442 Thacker v. Hardy, 529 Thol r. Henderson, 886, 887 Thomas '■. Brown, 59, 197, 198 ?'. Evans, 702 Thompson v. Cohen, 491 V. Dominy, 857 V. Gardiner, 237, 240, 254, 255, 256 V. Hudson, 727 V. Maceroni, 148 Thomson v. Davenport, 199, 200, 203, 406 Thornborow v. Whitacre, 555 Thornett v. Haines, 444, 447 Thornton v. Charles, 246, 255, 257 V. Illingworth, 27, 28 <;. Kempster, 56, 216, 219, 242, 257 V. Meux, 243, 255, 257 Thorold v. Smith, 724 Thresh v. Rake, 178 Thurnell c. Balbirnie, 84, 557 Tibbett v. Morton (see Morton v. Tibbett). TABLE or ENGLISH CASES. \[ReferenceB are to the star paging.] Tigress, The, Todd V. Reid, Tomkinson v. Staight, Toms V. Wilson, Tooke V. Hollingswortli PAGE 818, 825, 852, 853 723 149 679, 699 669, 747, 764, 849 378 691, 900 224 89, 90, 99 Torrance v. Bolton, Toulmin u. Headley, Toarrett v. Cripps, Towers p. Osborn, Towerson i'. Aspatria Agricultu- ral Society, 638, 904 Towle V. White, 692 Townend v. Drakeford, 255 Townley v. Crump, 746, 747, 764, 792 Tregelles v. Sewell, 317 Trent v. Humber Co., In re, 879 Tripp V. Armitage, 102, 284 Tronson v. Dent, 15 Trueman v. Loder, 184, 199, 245, 255 Tuberville v. Whitehouse, 27 Tucker v. Humphrey, 818 V. Wilson, 14 Tuckerman v. Hinkley, 542 Tudor's (Dr.) case, 536 Turley v. Bates, 276 Turner v. Felgate, 15 V. Frisby, 27 V. Goulden, 84, 85 t;. Harvey, 408,411 V. Mucklow, 651 V. Trustees Liverpool Docks, 338, 353, 818, 827, 828 Turney v. Dodwell, 714 Turnley v. McGregor, 407 Tuton V. Sanoner, 481 Twycross v. Grant, 443 Twyne's case, 457 Tye V. finmore, 612, 636 Tyers v. Rosedale Iron Co., 181, 182, 873 Tyler v. Bland, 707 Tyson v. Thomas, 527 Udell v. Atherton, 428, 430 Underwood v. Mcholls, 723, 724 ;;, Robertson, 15 Union Bank v. Lenanton, 465 Unity Joint Stock Banking Asso- ciation, Ex parte, 23 Uther V. Rich, 14 Valpy v. Gibson, 83, 210, 834 ,;. Oakeley, 714, 735, 749, 764, 772, 780, 813, 866, 872, 888 Van Brachlin v. Fonda, 664 Van Casteel v. Booker, 18, 337, 340, 353, 495, 797, 805, 822, 827 Van Toll v. South Eastern Rail. Co., 59, 374 Van Wart v. WooUey, Vandenburg v. Spooner, Vernede v. Weber, Vernon v. Cooke, V. Keyes, Vertue v. Jewell, Vibbard v. Johnson, Vicars v. Wilcocks, Vickers v. Hertz, V. Vickers, Vlierboom v. Chapman, Vyse V. Wakefield, Waddell !!. Blockey, Waddington ;;. Bristow, V. Oliver, Wade's case. Wade u. Tatton, Wain V. Bailey, V. Warlters, Waite f. Baker, CXXl 718 196 563 479 409 822, 823, 825 031 874 21, 809 84 15 560 110, 704, 88, 193, 155, 334, 337, 353, 686, V. Jones, Wake V. Harrop, 173, 184, Waldo V. Martin, Walford v. Duchess de Pienne, Walker v. Constable, v. Matthews, V. Nussey, and Woolbridge, & parte, Wallace v. Breeds, 270, 295, 298, V. Kensall, Waller o. Lacy, Walley v. Montgomery, Wallis I'. Day, Walter v. James, V. Walter, Ward V. Bourne, V. Byrne, 513, V. Hobbs, 450, Warden v. Smith, Warlow V. Harrison, 236, Warner v. Willington, Warren v. Stagg, Warriner v. Rogers, Warwick v. Bruce, 22, 27, 31, V. Noakes, V. Slade, Washburn v. Burrows, Waterfall v. Penistone, Waterhouse v, London and South Western Rail. Co., I'. Skinner, Watkins v. Birch, i>. Robb, Watson, .Ex par^e, 465,837, c. Denton, !). Sprattley, Watts V. Airsworth, r. Friend, 121, 124, 202 122 681 705 407 719 212 352, 788 498 375 508 33 234 10 164 850 793 712 726 329 515 732 536 729 514 057 460 444 218 178 3 110 699 259 no 466 766 .581 460 705 852 014 105 44 527 cxxu TABLE OF ENGLISH CASES. [References are to the star paging.] PAGE Waymell v. Reed, 503 Wayne's Co. v. Morewood & Co., 740, 743 Weall ?•. King, 649 Webb V. Brooke, 500 V. Fairmaner, 674, 675 D. Heme Bay Commissioners, 766 t'. Knight, 662 Webber v. Tivill, 83 Weidner v. Hoggett, 203 Weir V. Barnett, 438 V. Bell, 423, 425, 431, 438, 546 Wells' case, 50 Wells V. Abraham, 11 V. Foster, 510 V. Girling, 492 V. Porter, 81 Wentworth v. Outhwaite, 791, 835, 848, 860 V. Tubb, 32 West Stockton Iron Co. v. Niel- son, 603 Western Bank of Scotland r. Addie, 391, 413, 424, 429, 432, 438 Weston I'. Downes, 899 Westroppe v. Solomon, 880, 600 Westzinthus, In re, 860 Wetherell v. Jones, 522 Wharton v. McKenzie, 24 Wheeler v. Collier, 444 Wheelton v. Hardesty, 427, 545 Whincup V. Hughes, 381, 552 Whippey v. Hillary, 29 Whistler v. Foster, 5, 14 Whitaker v. Howe, 512, 515 White, Ex parte, 3, 592, 724 V. Beaton, 548 V. Garden, 399 !■. Morris, 491 V. Proctor, 234 V. Spettigue, 6, 10, 11 V. Wilkes, 296, 298 Whitehead v. Anderson, 494, 791, 821, 842, 843, 846, 847, 851 Whitehouse v. Frost, 297 Whittaker, Ex parte, 398 Whywall v. Champion, 27 Wieler v. Schilizzi, 597 Wigglesvvorth v. Dallison, 177, 784 Wilde V. Gibson, 423 Wilkes !•. Davis, 84 Wilkins v. Bromhead, 396 I'. Casey, 165 Wilkinson v. Evans, 190, 218 V. King, 7, 8 Williams, Er parte, 471 V. Burgess, 149 V. Byrnes, 196 PAGE Williams v. Evans, 722, 724 V. Griffiths, 728 V. Hill, 551 r. Jackraan, 292 V. Jordan, 198 V. Lake, 195 V. Millington, 722 V. Moor, 29 V. Paul, 539, 542 r. Protheroe, 520 V. Rawlinson, 727 V. Reynolds, 883, 887, 888 V. Smith, 6 V. Wheeler, 106 Williamson v. Allison, 606, 622 V. Barnsley, 536 u. Dawes, 33 r. Henley, 520 Willmott V. Smith, 721 Willoughby, Ex parte, 714 Wilmshurst v. Bowker, 333, 352 Wilson V. Anderton, 853 r. Dunville, 910 V. Fuller, 419 V. General Screw Collier Co., 879, 885 I'. Lancashire and Yorkshire Railway Co., 872, 882 V. Ray, 492 V. Wilson, 58 Windham v. Chetwynd, 88 Wingfield, Ex parte, 64, 591 Winks V. Hassall, 792 Winsor v. Lombard, 664 Winter, Ex pane, 476, 477 Winterbottom !-. Wright, 388, 391 Wiseman v. Vandeputt, 817 Withernsea Brickworks Co., In re, 473 Withers v. Lyss, 270 V. Reynolds, 581, 582, 584 Wolfe, Ex parte, 481 Wontner v. Sharp, 40 Wood V. Bell, 206, 282, 285 V. Benson, 125 0. Dixie, 461 and Foster's case, 79 V. Jones, 822 V. Leadbitter, 672 V. Manley, 671, 688, 804 V. Rowcliife, 17, 20 !.. Smith, 609 r. Tassell, 672 Woodgate v. Godfrey, 464 Woodland v. Fear, 380, 601 V. Fuller, 6 Woodley v. Coventry, 152, 759, 766, 787 Woods V. Russell, 278, 279, 284 Woodward v. Foxe, 536 TABLE OF ENGLISH CASES. [ReferenceB are to the star paging.] CXXIU PAGE PAGE Woolfe V. Home, 20.3, 236, 584 Yakdlet v. Jones, 48:; Worsley v. Wood, 558 Yates V. Pyni, 610 Worthington v. Grimsditch, 701 Young V. Cole, 600 Wright V. Campbell, 864 V. Higgin, 675 V. Crookes, 615 V. Matthews, 277 V. Laing, 728 1-. Timmins, 611, 515 V. Lawes, 846 Wynn ?•. Shropshire Union Rail- Zagary v. Furnell, 270 way and Canal Co., 553 Zouch V. Parsons, 22,23 Wynne's case, 41 Zwinger v. Samuda, 805 ADDITIONAL OASES. Cotton, Ji!x parte, Davis V. Burton, Hickson v. Darlow, Lovering, Ex parte, Mander v. Harris, McQueen v. Turner, 487, 490a 488, 490a 489 468, 470 37 37 Reeves v. Barlow, Stonor's Trusts, In re, Swift V. Pannell, Swire c. Cookson, Weaver, In re. 470, 487 38 468, 487, 488 489 32 BENJAMIN'S SALE OF PERSONAL PROPERTY. SALE OF PERSONAL PROPERTY. BOOK I FORMATION OF THE CONTRACT. Paet L AT COMMON LAW. CHAPTER I. OP THE CONTRACT OF SALE OF PERSONAL PROPERTY, ITS FORM, AND ESSENTIAL ELEMENTS. Definition of a bargain and sale of goods ... 1 The elements of the contract 2 Parties 2 Mutual assent . 2 Transfer of absolute property Price in money . Form at common law . . Form by Statute of Frauds . PAGE 2 2 . 3 . 4 § 1. By the common law a sale of personal property is usually termed a "bargain and sale of goods." It may be defined to be a transfer of the absolute or general property in a thing for a price in ononey} Hence it follows, that ^ Definitions. — Blaokstone's defini- tion is, " a transmutation of property from one man to another in consid- eration of some price." 2 Bl. 446. Kent's is, " a contract for the transfer of property from one person to an- other for a valuable consideration." 2 Kent, 408, 12tli ed. This definition would include barter, which, though in most respects analogous, is certainly not identical, with sale. Whether the contracts of barter (^permutatio) and sale (emptio-venditio) were essentially different, was for a long time a moot point with the two rival schools of Roman jurists. Gaius, professing to be a Sabinian, maintained, from the purely historical point of view, that there was no distinction, barter being only the most ancient form of the ♦2 FORMATION OF THE CONTRACT. [BOOK I. [*2] to constitute * a valid sale, there must be a concur- rence of the following elements, viz : (1st) Parties contract of sale. Justinian, however, adopted and promulgated the opinion of the school of Proculus, that price was of the essence of the contract of sale ; anil barter was relegated to the class of real contracts. Vide Gains, lib. iii. 140; Inst. lib. iii. c. 23; D. lib. xviii. c. o. The dispute was one of some practical importance, owing to the consequences which flowed from the distinction in the Roman law be- tween real and consensual contracts. To constitute a sale there must be an intention on the one part to buy, and on the other to sell ; Binford v. Adams, 104 Ind. 41; s. c. 1 West Rep. 911, 914; see Smith v. Sawyer, 55 Me. 189 ; Willis v. Hobson, 37 Me. 405 ; Greening v. Patten, 51 Wis. 150 ; a mutual assent of the parties on the object and the price, Nance v. Met- calf, 19 Mo. App. 183 ; s. c. 1 West Rep. 441 ; it is a transfer of the abso- lute or general property in the thing, for a price in money, Nance v. Met- calf, 19 Mo. App. 183 ; s. c. 1 West Eep. 441. The Supreme Court of the United States say in Williamson v. Barry : " We remark that sale is a, word of precise legal import, both at law and in equity ; it means at all times a con- tract between parties to give and to pass rights of property for money, which the buyer pays or promises to pay to the seller, for the thing bought and sold." See Noy's Maxims, ch. 42 ; Shep. Touch. 244. This language of the Supreme Court of the United States is quoted with approval in Bigley v. Risher, 63 Pa. St. 152, 155. See also Iluthmacher v. Harris's Adm'r, 38 Pa. St. 491 ; s. c. 80 Am. Dec. 502 ; also Parkinson v. State, 14 Md. 184; s. c. 74 Am. Dec. 522. See Massey i: State, 74 Ind. 308; Edwards v. Cottrcll, 43 Iowa, 194, 204; Gard- ner c. Lane, 94 Mass. (12 Allen) 39; De Fonolear v. Shottenkirk, 3 Johns. (N. Y.) 170; Wittkowsky v. Wasson, 71 N. C. 451 ; Mackaness v. Long, 85 Pa. St. 1.38, 163; Bigley v. Risher, 63 Pa. St. 152, 155; Huthmacher v. Har- ris, 38 Pa. St. 491, 498 ; s. c. 80 Am. Dec. 502 ; Atkinson on Sales, 5. A sale has also been described as an agreement by which one of the con- tracting parties, called the seller, gives a thing and passes title to it, in ex- change for a certain price in money, to another party, who is termed the buyer or purchaser, and who on his part agrees to pay such price. El- dredge V. Kuehl, 27 Iowa, 160, 173; Madison Avenue, &c. o. Baptist Church, 46 N. Y. 131, 139 ; 2 Bouv. Law Diet. (15th ed.) tit. Sale, 606; Winfleld Words, &c. 547; La. Civ. Code, art. 24.39; Stiras. Am. Stat. 4560. If the consideration be other than money, as the giving of other goods, it would constitute a technical barter. However, the legal effect is generally the same, and the same rule of law is applicable to both. Commonwealth V. Clark, 80 Mass. (14 Gray) 372; Nance v. Metcalf, 1 Mo. App. 183; s. c. 1 West Rep. 441. The Supreme Court of Vermont say, in the case of State V. O'Xoil, 58 Vt. 140; s. c. 1 New Eng. Rep. 775, 781, that "the owner must intend to part with his property, and the purchaser to become the immediate owner ; their two minds must meet on this point; and if any- thing remains to be done, before their assent, it may be an inchoate contract, but it is not a perfect contract of sale." See, also Mason v. Thompson, 35 Mass. (18 Pick.) 305. Phillips, P. J., of the Kansas City Court of Appeals, says, in the recent case of Nance v. Metealf, 19 Mo. App. 183 ; s. c. 1 West Rep. 442, that "at com- mon law all bargains and sale of personal property is a transfer of the absolute or general property in the thing, for a price in money." Com- PART I.] ELEMENTS AND FORM OF THE CONTRACT. *2 competent to contract ;2 (2d) Mutual assent ; ^ (3d) A thing,* the absolute or general property in which is trans- ferred from the seller to the buyer; and (4th) A price in monwealth v. Clark, 80 Mass. (14 Gray) 372. The Supreme Court of Massachusetts have said that "the ordinary definition of a sale is a trans- mutation of property from one per- son to another for a price, does not fully express the essential elements wliich enter into and make up a con- tract; a more complete enumeration of this would be competent parties to enter into the contract, an agreement to sell, and the mutual assent of the parties to the subject-matter of the sale, and to the price to be paid there- for." Gardner v. Lane, 94 Mass. (12 Allen) 39, 48. The S upreme Court of Iowa say, in the case of Eldridge v. Kuehl, 27 Iowa, 160, 173, that "the word ' sale ' is defined by Bouvier in his law dictionary to be an agreement by one of the contracting parties called the seller, gives a thing and passes the title to it for a certain price, in current money, to the other party, who is called the buyer or pur- chaser, who on his part agrees to pay such price." The Connecticut doctrine. — In Con- necticut a sale is said to be " a trans- mutation of property from one to another, accompanied whenever it is applicable, with a delivery of the article to the purchaser. Patten v. Smith, 5 Conn. 196, 199; s. c. 10 Am. Dec. 166. It is so much of the es- sence of a sale, that there be a deliv- ery of the possession that to permit the chattel sold to remain in the hands of the vendor is an extraordi- nary exception to the usual course of dealing, and requires a satisfactory explanation. Patten r. Smith, 5 Conn. 196, 199; s. c. 10 Am. Dee. 166. See also Law on Sales, 1 ; Hilliard on Sales, 1. However, the limita- tions contained in this opinion are not in accord with the prevailing doctrine in this country, where the contract of sale does not provide for the delivery by the vendor. ^ See Gardner v. Lane. 14 Mass. (12 Allen) 39, 43. 2 Consent of parties. — Consent or mutual assent is essential (Gardners. Lane, 94 Mass. (12 Allen) 39, 43; Schermerhorn v. Talman, 14 N. Y. 29, 47 ; Thayer v. Lucas, 22 Ohio St. 62 ; Dayton W. V. & X. Turnp. Co. v. Coy, 13 Ohio St. 84, 92 ; Summers v. Mills, 21 Tex. 77, 86, 87 ; Utley v. Donaldson, 94 TJ. S. (4 Otto) 29, 47 , bk. 24, L. ed. 54; 2 Kent Com. 477; Long on Sales, 3) ; because a contract always implies the agreement or assent of two minds. See Smith r. Goudy, 90 Mass. (8 Allen) 566 ; Thurston v. Thurston, 55 Mass. (1 Cush.) 89, 91; infra, § 46. At common law the only elements essential to a valid sale of personal property were first, a thing to be sold ; second, a price to be paid ; and third, the mutual consent of the parties. Cunningham v. Asterbrook, 53 Mo. 553, 556; Bloxam v. Sanders, 4 Barn. & C. 941, 948; 2 Bl. Com. 448. The civil law as followed in this country is the same. Klein- peter V. Harrison, 21 La. An. 196, 197 ; Ga. Civ. Code, § 2629 ; La. Civ. Code, art. 2439. A recent writer says that " the civil law, as it was ulti- mately developed, and is now admin- istered on the continent of Europe, agrees with the natural in deriving the obligation of a contract from the union of two minds in a common pur- pose to which both are mutually bound, or which one of them is en- titled to insist that the other shall fulfil." Hare on Cont. 117. * At common law a delivery of the goods was not an essential element in a sale. Newmarket on Sales, § 3; Johns. Cyc. 1647. *2 FORMATION OF THE CONTRACT. [book I. money paid or promised.^ That it requires (1st) parties competent to contract, and (2d) mutual assent in order to effect a sale, is manifest from the general principles which govern all contracts. The third essential is that there should be a transfer of the absolute or general property in the thing sold ; for in law, a thing may in some cases be said to have in a certain sense two owners, one of whom has the general, and the other a special property in it ; and a transfer of the special property is not a sale of the thing.^ An illustration s A consideration paid or promised is essential to a valid sale. Common- wealth V. Packard, 71 Mass. (5 Gray) 101. ^ A sale is a present transfer of the title to a chattel for a consideration in money, and is therefore distin- guishable from 1. A lease, in whicli the transfer of title is only temporary. Smith v. Niles, 20 Vt. 31.0; s. c. 49 Am. Dec. 782. Where chattel property deliv- ered under a writing, purporting to hire the same at so mucli per month, and when a certain amount is paid in monthly advances, or otherwise agree- ing to sell and deliver the property, the transaction constitutes a sale. Lucas V. Campbell, 88 111. 447; Miireli v. Wright, 46 111. 487; McCormick v. Hadden, 37 111. 370; Brundage v. Camp, 21 111. 330 ; Jennings v. Gage, 13 111, 610 ; «. c. 56 Am. Dec. 476 ; Singer Manufacturing Co. v. Cole, 4 Lea (Tenn.) 439; s. c. 40 Am. Rep. 20; Hervey i\ Rliode Island Locomo- tive Works, 93 U. S. (3 Otto) 664; bk. 33, L. ed, 1003. And parol evi- dence is admissible to show that upon compliance of the condition of the sale, the title vests. Singer Sewing Machine Co. v. Holcomb, 40 Iowa, 33 ; Domestic Sewing Ma- chine Co. V. Anderson, 33 Minn. 57. However, where by the terms of such written instrument, the title is to remain in tlie vendor until the price is fully paid, the transaction is a conditional sale. Kohler v. Hayes, 41 Cal. 455; Loomis v. Bragg, 50 Conn. 228; s. c. 47 Am. Rep. 6-38; Hine v. Roberts, 48 Conn. 267 ; s. c. 40 Am. Rep. 170; Greer v. Church, 13 Bush (Ky.) 430, 433, 434; Cur- rier zi. Knapp, 117 Mass. 324; Mars- ton V. Baldwin, 17 Mass. 606; Hussey V. Thornton, 4 Mass. 405; s. c. 3 Am. Dec. 224; Sargent v. Gile, 8 N. H. 325; Ballard I'. Burgett, 40 N. Y. 314; Gibbons v. Luke, 37 Hun (N. Y.) 570; Murray v. Burling, 10 Johns. (N. Y.) 172; Spencer v. Blackman, 9 Wend. (N. Y.) 167 ; Singer Machine Co. V. Graham, 8 Oreg. 17 ; s. c, 34 Am. Rep. 572 ; Enlow c. Klein, 79 Pa. St, 488; Crist v. Kleber, 79 Pa. St. 290 ; Rose v. Story, 1 Pa. St. 190 ; s. c. 44 Am Dec. 121; Clark ;;. Jack, 7 Watts (Pa.) 375; Carpenter v. Scott, 13 R. I. 477 ; Goodell v. Fair- brother, 12 R. I, 233; s. c. .34 Am. Rep. 631; CoUender v. Marshall, 57 Vt. 232; Whitcomb o. Woodworth, 54 Vt. 544. Vide infra, § 389, " Conditional Sale." The courts en- force these contracts according to their plain terms, Sumner v. Cottey, 71 Mo, 121; Bailey v. Colby, 34 N, H. 29; Sargent v. Gile, 8 N. H. 325; Bean v. Edge, 84 N. Y. 510; Austin V. Dye, 46 N, Y. 500 ; Haviland v. .Johnson, 7 Daly (N. Y.) 297; Enlow V. Klein, 79 Pa. St. 488; Crist v. Kleber, 79 Pa. St. 290; Henry r. Patterson, 57 Pa. St, 346; Rowe v. Sharp, 51 Pa. St. 26 ; Chamberlain v. Smith, 44 Pa. St. 431 ; Myers v. Har- vey, 2 Penrose & Watts (Pa.) 479; Rose V. Story, 1 Pa. St. 190; Clark r. Jack, 7 Watts (Pa.) 375. However, PART I.] ELEMENTS AND TOEM OF THE CONTRACT. *2 of tliis is presented in the case of Jenkins v. Brown/ where a factor in New Orleans bought a cargo of corn with his own 14 Q. B. 496; 19 L. J. Q. B. 286. a contrary doctrine seems to be held in Heryford v. Davis, 102 U. S. (12 Otto) 235; bk. 26, L. ed. 160; Her- vey v. llhode Island Locomotive Works, 93 U. S. (3 Otto) 664 ; bk. 23, L. ed. 1003 ; Fosdick v. Schall, 99 U. S. (9 Otto) 235 ; bk. 25, L. ed. 339. In Illinois and Kentucky, leases of the class in question are held to be chat- tel mortgages in spite of their terms. Murch V. Wright, 46 111. 487, cited and followed in Hervey v. Rhode Island Locomotive Works, 93 U. S. (3 Otto) 664; bk. 23, L. ed. 103; Lucas V. Campbell, 88 111. 447 ; Greer V. Church, 13 Bush (Ky.) 430. 2. A mortgage in which the title passes at once, defeasible, on per- formance of a specific condition. Merrifield v. Baker, 9 Mass. (9 Allen) 29; Merrill v. Chase, 85 Mass. (3 Allen) 339; Holman v. Bailey, 44 Mass. (3 Mete.) 55 ; Erskine v. Town- send, 2 Mass. 495. No release or discharge of the mortgage, or recon- veyance by the mortgagee, is neces- sary. Richardson v. Cambridge, 84 Mass. (2 Allen) 118; Holman ;>. Bailey, 44 Mass. (3 Mete.) 55. The ifact whether the debt is satisfied by the transaction determines whether it is a sale, a pledge, or a mortgage. Moore v. Murdock, 26 Cal. 514; Hickox v. Lowe, 10 Cal. 197 Sutphen i\ Cushman, 35 111. 186. 196 ; Reeves v. Sebern, 16 Iowa, 2.34 Cooper V. Brock, 41 Mich. 488 Slowey V. McMurray, 27 Mo. 113 Wilmerding v. Mitchell, 42 N. J. L. (13 Vr.) 476; Smith v. Beattie, 31 N. Y. 542 ; Robinson v. Willoughby, 65 N. C. 520 ; Todd v. Campbell, 32 Pa. St. 250 ; Honser v. Kemp, 3 Pa. St. 208 ; Buffier v. Womack, 30 Tex. 332 ; Musgat V. Rumpelly, 46 Wis. 660. It is held that a bill of sale whereby a debtor conveys personal property to his creditor, and which provides that the property shall remain in the debtor's possession, and that he have thirty days to redeem by paying the debt, is a mortgage. Blodgett v. Blodgett, 48 Vt. 32. See also Coty V. Barnes, 20 Vt. 78; Atwater v. Mower, 10 Vt. 75 ; Wood v. Dudley, 8 Vt. 430. In Blodgett v. Blodgett, supra, the court say : " The appellant was indebted to the appellee at the time the conveyance was made, and there is no evidence whatever of the discharge of that indebtedness. The bond and note, by which the greater portion of it was evidenced, were retained by the appellee, and the payment of the indebtedness might have been enforced. Until the con- trary is shown the presumption is that the debt was not satisfied by the conveyance." 3. A bailment, in which only a quali- fied or special interest passes. See Bulkley v. Andrews, 39 Conn. 70 ; Ashby D. West, 3 Ind. 170 ; Irons v. Kentner, 51 Iowa, 88; Barker v. Roberts, 8 Me. (8 Greenl.) 101; Mansfield v. Converse, 90 Mass. (8 Allen) 182 ; Schenck v. Saunders, 79 Mass. (13 Gray) 37; Eldredge v. Benson, 61 Mass. (7 Cush.) 483; Foster v. Pettibone, 7 N. Y. 430 ; Mallory v. Willis, 4 N. Y. 76 ; Hyde V. Cookson, 21 Barb. (N. Y.) 92; Pierce v. Schenck, 3 Hill (N. Y.) 28 ; Brown u. Hitchcock, 28 Vt. 452; Isaacs V. Andrews, 28 Up. Can. C. P. 40 ; Stephenson v. Ranney, 2 Up. Can. C. P. 196. Where the bailee agrees to pay a specified price in case the property is not returned, this does not convert the contract of bailment into one of sale ; the specification of value does not operate to give an election to the vendee to retain, at the price, or to return, but simply fixes the damages in case of failure or inability to ru- *2 FORMATION OF THE CONTEACT. [BOOK I. money, on the order of a London correspondent. He shipped the goods for account of his correspondent, and wrote letters turn the article. Westeott v. Thomp- son, 18 N. Y. 363. See Hunt v. Wy- raan, 100 Mass. 198, wliere it appeared, from tlie evidence, that the plaintiff had a horse for sale, and that the defendant asked and was told the price and character of the horse; that the defendant then expressed a desire to take the horse and try it, and proposed that "if the plaintiff would let him take the horse and try it, if he did not like it he would return it in as good condition as he got it, the night of the day he took it." To this proposition the plaintiff as- sented, and delivered the horse to the defendant's servant. The horse es- caped from the servant almost imme- diately, without his fault, and was so injured that the defendant had no opportunity to try it, but did not return it within the time agreed upon nor afterwards. The plaintiff testi- fied that he did not expect that the defendant would finally take the horse until after he had tried it. It was held that this evidence showed a bailment of the horse, but no sale. The court said : " This contract, it is true, is silent as to what was to take place if the defendant should like the horse, or if he should not return it. It may perhaps he fairly inferred that the intent was that if he did like the horse he was to become the pur- chaser at the price named. But, even if that were expressed, the sale would not take effect until the de- fendant should determine the question of his liking. An option to purchase if he liked is essentially different from an option to return a purchase if he should not like. In one case the title will not pass until the option is determined ; in the other the prop- erty passes at once, subject to the right to rescind and return. A mere failure to return the horse within the time agreed may be a breach of con- tract, upon which the plaintiff is en- titled to an appropriate remedy; but has no such legal effect as to convert the bailment into a sale." See also Bulkley v. Andrews, 39 Conn. Tu ; Walker u. Butterick, 105 INIass. 2:;7 ; Prichett v. Cook, 62 Pa. «t. H« ; Ful- ler V. Buswell, 34 Vt. 107. Wliere the return of the identical article is not required bi/ usage, trade, or the agreement of the parties, but its equivalent in the same or a different form, and in case of failure, this value is to be paid at the option of the receiver, the transaction is a sale. Particularly is this true where there is an express right to sell deposits, or consume the article received, Bailey V. Bensley, 87 111. 556 ; Richardson i>. Olmstead, 74 111. 213; Lonergan v. Stewart, 55 111. 45; Ives v. Hartley, 51 111. 520 ; Grier v. Stout, 2 111. App. 602 ; Carlisle u. Wallace, 12 Ind. 202 ; Ewing V. French, 1 Blackf. (Ind.) 3.54; Johnson v. Browne, 37 Iowa, 200 ; Wilson v. Cooper, 10 Iowa, 565; Buffum v. Merry, 3 Mas. C. C. 478 ; Jones v. Kemp, 49 Mich. 9 ; Fishback v. Van Busen, 33 Minn. Ill; Norton v. Woodruff, 2 N. Y. 153 ; Baker v. Woodruff, 2 Barb. (N. Y.) 520 ; Marsh v. Titus, 3 Hun (N. Y.) 550; Seymour v. Brown, 19 Johns. (N. Y.) 44; Reed v. Abbey, 2 T. & C. (X. Y.) 380; Smith v. Clark, 21 Wend. (N. Y.)83; Chase V. Washburn, 1 Ohio St. 244 ; Butter- field V. Lathrop, 71 Pa. St. 220; Schlesinger v. Stratton, 9 R. I. 578; Slaughter ;;. Green, 1 Rand (Va.) 3 ; Austin V. Seligman, 21 Blatchf. C. C. 606; McCabe v. McKingstry, 5 Dill. C. C. 509; Eahilly v. Wilson, 3 Dill. C. C. 420; Benedict v. Ker, 29 Up. Can. C. P. 410; Tilt v. Silvertliorn, 11 Up. Can. Q. B. 619; Good v. Winslow, 4 Allen (N. B.) 241. In some of the states this matter is now regulated by statute. PART I.] ELEMENTS AND EOEM OP THE CONTRACT. *2 of advice to that effect, and sent invoices to the corre- spondent, and drew bills of exchange on him for the price. At risk of owner. — The delivery of property which is to remain at the owner's risk is a bailment and not a sale. See Nelson v. Brown, 53 Iowa, 555; s. c. 4i Iowa, 455; Sexton v. Graham, 53 Iowa, 183; Johnston v. Browne, 37 Iowa, 200 ; Ledyard v. Hibbard, 48 Mich. 421. A loan or lease of personal property, which has been kept for a certain time and is subject thep to be turned into a sale, by paying a stipulated price and a payment " of rent " for usage, in case of non-payment of the price constitutes a bailment, and not a sale. Dando v. Foulds, 105 Pa. St. 74 ; Enlow v. Klein, 79 Pa.' St. 488 Crist V. Kleber, 79 Pa. St. 290 Becker v. Smith, 59 Pa. St. 469 Rowe V. Sharp, 51 Pa. St. 26; Hen- derson V. Luack, 21 Pa. St. 359; Lin- ton V. Butz, 7 Pa. St. 89; s. c. 47 Am. Dec. 501 ; Myers v. Harvey, 2 Pen. & W. (Pa.) 478; s. c. 23 Am. Dec. 60; Rose v. Story, 1 Pa. St. 190; s. c. 44 Am. Dec. 121 ; Martin v. Mathiot, 14 Serg. & E. (Pa.) 214 ; s. c. 16 Am. Dec. 491 ; Clark v. Jack, 7 Watts (Pa.) 375; Vandyke i<. Christ, 7 Watts & S. (Pa.) 373. 4. A consignment of goods to be sold, which is a bailment and not a sale. Williams v. Davis, 47 Iowa, 363 ; Bayliss v. Davis, 47 Iowa, 340 ; Conable v. Lynch, 45 Iowa, 84; Boston & M. R. E. v. Warrier Mower Co., 76 Me. 251 ; Blood v. Palmer, 11 Me. 414; Selden v. Beale, 3 Me. (3 Greenl.) 178 ; Walker v. Butterick, 105 Mass. 2-37 ; Audenried v. Betteley, 90 Mass. (8 Allen) 302; Brown v. Holbrook, 70 Mass. (4 Gray) 102; Ayres v. Sleeper, 48 Mass. (7 Mete.) 45; Meldrum v. Snow, 26 Mass. (9 Pick.) 441; Morss u. Stone, 5 Barb. (N. Y.) 516 ; Gooderham v. Marlat, 14 Up. Can, Q. B. 228; Dodds v. Du- rand, 5 Up. Can. Q. B. 623. And this is true although the consignment is coupled with a del credere commis- sion. See ConverviUe Co. v. Chani- bersburg Co., 14 Hun (N. Y.) 609. To constitute a consignment of sale the purchaser must become the prin- cipal debtor at the time of the trans- action. Nutter v. Wheeler, 2 Low. C. C. 346; followed in re Linforth, 4 Sawy. C. C. 370 ; Ex parte White, L. R. 6 App. Cas. 397; s. c. 21 W. R. 465. See also Audenried v. Betteley, 90 Mass. (8 Allen) 302; Ex parte Carlon, 4' Dea. & Ch. 120 ; Ex parte Barkworth, 2 De G. & J. 194 ; Ex parte Seargeant, 1 Rose, 153. The fact that the value is stated in the invoice accompanying the goods, will not indicate that, the property was sold and not consigned. Pam V. Vilmar, 54 How. (N. Y.) Pr. 235. See McElrath's Words and Phrases, tits. "Invoice," "Contracts of sale or return." " Contracts of sale or return," — Where property is delivered to the purchaser, for the purpose of trial or inspecting it, the transaction consti- tutes a bailment until after the exer- cise of the option of purchase given to the person to whom it is delivered. Colton V. Wise, 7 111. App. 395 Wartman v. Breed, 117 Mass. 18 Hunt V. Wyman, 100 Mass. 198 Denny v. Williams, 87 Mass. (5 Allen) 1; O'Kelly v. O'Kelly, 49 Mass. (8 Mete.) 436; Dando v. Foulds, 105 Pa. St. 74. But see Westcott V. Thompson, 18 N. Y. 363; Krause v. Commonwealth, 93 Pa. St. 418 ; s. c. 39 Am. Rep. 762 ; Puller v. Buswell, 34 Vt. 107; Heryford v. Davis, 102 U. S. (12 Otto) 235 ; bk. 26, L. ed. 160. But such trial or inspection must be made within a reasonable time, otherwise the sale becomes absolute. See Johnson v. McLane, 7 Blackf. (Ind.) 601 ; s. c. 42 Am. Dec. 102 ; Jameson v. Greg- ory, 4 Met. (Ky.) 363 ; Ray v. Thomp- rOEMATION OF THE CONTRACT. [UOOK I. but took bills of lading to his own order, and endorsed and delivered them to a banker to whom he sold the bills of son, 66 Mass. (12 Cush.) 281 ; s. c. 59 Am. Dec. 187; Quinn v. Stout, 31 Mo. 160; Depew v. Keyser, 3 Duer. (:^. Y.) 336 ; Marsh w. Wiekham, 14 Johns. (N. Y.) 167; McEntyre w., McEntyre, 12 Ired. (N. C.) L. 299; Moore v. I'iercy, 1 Jones (N. C.) L. 131 ; Schlesinger v. Stratton, 9 R. I. 578; Washington v. Johnson, 7 Humph. (Tenn.) 468; Fairfield v. Madison Manuf. Co., 38 Wis. 346; Moss 0. Sweet, 16 Ad. & E. N. S. 493; s. c. 3 Eng. L. & Eq. 311; Bev- erley V. Lincoln Gaslight Co., 6 A. & B. 829 ; Bianchi v. Nash, 1 Mees. & W. 545. There is a distinction between a case where goods are delivered \yith an option to purchase, if satisfied, and a purchase with an option to re- turn if not satisfied, for where goods are taken under an agreement that they may return within a specified time, if not found to be as represented or the purchaser not satisfied with them, it is a sale under a " contract of sale or return," and the title passes at once to the purchaser (Walker v. Blake, 37 Me. 373 ; Perkins v. Doug- lass, 20 Me. 317 ; Buswell v. Bicknell, 17 Me. 344; s. c. 35 Am. Dec. 262; Dearborn v. Turner, 16 Me. 17; s, c. 33 Am. Dec. 630 ; Holbrook v. Arm- strong, 10 Me. 31 ; Mcliinney v. Bradlee, 117 Mass. 321; Marsh v. Wiekham, 14 Johns. (N. Y.) 167) ; subject to his option to return them. Colton V. Wise, 7 111. App. 395; Dearborn v. Turner, 16 Me. 17 ; s. c. 33 Am. Dec. 630; Orcutt f. Nelson, 67 Mass. (1 Gray) 536; Schlesinger V. Stratton, 9 R. I. 578. But where goods are delivered with an option to purchase, if satisfied, the title does not pass until the option has been exercised. Mowbray v. Cady, 40 Iowa, 604 ; Wilson v. Stratton, 47 Me. 120; Crane v. Roberts, 5 Me. 419; Hunt v. Wyman, 100 Mass. 198; Grout v. Hill, 70 Mass. (4 Gray) 361 ; McArren v. McNulty, 73 Mass. (7 Gray) 139; Chamberlain v. Smith, 44 Pa. St, 431 ; Kahn v. Kla- bunde, 50 Wis. 235 ; Fairfield v. Mad- ison Manuf. Co., 38 Wis. 346; EI- phick V. Barnes, L. E.5 C. P. Div. 321. Because the transaction closely re- sembles a sale with a right to repur- chase, in which case the title fully passes. Mahler v. Schloss, 7 Daly (N. Y.) 291 ; Slutz v. Desenberg, 28 Ohio St. 372; Moore v. Sibbald, 29 Up. Can. Q. B. 487. However, it would be otherwise under a special agreement to the contrary. Crocker V. Gullifer, 44 Me. 491. A deposit of grain with the ware- houseman. — Where grain is depos- ited with a warehouseman, with the understanding that he is to ship and sell it on his own account, and when the depositor desires to sell, the warehouseman will pay the high- est price or return a like quantity and quality, the transaction is not a bailment, but a sale, and the prop- erty passes to the warehouseman. Broadwell v. Howard, 77 111. 305; Barker v. Bushnell, 75 111. 220; Lonergan v. Stewart, 55 111. 45; German Bank v. Meadowcroft, 4 111. App. 630; Lyon o. Lenon, 106 Ind. 567; Schindler v. Westover, 99 Ind. 395 ; Rice r. Nixon, 97 Ind. 97 ; Car- hsle V. Wallace, 12 Ind. 252 ; s. c. 74 Am. Dec. 207 ; Arthur v. Chicago, R. I. & P. Ey. Co., 61 Iowa, 648; Nelson r. Brown, 53 Iowa, 555 ; s. c. 44 Iowa, 455 ; Jolinston v. Browne, 37 Iowa, 200 ; Wilson v. Cooper, 10 Iowa, 505 ; Gushing v. Breed, 96 Mass. (14 Allen) 376; Ledyard v. Hibbard, 48 Midi. 421 ; s. c. 42 Am. Rep. 474 ; Norton v. Woodruff, 2 N. Y. 155; Hurd v. West, 7 Cow. (N. Y.) 752; Smith v. Clark, 21 Wend. (N. Y.) 84; s. c. 34 Am. Dec. 213; Chase v. Washburn, 1 PAKT I.] ELEMENTS AND FOR^M OF THE CONTRACT. *2 exchange. This transaction was held to be a transfer of the general property to the London merchant, and therefore a Ohio St. 244; s. c. 59 Am. Dec. 623; South Australian Ins. Co. v. Randell, L. R. 3 P. C. Ap. 101. But it is held in the case of Sexton v. Graham, 53 Iowa, 181, that where grain is deliv- ered to a warehouseman, on a receipt taken which provides that the grain may be stored in the common mass, with other grain of the same quality, the contract is one of bailment and not of sale, although the warehouseman himself continued buying and adding grain, on his own account to the com- mon mass, and shipping tlierefrom. Consignment for sale. — Where goods are delivered to another on condition tliat he will return monthly, an account of sales, at the price charged by the vendor, who agrees to furnish all the goods required, this constitutes a consignment and not a sale. Reissner v. Oxley, 80 Ind. 580 ; Balch v. Ashton, 54 Iowa, 123; Williams v. Davis, 47 Iowa 363 ; Bayliss v. Davis, 47 Iowa, 340 Conable v. Lynch, 45 Iowa. 84 Albert v. Lindau, 40 Md. 334 Walker ;,•. Butterick, 105 Mass. 237 Audenried v. Betteley, 90 Mass. (8 Allen) 302 ; Pani v. Vilmar, 54 How. (N. y.) Pr. 235; Converseville Co. V. Chambersburg Co., 14 Hun (N. Y.) 609 ; Nutter v. Wheeler, 2 Low. C. C. 346; In re Linforth, 4 Sawy. C. C. 370; Gooderhara «. Marlatt, 14 Up. Can. Q. B. 228; Ex parte White, L. R. 6 Ch. App. 397. In Walker v. Butterick, 105 Mass. 238, the court said : " The terms of the contract that A & Co. are to take goods from plainttffs, and return to them every thirty days the amount of sales at the prices cliarged by the plain tiifs, who will furnish A & Co. all goods in their line, imports a consignment and not a sale." But in Nutter v. Wheeler, 2 Low. C. C. 346, where goods were delivered on an agreement that they should be paid for at a certain price within thirty days after they were sold by the consignee, who fixed the terras of his own sales, it was held that tlie consignee sliould be considered as the purchaser, sub- ject only to the understanding that he was neither the owner of the goods nor liable to pay for them until he had succeeded in finding a purchaser ; but when he did sell, he immediately became the principal, and the defendants ceased to have the rights of a consignor, and could not follow the goods or their proceeds as undisclosed principals. The latter case is followed in In re Linforth, 4 Sawy. C. C. 370. Where goods are to remain the vendor's until pay- ment of the purchase price, title does not pass until that condition is per- formed. Cole V. Mann, 62 N. Y. 1; Ballard v. Burgett, 40 N. Y. 314; Herring v. Hippock, 15 N. Y. 409. Goods to he paid /or at all events. — Where goods are delivered to a mer- chant or agent to be resold, on the condition that they are to be paid for as sold, but in all events to be paid for, within a specified time, the trans- action is a present sale. Fish v, Bene- dict, 74 N. Y. 613. See Bayliss v. Davis, 47 la. 340 ; Eldridge v. Benson, 61 Mass. (7 Cush.) 483 ; Cole v. Mann, 62 N. Y. 1; Marlatt v. Gooderham, 14 Up. Can. Q. B. 221 ; Dodds i'. Durand, 5 Up. Can. Q. B. 623 ; but where the con- tract provided that the party should act as agent of another for the sale of machines, paying a stipulated price for whatever he received, and that if any remained unsold at the end of the season he should give his note therefor, and if the right was not con- tinued another season, the machines unsold should be returned, it was lield that the agent acquired no title to the machines received under the contract, and that a sale of thera to him was not contemplated by the parties. Wil- «2 FOEMATION OP THE CONTRACT. [book I. sale to him; and a transfer of a special property to the banker by the delivery to him of the bills of lading, which represented the goods. And in like manner when goods are delivered in pawn or Hams V. Davis, 47 la. 363; where a merchant reeoived goods to be sold on commission, to be accounted for as sold, and anything remaining un- sold to be returned on demand, it was held that an action for goods sold and delivered would not lie. Dodds v. Durant, 5 Up. Can. Q. B. 623. The words " I hereby agree to sell " or "to buy" do not import or pur- chase sale where the article bargained is already in the importer's possession. Martin v. Adams, 104 Mass. 262. See Brock V. O'Donnell, 45 N. J. L. (16 Vr.) 441. A written agreement by the terms of which " A sells " and " B buys " is not necessarily a present sale. Sherwin v. Mudge, 127 Mass. 547 ; because the contract may be simply executory. Foster !>. Eopes, 111 Mass. 10; The Dresser Manuf. Co. •!!. Waterston, 44 Mass. (3 Mete.) 9; Riddle v. Varnum, 37 Mass. (20 Pick.) 280; Mason v. Thompson, 35 Mass. (18 Pick.) 305; Higgins v. Chessman, 26 Mass. (9 Pick.) 7 ; Kel- ley V. Upton, 5 Duer (N. Y.) 336. Such cases depend upon the intention of the parties, and this intention must be collected from the whole instru- ment. McCrae v. Young, 43 Ala. 622 ; Foster v. Ropes, 111 Mass. 10, 16; Macomber c. Parker, 30 Mass. (13 Pick.) 182 ; Anderson u. Reed, 51 N. Y. Super. Ct. (19 J. & S.) 326; Decker v. Furniss, 14 N. Y. 615 ; Out- water V. Dodge, 7 Cow. (N. Y.) 85 ; Kelley v. Upton, 5 Duer (N. Y.) 336 ; McDonald v. Hewett, 15 Johns. (N. Y.) 349; s. c. 8 Am. Dec. 241; Cur- rie V. White, 1 Sweeny (N. Y.) 192 ; Ward V. Shaw, 7 Wend. (N. Y.) 404 ; Turley v. Bates, 2 H. & C.200; Young u. Matthews, L. R. 2 C. P. 127 ; Busk ('. Davis, 2 Maule & S. 397; and in order to carry that intention into ef- fect, the literal import of the words 10 used may be disregarded. Kelley v. Upton, 5 Duer (N. Y.) o:]6. 5. A contract to sell in future, which is invalid. Cardinell o. Bennett, 52 Cal. 476; Olney v. Howe, 89 111. 556; Lester v. East, 49 Ind. 5b8 ; Dittmar V. Norman, 118 JIass. 319; Elliott v. Stoddard, 98 Mass. 14-3; Blasdell v. Souther, 72 Mass. ((i Gray) 152; Joyce V. Murphy, 8 N. Y. 291 ; Gar- bract r. Commonwealth, 96 Pa. St. 449; Powder Co, v. Burkhardt, 90 U. S. (7 Otto) 110 ; bk. 24, L. ed. 973. See Chapman v. Searle, 20 Mass. (3 Pick.) 38 ; Hodges v. Harris, 23 Mass. (6 Pick.) 360 ; Shaw v. Hudd, 25 Mass. (8 Pick.) 0; Bennett v. Piatt, 26 JIass. (9 Pick.) 558 ; Pratt v. Park- ham, 41 Mass. (24 Pick.) 42; Moody V. Wright, 54 Mass. (13 Mete.) 717; Willson I'. Russell, 1.36 Mass. 211; Hibblewhite v. McMorine, 5 Mees. & W. 462. The words " I liereby agree to sell " and " to buy " do not neces- sarily import a future sale ; and espe- cially is this true wliere tlie article bargained to be sold is already in the grantor's possession. See Martin V. Adams, 104 Mass. 2(i2; Brock v. O'Donnell, 45 N. .J. L. (Ki Vr.) 441; and it has been held that where by the terms of a contract "A sells" and " B buys," the transaction is not necessarily a present sale. Sherwin V. Mudge, 127 Mass. 547, Because the implication of the immediate transfer of title suggested by these words may be controlled by other languages or subsequent provisions, which indicate an executory contract of sale. See Foster v. Ropes, 111 Mass. 10, 16; Dresser Manuf. Co. v. Waterson, 44 Mass. (3 Mete) 9; Riddle v. Varnum, 37 Mass, (20 Pick.) 280 ; Mason v. Thompson, 35 Mass. (18 Pick.) 325 ; Higgins v. Chessman, 26 Mass. (9 Pick.) 7, 10; Kelley v. PART I.] ELEMENTS AND POBM OF THE CONTRACT. *2 pledge, the general property remains in the pawnor, and a special property is transferred to the pawnee.^ Upton, 5 Duer (N. Y.) 340. In such cases the character of the transaction depends upon the intention of the parties, which is always to be ob- tained from the circumstances. See McCrae u. Young, 43 Ala. 622; Decider V. Furniss, 14 N. Y. 615; Cutwater V. Dodge, 7 Cow. (N. Y.) 85; Mc- Donald ,;. Hewett, 15 Johns. (N. Y.) 349 ; Ward v. Shaw, 7 Wend. (N. Y.) 404; Anderson v. Reed, 19 Jones & S. (N. Y. Super. Ct.) 2.36 ; Currie v. White, 1 Sweeney (N. Y.) 192 ; Busk V. Davis, 2 Maule & S. 397. 8 Halliday v. Holgate, L. R. 3 Ex. 299; Harper v. Goodsell, L. B. 5 Q. B. 424. The Supreme Court of Illinois say that " where property is pledged, the pledgee acquires a special property in the goods, and we are aware of no reason or principle that would pre- vent a transfer, nor can we perceive any reason why the mere transfer of the pledged property should destroy the original lien. Belden v. Perkins, 78 111. 449, 451. Pledge of property — General title. — Where property is pledged, the gen- eral title remains in the pledgor, and the special title passes to the pledgee. Whitaker v. Sumner, 37 Mass. (20 Pick.) 399; Eettyplace v. Dutch, 30 Mass. (13 Pick.) 388 ; s. c. 23 Am. Dec. 688; Tutsworth v. Moore, 26 Mass. (9 Pick.) 347 ; s. c. 20 Am. Dec. 479 ; Jarvis v. Rogers, 15 Mass. 389; Carrington v. Ward, 71 N. Y. 360 ; Van Blarcom v. Broadway Bank, 37 N. Y. 540 ; Cortelyou v. Lansing, 2 Cai. Cas. (N. Y.) 200; Garlic v. James, 12 Johns. (N. Y.) 146 ; s. c. 7 Am. Dec. 294; see also Talty v. Freedman's Savings & Trust Co., 93 U. S. (3 Otto) 321 ; bk. 23, L. ed. 420 ; Jack V. Eagles, 2 Allen (N. B.) 95; Gibbson v. Boyd, 1 Kerr (N. B.) 150; the pledgee is entitled to the pos- session of the property pledged as against the pledgor and all the world, except in these cases where the prop- erty has been pledged without the owner's consent. Noles v. Marable, 50 Ala. 366; Reese v. Harris, 27 Ala. 301 ; Lawrence v. Maxwell, 63 N. Y. 19; Thompson v. Patrick, 4 Watts (Pa.) 414; Coleman v. Shelton, 2 McC. (S. C.) Bq. 128, 126; Luckett V. Townsend, 3 Tex. 119; s. c.49 Am. Dec. 723; Phillips v. Robinson, 4 Bing. 106; 2 Par. on Cont. 110. But the pledgee may use the prop- erty pledged, " (1) If the pawn is of such a nature that the due preserva- tion of it requires some use, there such use is not only justified, but it is in- dispensable to the faithful discharge of the duty of the pawnee. (2) If the pawn is of such a nature that it will be worse for the use, such, for instance, as the wearing of clothes which are deposited, there the use is prohibited to the pawnee. (3) If the pawn is of such a nature that the keeping is a charge on the pawnee, as if it is a cow or a horse, there the pawnee may milk the cow and use the milk, and ride the horse, by way of recompense (as it is said) for the keeping. (4) If the use will be beneficial to the pawn, or it is indifferent, there it seems that the pawnee may use it; as, if the pawn is of a setting dog, it may well be presumed that the owner would consent to the dog's being used in partridge-shooting, and thus confirmed in the habits which make him valuable. So books, which will not be injured by a moderate use, may be read, examined, and used by the pawnee. (5) If the use will be without any injury, and yet the pawn will be exposed to extraordinary per- ils, there the use is impliedly inter- dicted." See also Jones on Bail. 81 ; Story on Bail. sees. 329, 330. The pledgee must return the identical article pledged where it is distinctive 11 *9 FORMATION OF THE CONTRACT. [book I. § 2. So ift relation to the element of price. ^ It must be money, paid or promised, accordingly as the agreement may be for a cash,^ or a credit sale ;^ but if any other considera- in its character, and capable of being recognised among other things of like nature, or where a mark is set upon it with a view to its discrimina- tion ; but not where from its very na- ture it is incapable of being indenti- fled, if it is once mingled with others of the same kind. Nourse v. Prime, 4 Johns. Ch. (N. Y.) 490; s. c. 8 Am. Dec. 606; Gilpin v. Howell, 5 Pa. St. 41 ; s. c. 45 Am. Dec. 720. Where stock is pledged and the shares transferred to the pledgee on the books of the corporation, and such pledgee surrenders the certifi- cates and takes out new certificates in his own name, the identity of the stock is not changed. Ketchum v. Bank of Commerce, 19 N. Y. 499. The pledgor may redeem the prop- erty pledged at any time where no time is fixed to redeem. In general his right to redeem commences when the debt falls due. Roberts v. Sykes, 30 Barb. (N. Y.) 173; Waterman v. Brown, 31 Pa. St. 161. The right of redemption in the pledgor survives in his personal representation. Perry V. Craig, 3 Mo. 516; Cortelyou v. Lansing, 2 Cai. Cas. (N. Y.) 200. However, in Texas it is held that the statute of limitations does not begin to run against the right to redeem the pledge until the pledgee has denoted by some act his intention to put an end to the contract. See Jones v. Thurmond, 5 Tex. 318. Where the pledgee refuses to redeliver the arti- cles pledged, and demand after pay- ment of the debt, the pledgor may bring an action against him at law to recover possession ; and under some circumstances, as where the identity is necessary, or where the pledged article has been assigned, the pledgee may bring a suit in equity to redeem. Flowers o. Sproule, 2 A. K. Marsh. (Ky.) 54; Bartlett v. Johnson, 9 Allen (Mass.) 530 ; Merrill v. Hough- ton, 51 N. H. 61 ; White Mts. R. R. V. Bay State Iron Co., 50 N. H. 57; Hasbrouck v. Vandervoort, 4 Sandf. (N. Y.) 74 ; Conyngham's Appeal, 57 Pa. St. 474 ; Chapman v. Turner, 1 Call. (Va.) 280 ; Brown v. Runals, 14 Wis. 693 ; Jones v. Smith, 2 Ves. Jr. 372. Barter of goods. — Assumpsit for goods sold and delivered will not lie where there has been a mere barter and exchange of goods, and no sum in money has been agreed upon as a value of the goods exchanged. Fuller V. Duren, .36 Ala. 73; s. c. 76 Am. Dec. 318; Gunter v. Leckey, 39 Ala. 591, 596; Slayton v. McDonald, 73 Me. 50; Jones v. Hoar, 22 Mass. (5 Pick.) 285; Mitchell v. Gile, 12 N. H. 390; Willet v. Willet, 3 Watts (Pa.), 277; Vail v. Strong, 10 Vt. 465; Wil- liamson V. Berry, 49 U. S. (8 How.) 544, bk. 12, L. ed. 1191 ; Campbell v. Sewell, 1 Chit. 611; Harris v. Fowle, 1 N. B. 287. The remedy is by an ac- tion upon the contract of exchange. Slayton v. McDonald, 73 Me. 50; Holden Steam Mill Co. v. Westervelt, 67 Me. 446, 450 : Mitchell v. Gile, 12 N. H. 390; Dubois v. Delaware & H. Canal Co. 4 Wend. (N. Y.) 285; Rob- ertson V. Lynch, 18 Johns. (N. Y.) 457; Clark ;;. Smith, 14 Johns. (N. Y.) 326 ; Jennings v. Camp, 13 Johns. (N. Y.) 94 ; Raymond v. Bearnard, 12 Johns. (N. Y.) 274, 289 ; s. c. 7 Am. Dec. 317 ; Talvcr v. West. Holt, 178 ; Weston V. Downes, Dougl. 23. 1 T7c?e infra, § 99. ^ Where one sells goods to be paid for in cash, no time of payment being specified, payment and delivery are simultaneous acts, and the vendor may refuse to part with the goods until payment. And delivery with- out payment in such case passes the property, and the vendee may avail 12 PART I.] ELEMENTS AND FORM OF THE CONTRACT. *2 tion than money be given, it is not a sale. If goods be given in exchange for goods, it is a barter.* So also goods himself of any legal set-off, notwith- standing his agreement to pay ready money. Chapman y. Lathrop, 6 Cow. (N. Y.) 110; s. c. 16 Am. Dec. 433. ^ It is not necessary that the price be fixed to constitute a sale in those cases where the property is delivered, because the law implies a promise to pay the value ; and it is held that " a delivery of certain articles in con- sideration of being paid what they are worth, constitutes a sale." Hill V. Hill, 1 N. J. L. (Coxe) 261; s. c. 1 Am. Dec. 206. See Herbert v. Borstow, 1 Salk. 25 ; s. c. 2 Ld. Raym. 895. * The difference between a sale and a hnrter or exchange is that in the former the price is paid in money. See Williamson v. Berry, 49 tJ. S. (8 How.) 544; bk. 12, L. ed. 1170, 1191 ; and in the latter it is paid in goods. Thus it has been held that an exchange of liquor for goods or labor is a " sale within the meaning of the statute prohibiting the sale of liquor." Howard v. Harris, 90 Mass. (8 Allen) 297; Com. v. Clark, 80 Mass. (14 Gray) 367 ; Mason v. Lothrop, 73 Mass. (7 Gray) 355. However, a con- trary doctrine prevails in Indiana. See Stevenson v. State, 65 Ind. 409. As a general thing the same rules apply to a barter or exchange that apply to a sale. See Dowling v. McKenney, 124 Mass. 480; Howard ;;. Harris, 90 Mass. (8 Allen) 297; Com. V. Clark, 80 Mass. (14 Gray) 372. However, there is this differ- ence between the remedy on a con- tract of sale and that on that of an exchange or barter, where there has been a breach : in the latter case the declaration of the breach must be special, but not so in the former. Massey v. The State, 74 Ind. 368 Stevenson v. The State, 65 Ind, 409 Edwards v. Cottrell, 43 Iowa, 194 Slayton v. McDonald, 73 Me. 50 13 Mitchell V. Gile, 12 N. H. 390; Weart V. Hoagland, 22 N. J. L. (2 Zab.) 517 ; Loomis v. Wainwright, 21 Vt. 520; Vail v. Strong. 10 Vt. 457; Williamson v. Berry, 49 U. S. (8 How.) 495, 544; bk. 12, L. ed. 1170, 1191; Anon. 3 Salk. 157; 2 BI. Com. 446, 447. An allegation in an as- sumpsit for "goods sold and deliv- ered " will not be supported by proof of a mere barter or exchange. See Fuller t). Duren, 36 Ala. 73; Gunter V. Leckey, 30 Ala. 596; Slayton v. McDonald, 73 Me. 50; Mitchell v. Gile, 12 N. H. 390; Vail v. Strong, 10 Vt. 465; Campbell v. Sewell, 1 Chitt. 611 ; Harris v. Fowle, 1 N. B. L. 287. But it seems that where the value of the things to be exchanged have been agreed upon by the parties. See Clarke v. Fairchild, 22 Wend. (N. Y.) 576; Porter v. Talcott, 1 Cow. (N. Y.) 359; Herrick v. Carter, 56 Barb. (N. Y.) 41; Pickard ;;. McCormick, 11 Mich. 69; Weiss v. Maunch Chunk Iron Co., 58 Pa. St. 295, 301; White v. Thompkins, 52 Pa, St. 363; Crockett v. Moore, 3 Sneed (Tenn.) 145; Butcher v. Car- lisle, 12 Gratt. (Va.) 521; Way v. Wakefield, 7 Vt. 228; Forsyth v. Jervis, 1 Stark. 437. An agreed price, not being essential to a barter, indicates a sale. Loomis v. Wain- wright, 21 Vt. 520. Where the price is fixed, this is not conclusive. Brad- ford V. Stewart, Minor (Ala.) 44 Henry v. Gamble, Minor (Ala.) 15 Jeffrey v. Underwood, 1 Ark. 108 Mattox V. Craig, 2 Bibb (Ky.) 584 Bruner v. Kelsoe, 1 Bibb (Ky.) 487 Watson V. McKairy, 1 Bibb (Ky.) 356; Noe v. Preston, 5 J. J. Marsh. (Ky.) 57; Bollinger v. Thurston, 2 Const. (S. C.) 447; Young v. Haw- kins, 4 Yerg. (Tenn.) 171; Bloom- field V. Hancock, 1 Yerg. (Tenn.) 101; Butcher v. Carlisle, 12 Gratt. (Va.) 520, 522 ; Beirne i'. Dunlap, 8 FOEMATIOK OF THE CONTEACT. [book I. [*3] may be given *in consideration of work and labor done, or for rent, or for board and lodging,^ or any valuable consideration otlier than money; all of whicli are contracts for the transfer of the general and absolute prop- erty in the thing, but they are not sales of goods. The legal effects of such special contracts, as well as of barter, on the rights of the parties are generally, but not always, the same as in the case of sales.^ If no valuable consideration be given for the transfer, it is a gift,'' not a sale. Leigh (Va.) 514. It has been held that one in whom the owner vests authority to sell property thereby obtains no authority to barter it ; thus a mortgage of a chattel witli power of sale confers no right to exchange tlie mortgaged property for other property. Edwards v. Cottrell, 43 Iowa, 194, 204, ^ See an example in Keys r. Har- wood, 2 C. B. 905. <■ For cases showing distinction be- tween sale and barter, see Harris u. Fowle, cited in Barb v. Parker, 1 H. Bl. 287; Hands v. Burton, 9 East, 349 ; Harrison v. Luke, 14 JI. & W. 139; Sheldon v. Cox, y B, & C. 420; Guerreiro w. Peile, 3 B. & Aid. 616; Forsyth v. Jervis, 1 Stark. 437 ; Read V. Hutchinson, 3 Camp. 352. ^ Parol gifts of personal chattels do not pass the property, if there be no actual delivery to the donee. Irons V. Smallpiece, 2 B. & A. 551 ; Shower V. Pilch, 4 Ex.478; Douglas r. Doug- las, 22 L. T. N. S. 127 ; Power v. Cook, 4 Ir. R. C. L. 247. As to gifts of money by check, see Bromley v. Brunton, 6 Eq. 275, and cases there cited ; Jones v. Lock, 1 Ch. 25 ; In re Beak's Estate, 13 Eq. 489; Rolls r. Pearce, 5 Ch. D. 730. And as to gift of a bond without delivery, see Morgan v. Malleson, 10 Eq. 475, and cases there cited. In Morgan v. Malleson, the court treated a gift, which was imperfect by reason of non-delivery, as an effectual declara- tion of trust; but this decision, al- though approved by Malins V.C. 14 in Baddeley v. Baddeley, 9 Ch. D. 113, is opposed to the current of re- cent authorities. "Warriner v. Rogers, 16 Eq. 340 ; Richards o. Delbridge, 18 Eq. 11 ; Moore v. Moore, ib. 474 ; Heartley v. Nicholson, 19 Eq. 233; In re Breton's Estate, 17 Ch. D." 416. In the case of a mere gift the ten- dency of the American cases i_s to hold that it is not valid without there has been an actual delivery. And this is true not only of gifts inter vivos, but also of gifts causa mortis. Con- nor V. Trawick, 37 Ala. 289; Sims V. Sims, 2 Ala. 117 ; Wheeler v. Wheeler, 43 Conn. 503; Camp's Ap- peal, 30 Conn. 88, 92 ; Hill v. Sheib- ley, 64 Ga. 529 ; People v. Johnson, 14 111. 342 ; Hatton v. Jones, 78 Ind. 466; Foglesong v. Wickard, 75 Ind. 2.58; Slade «. Leonard, 75 Ind. 172; Trowbridge v. Holden, 58 Me. 117 ; Wing V. Merchant, 57 Me. 383; Han- son V. Millett, 55 Me. 184; Dole v. Lincoln, 31 Me. 422; Allen v. Pole- reczky, 31 Jle. 338 ; Borneman v. Sid- linger, 15 Me. 429; Taylor v. Henry, 48 Md. 550; Hitch v. Davis, 3 Md. Ch. 266; Davis v. Ney, 125 Mass. 590; Sheedy v. Roach, 124 Mass. 472 ; Foss v. Lowell Five Cent Sav- ings Bank, 111 Mass. 285; Kimball v. Leland, 110 Mass. 325; Kingman v. Perkins, 105 Mass. Ill; Chase v. Redding, 79 Mass. (13 Gray) 418; Stone V. Hackett, 78 Mass. (12 Gray) 227 ; Bates v. Kempton, 73 Jlass. (7 Gray) 382; Scs,sions <. Moseley, 58 Mass. (4 Cush.) 87 ; Grover v. Grover, 41 Mass. (24 Pick.) 2ni; Reed v. PAET I.] ELEMENTS AND EOEM OF THE CONTRACT. *3 In Ex parte White, In re Neville,^ is an interesting exposi- tion, by James and Mellish, L.JJ. of the principles by which 8 6 Ch. 397 ; s. c. in H. L. 21 W. E. 465; and see Ex parte Bright, In re Smith, 10 C)i. D. 566, C. A. Spaulding, 42 N. H. 114; Martin v. Funk, 75 N. Y. 134 ; Curry v. Powers, 70 N. Y. 212 ; Westerlo ;;. De Witt, 36 N. Y. 340 ; BeJell v. Carll, 33 N. Y. 581; Brown v. Brown, 23 Barb. (N. Y.) 565 ; Hunter v. Hunter, 19 Barb. (N. Y.) 631 ; Huntington v. Gilmore, 14 Barb. (N. Y.) 213; Vandermarlc V. Vandermarls;, 55 How. (N. Y.) Pr. 408 ; In re Ward, 51 How. (N, Y.) Pr. 316; Turner v. Brown, 6 Hun (N. Y.) 331 ; Johnson v. Spies, 5 Hun (N. Y.) 468 ; Brinlc v. Gould, 7 Lans. (N. Y.) 425; Whiting v. Barrett, 7 Lans. (N. Y.) 106; Coutant y. Schueler, 1 Paige Ch. (N. Y.) 316; Stevens v. Stevens, 2 Redf. (N. Y.) 265; Basket v. Has- sell (U. S. '83), 27 Alb. L. J. 367; Lamprey v. Lamprey (Minn. '82), 26 Id. 397; Adams v. Hayes, 2 Ired. (N. C.) L. 366 ; Simmons v. Cincin- nati Sav. Soc, 31 Ohio St. 457; Pliipps V. Hope, 16 Oliio St. 586; Withers v. Weaver, 10 Pa. St. 391; In re Campbell's Estate, 7 Pa. St. 100 ; Tillinghast o. Wheaton, 8 R. I. 5-36; Blanchard v. Sheldon, 43 Vt. 518; Dean u. Dean's Estate, 43 Vt. 337 ; Carpenter v. Dodge, 20 Vt. 595 ; Mahan v. United States, 83 U. S. (16 Wall.) 143; bk. 21, L. ed. 307; Rupert V. Johnston, 40 Up. Can. Q. B. 11 ; McCabe w. Robertson, 18 Up. Can. C. P. 471 ; Queen v. Carter, 13 Up. Can. C. P. 611; Scott v. McAl- pine, 6 Up. Can. C. P. 302; White v. Atkins, 5 Low. Can. 420 ; Malone v. Reynold, 2 Fox & Smith, 59. Young V. Derenzy, 26 Grant Ch. (Ont.) 509; Blain v. Terryberry, 9 Grant Ch. (Ont.) 286; 2 Kent Com. 438, 439. Unless the article given is already in possession of the donee, in which case delivery is not necessary. Ten- brook V. Brown, 17 Ind. 410; Wing v. Merchant, 57 5Ic. 383; Dole v. Lin- coln, 31 Me. 422; Champney v. Blan- chard, 39 N. Y. 116, 117 ; Huntington V. Gilmore, 14 Barb. (N. Y.) 243 et seg.; Whiting v. Barrett, 7 Lans. (N. Y.) 106, 109; Shower v. Pilck, 4 Ex. 478. But the English cases hold that where the donor intended to pass the property at once, it is at least a declaration of trust, although there is no actual delivery to the donee. See Morgan v. Malleson, L. R. 10 Eq. 475 ; Bromley J). Brunton, L. R. 6 Eq. 275; Penfold V. Mould, L. R. 4 Eq. 562; Richardson v. Richardson, L. R. 3 Eq. 686; Jones v. Lock, L. R. 1 Ch. 25; Donaldson v. Donaldson, Kay, 711; In re Way's Trusts, 2 De G. J. & S. 365. Delivery in each instance must be according to the nature of the thing given. The donor must part with dominion over the property as well as with its possession. After delivery and acceptance, the gift is complete and is irrevocable by the donor. The acceptance of a beneficial gift is pre- sumed by the law. Stone v. Hackett, 78 Mass. (12 Gray) 227 ; Borneman i,-. Sidlinger, 15 Me. 429; Noble u. Smith, 2 John. (N. Y.) 52 ; Picot v. Sanderson, 1 Dev. (N. C.) L. 309 ; Viet V. Viet, 34 Up. Can. Q. B. 104; Kerr v. Read, 23 Grant Ch. (Ont.) 525; Tancred v. O'Mullin, 2 Oldright (N. S.) 145; Walker u. M'Bride, 2 Huds. & Br. 215; Hooper v. Goodwin, 1 Swanst. 485. An accejitance need not be shown ; thus a gift to an in- fant or a lunatic is valid. De Levil- lain V. Evans, 39 Cal. 120 ; Rinker v. Rinker, 20 Ind. 185. But a mere promise to make a gift, thougli in writing, is invalid ; and a gift of the giver's own note, it being without con- sideration, is not binding iii)on him, unless it is in the hands of a hmidfide purchaser. Phelps v. Pond, 23 X. Y. 69, 78; Starr v. Starr, 9 Ohio St. 74; Walsh V. Kennedy, 9 Phila. (Pa.) 178. 15 *3 FORMATION OF THE CONTRACT. [BOOK I. to distinguish between a contract of "sale or return" and a contract of del credere agency ; and in the South Australian Insurance Company v. Randell,^ the distinction between a sale and a bailment is elucidated.^" § 3. By the common law, all that was required to give validity to a sale of personal property, whatever may have been the amount or value, was the mutual assent of the When money or property is delivered to an attorney or a trustee for the benefit of a tliird person or for a charitable purpose, it may be re- claimed by the donor at any time be- fore it reaches the beneficiary. Peo- ple V. Johnson, 14 III. 342; Picot v. Sanderson, 1 Dev. (N. C.) L. .309; 2 Kent Com. 349. However, where the attorney or trustee has, with the consent of the donor, changed his character and become agent or trustee for the donee, the donor cannot recall the gift. Dresser v. Dresser, 46 Me. 48; Blanchard v. Sheldon, 43 Vt. 512. Death, revokes agenci/, and there must be an actual transfer or symbolical delivery before that time, and where the attorney or trustee has not made a delivery to the donee or become his agent, on the death of the donor the gift fails. Sessions v. Moseley, 58 Mass. (4 Gush.) 87 ; Parish v. Stone, 31 Mass. (14 Pick.) 198; Phipps v. Hope, 16 Ohio St. 586 ; Helfenstein's Estate, 77 Pa. St. .328; s. c. 18 Am. Rep. 449 ; Traugh's Estate, 75 Pa. St. 115; Phipps V. Jones, 20 Pa. St. 260; s. c. 59 Am. Dec. 708 ; Chambers v. Calhoun, 18 Pa. St. 13; s. e. 56 Am. Dec. 583 ; Crawford's Appeal, 61 Pa. St. 52. The difference between a gift inter vivos and causa mortis is that the former is irrevocable and complete whether the donor die or not, while the latter is not. Sessions v. Mose- ley, 58 Mass. (4 Cush.) 87; Grover V. Grover, 41 Mass. (24 Pick.) 261; s. c. 35 Am. Dec. 319. The Supreme Court of Maine have stated " that gifts inter vivos and gifts causa mortis 16 differ in nothing, except that the lat- ter are made in expectancy of death, to take effect only on the death of the donor, and may be revoked; other- wise the same principles apply to each. See Dresser v. Dresser, 46 Me. 48, 67. Title to gifts may pass by gift inter vivos where there is a de- livery of the properlj- with an inten- tion to consummate tl\e gift, but the mere delivery of the property will not in general pass the title ; there must be an intention to give accom- panying the act of delivery in order to consummate the gift, and the cir- cumstances attending the delivery of the property must be such as ordi- narily accompanies a gift, inducing the donee to believe that the gift was intended, in which case the gift will be perfect, although it may not be a secret intention of the donor to make a gift. See Carter v. Rutland, 1 Hayw. (N. C.) 97 ; Farrell i-. Perry, 1 Hayw. (N. C.) 2 ; Hallowell v. Skinner, 4 Ired. (N. C.) 165 ; Ford v. Aiken, 4 Rich. (S. C.) 1-33 ; contra, Keeney v. Macey, 4 Bibb (Ky.) 35; Smith v. Montgomery, 5 Met. (Ky.) 504; Betts V. Francis, 30 N. J. L. (1 Xv.) 152. Where a particular cliattel forms the bulk of tlie estate, the gift as a dona- tio mortis rinisn will be valid (Jliche- ner v. Dale, 23 Pa. St. 59) ; but other- wise such a gift of one's property will not be valid ; although accompanied by delivery the gift cannot take the place of a will. Headley v. Kirby, 18 Pa. St. 326. 9 L. R. 3 P. C. C, 101. i» See ante, § 1, note 2. PAET I.] ELEMENTS AND FOEM OP THE CONTKACT. *4 parties to the contract. As soon as it was shown by any evidence, verbal or written, that it was agreed by mutual assent that the one should transfer the absolute prop- erty in the thing to the other for *a money price, [*4] the contract was completely proven, and binding on both parties.^ If, by the terms of the agreement, the property in the thing sold passed immediately to the buyer, the con- tract was termed in the common law " a bargain and sale of goods ; " but if the property in the goods was to remain for the time being in the seller, and only to pass to the buyer at a future time, or on the accomplishment of certain conditions, as, for example, if it were necessary to weigh or measure what was sold out of the bulk belonging to the vendor, then the contract was called in the common law an executory agreement. The distinction between a bargain and sale of goods and an executory agreement is the subject of Book II. of this Treatise. § 4. A very important modification of the common law in respect to a bargain and sale of goods, and to an executory contract, was introduced by the statute 29 Car. II. c. 3, commonly called the Statute of Frauds, and an amendment thereof, the 9 Geo. IV. c. 14, s. 7, known as " Lord Tenter- den's Act," which are very fully considered, post, Book I. Part II. 1 See Darden v. Lovelace, 52 Ala. 74, 77 ; Audenrerd v. Eandall, 3 Cliff. 290, 291 ; Lincoln v. Johnson, 43 Vt. C. C. 99. 17 *5 FORMATION OF THE CONTEACT. [BOOK [*5] * CHAPTER 11. OF THE PARTIES TO THE CONTRACT. SECTION I. WHO MAY SELL. PAGE In general, none but owner . . 5 Effect of outstanding writ on owner's power to sell .... 6 Exceptions to general rule . . 7 Market overt 7 Exceptions 8 Sale by sample 8 Purchase by shopkeeper in London 9 Stolen goods when felon is prosecuted ... . . 9 Case of false pretences . . 10 Eeirnbursement of innocent purchaser 11 Sale, horses in market overt, 12 Negotiable securities . . . 13 Goods pawned 14 Goods taken by sheriffs . 15 Goods in wrecked ships ... 15 Factors and consignees . 15 Agent entrusted in and with possession 16 Persons entrusted with posses- sion by owner 19 Law doubtful 19 SECTION II. — WHO MAT BUT PASE Persons generally incompetent 22 Infants . . ... 22 Necessaries . . 23 Question of fact or law ? 25 Married infant . . 27 Infant tradesman . . . . 27 Ratification after majority 29 Infants' Relief Act, 1874 30 Lunatics .... . . 31 Drunkards 82 Married women : — 1. At common law . 32 Husband civiliter mor- tuus 33 Husband alien abroad 33 Sole trader in London . 35 2. In equity 35 3. By statute 36 Protection order 36 Property Acts, 1870 and 1874 36 Property Act, 1882 . . 37 § 5. So far as the general capacity to contract is con- cerned, and the rules of law relating to persons either totally incompetent to contract, or protected from liabihty by rea- son of infancy, coverture, and the like causes, the reader must be referred to treatises which embrace the subject of contracts in general. Such rules and principles as are spe- cially applicable to sales of goods will be examined iii this chapter. 18 PART I. ] PARTIES. Section I. — WHO MAY sell. § 6. In general, no man can sell goods and convey a valid title to them unless he be the owner,! or lawfully 2 represent 1 See Klein v. Seibold, 89 111. 540, 542 ; Breckenridge v. McAfee, 54 Ind. 141 ; Bearce v. Bowker, 115 Mass. 129, 132. Sale by the owner. — It was formerly- held that the owner could not make a valid sale of property in the adverse possession of another, because the claim was regarded as a chose in action, and for that reason not assign- able. See Dunklin v. Wilkins, 5 Ala. 199; 0'Keefeu.Kellog,1.5I11.347; Mc- Goon V. Ankeny, 11 111. 658; Young V. Ferguson, 1 Litt. (Ky.) 298; Stog- dell V. Fugate, 2 A. K. Marsh. (Ky.) 136 ; Gardner v. Adams, 12 Wend. (N. Y.) 297; Overton v. Williston, 31 Pa. St. 160. But the prevailing doctrine in this country now is that a valid sale of personal property may be made by the owner, although the property is at the time in the adverse possession of another (Storey v. Agnew, 2 111. App. 353 ; Cartland v. Morrison, 32 Me. 190; Webber v. Davis, 44 Me. 147 ; s. c. 49 Am. Dec. 87 ; Carpenter v. Hale, 74 Mass. (8 Gray) 157; Cravath v. Plympton, 13 Mass. 454; Ball v. Loomis, 29 N. Y. 412; McKee v. Judd, 12 N. Y. 622; s. c. 64 Am. Dec. 515; Hall v. Robin- son, 2 N! Y. 293 ; [criticising Gardner V. Adams, 12 Wend. (N. Y.) 297;] Van Hassell v. Borden, 1 Hilt. (N. Y.) 128 ; Mumper v. Rushmore, 14 Hun (N. Y.) 591; People v. Tiogo Com- mon Pleas, 19 Wend. (N. Y.) 73; Tome V. Dubois, 73 U. S. (6 Wall.) 548, 554 ; bk. 18, L. ed. 943 ; Hambly V. Trott, Cowper, 372 ; 2 Greenleaf 's Evidence, 108) ; as in case of a sale on a condition which has been broken (Hubbard v. Bliss, 94 JIass. (12 Allen) 590) ; where the property has been pledged for a loan (Hall v. Robinson, 2 N. Y. 293) ; where in the custody of the sheriff on levy of an execution or an attachment (Coghill V. Boring, 15 Cal. 213 ; First National Bank v. Thomas, 125 Mass. 278; Appleton V. Bancroft, 51 Mass. (10 Mete.) 231; Arnold v. Brown, 41 Mass. (24 Pick.) 89; Whitaker ;,■. Sumner, 37 Mass. (20 Pick.) 399; Fettyplace v. Dutch, 30 Mass. (13 Pick.) 388; s. c. 23 Am. Dec. 688; Denny v. Willard, 28 Mass. (11 Pick.) 519; s. c. 22 Am. Dec. 389; Tux- worth V. Moore, 26 Mass. (9 Pick.) 347 ; s. c. 20 Am. Dec. 479 ; Crofoot V. Bennett, 2 N. Y. 258; Klinck v. Kelly, 63 Barb. (N. Y.) 622; Oly- phant V. Baker, 5 Den. (N. Y.) 379 ; Mumper u. Rushmore, 14 Hun (N. Y.) 591 ; Hooker v. Jarvis, 6 Up. Can. Q. B. (0. S.) 439); or in possession of the landlord on distress for rent ; (Cooke V. Woodrow, 1 Cr. C. C. 437) ; for it is not essential to the ownership of personal property and the consequent right of its disposition, that there should be manual posses- sion at the time of the sale. Cunning- ham V. Ashbrook, 20 Mo. 556 ; Nance V. Metcalf, 19 Mo. App. 183 ; s. c. 1 West. Rep. 441. In the case of Tlie Brig Sarah Ann, 2 Sumn. C. C. 211, Judge Story says : " I know of no principle of law tliat establislies that a sale of personal goods is invalid, because they are not in the possession of the rightful owner; but are with- held by a wrong-doer. The sale is not, under such circumstances, the sale of a right of action, but it is the sale of the thing itself, and good to pass the title against every person not holding the same under abonaflde title for a valuable consideration without notice ; and a fortiori, against a wrong-doer." See, also, Webber c Davis, 44 Me. 147 ; s. c. 49 Am. Dec. 87 ; Cartland v. Morrison, 32 Me. 130; First National Bank of 19 *5 FORMATION OF THE CONTRACT. [BOOK I. Cairo v. Crocker, 111 Mass. 163, 109, 170; Hubbard u. Bliss, 94 Mass. (12 Allen) 590; Carpenter v. Hale, 74 Mass. (8 Gray) 157 ; Boynton f. Wil- lard, 27 Mass. (10 Pick.) 166, 169 ; Hassell ;;. Borden, 1 Hilt. (N. Y.) 128; Zabriskie v. Smith, 13 N. Y. 322; Tome i'. Dubois, 73 U. S. (0 Wall.) 554; bk. 18, L. ed. 946. And the owner may afterwards maintain an action for damages for the tort, although he has sold the chattel. Clark V. Wilson, 103 Mass. 219; ». c. 4 Am. Kep. 532. As to the sale and delivery of property under attach- ment, see posl, § 688, note (6) ; Hooker v. Jarvis, 6 Up. Can. Q. B. (0. S.) 439 ; Storey v. Agnew, 2 111. App. 353. The owner of mortgaged goods may sell the same, subject to the lien of the mortgagee. But if the property mortgaged is afterwards sold to a bond fide purchaser, on the foreclosure of the mortgage such purchaser will ac- quire a right superior to, and be pro- tected against the claim of, a bond fide purchaser from the mortgagor. See Parr v. Brady, 37 N. J. L, (8 Vr.) 201 ; Runyon v. Groshon, 12 N. J. Eq. (1 Beas.) 86. It is a general principle that where the same thing is sold by two different persons, by contracts equally valid, and the second vendee is without notice of the sale, he who first obtains possession is entitled to the property. Jewett v. Lincoln, 14 Me. 116 ; Veazie v. Somerby, 87 Mass. (5 Allen) 280; Packard !•.' Wood, 70 Mass. (4 Gray) 307 ; Parsons v. Dick- inson, 28 Mass. (11 Pick.) 352; Lan- fear v. Sumner, 17 Mass. 110 ; s. c. 9 Am. Dec. 119 ; AVinslow v. Leonard, 24 Pa. St. 14; Shaw v. Levy, 17 Serg. & R. (Pa.) 99 ; Fletcher v. Howard, 2 Aik. (Vt.) 115 ; s. c. 16 Am. Dec. 086. See, also. Brown v. Pierce, 97 Mass. 48 ; Pratt v. Parkham, 41 Mass. (24 Pick.) 47; Bix o. Franklin Ins. Co., 25 Mass. (8 Pick.) 89 ; Lamb v. Dur- rant, 12 Mass. 54; s. o. 7 Am. Dec. 31 ; Badlam v. Tucker, 18 Mass. (1 Pick.) 396. The Supreme Court of Massachu- setts say in Brown v. Pierce, 97 Mass. 48, that " as between two bond fide purchasers of the same chattels, he who first obtains delivery and pos- session of them has the better title against the other, notwithstanding the contract of sale of the latter with the vendor may have been prior in point of time to that of the former. This principle was recognized and adopted by this court on full consideration in Lanfear v. Sumner, 17 Mass. 110, and has been often affirmed by subsequent decisions." The same court say in the more recent case of Thorndike v. Bath, 114 Mass. 118, that in order that a sale of personal property should go into full effect, so that it cannot be defeated or set aside in favor of a subsequent bona fide pur- chaser, it is necessary that the first purchaser should show that he had perfected his title by having had actual delivery of it to himself, or by something equivalent thereto. Veazie v. Somerby, 87 Mass. (5 Allen) 280; Packard v. Wood, 70 Mass. (4 Gray) 307 ; Parsons v. Dickinson, 23 Mass. (11 Pick.) 352 ; Lanfear v. Sumner, 17 Mass. 110. In a case where there was nothing in the circumstances or nature of the property to prevent a delivery of the thing sold by the vendor to the ven- dee, it was held that something fur- ther than acts and declarations was necessary to be shown to vest the title as against subsequent bona fide pur- chasers; and that in such case it would be necessary for the party to show that he had perfected his title by having an actual delivery to him, or what was equivalent thereto. Vea- zie V. Somerby, 87 Mass. (5 Allen) 280; Packard v. Wood, 70 Mass. (4 Gray) 307 ; Parsons v. Dickinson, 23 Mass. (11 Pick.) 352; Lanfear v. Sum- ner, 17 Mass. 110. The court say in Lanfear u. Sumner, 17 Mass. 110, that the general rule is perfectly well estab- lished that the delivery of the pos- session is necessary in a conveyance 20 PART I.] PARTIES. of personal chattels, as against every one but the vendor. That where the same goods are sold to two different persons, by conveyance equally valid, he who first lawfully acquires the possession will hold them as against the other. This principle is recog- nized in Lamb v. Durant, 12 Mass. 54, and in Caldwell v. Ball, 1 Danf . & E. 205. This was also the rule in civil law, where the same thing was sold to two different persons. " Man- ifesti juris est, cum, rui priori traditum est, in detinendo dominio esse potiorem.^' Cod. 3. 32. 15. So Voet ad Paud. lib. 6, tit. 1, § 20, "Ad vindicationem rei dxiohus separatin diverso tempore diS' tractae, nan is cui priori vendita, sed cui {pretio sobtto, vel Jide de eo habiia) prius est tradita, admittendus est." However the common law and the civil law differ in tins regard, that by the civil law, delivery, preceded by a contract of sale, is essential to trans- fer the right in the thing and perfect the title ; but by the common law the title is perfected by the contract of sale and payment of the price with- out any delivery. See Parsons v. Dickinson, 23 Mass. (11 Pick.) 354; Tarling v. Baxter, (3 B. & C. 360; Brown on Sales, 9, 10, 11, 393; Comyn Contr. (2ded.) 298. Since the Statute of Frauds was enacted, the title to an article sold was perfected in cases with- in the statute by the contract of sale and the payment of the price or the delivery of the bill of sale without any actual delivery of the goods. iSale hj purchaser. — One holding property under an agreement to pur- chase has an interest in it which he may sell; and if the conditions of his purchase are performed, the title of his vendee will be complete. McRae V. Merrifield, 48 Ark. 100. And a conditional sale of a retail stock of goods, with an unlimited power in the vendee to resell, enables the latter to give to a bona fide sub-vendee a good title as against the original vendor.' Wilder v. Wilson, 16 Tenn. 548. Thus where a wholesale firm sold 21 a retail stock of drugs and fixtures to a purchaser partly for cash and partly on time, reserving the title un- til the price was fully paid, but with power in the vendee to resell and control the proceeds, and without any understanding as to whether the ven- dee should sell at wholesale or retail, although the parties may have con- templated that the goods would be retailed ; the vendee proceeded to dis- pose of the drugs by retail, adding to his stock from time to time, until only a small remnant of the original pur- chase remained, when he sold this remnant, together with the fixtures and new stock, to a hand fide pur- chaser. Held, that the latter acquired a good title as against the original ven- dor. Wilder v. Wilson, I'O Tenn. -548. Where a manufacturer and whole- sale vendor of personal property sells upon credit and delivers a lot of such articles to a retail dealer, for the apparent or implied purpose of resale by such vendee, an express condition in the sale that the whole- sale vendor shall retain the title to the goods until they are paid for, can- not be set up to defeat the title of a purchaser from the vendee. Win- chester Wagon Works & Mfg. Co. v. Carman, 109 Ind. 31 ; s. c. 7 West. Rep. 241. It was held in this case that it was proper to admit the state- ment of the general manager of the manufacturer, while testifying as a witness for the defendant, "that it was the expectation of plaintiff and its agents that said vendee would sell said wagons immediately to the gen- eral public, without waiting for the maturity of the notes given therefor, and as fast as opportunity offered." Winchester Wagon Works & Mfg. Co. V. Carman, 109 Ind. 301 ; s. c. 7 West. Rep. 241. Same: Proposal to modifij. — The purchaser having sold a portion of the goods, of wliich he notified the vendor, offering to pay for the por- tion sold, and to hold the balance subject to the vendor's order ; this FORMATION OP THE CONTRACT. [book I. the owner. Nemo dnt quod non hahet? A person [*6] *therefoj'e, however innocent, who buys goods from one not the owner, obtains no property in them what- ever ^" (except in some special cases presently to be noticed) : and even if, in ignorance of the fact that the goods were lost or stolen, he resell them to a third person in good faith, he remains liable in trover to the original OAvner, who may maintain his action without prosecuting the felon.* But a proposal, being made before the day specified in the original contract, and not being accepted by the vendor, does not change the contract, nor affect the purchaser's right to sell the residue of the goods to a pur- chaser for value. Robinson v. Fair- banks, 81 Ala. 123. Wrongful possession. — One cannot sell goods of wliich his possession is wrongful. Creighton v. Sanders, 89 III. 543; Fawcett v. Osborn, 32 111. 411; Prime v. Cobb, 63 Me. 200; Moody V. Blake, 117 Mass. 23; s. c. 19 Am. Rep. 394 ; Bearce v. Bowker, 115 Mass. 129; Koch k. Branch, 44 Mo. 542; Ruckman v. Decker, 23 N. J. Eq. (8 C. E. Gr.) 283; Pease v. Smith, 61 N. Y. 477 ; McGoldrick ... Willitts, 52 N. Y. 612; Wooster v. Sherwood, 25 N. Y. 278, 286 ; Brewer V. Peabody, 1.3 N. Y. 121; s. c. 11 How. (N. Y.) Pr. 492; Hoffman v. Carow, 22 Wend. (N. Y.) 285, 290; Saltus V. Everett, 20 Wend. (N. Y.) 2G7; s. c. 32 Am. Dec. 541 ; Ventress r. Smith, 35 U. S. (10 Pet.) 161 ; bk. 9, L. ed. 382 ; The Fanny, 22 U. S. (9 Wheat.) 658; bk. 6, L. ed. 184. 3 Klein v. Seibald, 89 111. 540; Prime V. Cobb, 63 Me. 200; Galvin v. Bacon, 11 Me. (2 Fairf.) 28; s. c. 25 Am Dec. 258; Parsons v. Webb, 8 Me (8 Greenl.) 38 ; s. c. 22 Am. Dec. 220 Moody V. Blake, 117 Mass. 2-3, 26 Bearce v. Bowker, 115 Mass. 129 Kinder v. Shaw, 2 Mass. 398; Gil- more V. Newton, 91 Mass. (9 Allen) 171 ; Riley v. Water Power Co., 65 Mass. (11 Cush.) 11; Stanleys. Gay- lord, 55 Mass. (1 Cush.) 526, 545; s. c. 48 Am. Dec. 643; Chapman v. Cole, 78 Mass. (12 Gray) 141; s. c. 71 Am. Dec. 735; Wilson v. Crokett, 43 Mo. 218; Bryant v. Witcher, 52 N. H. 158, 161 ; Barrett v. Warren, 3 Hill. (N. Y.) 348; Williams v. Merle, 11 Wend. (^r. Y.) 80; s. c. 25 Am. Dec. 604; Courtis v. Cane, 32 Vt. 232 ; Eiford V. Montgomery, 7 Vt. 418; Peer v. Humphrey, 2 Ad. & E. 495 ; Whestler v. Foster, 32 L. J. C. P. 161. Sale bi/ tenant in common. — A ten- ant in commoji of real estate may sell the entire crop and enforce perform- ance. It will be no ground of defence that the co-tenant has forbidden pay- ment to the seller. Brown v. Well- ington, 106 Mass. 318; s. c. 8 Am. Rep. .330. The court say : " The cut- ting of the grass by the plaintiff's authority and the sale and delivery of it by him to the defendant, was an appropriation of it, which gave the plaintiff a good title to the same, so far as the defendant was concerned ; and that it is no defence to the action, that the co-tenant, after it was cut and removed, forbade the defendant to pay for it. Peck v. Carpenter, 73 Mass. (7 Gray) 288 ; s. c. 66 Am. Dec. 477 ; Calhoun r. Curtis, 45 Mass. (4 Mete.) 413; s. c. 38 Am. Dec. 380. ^■^ S'lle of stolen goods. — The owner of stolen goods can recover their value from a person who has received them, notwithstanding such person has been acquitted of the criminal charge of having received such goods knowing them to have been stolen. Rohm v. Borland, (Pa.) 5 Cent. Rep. 562. * Stone V. Marsh, 6 B. & C. 561 ; 22 PAET I.] PARTIES. *6 Marsh v. Keating, 1 Bing. N. C. 198 ; s. c. 2 CI. & Fin. 250 ; White v. Spet- tigue, 13 M. & W. 603; Lee v. Bayes, 18 C. B. 599. American authorities, — Beazley v. Mitchell, 9 Ala. 780 ; Breckenridge v. McAfee, 54 Ind. 141 ; McGrew v. Brovvder, 14 Martin (La.) 17 ; Brown- ing V. Magill, 2 Har. & J. (Md.) 308 ; Heckle v. Lurvey, 101 Mass. 344 ; s. c. 3 Am. Rep. 300 ; Dame v. Baldwin, 8 Mass. 519; Gilmorey.Newton,91Mas8. (9 Allen) 171 ; Riley v. Boston Water Power Co., 65 Mass. (11 Gush.) 11; Stanley v. Gaylord, 55 Mass. (1 Cush.) 586; s. c. 48 Am. Dec. 643; Chap- man V. Cole, 78 Mass. (12 Gray) 141 ; s. c. 71 Am. Dec. 739; Pease v. Smith, 61 N. Y. 477 ; Hoffman v. Carew, 20 Wend. (N. Y.) 21; s. c. 22 Wend. (N. Y.) 285 ; Williams v. Merle, 11 Wend. (N. Y.) 80 ; s. c. 25 Am. Dec. 604; Roland v. Gundy, 5 Ohio, 202; Vermilye v. Adams Express Co., 88 U. S. (21 Wall.) 138 ; bk. 22, L. ed. 609 ; Ventress v. Smith, 35 U. S. (10 Pet.) 161 ; bk. 9, L. ed. 382 ; Crane v. London Dock Co., 5 Best & S. 313 Stone V. Marsh, 6 Barn. & Cres. 551 Marsh v. Keating, 1 Bing. N. C. 198 s. c. 2 CI. & Fin. 250 ; White v. Spet- tigue, 13 Mees. & W. 603; Lee v. Bayes, 18 C. B. 599 ; Cooper v. Willo- matt, 1 C. B. 672 ; Loeschman v. Mach- in, 2 Stark. 311. Liability to owner. — A thief ac- quires no title, and can convey none. Breckenridge v. McAfee, 54 Ind. 141 Robinson v. Skipworth, 23 Ind. 311 Galvin v. Bacon, 11 Me. (2 Fairf.) 28 s. c. 25 Ara. Dec. 258; Hoffman v. Carow, 22 Wend. (N. Y.) 285; An- drew V. Dieterich, 14 Wend. (N. Y.) 34; Williams v. Merle, 11 Wend. (N. Y.) 30; s. c. 25 Am. Dec. 604. See, also, Cundy v. Lindsay, L. R. 3 App. Cas. 459, 463 ; s. c. 24 Eng. Rep. 345. No sale, or any number of sales, will affect the title of the true owner (Parham v. Riley, 4 Coldw. (Tenn.) 9), however removed the buyer will be liable to the true owner (Breckenridge ;;. McAfee, 54 Ind. 141 ; Cumberledge v. Cole, 44 Iowa, 181 ; 2 Schouler on Pers. Prop, sec. 18; 15 Am. Law Reg. 36.3, 366). Each purchase is a conversion where the property is withheld after ^ de- mand, or dominion exercises over it (Gilmore v. Newton, 91 Mass. (9 Allen) 171 ; Barrett v. Warren, 3 Hill (N. Y.) 348), and if the pur- chaser has resold the property he is liable in an action for the value. Sharp V. Parks, 48 111. 511 ; Hoffman V. Carow, 20 Wend. (N. Y.) 21; s. c. 22 Wend. (N. Y.) 285; Horwood v. Smith, 2 T. R. 751. But a chattel delivered by the owner to a bailee, with the right to purchase, and sold to a bond fide purchaser, who resold before any demand, without notice of the condition, he is not liable. See Spooner v. Holmes, 102 Mass. 503; s. c. 3 Am. Rep. 492 ; Day v. Bas- sett, 102 Mass. 445 ; Vincent v. Cor- nell, 30 Mass. (13 Pick.) 295; s. c. 23 Am. Dec. 683. It matters not if the purchase was made in good faith for full value. Barstow v. Savage Mining Co., 64 Cal. 388; s. c. 49 Am. Rep. 705; Robinson v. Skip- worth, 23 Ind. 311; Covill v. Hill, 4 Den. (N. Y.) 323; Hoffman v. Carow, 22 Wend. (N. Y.) 285 ; Lee V. Bayes, 18 C. B. 599 ; 2 Schouler on Pers. Prop. sec. 18). As to bona fide purchasers of stolen certificates of stock, see Sherwood v. Meadow V. M. Co., 50 Cal. 412 ; Barstow v. Savage Mining Co., 64 Cal. 388 ; Mechanics Bank v. New York & N. H. R. R. Co., 13 N. Y. 627. One who assists a tor- tious possessor in effecting a sale of chattels will be liable to the true owner. Lee ii. Matthews, 10 Ala. 687 ; s. c. 44 Am. Dec. 498 ; Sharp v. Parks, 48 111. 511 ; Knapp v. Hobbs, 60 N. H. 476 ; Cobb v. Dows, 10 N. Y. 335 ; Dudley v. Hawley, 40 Barb. (N. Y.) 405; Covill v. Hill, 4 Den. (N. Y.) 323; Thorp v. Burling, 11 Johns. (N. Y.) 285 ; Hoffman v. Ca- row, 22 Wend. (N. Y.) 285; s. c. 20 23 *Q FORMATION OF THE CONTRACT. [BOOK I. Wend. (N. Y.) 21 ; Saltus r. Everett, 20 Wend. (X. Y.) 267 ; s. c. 32 Am. Dec. 541 ; Williams v. Merle, 11 Wend. (N. Y.) 80 ; s. c. 25 Am. Dec. 604; Everett v. Coffin, 6 Wend. (N. Y.) 60.3 ; s. c. 22 Am. Dec. 551 ; Stephens v. Elwall, 4 Maule & S. 259 ; l^arker v. Gidin, 2 Strange, 813 ; Perkins v. Smith, 1 Wils. .328. Thus a stockman who assisted in selling a mortgaged ox (Knapp v. Hobbs, 60 N. H. 476); a jeweller, who, as agent, sold a set of stolen diamonds (Dudley v. Hawley, 40 Barb. (N. Y.) 397) ; a merchant, who received wheat from a storehouse, delivered from the wrong bin (Cobb v. Doivs, 10 N. Y. 335) ; and an auctioneer, have all been held to be responsible to the rightful owner. Coles v. Clark, 57 Mass. (3 Cush.) 399 ; Brackett v. Bullard, 53 Mass. (12 Mete.) 308; Knapp V. Hobbs, 50 N. H. 476 ; White V. Phelps, 12 N. H. 382 ; Hoffman v. Carow, 22 Wend. (N. Y.) 285 ; s. c. 20 Wend. (N. Y.) 21; Farebrother V. Ansley, 1 Campb. 343; Adamson V. Jarvis, 4 Bing. 66 ; Story on Agency, sec. 312. But no liability attaches to one who simply receives stolen goods wrongfully delivered to him by the person in possession (Pierce v. Van Dyke, 6 Hill (N. Y.) 614 ; Barrett v. Warren, 3 Hill (N. Y.) 350 ; Storm v. Livingston, 6 Johns. (N. Y.) 44; Nash v. Mosher, 19 Wend. (N. Y.) 431; Marshall v. Davis, 1 Wend. (N. Y.) Ill; s. u. 19 Am. Dec. 463), or to a depository, who in good faith returns the goods to the depositor, (Hill v. Hayes, 38 Conn. 532 ; Loring v. Mulcahy, 85 Mass. (3 Allen) 575; Dudley ;;. Haw- ley, 40 Barb. (N. Y.) 397); and a broker or other person, who sells ne- gotiable securities for a thief, incurs no liability. Spooner v. Holmes, 102 Mass. 503 ; s. c. 3 Am. Eep. 491 ; Parker v. Lombard, 100 Mass. 405 ; Commonwealth v. Emigrant Indus- trial Savings Bank, 98 Mass. 12 ; Lor- ing V. Mulcahy, 85 Mass. (3 Allen) 575 ; Robinson v. Austin, 68 Mass. (2 Gray) 564; Heald v. Carey, 11 C. B. 977 ; Wookey v. Pole, 4 Barn. & Aid. 1 ; Gorgier v. Mieville, 4 D. & R. 641 ; s. c. 3 Barn. & Cres. 45 ; Fouldes v. Willoughby, 8 Mees. & W. 540. And some cases hold that an auc- tioneer, who receives stolen goods and sells in good faith, is not liable. Hill V. Hays, 38 Conn. 532 ; Sharp v. Parks, 48 111. 511; Alexander v. Swackhamer, 105 Ind. 81 ; s. c. 55 Am. Eep. 180, 185; Hills v. Snell, 104 Mass. 171, 173; s. c. 6 Am. Rep. 216; Gilmore v. Newton, 91 Mass. ('.) Allen) 171 ; Loring v. Mulcahy, 85 Mass. (3 Allen) 575; Coles v. Clark, 57 Mass. (3 Cush.) 399; Knapp v. Hobbs, 50 N. H. 476; Pease v. Smith, 61 N. Y. 477; Cobb v. Dows, 10 N. Y. 335; Dudley v. Hawley, 40 Barb. (N. Y.) 397 ; Hoffman v. Carow, 22 Wend. (N. Y.) 285; s. c. 20 Wend. (N. Y.) 21 ; Williams v. Merle, 11 Wend. (N. Y.) 80; s. c. 25 Am. Dec. 604 ; Schouler Pers. Prop. § 19 ; Story on Agency, § 312. And the same is true of a broker who sells on com- mission stolen stock, brought to him by a stranger. Bercich v. Marye, 9 Nev. 312. It makes no difference that the bailee of stolen goods sells them in good faith. Koch v. Branch, 44 Mo. 544; Kramer B.Faulkner, 9 Mo. App. 34. A mere naked bailee, who has received stolen goods, de- livers them to the person from whom he recei.ved them ; he is not liable, although he knew that they were stolen and from whom. Hills v. Hays, 38 Conn. 532; Hills v. Snell, 104 Mass. 177 ; s. c. 6 Am. Rep. 216; Gilmore i'. Newton, 91 Mass. (9 Allen) 171 ; Loring v. Mulcahy, 85 Mass. (33 Allen) 575 ; Coles v. Clark, 67 Mass. (3 Cush.) 399 ; Pease v. Smith, 61 N. Y. 477 ; Dudley V. Hawley, 40 Barb. (N. Y.) 397; Williams v. Merle, 11 Wend. (N. Y.) 80; .s. c. 25 Am. Dec. 604; Courtis v. Cane, 32 Vt. 232. 24 PART I.] PAETIES. *6 man may make a valid agreement to sell a tiling not yet his,^ and even a thing not yet in existence ; this executory contract will be examined in the next chapter, which treats of the things sold. § 7. In general, also, any person competent to contract may sell goods of which he is owner, and convey a perfect title to the purchaser. But if the buyer has notice that any writ, by virtue of which the goods of the vendor might be seized or attached, has been delivered to and remains un- executed in the hands of the sheriff, under-sheriff, or coroner, the goods purchased by him are liable to seizure in his hands, under such writ, by virtue of the statutes 29 Car. II. c. 3, and 19 & 20 Vict. c. 97, s. 1. The delivery of the writ to the sheriff binds the property from the date . of delivery, but does not change the ownership ; so that the vendor's transfer is valid, but the purchaser takes the goods subject to the rights of the execution creditor.^ If, however, the purchaser had no notice of the existence of the writ in the sheriff's hands, the first section of the Act 19 & 20 Vict. c. 97, called the "Mercantile Law Amendment Act," protects him,^ by 5 See Bruce v. Bishop, 34 Vt. 161, purchases the property, in legal con- 163. templation purchases, knowing that 1 Woodland v. Fuller, 11 Ad. & E. the property belongs to another, and 859; see infra, § 927. by reselling so far assumes the pos- 2 Sale of property by conditional uen- session or the control over it, wrong- dee. — It was held, by the Supreme fully, as to render himself liable Court of Vermont, in a recent case for the conversion in an action of that where a person without notice trover; for one who has not per- purchases personal property, on which formed a condition precedent to the there is a valid recorded lien of a accrual of his title to personal prop- conditional vendee, and sells it, that erty, having no title, can convey none he is liable in an action of trover. even to a purchaser without notice. Church's Adm'r v. McLeod, 58 Vt. Leath v. Uttley, 66 Tex. 82. 641 ; s. c. 2 New Eng. Rep. 190. The It is a well-established doctrine in reason for this is that where property Indiana and other states that where is sold and the title therefore is to the owner of personal property sells remain in the vendor until the pur- and delivers it to a purchaser, not for chase price has been paid, the condi- the purpose of consumption or re- tional purchaser acquires no title to sale, at a price payable at a future the property and can convey none. day, upon express condition that the The recording of the contract, agree- title shall remain in the vendor until ably to the requirements of the stat- the price is fully paid, the vendee ute is constructive notice to all the can neither sell nor incumber the world of its terms. Any one who property in any way to defeat the 25 *7 FOEMATION OF THE COKTEACT. [BOOK I. providing that no such writ " shall prejudice the title to such goods acquired by any person bond fide and for a valuable consideration before the actual seizure or attachment thereof by virtue of such writ." ^ [*7] § 8. * The first and most important exception to the rule that a man cannot make a valid sale of goods that do not belong to him, is presented in the case of sales made in market overt} title of the vendor. Winchester Wag- on Works & Mfg. Co. v. Carman, 109 Ind. 31 ; s. c. 7 West. Rep. 241, 242 ; Baals V. Stewart, 109 Ind. 371 ; s. c. 7 West. Kep. 61 ; Lauman v. Mc- Gregor, 94 Ind. 301 ; Paj'ne v. June, 92 Ind. 252 ; Domestic Sewing Ma- chine Co. V. Arthurltz, 63 Ind. 322 ; McGirr v. Sell, 60 Ind. 249 ; Brad- shaw V. Warner, 54 Ind. 58; Thomas V. Winters, 12 Ind. 322. And the Supreme Court of the United States held in a recent case that a bailee of personal property on a conditional sale cannot convey the title or sub- ject it to execution for his own debts until the condition of the sale has been performed. Harkness v. Rus- sell, 118 U, S. 663 ; bk. 30, L. ed. 285. ^This section is not retrospective in its operation, and does not affect pre-existing rights. Williams v. Smith, 26 L. J. Ex. 371 ; 2 H, & N. 443, and in error, 28 L. J. Ex. 286 ; 4 H. & N. 559 ; Flood v. Patterson, 30 L. J. Ch. 486 ; and Jackson r. WooUey, 8 E. & B. 778 ; 27 L. J. Q. B. 181, 448." The subsequent statutes of 23 & 24 Vict. c. 38, and 27 & 28 Vict. c. 112, fur- nish the rules on this subject, in re- spect of land, including leasehold titles to land. 1 Definition of the market overt. — It has been said that by " market overt" is meant an open, public, and legally constituted market (Lee v. Bayes, 18 C. B. 599), and comprises those open markets or fairs where the owner is supposed to have the am- plest opportunity to make pursuit of 26 his property, and prevent its sale. Williams v. Merle, 11 Wend. (N. Y.) 80; s. c. 25 Am. Dec. 604 ; Crane v. London Dock Co., 33 L. J. Q. B. 224 ; " Conversion by Purchase," 16 Am. L. Rev. 363, 368. The sale must be openly made (Clifton V. Chancellor, Moore, 624) ; hence where a sale is made in the inner room or behind a counter, where some of the shop windows are shut, or after simset, it is not a sale in market overt. L'Evesquet de Worcester's Case, Moore, 360; s. c. Popham, 84 ; 2 Inst. 714. It is ques- tioned in Crane v. London Dock Co., 5 Best.'& S. 313; s. c. 33 L. J. Q. B. 224, Whetlier a sale made to a shop- keeper of goods usually kept by him is a sale in market overt; however, in Lyons v. De Pass, 11 Ad. & El. 326, a sale to a shop-keeper was held to be within the rule although the point was not directly raised in the case. The doctrine in England. — It is said that the doctrine respecting mar- ket overt is of Saxon origin (see Bryant v. Whitcher, 52 N. H. 158; 2 Kent Com. 324, note a), and was adopted at a time when theft, plun- der, and sale were among the prin- cipal modes of transferring property, and by providing special protection for purchases made at sales in open public markets was designed to pre- vent private sales. Bryant v. Whit- cher, 62 N. H. 158. In Crane v. Lon- don Dock Co., 5 Best. & S. 313; s. c. 33 L. J. Q. B. 224, Lord Cockburn PART I.] PARTIES. says that the practice of selling at market overt " arose at a time when there was much greater simplicity of practice between buyer and seller. The practice was then to buy in markets and fairs. Shops were very few in London, and persons whose goods were taken feloniously would know to what place to resort in order to find them. I can therefore q^uite understand that the law in question was established for the protection of buyers, and if a man did not pursue his goods to market where such goods were openly sold, he ought not to interfere with the right of the honest and bond fide purchaser." At an early day in England it became the rule that a sale in market overt to a bona fide purchaser transferred a com- plete title to the thing sold as against all the world, except in special cases. See Peer v. Humphrey, 2 Ad. & El. 495; Lee v. Bayes, 18 C. B. 599; Cundy v. Lindsay, L. R. 3 App. Cas. 459; s. c. 47 L. J. Q. B. 481; s. c. 38 L. T. 683; 26 W. R. 406; af- firming s. c. L. R. 2 Q. B. Div. 96; 13 Cox C. C. 583; 46 L. J. Q. B. 2.33; 86 L. T. 345; Case of Market Overt, 5 Co. 83 6; 35 W. R. 417; 2 Black. Com. 449 ; 2 Kent Com. 323 ; 2 Inst. 220, 713; Comyn Dig. tit. Market, E. The doctrine in Ontario. — It is questioned whether the doctrine of sale in market overt has ever been adopted in the Province of Ontario. Bowman v. Yielding, 1 Rob. & J. Dig. 2226. The doctrine in America. ■ — The doc- trine of market overt has never been adopted in this country. Fawcett v. Osborn, 32 111. 411 ; Robinson v. Skipworth, 23 Ind. 311 ; Alexander V. Gusman, 16 La. An. 251 ; Coombs V. Gorden, 59 Me. Ill, 112 ; Brown- ing V. Magill, 2 Har. & J. (Md.) 308; Towne v. Collins, 14 Mass. 500; Dame V. Baldwin, 8 Mass. 521; Depew v. Robards, 17 Mo. 580 ; Bryant v. Whit- cher, 52 N. H. 158 ; Mowrey u.-Walsh, 8 Cow. (N. Y.) 238 ; Roberts v. Dillon, 3 Daly (N. Y.) 50; Wheelwright v. Depeyster, 1 Johns. (N. Y.) 480 ; s. c. 3 Am. Dec. 345 ; Hoffman v. Carow, 22 Wend. (N. Y.) 285; s. c. 20 Wend. (N. Y.) 21 ; Andrew v. Dieterich, 14 Wend. (N. Y.) 31; Roland v. Gundy, 5 Ohio, 203; Easton v. Worthington, 5 Serg. & R. (Pa.) 130; Hardy v. Metzgar, 2 Yeates (Pa.) 347 ; Hosack V. Weaver, 1 Yeates (Pa.) 478 ; Car- michael v. Buck, 10 Rich. (S. C.) L. 332 ; s. c. 72 Am, Dec. 226 ; Arendale V. Morgan, 5 Sneed (Tenn.) 703 ; San- born V. Kittredge, 20 Vt. 632; s. c. 60 Am. Dec. 58; GriflBth v. Eowler, 18 Vt. 390; Heacock v. Walker, 1 Tyler (Vt.) 341 ; Ventress v. Smith, 35 U. S. (10 Pet.) 101, 176; bk. 9, L. ed. 386; Southwick v. Harndell, 2 Dane Abr. 286; 3 Kent Com. 324; 2 Kent Com. 344; Hilliard on Sales, (3d ed.) 45. For this reason a buyer from a thief acquires no title. - Jones V. Nellis, 41 III. 482 ; Fawcett v. Os- born, 32 111. 425; Coombs v. Gorden, 59 Me. Ill ; Browning v. Magill, 2 Har. & J. (Md.) 308 ; Dana v. Bald- win, 8 Mass. 518 ; Bryant v. Whitcher, 52 N. H. 158 ; Hoffman v. Carow, 22 Wend. (N. Y.) 285 ; Black v. Jones, 64 N. C. 318; Roland v. Gundy, 5 Ohio, 202 ; Easton v. Worthington, 5 Serg. 6 R. (Pa.) 130; Dawson v. Snsong, 1 Heisk. (Tenn.) 243; Ventress v. Smith, 35 U. S. (10 Pet.) 161, 176 ; bk. 9, L. ed. 386. And a purchaser at a public, open market gets no bet- ter title to the goods sold than if he had bought at a private sale (Faw- cett V. Osborn, 32 111. 411 ; Browning u. Magill, 2 Har. & J. (Md.) 308) ; and where one in good faith buys an article in a store or shop, he gets no better title than the vendor; and where the latter has no title and no authority from the owner, no title passes. Roberts i-. Dillon, 3 Daly (N. Y.) 50. It was said in Heacock V. Walker, 1 Tyler (Vt.) 341, that probate and execution sales, and sales of estrays and goods found were to be considered sales in market overt; but this case was overruled in San- 27 *7 FORMATION OF THE CONTRACT. [book I. § 9. MAPavBT OVERT in the country is held on special days, provided by charter or jDrescription ; ^ but in London every day except Sunday is market-day .^ In the country the only place that is market overt is the particular spot of ground set apart by custom for the sale of particular goods, and this does not include shops ; but in London every shop in which goods are exposed pubhcly for sale is market overt for such goods as the owner openly professes to trade in.^ As a London- shop is not a market overt for any goods born V. Kittredge, 20 Vt. 632; s. c. 50 Am. Dec. 58. See Griffith v. Fowler, 18 Vt. 390. In Ventress v. Smith, 35 U. S. (10 Pet.) IGl, 170; blc. 9, L. ed. 386, the court say : " It is a general rule of law, that a sale by a person who has no right to sell is not valid against the rightful owner. ... It was a maxim of the civil law, that nemo plus juris in alium trans ferre potest, quam ipse hahet ; and this is a plain dictate of common sense. It was also a princi- ple of the English common law, that a sale out of market overt did not change the property from the right- ful owner ; and the custom of the city of London, which forms an ex- ception to the general rule, has always been regarded and restricted by the courts with great care and vigilance, that all such sales should be brought strictly within the custom ; Com. Dig. tit. Market, E. It has sometimes been contended, that a hand fide purchase for a valuable consideration and with- out notice was equivalent to a pur- chase in a market overt under the English law, and bound the property against the party who had right. Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471, 478; s. c. 3 Am. Dec. 345. But we are not aware that this Saxon institution of markets overt, which controls and interferes with the application of the common law, has ever been recognized in any of the United States, or received any judicial sanction." Easton v. Worth- ington, 5 Serg. & K. (Pa.) 130. The question was first raised in this coun- try in the case of Towne v. Collins, 14 Mass. 500, decided by the Supreme Court of Massachusetts in 1785, which was a case where a thief had sold a pair of oxen to the defendant, and the real owner sustained trover to recover their possession. The same rule has been applied where the sale of stolen goods was made in a market estab- lished by law. Fawcett v. Osborn, 32 111. 425; Browning v. Magill, 2 Har. & J. (Md.) 308; Hinckley v. Merchants' Nat. Bank, 131 Mass. 149; Dame v. Baldwin, 8 Mass. 518; Mow- rey v. Walsh, 8 Cow. (N. Y.) 238; Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471; s. c. 3 Am. Dec. 345; Hoffman v. Carow, 20 Wend. (N, Y.) 21; s. c. 22 Wend. (N. Y.) 285; Ro- land V. Gundy, 5 Ohio, 202 ; Easton v. Worthington, 5 Serg. & R, (Pa.) 130 ; Hardy v. Metzgar, 2 Yeates (Pa.) 347 ; Hosack v. Weaver, 1 Yeates (Fa.) 478; Heacock y. Walker, 1 Tyler (Vt.) 338; Ventress v. Smith, 35 U. S. (10 Pet.) 161, 176; bk. 9, L. ed. 386; Southwick v. Harndell, 2 Dane Abr, 286. ' See Benjamin v. Andrews, 5 C. B. N. S. 299; 27 L. J. M. C. 310. ^ Case of market overt, 5 Rep. 83 b; L'Evesque de Worcester's Case, Moore, 360; Popham, 84; Comyn Dig. tit. Market, E ; 2 Bl. Com. 449; Lyons V. De Pass, 11 Ad. & E. 320; Crane V. The London Dock Company, 33 L. J. Q. B. 224; s. c. 5 B. & S. 313; Anon. 12 Mod. 521. s 5 Rep. 83 6. 28 PART I.] PARTIES. *8 except such as are usually sold there,* it was held in the leading case ^ that a scrivener's shop was not a market overt for plate,* though a goldsmith's would have been. So Smith- field was held not to be a market overt for clothes,^ but only for horses and cattle ; ^ and Cheapside not for horses ; ^ and Aldridge's not for carriages.^ A wharf is not a market overt, even in the city of Lon- don.^ In Crane v. The London Dock Company in the Queen's Bench, the common law doctrine of market overt was much discussed, and the Chief Justice expressed the opinion that a sale could not be considered as made in market overt " unless the goods were exposed in the market for sale, and the whole transaction begun, continued and completed in the open market; so as to give the fullest opportunity to the man whose goods have been taken to make pursuit of them, and prevent their being sold." ^^ § 10. * [The doctrine of sale in market overt exists [*8] for the protection of the innocent purchaser : it was therefore held in a recent Irish case that an innocent vendor was not relieved from liability by such a sale, and was respon- sible in an action of trover by the rightful owner for the value of the goods solcl.^] § 11. The exceptions to the validity of sales made in market overt by one who is not the owner, and the rules of law governing the subject, are fully treated by Lord Coke, in 2 Inst. 713, and have been the subject of numerous decisions. A sale in market overt does not give a good title to goods belonging to the sovereign ; nor protect a buyer who knew * L'Evesque de Worcester's Case, ^ Warner v. Banks, 17 L. T. N. S. Moore, 360, s. c. Pophara, 84; 1 And. 147; s. c. 16 W. R. 62; Anonymous, 344 ; 2 Roll. Abr. tit. Market Overt. 12 Mod. 521 ; Lee v. Bayes, 18 C. B. 3 5 Rep. 83 b. 599. * Nor a mercer's shop for the sale ^ Wilkinson v. King, 2 Camp. 335. of cloaks and petticoats. Taylor v. ^^ Per Cockburn C. J. in Crane v. Chambers, Cro. Jac. 68. See author- The London Dock Company, 5 B. & ities in note 4, supra. S. 313 ; 33 L. J. Q. B. 224. « Moore, 360. i Ganley v. Ledwidge, 10 Ir. R. C. ' lb. See also Taylor v. Chambers, L. 33. Cro. Jac. 68. See authorities in note 4. 29 *9 FORMATION" OF THE CONTRACT. [BOOK I. that they were not the property of the seller, or was guilty of bad faith in the transaction. The purchaser is not pro- tected if the sale be made in a covert place, as a back room, warehouse or shop with closed windows ; or between sunset and sunrise ; or if the treaty for sale be begun out of market overt. The privilege of market overt does not extend to gifts,! nor to sales of pawns taken to any pawnbroker in London, or ^^rithin two miles thereof ; ^ and if the original vendor, who sold without title, come again into possession of the goods after any number of intervening sales, the right of the original owner revives.-^ § 12. A sale by sample is not a sale in market overt, and in Hill V. Smith,! g^. James Mansfield C. J. said: "All the doctrine of sales in market overt militates against any idea of a sale by sarii^ole ; for a sale in market overt requires that the commodity should be openly sold and deUvered in the market." This decision was approved and followed by the Queen's Bench in Crane v. The London Dock Com- pany.^ [*9] * In Lyons v. De Pass,^ a sale was held to be enti- tled to the privilege of market overt where made in a shop in the City of London to the shopkeeper who dealt in such goods : but the point was not raised, and the exist- ence of the privilege in such a case was strongly questioned by the judges in Crane v. The London Dock Company.* The security of a purchaser in market overt who inno- cently buys stolen goods, is affected by the statute 24 & 25 Vict. c. 96, s. 100, which re-enacts and adds to the 7 & 8 Geo. IV. c. 29, s. 57.^ By the terms of this section, it is provided ' 2 Inst. 713 ; 2 Bl. Com. 499 ; Har- i 4 Taunt. 532. top V. Hoare, 2 Sir. 1]S7 ; Wilkinson ^ 33 l J. Q. B. 224; 5 B. & S. 313. V. King, 2 Camp. 335 ; Packer v. Gil- See Bailiffs, &c. of Tewkesbury v. lies, 2 Camp. 330, note; cases cited Diston, 6 East, 438; Newtovvnards in Crane v. The London Dock Com- Commissioners 0. Woods, 11 Ir. R. pany, 33 L. J. Q. B. 224; 5 B. & S. C. L. 506. , 363. , 3 11 Aj ^ E. 326. 2 1 Jac. I. c. 21, s. 5; Hartop v. * See Town Commissioners v. Hoare, 3 Atk. 44. Wood, Ir. R. 11 C. L. 606. Vide ante, 3 2 Bl. Com. 450 ; 2 Inst. 713; and note 2. see per Best J. in Freeman v. East ^ See also 21 Henry VIII. c. 11, India Company, 5 B. & A. 624. and Parker v. Patrick, 5 T. R. 175 ; 30 PART I.] PARTIES. *10 that, — " If any person guilty of any such felony or misde- meanor, as is mentioned in this Act, in steahng, taking, ob- taining, extorting, embezzling, converting, or disposing of, or in knowingly receiving any chattel, money, valuable security, or other property whatsoever, shall be indicted for such of- fence, by or on the behalf of the owner of the property, or his executor or administrator, and convicted thereof, in such case the property shall be restored to the owner or his rejjre- sentative ; and in every case in this section aforesaid, the court before whom any person shall be tried for any such felony or misdemeanor, shall have power to award from time to time writs of restitution for the said property, or to order the restitution thereof in a summary manner." It has been settled, that on the true construction of this statute, the property in the chattel becomes re-vested in the original owner upon the conviction of the felon, even though no writ or order of restitution has been made by the Court.^ But [even where the goods had been stolen] an action was held not to be maintainable against an innocent purchaser in market overt, who had disposed of the stolen goods before the conviction of the thief ; although he was, while the goods still remained in his possession, notified of the robbery by the original owner J § 13. * [It has recently been decided that the stat- [*10] ute has no apphcatidn in cases of false pretences' (i.e. where the property in the goods has passed), and there- fore that the title of a bond fide purchaser from the person who has obtained the goods by false pretences is paramount to the title of the original owner, even after the conviction.^ It should be observed, however, that in Lindsay v. Gundy 2 Moyce v. Newington, L. E. 4 Q. B. Lindsay j). Cundy, 1 Q. B. D. 348; see Div. 32 ; Lindsay v. Cundy, L. E. 1 Q. § 519, note 1. B. Div. 348. Vide post, § 519, note 1. ^ Moyce v. Newington, L. E. 4 Q. 6 Scattergood v. Sylvester, 15 Q. B. B. D. 32, wliere tlie sale was not in 506; 19 L. J. Q. B. 447. See also market overt. Peer v. Humphrey, 2 A. & E. 495; ^ i Q. b, D. 348, not overruled on Queen v. Horan, Ir. 6 C. L. 293 ; Keg. this point. Blackburn .J. gives a V. Stancliff, 11 Cox C. C. 318. valuable exposition of the statutes, ' Horwood V. Smith, 2 T. E. 750 ; and expressly dissents from Niekling V. Heaps, 21 L. T. N. S. 754. 31 *11 FOEMATION OP THE OONTEACT. [BOOK I. upen the authority of which case Moyce v. Newington was decided, Lush J. was careful to say (p. 362) : " The plain- tiffs may, upon conviction, acquire a fresh title to the goods, but then they must get the goods from the person in whose hands they can find them, or what may he the substitute for the goods:' All that Lindsay v. Cundy seems to decide is that, until conviction, a bond fide purchaser from the person who had obtained the goods by false pretences had a good title ; and if, before conviction, he had parted with the goods, no action of trover could be maintained against him. In other words, the title to the goods revests in the original owner as from the date of the conviction, and does not relate back to the time of the fraudulent taking. It is otherwise where the possession only of the goods has been obtained by some trick, or by theft, without the prop- erty passing : and the earlier cases of Scattergood v. Sylves- ter (15 Q. B. 506), and Peer v. Humphrey (2 A. & E. 495), are in this way reconcilable with Lindsay v. Cundy and Moyce v. Newington. In Walker v. Matthews,^ two cows in calf had been stolen from the plaintiff's farm on the 7th of June, 1880. On the 11th of June they were sold in market overt to a dealer, who afterwards resold them to the defendant, who was a bond fide purchaser. After the conviction of the thief, on the 5th of April, 1881, the plaintiff demanded back the cows from the defendant, who refused to give them up. Meantime the cows had calved. In an action for the return of the [*11] cows, the * defendant set up a counter-claim for the cost of their keep between the time of the sale and the conviction : held, that as the cows were the defendant's property up to the time of the conviction of the thief, the counter-claim was not maintainable. The defendant, it is to be observed, did not dispute the plaintiff's title to the calves, although they were born during the time when the property in the cows was vested in the defendant.] § 14. When an innocent purchaser of stolen goods has been forced to make restitution to the prosecutor of the 8 8 Q. B. D. 109. 32 PART I.] PARTIES. *12 thief, the 30 & 31 Vict. c. 35, s. 9, enacts that upon the con- viction of the thief it shall be lawful for the Court to order that any money taken from him on his apprehension shall be applied to reimbursing the purchaser the price paid by him. § 15. It was at one time supposed that where goods had been stolen, an owner could not recover them from an inno- cent vendee who had bought them, not in market overt, until he had done his duty in prosecuting the thief. But the cases of Gimson v. Woodfall ^ and Peer v. Humphrey ^ were overruled in White v. Spettigue,^ where it was held, on the authority of Stone v. Marsh,* and Marsh v. Keating,^ that the obligation of the plaintiff to prosecute the thief does not apply where the action is against a third party innocent of the felony. And in Lee v. Bayes ^ the law was stated to be settled in conformity with the decision in White v. Spet- tigue.^ In Wells V. Abrahams,'^ on the trial of an action of trover, the evidence established a primd facie case of felony, and after verdict for plaintiff a new trial was moved for on that ground and on the further ground shown by affidavit, that since verdict the plaintiff had prosecuted the defendant criminally. But held that the judge was bound to try the cause on the record as it stood at Nisi Prius, and could not nonsuit the plaintiff — and the verdict was upheld. [In Ex parte Ball in re Shepherd,^ the doctrine in question * was very fully considered, and the Court [*12] of Appeal, while hesitating to say that the alleged rule had no existence in practice, expressed a decided opin- ion that the disability to sue was confined 'to the person injured by the felony, and therefore had no application to the case before them, so as to bar a claim made by the in- jured party's trustee in bankruptcy against the felon's estate. Bramwell and James L.JJ. dwelt strongly upon the diffi- 1 2 C. & P. 41. ■ L. R. 7 Q. B. 554. 2 2 Ad. & E. 495 ; 4 N. & M. 430. * 10 Ch. D. 667, C. A. See also 3 13 M. & W. 603. Midland Insurance Company o. Smith, « 6 B. & C. 551. 6 Q. B. D. 561, where all the cases 6 1 Bing. N. C. 198. are reviewed by Watkin Williams J. 6 18 C. B. 599. *18 FOEMATION OP THE CONTRACT. [BOOK I. culties wMcli from every point of view beset the application of tlie doctrine.] § 16. For more than three centuries it has been found neces- sary to make special provision in relation to the sale of horses in market overt, on account of the peculiar facility with which these animals, when stolen, can be removed from the neighborhood of the owner and disposed of in markets and fairs.i The statute of 2 & 3 P. & M. c. 7, passed in 1555, and that of 31 Eliz. c. 12, in 1689, contain the rules and regulations applicable to this subject. The principal provisions of the first statute are, that there shall be a certain special place appointed and limited out in all fairs and markets overt where horses are sold; that a toll-keeper shall be appointed to keep this place from ten o'clock in the morning until sunset, and he shall take the tolls for all horses at that place and within those hours, and not at any other time or jA&ce : that the parties to the bargain shall be before him present when he takes the toll : and that he shall write in a book, to be kept for that purpose, the names, surnames, and dwelling-places of the parties, and a full description of the animal sold. The property in the horse is not to pass to the buyer, unless the ani- mal be openly exposed for one hour at least at the place and within the hours above specified ; and unless the parties come together and bring the animal to the toll-keeper or book-keeper (where no toll is paid), and have the entries properly made in the book. By the second statute, it is required that the toll-keeper or book-keeper shall take upon himself " perfect knowledge " of the vendor, and " of his true Christian name, surname, and ^^lace of dwelling or resiancy ; " or that the vendor shall bring to the keeper one sufficient and credible person that can testify that he knows the vendor, and [*13] in such case the name and residence of the * person so testifying, as well as those of the vendor, are to be recorded in the book, and the " very true price or value " given for the horse ; and in case of failure to comply with these provisions, the sale is to be void. The Act also pro- 1 Browning v. Magill, 2 Harr. & J. (Md.) 308. 34 PART I.] PARTIES. *14 vides that the original owner may take back his horse from the purchaser, even when the sale has been regularly made in market overt according to the rules laid down in the stat- ute, on repayment to the purchaser of the price paid by him, provided the demand on the purchaser be made within six months from the date of the felony. The decisions on these two statutes are collected in Bacon's Abr. Fairs and Markets, and in Com. Dig. Market, E. Their provisions have been found so effective in putting an end to the mischief which they were intended to prevent, that there are very few modern cases on the subject.^ In Lee v. Bayes,^ it was held that the sale of a horse at auction in a repository out of the city of London, was not a sale in market overt, Jervis C.J. saying that market overt was " an open, public, and legally-constituted market." On the question, What is a legally-constituted market? the reader is referred to the case of Benjamin v. Andrews ( ?), decided in the Common Pleas in 1858. [The protection attendant upon a sale in a market overt is not confined to ancient markets created by charter or pre- scription, but extends to modern markets established under powers conferred by Act of Parliament.*] § 17. The second exception to the rule that one not the owner cannot make a valid sale of personal chattels, also arises out of the 24 & 25 Vict. c. 96, s. 100, already quoted, which directs that — " If it shall appear before any award or order made, that any valuable security shall have been bond fide paid or discharged by some person or body corporate liable to the payment thereof, or, being a negotiable instru- ment,-' shall have been ho7id fide taken or received by transfer or *delivery, by some person or body corpo- [*14] rate, for a jiist and valuable consideration, without 2 See Joseph v. Adkins, 2 Stark. ' Negotiable securities. — It was for- 76; Lee v. Bayes, 18 C. B. 599; merly held that if the holder took a Moran v. Pitt, 52 L. J. Q. B. 47; negotiable instrument under suspi- 21 W. R. 554. cious circumstances or without due 3 5 C. B. N. S. 299 ; 27 L. J. M. C. caution, or inquiry, he was not deemed 310. to be a bond fide holder without no- * Ganley v. Ledwidge, 10 Ir. R. C. tice, although he paid full value there- L 33. for. Matthews!). Poythress, 4 Ga. 237; 35 ^4 FOEMATION" OF THE CONTEACT. [book I. any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or disposed of, in such case the court shall not award or order the restitution of such security : Pro- vided also, that nothing in this section contained shall ap- ply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent entrusted with the possession of goods or documents of title to goods for any misdemeanor against this Act." This clause was intended to prevent the statute from operat- ing in such manner as to interfere with a settled rule of the law merchant, namely, that one not the owner, even the thief. Davis V. McCready, 17 N. Y. 230, s. c. 72 Am. Dec. 461; Steinhart v. Boker, 34 Barb. (N. Y.) 436 ; Hall v. Wilson, 16 Barb. (N. Y.) 550 ; Snyder J. Kiley, 6 Pa. St. 164 ; s. c. 47 Am. Dec. 45:i ; Goodman v. Simonds, 61 V. S. (20 How.) 363; bk. 15, L. ed. 937 ; Goodman v. Harvey, 4 Ad. & El. 870 ; Down v. Hailing, 4 Barn. & Ores. 330; Gill ;;. Cubitt, 3 Barn. & Cres. 466; Easley v. Crockford, 10 Bing. 243; Beckwith v. Corral, 3 Bing. 444 ; Snow v. Peacock, 3 Bing. 406 ; Slater v. West, 1 Dan. & LI. 15 ; Raphael v. Bank of England, 17 C. B. 161; s. c. 33 Eng. L. & Eq. 276; Chitty on Bills, 277, 284; 3 Kent Com. »81. Negligence of purchaser — English doctrine. — The rule as to negligence of the party taking defective title, laid down in Gill v. Cubitt, 3 Barn. 6 Cres. 466; and Down v. Hailing, 4 Bam. & Cres. 330, is no longer law in England. Bank of Bengal v. McLeod, 5 Moore's Indian Ap. 1 ; s. c. 7 Moore P. C. 35 ; 13 Jur. 945. But yet where a party takes a bill or ne- gotiable instrument, under circum- stances calculated to excite suspicion, and, possessing the means of knowl- edge, wilfully abstains from making inquiry, he takes the instrument with notice of whatever fraud may exist, if any. See Jones v. Gordon, L. R. 2 Ap. Cas. 616; s. c. 37 L. J. N. S. 477 ; 36 26 W. R. 472 ; May r. Chapman, 16 Mees. & W. 361 ; Baylea on Bills, 119. American doctrine. — In this coun- try, before maturity, such instru- ments are negotiated by simple de- livery. Brusii I'. Scribner, 11 Conn. 388 ; ». c. 29 Am. Dec. 303 ; Spooner V. Holmes, 102 Mass. 503 ; s. c. 3 Am. Rep. 491 ; Commonwealth v. Emigrant Industrial Savings Bank, 98 Mass. 12; Wyer v. Dorchester & Milton Bank, 65 Mass. (11 Cush.) 51 ; Worcester County Bank v. Dorchester and Mil- ton Bank, 64 Mass. (10 Cush.) 488; s. c. 57 Am. Dec. 120 ; Wheeler v. Guild, 37 Mass. (20 Pick.) 545; s. c. 32 Am. Dec. 231; Seybel !■. National Currency Bank, 54 N. Y. 288 ; s. c. 13 Am. Rep. 683; Hall v. Wilson, 16 Barb. (N. Y.) 548; Vermilye v. Adams Express Co., 88 U. S. (21 Wall.) 138 ; bk. 22, L. ed. 609 ; Good- man V. Simonds, 61 U. S. (20 How.) 343; bk.l5,L.ed.458; Swift i'. Tyson, 41 tJ. S. (16 Pet.) 1 ; bk. 10, L. ed. 865. Consent of holder. — The sale of a promissory note involves a contract between the holder and the purchaser, and a stranger to the note, without any interest to protect or rights to preserve, cannot, by giving the holder the amount due on the note, become a purchaser of the same, without the consent of the holder. Binford v. Adams, 104 Ind. 41 , a. c. 1 West. Rep. 911. PAKT I.] PARTIES. *14 may make a valid transfer of negotiable instruments, if tliey are in the usual state in which they commonly pass on de- livery from man to man, like coin, according to the usage of trade ; provided the buyer has been guilty of no fraud in taking them, for in that case he would be forced to bear the loss.^ § 18. Another case, in which one not the owner of goods may make valid sale of them, is that of the pawnee.^ He 2 Grant v. Vaughan, 3 Burr. 1516 ; Lang V. Smith, 7 Bing. 284 ; Gagier V. Mieville, 3 B. & Cr. 35 ; Crook v. Jadis, 5 B. & Ad. 909; Backhouse v. Harrison, 5 B. & Ad. 1105; Bank of Bengal v. M'Leod, 7 Moo. P. C. 35; Goodman v. Harvey, 4 Ad. & El. 870; Uther V. Rich, 10 Ad. & E. 784; Raphael v. Bank of England, 17 C. B. 161; 25 L. J. C. P. 33; Seal v. Dent, 8 Moo. P. C. 319; Gill v. Cubitt, 3 B. & Cr. 466 ; Whistler v. Forster, 32 L. J. C. P. 161. See also numerous other cases cited in notes to Miller v. Race, 1 Sm. L. C. 510 (Ed. 1879); Byles on Bills (13th ed.), p. 165. American authorities. — Brush v. Scribner, 11 Conn. 388; s. c. 29 Am. Dec. 303; Hall v. Hale, 8 Conn. 336; Matthews v. Poythress, 4 Ga. 287 ; Jones V. Nellis, 41 111. 482 ; s, c. 89 Am. Dec. 389 ; Spooner v. Holmes, 102 Mass. 503 ; s. c. 3 Am. Rep. 491 ; Merriam v. Granite Bank, 74 Mass. (8 Gray) 254 ; Wheeler v. Guild, 37 Mass. (20 Pick.) 545; o. c. 32 Am. Dec. 231 ; Cone v. Baldwin, 29 Mass. (12 Pick.) 545; Crosby v. Grant, 36 N. H. 273 ; Newton v. Porter, 69 N. Y. 133, 137 ; s. c. 25 Am. Dec. 152 ; Sey- bel V. Nat. Currency Bank, 54 N. Y. 288; s. c. 13 Am. Rep. 583; Magee V. Badger, 30 Barb. (N. Y.) 246 ; Prin- gle V. Phillips, 5 Sandf. (N. Y.) 157; Greneaux v. Wheeler, 6 Tex. 515; Roth V. Colvin, 32 Vt. 125; Sanford V. Norton, 14 Vt. 228; Vermilye v. Adams Express Co., 88 U. S. (21 Wall.) 138 ; bk. 22, L. ed. 609 ; Good- man V. Simonds, 61 U. S. (20 How.) 34.'5 ; bk. 15, L. ed. 934 ; Pothonier v. Dawson, Holt, 385. 1 Sale bt/ the pawnee. — A pledge of personal property merely passes to the pledgee the possession, with a right to retain until the debt is paid, or other engagement is fulfilled, for which the article pledged is given as security ; but upon the failure of the pledgor to fulfil his engagement or redeem the pledge, the pledgee may make a valid sale of the article pledged, and pass a good title to the purchaser. See Washburn v. Pond, 84 Mass. (2 Allen) 474; Wheeler v. Newbould, 16 N. Y. 392 ; Stearns v. Marsh, 4 Den. (N. Y.) 227 ; =. c. 47 Am. Dec. 248; Loucketts v. Town- send, 3 Tex. 119 ; s. c. 49 Am. Dec. 723. The fact that a pledgor is bankrupt will not deprive the pledgee of his right to sell on failure of pay- ment or performance. Rasch v. His Creditors, 1 La. An. 31 ; Jerome v. McCarter, 94 U. S. (4 Otto) 734; bk. 24, L. ed. 136; Martin v. Reid, 11 C. B. N. S. 730; Pigot v. Cubley, 15 C. B. N. S. 701 ; Johnston v. Stear, 15 C. B. N. S. 330. Sale how made. — The pawnee may sell, either at a judicial sale, upon foreclosure of the pledge, or by a sale without the supervision of the courts, in a public manner, after no- tice to the pawnee. Washburn v. Pond, 84 Mass. (2 Allen) 474; Elder V. Rouse, 15 Wend, (N. Y.) 218; Davis V. Funk, 39 Pa. St. 243 ; s. u. 80 Am. Dec. 510; Story on Bail. sec. 310; 2 Kent Com. 682; Tucker v. 37 m FORMATION OF THE CGNTIIACT. [book I. has the legal power to sell goods pledged to liim, if the pawnor make default in payment at the stipulated time ; and Wilson, 1 P. Wms. 261 ; 1 Sehouler on Pers. Prop. sec. 407 ; Kemp a. Westbrook, 1 Ves. Sr. 278. In the mode prescribed by the general law, or by local statutes, or by some special agreement of the parties. Rhorle v. Stidger, 50 Cal. 207 ; Rob- inson 7". Hurley, 11 Iowa, 410; s. c. 79 Am. Dec. 497 ; Stevens v. Bell, 6 Mass. 339 ; Mowry v. Wood, 12 Wis. 413; Cal. Civ. Code, sees. 3005, 3011 ; Mass. Pub. Stats, ch. 192, sees. 10 & 12 ; Sehouler on Bail. 222 ; 1 Sehouler on Pers. Prop. sec. 408. Necessitij of notice. — To render the sale valid, it must be made with en- tire good faith, and in the absence of a stipulation to a contrary effect in the contract, the pledgee must call upon the pledgor and give him reasonable notice of the time and place of the proposed sale. Gay v. Moss, 34 Cal. 125 ; Hyatt v. Argenti, 3 Cal. 151; Morgan j'. Dod, 3 Colo. 551 ; Stevens v. Hurlburt Bank, 31 Conn. 140 ; Cushman v. Hayes, 40 111. 145; Baltimore Marine Ins. Co. V. Dalrymple, 25 Md. 269; Robinson V. Plurley, 11 Iowa, 410; s. e. 79 Am. Deo. 407; Washburn v. Pond, 84 Mass. (2 Allen) 474; Parker v. Brancker, 39 Mass. (22 Pick.) 40; Goldsmith v. Worthington M. E. Church Trustees, 25 Minn. 202; Og- den V. Lathrop, 65 N. Y. 102 ; Bryan V. Baldwin, 52 N. Y. 232; Markliam V. Jandou, 41 N. Y. 235 ; Wilson v. Little, 2 N. Y. 448 ; s. c. 51 Am. Dec. 307 ; Lewis v. Varnum, 12 Abb. (N. Y.) Pr. 308 ; Lewis v. Graham, 4 Abb. (N. Y'.) Pr. 100; McNeil u. Tenth National Bank, 55 Barb. (N. Y.) 59 ; Genet v. Rowland, 45 Barb. (N. Y.) 560 ; McEachron v. Randies, 34 Barb. (N. Y.) 307 ; Rankin v. McCuUough, 12 Barb. (N. Y.) 103 ; Millikin v. Dehon, 10 Bosw. (N. Y.) 325; Campbell ;;. Parker, 9 Bosw. (N. Y.) 322 ; Cortelyou v. Lansing, 2 Cai. Cas. (N. Y.) 200; Wheeler v. New- bould, 5 Duer, (N. Y.) 29; s. c. 16 N. Y. 392 ; Brown v. Ward, 3 Duer, (N. Y.) 600 ; Haskins c. Patterson, 1 Edm. Sel. Cas. (N. Y.) 120; Garlick V. James, 12 Johns. (N. Y.) 146; s. c. 7 Am. Dec. 294; Wilson v. Little, 1 Sandf. (N. Y.) 351; Conyngham's Appeal, 57 Pa. St. 474; Diller v. Brubaker, 52 Pa. St. 498; Davis v. Funk, 39 Pa. St. 243 ; s. e. 80 Am. Dec. 510; Mowry t-. Wood, 12 Wis. 413; Story on Bail. sec. 308. How- ever, former notice of the time and place of the sale is not necessary where the pledgor already has actual knowledge. Alexandria, &c. R. R. I'. Burke, 22 Gratt. (Va.)254. Neither is notice necessary where it is ren- dered impossible by the pledgor's acts. City Bank of Racine v. Bab- cock, 1 Holm. C. C. 181. And where the pledgor consents to a proposed sale, or accepts the proceeds thereof, or in any other manner ratifies it, he cannot afterwards object that the sale was not made according to the laws regulating the sales of pledged property. Child v. Hug, 41 Cal. 519; Hamilton v. State Bank, 22 Iowa, 306; Clark v. Brisbin, 20 La. An. 70; Genet v. Rowland, 45 Barb. (N. Y.) 560. But the mere inability to find the pledgor will not excuse the neces- sity of making demand of and serv- ing notice upon him. Strong, &c. v. National Banking Assoc, 45 N. Y. 718. However, where the pledgor has gone beyond the seas the demand may be made of, and the notice served upon, his agent. Potter v. Thompson, 10 R. I. 1. Irrtiiulnrities in sale. — Thepledgor cannot treat a sale without notice, or without a full notice, or which is other- wise irregular or informal, as in itself a conversion of the property; but he must, as a prerequisite to suing either the pledgee or a purchaser from the PAET I.] PARTIES. ^4 this lie may do without taking any legal proceedings against the pawnor.2 pledgee, tender the amount he owes; and can only recover damages for the conversion of the article, over and. above the amount of his indebted- ness. See Bulkeley v. Welch, 31 Conn. .339; Baltimore Marine Ins. Co. V. Dalrymple, 25 Md. 269 ; Lewis V. Mott, 86 N. Y. 395; Kidney v. Per- sons, 41 Vt. 386 ; Talty v. Freedman's Savings & Trust Co., 93 U. S. (3 Otto) 321 ; bk. 23, L. ed. 886. Schouler on Bailments, 209, 210. Personal action against pledgor. — But it seems that where the pledgor has gone beyond the seas the only safe way is (1) to proceed against the debtor personally. That the pledgee may proceed against the pledgor per- sonally is abundantly settled by the authorities. Dugan v. Sprague, 2 Ind. 600 ; Robinson v. Hurley, 11 Iowa, 410; s. c. 79 Am. Dec. 497 ; Cleverly V. Braekett, 8 Mass. 150; Buck v. IngersoU, 52 Mass. (11 Met.) 226; Whitaker v. Sumner, 37 Mass. (20 Pick.) 399; Whitwell b. Brigham, 36 Mass. (19 Pick.) 117; Townsend V. Newell, 31 Mass. (14 Pick.) 332; Beckwith u. Sibley, 28 Mass. (11 Pick.) 482 ; Butterworth v. Kennedy, 5 Bosw. (N. Y.) 143 ; Elder v. Rouse, 15 Wend. (N. Y.) 218; Case i\ Bough- ton, 11 Wend. (N. Y.) 106; Langdon V. Buel, 9 Wend. (N. Y.) 80; Aren- dale V. Morgan, 5 Sneed (Tenn.) 703; Bank of Rutland ;,•. Woodruff, 34 Vt. 89. Or (2) bar his right to redemp- tion by an equitable suit to foreclose. So, also, is this the appropriate rem- edy where the pledge consists of a chose in action, except those having a recognized market value, such as stocks, government bonds, and the like. Donohoe v. Gamble, 38 Cal. 340 ; Gay v. Moss, 34 Cal. 125 ; Boyn- ton V. Payrow, 67 Me. 586 ; Bowman V. Wood, 15 Mass. 534; Wheeler v. Newbould, 16 N. Y. 392; Stearns v. Marsh, 4 Den. (N. Y.) 227 ; s. c. 47 Am. Deo. 248; Garlick v. James, 12 John. (N. Y.) 146; s. c. 7 Am. Dec. 294 ; Hart v. Ten Eyck, 2 Johns. Ch. (N. Y.) 62; De Lisle v. Priestman, 1 Browne (Pa.) 176. Pawnee cannot purchase. — The pawnee cannot become the purchaser at the sale of the pledge ; and where the pawnee does purchase, the pledgor may treat the sale as void or valid at his option. If he elects to treat it as void, the relation of pledgor and pledgee still subsists. Stokes v. Fra- zier, 72 III. 428 ; Bank of Old Domin- ion V. Dubuque, &c. R. R. Co., 8 Iowa, 277; s. c. 74 Am. Dec. 302; Brother v. Saul, 11 La. An. 223. And the fact that the sale to the pledgee is made through a broker, at public auction, makes no difference. Bry- son V. Rayner, 25 Md. 424 ; Balti- more Marine Ins. Co. v. Dalrymple, 25 Md. 269. Cannot sell before maturity, — Un- less specially authorized, by the agree- ment, a pawnee cannot sell property pledged to him as security for a debt or other obligation, before such debt or obligation is due. Wlieeler v. Newbould, 16 N. Y. 400; Butts v. Burnett, 6 Abb. (N. Y.) Pr. (N. S.) 303 ; McNeil v. Tenth Nat. Bank, 65 Barb. (N.Y.) 65; Campbell r. Parker, 9 Bosw. (N. Y.) 326; Atlantic, etc. Ins. Co. V. Boies, 6 Duer (N. Y.) 586; Wilson V. Little, 1 Sandf . (N. Y.) 357. Cannot be compelled to sell. — In the absence of a stipulation to that effect in the contract the pawnee cannot be compelled to sell the article pledged upon failure of payment or perform- ance (Rozet V. MeClellan, 48 111. 344 ; Badlara v. Tucker, 18 Mass. (1 Pick.) 400; b.c. 11 Am, Dec. 202; Franklin Saving Institution r. Preeto- rius, 6 Mo. App. 470) ; and will not be held liable for loss in case the security when sold brings less than its estimated value (Ainsworth v. Bowen, 9 Wis. 348). 2 Pothonier v. Dawson, Holt, 385 ; 39 *15 FORMATION OF THE CONTKACT. [BOOK I. [*15] § 19. * The sherifE, as an officer on whom the law confers a power, may sell the goods of the defendant in executien, and confer a valid title on the purchaser ; ^ and this title will not be affected, although the writ of execution be afterwards set aside. ^ Tucker v. Wilson, 1 P. Williams, 261 ; Lockwood V. Ewer, 9 Mod. 278 ; Mar- tin V. Read, 11 C. B. N. S. 730, and 31 L. J. C. P. 126 ; Johnston v. Stear, 15 C. B. N. S. 330, and 33 L. J. C. P. 130 ; Pigot V. Cubley, 15 C. B. N. S. 701, and 33 L. J. C. P. 134 ; 1 Sm. L. C. 227, ed. 1879; Halliday v. Hol- gate, L. K. 3 Ex. 299. By the abore case of Martin v. Read, and by Reeves v. Capper, 5 Bing. N. C. 136, and Langton v. Waring, 18 C. B. N. S. 315, it appears that there may be a valid pledge although the goods remain in, or are returned to, the actual possession of the pawnor as trustee for the pawnee. Respecting the American rule^ as be- tween the pledgor and pledgee, see Donohoe v. Gamble, 38 Cal. 34; Gay V. Moss, 34 Cal. 125; Stevens v. Hurlburt Bank, 31 Conn. 146; Cooper 1-. Ray, 47 111.53; Cushman ('.Hayes, 46 111. 145 ; Hamilton v. State Bank, 22 Iowa, 300 ; Washburn v. Pond, 84 Mass. (2 Allen) 474 ; Way v. David- son, 78 Mass. (12 Gray) 465; Ma- comber ■«. Parker, 3] Mass. (14 Pick.) 497 ; Sumner v. Halst, 20 Mass. (12 Pick.) 76 ; Parshall v. Egbert, 64 N. Y. 18; Strong v. National Bank Association, 4.3 N. Y. 718; Lewis v. Mott, 30 N. Y. 395; Wheeler v. Newbould, 16 N. Y. 392 ; Wilson v. Little, 2 N. Y. 443; s. c. 51 Am. Dee. 807 ; Hays v. Riddle, 1 Sandf . (N. Y.) 227 ; s. c. 47 Am. Dec. 248; Conyng- ham's Appeal, 57 Pa. St. 474 ; Davis V. Funk, 30 Pa. St. 243 ; s. c. 80 Am. Dec. 510; Potter v. Thompson, 10 E. 1. 1 ; Alexandria Railroad v. Burke, 22 Gratt. (Va.) 2-54; Ainsworth o. Bowen, 9 Wis. 348; City Bank of Racine v. Babcock, 1 Holmes C. C. 180. 1 As a general rule a sheriff can- not buy at his own sale. Perkins r. Thompson, 3 N. H. 144. However, such a purchase wns upheld on the facts presented in Smith v. Smith, 2 Oldright (N. S.) 303. « Anon. Dyer, 363 ■■/ a master of vessel, of the vessel and cargo, will be valid in cases of actual necessity, but they must be such as to leave him no dis- cretion, and amount to actual con- straint. See Gates t. Thompson, 57 Me. 442 ; Howland r. India Mut. Ins. Co., 131 Mass. 239, 255 ; Stephenson V. Pacific Mut. Ins. Co., 89 Mass. (7 Allen) 232, 235 ; Omik v. Common- wealth Ins. Co., 38 ilass. (21 Pick.) 456; Pierce r. Ocean Ins. Co., 35 Mass. (18 Pick.) S3, 8S ; Bryant r. Commonwealth Ins. Co., 30 Mass. (13 Pick.) 543, 5-54 ; s. c. 23 Mass. (6 Pick.) 131; Winn r. Columbian Ins. Co., 29 Mass. (12 Pick.) 279, 282, 286 ; Hall r, Franklin Ins. Co., 26 Mass. (9 Pick.) 4(i(5 ; Gordon v. Massa- chusetts F. & M. Ins. Co., 19 Mass. (2 PAET I.] PARTIES. •^15 bility to carry the goods to their destination, or otherwise to obtain money indispensable for repairs to complete the voy- age. But the purchaser acquires no title, unless such neces- sity exists.^ § 21. By the Factors' Act^ (6 Geo. IV. c. 94), s. 2, "per- sons entrusted with, and in possession of, any bill of lading, Pick.) 240 ; American Ins. Co. v. Cen- ter, 4 Wend. (N. Y.) 55; see Myers V. Bay more, 10 Pa. St. 114; s. c. 49 Am. Dec. 586 ; The Amelie, 73 U. S. (6 Wall.) 18, 2G; bk. 18, L. ed. 800; Post V. Jones, GO U. S, (19 How.) L50; bk. 15, L. ed. 618; The Patapsco Ins. Co. V. Southgate, 30 U. S. (5 Put.) 620; bk. 8, L. ed. 649; The Ship Packet, 3 Mason C. C. 255 ; Pope v. Nickerson, 3 Story C. C. 466, 466; The Brig Sarah Ann, 2 Sumn. C. C. 206, 215; The Bonita, 1 Mar. L. Cas. 145 ; Freeman v. East India Co., 5 Barn. & Aid. 617 ; Morris v. Robin- son, 3 Barn. & Ores. 196 ; Eeid v. Darby, 10 East, 143 ; Hunter v. Par- ker, 7 Mees. & W. 340. 2 The Gratitudine, 3 Rob. Adm. 259 ; Preeman v. East India Com- pany, 5 B, & A. G21 ; Vlierboom v. Chapman, 13 M. & W. 239; Under- wood V. Robertson, 4 Camp. 138 ; Cannan v. Meaburn, 1 Bing. 243 ; Tronson v. Dent, 8 Moo. P. C. 419; Cammell v. Sewell, 3 H. & M. 017, and s. c. in Cam. Scacc. 5 H. & N. 728; 29 L. J. Ex. 350; The Austra- lasian Steam Navigation Company v. Morse, L. R. 4 P. C. 222 ; Acatos v. Burns, 3 Ex. D. 289, C. A.; The At- lantic Insurance Company v. Huth, 16 Ch. D. 474, 481, C. A.; Maude and Poll, on Shipping (ed. 1881), 580. American authorities. — Gates v. Thompson, 57 Me. 442; Butler v. Murray, 30 N. Y. 38; Fontaine v. Columbian Ins. Co., 9 Johns. (X. Y.) 28 • Myers v. Baymore, 10 Pa. St. 114; s. c. 49 Am. Dec. 586; Smith v. Martin, 6 Binn. (Pa.) 262 ; Stillman V. Kurd, 10 Tex. 109; The Amelie, 73 U. S. (6 Wall.) 18 ; bk. 18, L. ed. 806 ; Post V. Jones, 60 U. S. (19 How.) 150; bk. 15, L. ed. 618; Xew Eng. Insurance Co. v. The Sarah Ann, 38 U. S. (13 Pet.) 387; bk. 10, L. ed. 213 ; The Sliip Packet, 3 Mas. C. C. 255; Pope v. Nickerson, 3 Story C. C. 465 ; Jordan v. Warren Ins. Co., 1 Story C. C. 342 ; The Joshua Bar- ker, Abb. Admr. 215. 1 Factors' act. — Because of the variety of the statutes regulating this matter, in this country the de- cisions in each state must be consid- ered with reference to the language of the statute in that state ; but under all the statutes alike, we find that — 1. T/ie person must be truly a fac- tor or consignee or their agent en- trusted with the possession by the owner for the purpose of sale. Stol- lenwerck v. Thatcher, 115 Mass. 224 ; Nickerson u. Darrow, 87 Mass. (5 Allen) 419; National Bank o. Dear- born, 115 Mass. 219; s. c. 15 Am. Rep. 92; Kinsey v. Leggett, 71 N. Y. 387, 395; First Nat. Bank v. Shaw, 61 N. Y. 283; Mechanics & Traders Bank v. Farmers & Mechanics Nat. Bank, 60 N. Y. 40, 02; Howland v. Woodruff, 60 N. Y. 73 ; Cook v. Beal, 1 Bosw. (N. Y.) 497; Dows v. Na- tional Exchange Bank, 91 XT. S. (1 Otto) 618; bk. 23, L. ed. 214; Pease V. Gloahec, L. R. 1 P. C. 219, 228; Gurney r. Behrend, 3 El. & Bl. U22, 632. 2. ^1 factor mai/ sell on credit and pass title in the absence of an instruc- tion or a usage to the contrary (Pink- ham V. Crocker, 77 Me. 563 ; Greely V. Bartlett, 1 Me. (1 Greenl.) 172; s. c. 10 Am. Dec. 54; Goodenow v. 43 *15 FORMATION OF THE CONTRACT. [book Indian warrant, dock warrant, warehouse-keeper's certificate, warrant, or order for the delivery of goods, shall be deemed Tyler, 7 Mass. 30 ; s. c. 5 Am. Dec. 22; Story on Agx'iicy, sees. 0, 10) ; and he will not make the debt his own by taking a note payable to himself, un- less he refuse to deliver it to his principal on demand, or negotiates it, or otherwise appropriates it to his own use. Goodenow v. Tyler, 7 Mass. 30; s. c. 10 Am. Dec. 54. But this is doubted in Symington v. McLin, 1 Der. & Bat. (N. C.) L. 291, because a general power to sell implies a power to do so in the usual way, at the place and where tlie sale was made. Scott V. Surman, Willes, 407; s. c. cited in 3 Bos. & l^U. 4y".l. 3. A factor ma^ not pledge goods for his own debt where he is merely author- ized to sell and has no interest in the property consigned. See Bott v. Mc- Coy, 20 Ala. 578; s. c. 56 Am. Dec. 223; Wright v. Solomon, 19 Cal. 04; s. c. 79 Am. Dec. 196 ; Gray v. Agnew, 95 111. 315; Stetson v. Gurney, 17 La. 166; Young v. Scott, 25 La. An. 313; Miller r. Schneider, 19 La. An. 300; Hadwin v. Fisk, 1 La. An. 43, 74; DeWolf V. Gardner, 66 Mass. (12 Gush.) 19; s. 0. 59 Am. Dec. 165; Hoffman v. Noble, 47 Mass. (6 Mete.) 74; s. c. 39 Am, Dec. 711 ; Kinder v. Shaw, 2 Mass, 39S ; Benny v. Pegram, 18 Mo. 191 ; Benny ,-. Rhodes, 18 Mo. 147; s. c. 51) Am. Dec. 298; Holton V. Smitli, 7 N. H. 446; Hazard o. Fiske, 83 N. Y. 287; s. c. 18 Hun (N. Y.) 277; CoviU v. Hill, 4 Den, (N. Y,) 327; Stevens v. Wilson, 3 Den, (N, Y,) 476; Buckley v. Pack- ard, 20 Johns. (X. Y,) 421 ; Laussatt V. Lippinoott, 6 Serg, & R, (Pa.) 391; s, 0. 9 Am, Dec, 440; McCreary v. Gaines, 55 Tex, 485; s. c. 40 Am, Rep, 818 ; Skinner v. Dodge, 4 Hen, & Mtinf, (Va,) 432 ; Ilewes v. Dodd- ridge, 1 Rob, (y-A.) 143; Insurance Co, V. Kiger, 103 U. S, (13 Otto) 352; bk, 26, L, ed, 433 ; Warner i\ Martin, 52 U. S. (11 How.) 224; bk. 13, L. ed. 667 ; Queiroz v. Trueman, 3 Barn. & Cres. 348; Pickering v. Busk, 15 East, 38; M'Combie v. Davies, 6 East, 538; s. c. 7 East, 5; Martini v. Coles, 1 Maule & S. 140; Graham. :;. Dyster, 2 Starkie, 21 ; Paterson v. Tash, 2 Strange, 1178; Daubigny V. Duval, 5 T. R. 604; DeBouchout V. Goldsmid, 4 Vea. 210 ; 2 Kent Com. 625; Story on Agency, sec. 78. But in those cases where the factor has a lien upon the goods, he may pledge them to the amount of liis lien. Warner v. Martin, 52 U. S. (11 How.) 209 ; bk. 13, L. ed. 667. 4. A factor cannot transfer the goods for his oirn debts, and it of no conse- quence that the factor's debtor is ignorant of the fact that he is not the owner. See Warner r. Martin 52 U. S-. (11 How.) 209; bk. 13, L, ed. 067; Newsom v. Thorton, 6 East, 17 ; s. c. 2 Smith, 207 ; McCombie v. Davies, East, 538 ; s. c. 7 East, 5 Maanss v. Henderson, 1 East, 337 Guichard v. Morgan, 4 Moore, 36 Fielding r. Kymer, 2 Brod. & Bing. 639 ; DeBouchout v. Goldsmid, 5 Vea, 212; Paterson v. Tash, 2 Str. 1178 Daubigny v. Dnval, 5 T. R. 604 cited 1 Maule & S. 140, 147 ; Graham u. Dyster, cited 2 Starkie, 539. 5. The factor must have actual pos- session of the goods, or at least docu- mentary evidence of title before he can make a valid sale. Howland v. Woodruff, 60 N. Y. 73; Bouito v. Mosquei-a, 2 Bosw, (X. Y.) 401; Covin V. Hill, 4 Den. (N. Y.) 327; s. c. 6 N. Y. 374; Stevens r. Wilson, 6 Hill (N. Y.) 512 ; s, c, 3 Den, (N, Y,) 472; See, also, Cartwright v. Wil- merding, 24 N. Y, 523; Pegram v. Carson, 10 Bosw, (N. Y,) 505 ; Zach- risson v. Ahman, 2 Sandf, (N, Y,) 08, 75, 6, Sale by principal and factor, — Wliere the principal has sold goods to another, but had not notified Ms 44 PAKT I.] PARTIES. ne and taken to le the true owner of the goods so far as to give validity to sales'"^ made by them to buyers without notice of the fact that such vendors are not owners.^ By the fourth section of the same Act, purchasers from any " agent or * agents entrusted with any goods, wares, or mer- [*16] chandise, or to whom the same may be consigned," are protected in their purchases, notwithstanding notice that the vendors are agents; provided the purchase and payment be made in the usual and ordinary course of business, and the buyer has not notice at the time of purchase and pay- ment, of the absence of authority in the agent to make the sale or receive the payment. And by the Amendment Act, 5 & 6 Vict. c. 39, the possession of the goods themselves is treated as having the same effect as that of bills of lading, or "other documents of title;" and a "document of title" is defined to be "any document used in the ordinary course of business, as proof of the possession or control of goods, or authorizing, or purporting to authorize, either by endorse- factor thereof, and tlie factor subse- quently made a bond fide sale of the goods, which were still in his posses- sion, and delivered them to the pur- chaser, the latter sale was held valid. Jones V. Hodgkins, 01 Me. 480. See Western Union R. R. Co. v. Wagner, 65 111. 197 ; Nixon v. Brown, 57 N. H. 34 ; Crocker v. Crocker, 31 N. Y. 507; Bawls V. Deshler, 28 How. (N. Y.) Pr. 66 ; s. c. 4 App. Cas. (N. Y.) 12. See, also, Galvin v. Bacon, 11 Me. 28 ; b. c. 25 Am. Dec. 258 ; Quinn «. Davis, 78 Pa. St. 15; Baker v. Dinsmore, 72 Pa. St. 427 ; McMahon v. Sloan, 12 Pa. St. 220; s. c. 51 Am. Dec. 601. 2 Sale by agent. — Where the owner of a printing press and printing ma- terials entrusted his minor son with the sale of the property, and the son sold the same during the owner's ab- sence, and received therefor a part of the purchase price in cash, and took in his own name a. chattel mortgage to secure notes given for the balance of the purchase price, and while the mortgage remained in his name, he, becoming insolvent, assigned for the benefit of creditors, informing the as- signee that the mortgage belonged to the complainant ; but the assignee proceeded to foreclose the mortgage by advertisement, and the property was purchased by defendant, who was notified of complainant's claim, in a suit brought by complainant to reform the mortgage by the insertion of his name in place of that of his son, and praying for an injunction and receiver, where the evidence bears out the claim of complainant, he is entitled to the relief prayed for. Wait V. Axford (:Ntich.) 5 West. Rep. 776. ^ ^1 bond fide purchaser fior value, without notice of the arjencij, was pro- tected in a purchase of personal prop- erty from an agent who had been entrusted therewith to sell and ac- count, and who had removed the property from his store to his resi- dence, and treated it as his own ; and the principal was estopped from claim- ing the property from the purchaser. Dlas V. Chickering, 64 Md. 348 ; s. c. 1 Cent. Eep. 479. 45 *w FORMATION OF THE CONTRACT. [book I. ment or delivery, the possessor of such documents to transfer or receive goods tliereby represented." * * Nickerson v. Darrow, 87 Mass. (5 Allen) 419, 422; Navulshaw v. Brownrigg, 2 De G., M. & G. (Am. ed.) 441, 445 n. ; Johnson v. The Cre- dit Lyonnais, L. E. 2 C. P. Div. 224; s. c. L. R. .3 C. P. Div. 32. Facials' arts. — In many of the states and in Canada similar statutes have been passed. California, Civ. Code, 2.3ledge ;" per Bramwell B. in Cole v. The North Western Bank, L. R. 10 C. P. 375; and the definition of Willes J. in Heyman v. Flewker, 13 C. B. N. S. 519, at p. 527. The reader is also referred to the judgments of Willes J. in Fuentes v. Montis, L. R. 3 C. P. at p. 275, and of Blackburn J. in delivering the judgment of the Exchequer Chamber in Cole v. The North Western Bank, L. R. 10 C. P. at p. 357, where very full expositions of the law relat- ing to the factor's power of sale and pledge will be found.^ § 22. The following summary of the effect of the decisions -upon *the words "agent entrusted with [*17] and in possession" will, it is hoped, be found correct and useful. The word '^person" in 6 Geo. IV. c. 94, s. 1, must be read tor sold by one entire contract goods Bank v. Erie R. R. Co., 72 N. Y. 188 ; of himself and those of his principal, Kinsey v. Leggett, 71 N. Y. 387 ; it was held that only the factor could Marine Bank v. Fiske, 71 N. Y. 353 ; sue for the price. Roosevelt v. Do- I'irstNationalBankof Toledo y. Shaw, herty, 129 Mass. .301 ; s. c. 37 Am. 61 N. Y. 283 ; Howland r. Woodruff, Rep. 356. A purchaser buying from 60 iST. Y. 73 ; Mechanics & Traders a factor in belief that he is the owner, Bank v. Farmers & Mechanics Nat. may set off a debt due him from the Bank, 60 N. Y. 40, 52 ; Wooster i;. factor to a suit for the price by either Sherwood, 25 N. Y. 278, 284, 287 ; the factor or his principal. Merrick's Covell v. Hill, 6 N. Y. 374, 378 ; s. c. Estate, 5 Watts & S. (Pa.) 9; Gard- 4 Den. (X. Y.) 323; Hazard v. Fiske, ner v. Allen, 6 Ala. 187 ; s. c. 41 Am. 18 Hun (N. Y.) 277. A factor sell- Dec. 46. ing without authority must have 5 To come within the statute the actual possession of the goods, or he agent must have been entrusted, by cannot convey title. Howland v. the owner, with the possession of the Woodruff, 60 N. Y. 73; Bonito v. goods. See Farmers & Mechanics Moquera, 2 Bosw. (N. Y.) 401. 47 *17 FORMATION OF THE CONTEACT. [BOOK I. as ''agent" (Johnson v. Credit Lyonnais Co., 3 C. P. D. at p. 45). The " ai/cnt" must be an agent in a mercantile trans- action (Monk V. Whittenbury, 2 B. & Ad. 484; Wood v. Kow- cliffe, 6 Hare, Is^). A clerk or servant is not such an agent (Lamb v. Attenborough, 1 B. & S. 831 ; Jaulerry v. Britten, 5 Scott, (155; s. c. 4 Bing. N. C. 242.1 xhe agent must have been entrusted for the purpose of sale (Monk v. Whittenbury, uhi supra; Wood v. Rowcliffe, uhi supra), or for some object connected with the sale (Bains v. Swainson, 4 B. & S. 270; Vickers v. Hertz, L. R. 2 Sc. App. 113).^ If a person carries on two businesses, one that of an agent, such as is contemplated by the Act, the other not so, and if he has Ijeen entrusted in the latter capacity, he is not an " agent entrusted " within the meaning of the Act (Monk v. Whittenbury, iibi supra; Cole V. North Western Bank, L. R. 9 C. P. 470; aff. in Ex. Ch. 10 C. P. 354). But if he has been entrusted as agent for sale, although it is an isolated instance of such employment, he is an "agent entrusted" within the Act (Heynian v. Flew- ker, 13 C. B. N. S. 519). To constitute an entrustment with a document of title under 6 Geo. IV. c. 94, it was held that the owner must have intended the agent to be entrusted ^A factor or agent cannot delegate 13 Am. Rep. 474 ; Bassett v. Spofford, his auihon'li/. Loomis c. Simpson, 45 N. Y. .391 ; ^. e. 6 Am. Rep. 101; 13 Iowa, .532 ; Warner v. Martin, 52 Zink v. People, 6 Abb. (N. Y.) N. C. U. S. (11 How.) 209, 223; bk. 13, L. 413. In a case where the plaintiff ed. 667 ; Truman ti. Loder, 11 Ad. & forwarded wheat to commission mer- E. 589; Catlin w. Bell, 4 Campb. 183; chants to be shipped to Europe and Cockran r. Irlam, 2 Maul. & S. 301 ; sold by them to his account, and the Solly !'. Rathbone, 2 Maul. & S. 298 ; merchants shipped the wheat in their 1 Parson's Contr. 71, 84. own name, on a vessel chartered by ^ Sale bij factors. — The relation of them, of which the defendant was principal and agent must exist to ren- master, but had no notice of the der tlie sale valid. Stollenwerck v. plaintiff's ownership. The commis- Thatcher, 116 Mass. 224, 227; Na- sion merchant becoming insolvent, tional Bank r. Dearborn, 115 Mass. broke tlie terms of the chartered 219; First Nat. Bank of Toledo r. party, by refusing to proceed with Shaw, 01 K. Y. 299; Mechanics & the loading. The court held that the Traders Bank v. Farmers & Mechan- ship owner could hold the wheat for ics Nat. Bank, 60 N. Y. 40; Collins freight and charges under his con- v. Ralli, 20 Hun (N. Y.) 246, 251, tract with the commission merchant, affirmed in 85 N. Y. 637 ; Pease v. by force of the factors' act. Hayes Gloahec, L. R. 1 P. C. 219, 228; Gur- v. Campbell, 55 Cal. 421; Green v. ncy V. Behrend, 3 El. & BI. 622, 032. Campbell, 52 Cal. 586 ; Western See Loomis t). People, 67 N. Y. 322; Transportation Co. r. Marshall, 4 Smith v. People, 63 N. Y. 113; s. c. Abb. Ap. Dec. (N. Y.) 675. 48 PAET I.] PARTIES. *18 with the document actually pledged. It was not sufficient that he had entrusted him with some other document of title, by means of which he had obtained possession of the docu- ment pledged (Close v. Holmes, 2 Moo. & Rob. 22; Phillips V. Huth, 6 M. & W. 572 ; s. c. in Ex. Ch., sub nomine Hat- field V. Phillips, 9 M. & W. 64T; and in the House of Lords, 14 M. & W. 665; 12 CI. & Fin. 343).3 But this has now been altered by the definition of entrustment given in 5 & 6 Vict. c. 39, s. 4. A vendor allowed by the purchaser to retain possession of the documents of title to goods was held not to be an agent entrusted under 5 & 6 Vict. c. 39, s. 1 (Johnson v. Credit Lyonnais Co., 2 C. P. D. 224; aff. on appeal, 3 C. * P. D. 32) ; but this has now been altered by 40 & [*18] 41 Vict. c. 39, s. 3.* A purchaser obtaining possession of the documents of title to the goods was held not to be an agent entrusted under 5 & 6 Vict. c. 39, s. 1 (Jenkyns v. Usborne, 7 M. & G. 678 ; s. c. 8 Scott, N. R. 505 ; Van Casteel v. Booker, 2 Ex. 691) ; but the law has now been altered by 40 and 41 Vict. c. 39, s. 4.6 5 The statute applies to those Y. 121 ; Western Transportation Co. cases in whicli the owner consents v. Marshall, 37 Barb. (N. Y.) 509, that the shipment may be made in 515; Saltus v. Everett, 20 Wend, the name of the third person. Haz- (N. Y.) 267; s. c. 32 Am. Dec. 541; ardy v. Tiske, 18 Hun (N. Y.) 277. Pickering v. Busk, 15 East, 43. Under the Louisiana act, possession * Hazard v. Fiske, 18 Hun (N. Y.) of the goods gives the broker an ap- 277. parent ownersliip, and lie can transfer ^ Where one obtains possession of them to a bond fide pledgee for value goods, under an agreement that the without notice. Henry v. Warehouse title shall not pass until the price is Co., 81 Pa. St. 76, 79. But the general paid, and afterwards sells them to a rule is that a factor, as against his bona, fide purchaser, such purchaser consignor, has no interest in the con- will obtain a good title under the signed property, and cannot pledge factors' act. Western Union R. E. it for his own debt. See Insurance Co. v. Wagner, 65 111. 197 ; Michigan Co. V. Kiger, 103 U. S. (13 Otto) 352; Central E. K. Co. v. Phillips, 60 III. bk. 26, L. ed. 438. See, also, Lobdell v. 190 ; Ohio & M. E. R. Co. v. Kerr, 49 Baker, 42 Mass. (1 Mete.) 193, 202; 111. 459; Chicago Dock Co. v. Foster, s. c. 35 Am. Dec. 358; Eolsom v. 48 111. 507; Butters v. Haughwout, Batchelder, 22 N. H. (2 Post.) 47, 42 111.18; Brundage ti. Camp, 21 111. 51; Crocker v. Crocker, 31 N. Y. 330; Jennings v. Gage, 13 111. 611; 507 ; Wooster v. Sherwood, 25 N. Y. s. c. 56 Am. Dec. 476 ; Smith v. 278, 284 ; Brower v. Peabody, 13 N. Lynes, 5 N. Y. 42 ; Eawls v. Deshler, 49 *18 FORMATION OF THE CONTIIACT. [BOOK I. Again, under 5 & 6 Vict. c. 39, it was held that the agent must have been actually entrusted at the time of the pledge, and if the entrustment had been withdra^'n, no matter though secretly and though possession remained, yet the pledgee was not protected (Fuentes v. JMontis, L. R. 3 C. P. 268). But this has now been altered by 40 & 41 Vict. c. 39, s. 2.6 Finally, if the owner really entrusts the agent with the document of title, it is immaterial, so far as the safety of the purchaser or pledgee is concerned, that the entrustment was obtained in consequence of the agent's false and fraudulent representations to the owner (Sheppard v. Union Bank of London, 7 H. & N. 661). But this case must be carefully distinguished from cases where there is no real entrustment as ai/ent of the owner, but the possession only of the docu- ment has been obtained by fraud. In such case the person obtaining possession has no title at all, either as principal or agent, and can convey none to any one else (Kingsford v. Merry, 11 Ex. 577 ; 1 H. & N. 503 ; Higgins v. Burton, 26 L. J. Ex. 342).^] 4 Abb. Ap. Dec. (N. Y.) 12, 16 ; Hol- lingsworth r. Napier, 3 Cai. (N. Y.) 182; Buck v. Grimshaw, 1 Edw, Ch. (N. Y.) 140 ; Bates v. Cunningham, 12 Hun (N, Y.) 21 ; Haggerty v. Palmer, 6 Jolins. Ch. (N. Y.) 437; Keeler V. Field, 1 Paige Ch. (N. Y.) 312; Eose V. Story, 1 Pa. St. 190 ; s. c. 44 Am. Dec. 121 ; Martin v. Mathiot, 14 Serg. & P. (Pa.) 214; s. c. 16 Am. Dec. 491 ; Lickbarrow v. Mason, 2 T. E. 63. t'nntra: Sawyer v. Fisher, 32 Me. 28 ; Tibbetts v. Towle, 12 Me. 341; Benner v. Puffer, 114 Mass. 376 ; Hirschorn v. Canney, 98 Mass. 149 ; Deshon v. Bigelow, 74 Mass. (8 Gray) 159 ; Coggill v. Hartford & N. H. E. E. Co., 69 Mass. (3 Gray) 545 ; Sargent v. Gile, 8 N. H. 325. ^ Where a commission merchant, who sells and delivers property en- trusted to him for sale, before notice of tlie revocation of his authority, the purchaser, under such sale there- by acquires a good title, as against a prior purchaser, from the consignor without delivery. Jones v. Hodgkins, 61 Me. 480 ; Harper v. Little, 2 Me. (2 Greenl.) 18; s. c. 11 Am. Dec. 25. However, see Spring v. Coffin, 10 Mass. 31. ^ Possession obtained by fraud. — Property in things movable can only pass from the owner by his own act and ccmsent, except in those cases where the owner has, by his direct and voluntary act, conferred upon the person from the bond fde vendee, and obtains title, the apparent right of property as owner, or of disposal as agent. Brower v. Peabody, 13 N. Y. 121, 126 ; Saltus v. Everett, 20 Wend. (N. Y.) 267 ; s. c, 32 Am. Dec. 541. Hence where property is contracted for cash on ilelivijry, and there is no modification of the contract in this particular, and the purchaser obtains possession of the property purchased, without the vendor's knowledge, or consent, and without paying therefor, and sells and delivers it to a third person, such third person thereby 50 PART I.] PARTIES. no § 23. These acts apply solely to persons entrusted as fac- tors or commission merchants, not to persons to whose em- ployment a power of sale is not ordinarily incident, as a wharfinger who receives goods usually without power to sell.^ The statute is limited in its scope to mercantile transactions, to dealings in goods and merchandise, and does not embrace sales of furniture or goods in possession of a tenant or bailee for hire. A purchaser in good faith from such ven- dors would be liable to trover to the true * owner.^ [*19] Mr. Chitty, in his " Treatise on Contracts " ^ has the following passage : — "It is said, however, that if the real owner of goods suffer another to have possession thereof, or of these documents which are the indicia of property therein, — • thereby enabling him to hold himself forth to the world as having not the possession only, but the property, — • a sale * by such person to a purchaser without notice will bind the true owner (^per Abbott, C. J., Dyer v. Pearson, 3 B. acquires no title. Brower v. Pea- body, 13 N. Y. 121. In Barker v. Dinsmore, 72 Pa. St. 427 ; s. c. 13 Am. Rep. 697, a man representing himself to be connected with a well- known firm, contracted for goods to be consigned to the firm at Pittsburg, and paid for there, and by this means got possession of the goods, not upon his own individual responsibility, but on that of such firm, and afterwards sold them. The Supreme Court of Pennsylvania held that no title passed to the purchaser. See, also, Dows r. Greene, 24 N. Y. 638 ; Dows v. Perrin, 16 N. Y. 325 ; Western Transportation Co. v. Mar- shall, 4 Abb. Ap. Dec. 575, affirming 37 Barb. (N. Y.) 609; Mowrey v. Walsh, 8 Cow. (N. Y.) 238 ; Root v. French, 13 Wend. (N. Y.) 570; s. c. 28 Am. Dec. 428. 1 Monks V. Wittenbury, 2 B. & Ad. 484. American authorities. — Quinn v. Davis, 78 Pa. St. 15; Kuseiiberg v. Brown, 42 Pa. St. 173; McMahon v. Sloan, 12 Pa. St. 229 ; s. e. 51 Am. Dec. 601 ; Lecky v. McDermott, 8 Serg. & R. (Pa.) 500 ; Rapp v. Palm- er, 3 Watts (Pa.) 178; Dows v. Na- tional Exchange Bank, 91 U. S. (1 Otto) 618 ; bk. 23, L. ed. 214. 2 Loeschman v. Machin, 2 Stark. 311 ; Cooper ;;. Willomat, 1 C. B. 672. American authorities. — Marshall v. Beeber, 53 Ind. 83; Prime v. Cobb, 63 Me. 200; Galvin v. Bacon, 11 Me. (2 Pairf.) 28; Bearce o. Bowker, 115 Mass. 129, 132; Gilmore v. Newton, 91 Mass. (9 Allen) 171 ; Stanley v. Gaylord. 55 Mass. (1 Cush.) 536; s. c. 48 Am. Dec. 643; Porter v. Parks, 49 N. Y. 564; Barker v. Dinsmore, 72 Pa. St. 427; Cooper v. Willomat, 1 C. B. 672; Loeschman ;;. Machin, 2 Stark. 311. 8 Page 362, 11th ed. 1881. * Where the owner of a horse placed him for sale in the hands of a commission merchant, who exchanged the horse for another and §25, it was held that his autliority was terminated by this transaction, and that the prin- cipal was not liable for subsequent transactions and the board of horses in trade. Wing v. Neal (Me. Jan. 20, 1880), 1 New Eng. Rep. 665. 51 ^9 FORMATION OF THE CONTKACT. [book & C. 38 ; per Bayle.7, J., Boyson v. Coles, 6 :\L & S. 14).^ But jjrobably this proposition ouglit to be limited to cases where ^ Person trusted with possession hij owner. — In a case wliere the plaintiff employed one M. to purchase a horse for him, and M. bought the horse, paid for it with plaintiff's money, and took a bill of sale in his own name, and afterwards informed tlie plaintiff of what he liad done, and showed him the bill of sale ; but the plaintiff per- mitted him to go away with the horse and bill of sale still in his possession. M. thereupon went to the defendant, who had no knowledge of the agency, showed him the bill of sale, sold him the horse for cash, and absconded. The court held that the plaintiff could not recover in an action of trover for the horse. Xi.xon v. Brown, 57 N. H. 34 ; s. c. 4 Am. L. Times Rep. N. S. 187. The court say in this case that it is a general rule that possession of goods by a bailee or servant, gives him no power to make any disposition of them, except by virtue of actual authority received from the owner (Folsom V. Batchelder, 22 N. H. 51) and is so well settled as to be quite elementary; but there are several ex- ceptions to this rule quite as well settled and quite as well understood, as the rule itself ; among which ex- ceptions, they say, is where the owner has allowed the bailee in possession to hold out appearance of an autliority to sell, which would deceive and de- fraud tlie fair purchaser, if the law allowed the validity of the sale to be questioned. Western Union K. E. Co. V. Wagner, 65 111. 107 ; Michigan Cent. R. R. Co. v. Phillips, 60 111. 190, Western Transportation Co. v. Mar- shall, 4 Abb. App. Dec. (N. Y.) 575 ; affirming s. c. 37 Barb. (N. Y.) 509 ; Pickering u. Busk, 15East,41; Hartop V. I-Ioare, 1 Wils. 8; s. c. 2 Strange, 1 187; 3 Atk. 44. It is a maxim alike in the civil and common law that name plus juris in alium transferre protest quam ipse kabet. 2 Kent Com. 324. Judge Rapallo says in McNeil v. Tenth Na- tional Bank, 46 X. Y. 325 ; s. c. 7 Am. Rep. 341, that " it is a well established principle that where the true owner holds out another, or allows him to appear as the owner of, or as having full power of disposition over the property, and innocent third parties are thus led into dealing with such apparent owner, they will be pro- tected ; their rights in such case do not depend upon the actual title or au- thority of the party witli whom they deal, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or power which, tlirough negligence or mistaken con- fidence, he caused or allowed to ap- pear to be vested in the party mak- ing the conveyance," cithig Pickering V. Busk, 15 East, 38; Moore ;•. Metro- politan Nat. Bank, 55 X. Y. 41 ; s. c. 14 Am. Rep. 173 ; Mowrey v. Walsh, 8 Cow. (N. Y.) 238 ; Saltus v. Everett, 20 Wend. (N. Y.) 207, 284 ; s. c. 32 Am. Dec. 541; Root v. French, 13 Wend. (N. Y.) 570 ; s. c. 28 Am. Dec. 428; Gregg v. Wells, 10 Ad. & E. 90. In the case of Pickering v. Busk, IS East, 38, vfhicli is the leading case on the subject. Swallow, a broker, had purchased from the plaintiff (Picker- ing) a quantity of hemp which by the plaintiff's desire was delivered to Swallow, by a transfer to him on the books of the wharfinger; shortly after, another load of hemp was pur- chased by Swallow, which was trans- ferred to the name of Pickering or Swallow, which the court held to be the same as if it had been transferred to the name of Swallow, the plaintiff paid for the hemp. Swallow after- wards sold the hemp to Hayward & Co., who paid forit ; the plaintiff sued the assignee in bankruptcy of Hay- ward & Co. in trover, for the hemp ; and 62 PART I.] PAETIKS. ^19 the person who had the possession of the goods was one who from the nature of his employment might be taken primd facie to have had the right to seU." ^ This limitation suggested by Mr. Chitty to the rule propounded in the dida of the two learned judges was approved by the Barons of the Exchequer in Higgins v. Burton,? and when thus limited, the principle does not differ substantially from the provisions of the Fac- tors' Act, as amended by the 5 & 6 Vict. c. 39. the court held that the plaintiff haying given to Swallow all the indicia, could not afterwards he permitted to say that Swallow had no authority to sell the hemp. See generally, Mechanics' & Traders' Bank v. Farmers' & Me- chanics' Bank, 60 N. Y. 40 ; Porter v. Parks, 49 N. Y. 564 ; Eawls v. Desh- ler, 4 Abb. App. Dec. (N. Y.) 12; Quinn v. Davis, 78 Pa. St. 15; McMahon v. Sloan, 12 Pa. St. 229; s. c. 51 Am. Dec. 601. ^ The doctrine of estoppel governs this principle. See Barnard v. Camp- bell, 55 N. Y. 456; McXeil v. Tenth National Bank, 46 N. Y. 325 ; s. c. 7 Am Rep. 341 ; Nixon v. Brown, 57 N. H. .'34, 39. In Nixon v. Brown, it is said that the principle is quite ele- mentary " that where one of two innocent parties must suffer by the fraud of a third person, he who has trusted such third person and enabled him to deceive the other, cannot abate the consequences of the fraud, how- ever innocent he may be in olher respects." Story on Agency, sec. 127. In Barnard v. Campbell, supra, the court say that " two things must con- cur to create an estoppel by which an owner may be deprived of his prop- erty by the act of a third person, without his assent, under the rule now considered : first, the owner must clothe the person assuming to dispose of the property with the apparent title to, or authority to dispose of it ; and second, the person alleging the estoppel must have sold and parted with value on the faith of such ap- parent ownership. In this respect it does not differ from other estoppels in pais/' But in order to create an estoppel, the owner must have enabled the wrong-doer to perpetrate the fraud. Marine Bank of Buffalo v. Mske, 71 N. Y. 353. For the owner cannot be divested of his property, except by his own voluntary act and consent, or by some act which would be effec- tual in giving title as against him; Weaver y. Barden, 49 N. Y. 286 ; City Bank of Rochester v. Jones, 4 N. Y. 497 ; s. c. 55 Am. Dec. 290 ; Brower v. Peabody, 13 N. Y. 121 ; Covin. V. Hill, 4 Den. (N. Y.) 32:! ; Prescott V. De Forest, 16 Johns. (N. Y.) 159 ; Wheelwright v. Depeyster, 1 Johns. (N. Y.) 471; =. c. 3 Am. Dec. 345; Williams v. Merle, 11 Wend. (N. Y.) 80 ; s. c. 25 Am. Dec. 604; Dows v. National Exchange Bank of Milwaukee, 91 U. S. (1 Otto) 618; bk. 2.3, L. ed. 214; Jenkyns v. Brown, 14 Q. B. 496 ; because it is well settled that no person can trans- fer the title to another's property, un- less such other has qualified him witli authority, real or apparent, to do so, that is has given him authority to act as agent or as owner. McGold- rick V. Willits, 52 N. Y. 612, 017; Ballard v. Burgett, 40 N. Y. 314. See also Jones v. Hodgkins, 61 ile. 480. But compare Bohn v. Cleaver, 25 La. An. 419. ^ 26 L. J. Ex. 342. See, also, Pick- ering V. Busk, 15 East, 38; Cole i-. North Western Bank, L. 1!. 9 C. V. 470; aflSrmed in Ex. Ch. 10 C. P. 354 ; and per' Cockburn C. J. in 53 »20 FORMATION OF THE CONTEACT. [BOOK I. § 24. But the cases decided under the Factors' Acts leave this statement open to grave doubt, and sliow the extreme difficulty of defining- the subject-matter to which it applies. In Heyman v. Flewker,i a picture dealer was held to be an "agent" entrusted with the goods under the Act, whose ordinary business was not to sell pictures, but who was authorized to sell the particular pictures in controversy, and instead of so doing pledged them. In Baines v. Swainson,^ the circumstances were that one Emsley, who carried on business at Leeds as factor and com- mission merchant, falsely represented to the plaintiffs that he could sell some of their goods to one Sykes. The [*20] * plaintiffs thereupon sent to the premises of Emsley the goods, to be by him "perched," or stretched on poles, so that the purchaser could examine them, and then to deliver them. The goods were sent in several successive lots. Emsley sold them to the defendant at a less price than he represented he could get from Sykes. The plaintiffs brought trover, and Martin B. directed the jury to give Johnson r. Credit Lyonnais, 3 C. P. D. at iJ. 39. American authorities. — Labdell i\ Baker, 42 Mass. (1 Mete.) 202, 203 ; Folsom V. Batchelder, 22 N. H. 51 ; Crocker v. Crocker, 31 N, T. 507; Woosteru. Sherwood, 25 N. Y. 278; Saltus 1.. Everett, 20 Wend. (N. Y.) 267. 1 13 C. B. N. S. 519; 32 L. J. C. P. 132. 2 4 B. & S. 270 ; 35 L. J. Q. B. 281. A sale and delivery procured bij fraud passes no title as between ti)e par- ties. Tliompson v. Rose, 16 Conn. 71 ; Landauer v. Cochran, 54 Ga. 533 ; Patton v. Campbell, 70 111. 72 ; Kline v. Baker, 99 Mass. 253; Fox V. Webster, 46 Mo. 181; Stevvart v. Emerson, 62 N. H. 301 ; Hennequin V. Naylor, 24 K Y. 139; Taraplin v. Addy, 8 Cow. (N. Y.) 239 ; Woodworth V. Kissam, 15 Johns. (N. Y.) 186; Van Cleef v. Fleet, 15 Johns. (N. Y.) 147; Lloyd v. Brewster, 4 Paige Ch. (N. Y.) 537 ; Lupin v. Marie, 2 Paige 54 Ch. (N. Y.) 169; Andrew v. Diete- rieh, 14 Wend. (N. Y.) 31 ; Root v. French, 13 Wend. (N. Y.) 570; Til- ton Safe Co. V. Tisdale, 48 Vt. 83 ; Hodgeden v. Hubbard, 18 Vt. 504; Donaldson v. Farwell, 93 U. S. (3 Otto) 631; bk. 23, L. ed. 993; John- son V. Peck, 1 Woodb. & M. C. C. 334. But a subsequent bond fide purchaser will be protected. Jennings V. Gage, 13 111. 610 ; Ditson v. Randall, 33 Me. 202; Hall v. Hinks, 21 Md. 406; Hoffman v. Noble, 47 Mass. (6 Mete.) 68; Barnard u. Campbell, 58 N. Y. 73; s. c. 17 Am. Rep. 208; 55 N. Y. 456 ; 14 Am. Rep. 289 ; Crocker V. Crocker, 31 N. Y. 607 ; Mow- rey v. Walsh, 8 Cow. (N. Y.) 2.58; Shearer v. Barrett, Hill & D. (N. Y.) 70; Saltus v. Everett, 20 Wend. (N. Y.) 267; Root v. French, 13 Wend. (N. Y.) 572 ; Sinclair v. Healy, 40 Pa. St. 417 ; Thompson v. Lee, 3 Watts & S. (Pa.) 479; Arendale i: Morgan, 5 Sneed (Tenn.), 703 ; Wil- liams 0. Given, 6 Gratt. (Va.) 2G8. PAKT I.] PARTIES. *21 them a verdict. The Queen's Bench directed a new trial, Wightman and Crompton JJ. holding Emsley to be an agent within the meaning of the Act, and Blackburn J. thinking that at all events there was a case for the jury to determine that fact, and also to decide whether the sale had taken place in the ordinary course of business. Crompton and Black- burn JJ. were of opinion that the agencies referred to by the Act are such as are mercantile only, and of persons who, as mercantile agents, would have to make sales in the ordi- nary course of business, as had previously been held by Vice- Chancellor Wigram, in Wood v. Rowcliffe.^ Crompton J. said it was impossible to define what was meant, and "it is one of those loose enactments which conveys much difficulty. When you get to these Acts of Parliament the difficulty is immense." § 25. In Fuentes v. Montis,^ the Court of Common Pleas gave judgment (affirmed in Ex. Ch.) in favor of the plain- tiffs, wine merchants, in Spain, for certain casks of sherry, which they had consigned for sale to a London factor, who had pledged them as security for advances made by the defendant after revocation of the factor's authority, although the defendant was in good faith, and ignorant of the revoca- tion, and although the wine remained in the factor's posses- sion ; the Court holding that the words " entrusted with and in possession of,'' must be construed as referring to the time when the factor made the pledge, and that he was no longer "entrusted with" the goods after he had been ordered to deliver them to another factor for account of the consignor, * although he had disobeyed the order, [*21] and remained " in possession." Under this decision, which the judges, Willes, Keating, and Smith, expressed rfegret at being constrained to deliver, the confidence felt by merchants in dealing with factors in rela- tion to goods consigned to them, and in their possession, must be greatly shaken ; and there seems certainly to be no 3 6 Hare, 183. Sheppard v. The Union Bank of 1 L. R. 3 C. P. 268; 37 L, J. C. London, 7 H. & N. 661; 31 L. J. Ex. P. 137 ; L. R. 4 C. P. 93. See also 154. 55 *22 FORMATION OF THE CONTRACT. [BOOK I. mode of making advances safely to a factor on the security of goods on consignment, for a merchant or banker in London or Liverpool has no means of finding out whether the foreign consignor has or has not revoked the factor's authority. In this case also Willes J. expressed his entire concurrence in the following dictum of Blackburn J. reported in Baines v. Swainson : " I do not agree with the counsel for the defend- ant, that the mere fact of an agent being found in possession of goods, although they have been handed to him by the owner knowing that he carries on such a business, amounts to an ' entrusting ' him as agent; though I think that under that part of section 4 of statute 5 & 6 Vict. c. 39, to which I have referred, the fact of a person being put in possession of goods, calls upon the person who gave him possession to explain and show that it was not an entrusting." It wou.ld seem to result from this that a purchaser, even from a factor, would get no title to goods if the consignor could show that he had sent them to the factor merely to be kept in storage, or to be forwarded to another place, although the factor was in possession of them with the consent of the consignor, and was a person whose ordinary business consisted in selling goods sent to him on consignment. [The law has now been altered as to secret revocations of entrustment by 40 & 41 Vict. c. 39, s. 2.] Although this case was alSrmed in the Ex. Cli., the dicta o that the Act has reference only to factors for sale of the goods are disapproved liy Lord Westbury in Viekers [*22] V. Hertz,^ *so that no one would venture, in the 2L. E. 2 Sc. App. 113, 118; but refer, with approval, to Baines v. see remarks of Blackburn J. in Cole Swainson, 4 B. & .S. 270, the facts in V. North Western Bank, L. R. 10 which bear a striking resemblance to C. P. at p. 374, where he shows that those in Viekers v. Hertz. Willes J. in Fuentes v. Montis, L. Construction of act. — In Oole v. R. 3 C. P. at p. 284, did not express North Western Bank, L. R. 10 C. P. an opinion that the Act only applied .'574. Blackburn J. says that Willes to factors toT future sale. Mr. Justice J. in Fuentes v. Montis, L. R. 8 C. P. Willes says e.xpressly in that case, at 268, did not express an opinion that p. 279, " I do not mean to limit the the act only applied to factors for operation of the statute to agents future sale. In that case Jlr. Justice entrusted with goods for future sale, Willes expressly says at p. 279, " I either generally or in the particular do not mean to limit the operation of instance;" and he then goes on to the statute to agents entrusted witk 56 PAET I.] PAETIES. *22 present state of the authorities, to give a positive opinion as to the true construction of this statute. The subject is further discussed post. Book V. Part I, Ch. IV., on Lien. Section II. — WHO MAY BUY. § 26. There are certain classes of persons incompetent to contract in general, but who under special circumstances may- make valid purchases. Infants, insane persons, and married women, are usually protected from liability on contracts, as also drunkards when in such a state as to be unable to un- derstand what they are doing ; such persons being considered to be devoid of that freedom of will combined with that degree of reason and judgment, that can alone enable them to give the assent which is necessary to constitute a valid engagement. The exceptions to this general disability, so far as concerns the competency to purchase, will now be considered.! goods for future sale, either generally or in the particular instance." He then refers, with approval, to Baines V. Swainson, 4 E. & S. 270. The facts in the latter case bear a striking resemblance to those in Vickers v. Hertz. 1 Who may not buy. — It is a well- settled doctrine that trustees cannot buy, take, or sell the property of their cestui que trusts, " though any person can become a purchaser of goods necessary in property, where he has a duty to perform which is inconsistent with the character of the purchaser." Davoue v. Fanning, 2 Johns. Ch, (N. Y.) 252. The rule re- fers to agents, public or private, and embraces every relation in which there may arise a conflict between the duty which the vendor or pur- chaser owes to the person with whom he is dealing, or on whose account he is acting, and his own individual ne- cessities. Michoud V. Girond, 45 U. S. (4 How.) 603, 555, 559; bk. 11, L.ed. 1076, 1099, 1101. The court say in this case that "if persons having a confidential character were permitted to avail themselves of any knowledge acquired in that capacity, they might be induced to conceal their information, and not to exercise it for the benefit of the persons rely- ing upon their integrity. The char- acters are inconsistent. Emptor emit quam minimo potest, venditor t'endtt quam inaximo potest." The prohibi- tion to purchase is not confined to those who were formerly active in effecting a sale ; it extends to all upon whom the act of tlie party or of the law gives a fiduciary relation to tlie subject of the trust, aud which they are not permitted to shake off at pleasure. Beeson v. Beeson, 9 Pa. St. (9 Barr.) 279, 284. This prohibi- tion to purchase extends to agents, guardians, executors, administrators, attorneys, sheriffs, assignees, and the directors of corporations. 1. Trustees. — Kellick v. Flexney, 4 Ero. C. C. 161 ; Hall v. Noyes, -3 Bro. C. C. 483 ; Fox v. Maekreth, 2 57 *22 rORMATION OF THE CONTKACT. [book § 27. Infants, tliat is, persons under the age of twenty- one years, are protected by law from liability on purchases made by them, unless for necessaries. The purchase by an infant, however, is not absolutely A'oid, but only voidable in his favor.^ He may maintain an Bro. C. C. 400; s. c. 4 Bro. C. C. (Tomlins') 2."j8 ; Whitackre v. Whit- ackre, Sel. Chan. Cases, 13; Hall v. Noyes, 3 Ves. 748 ; Whichcote v. Lawrence, 3 Ves. 740 ; Campbell v. Walker, 5 Ves. 678. Agenlfs. — York Buildings Co. v. Mackenzie, 8 Bro. I". C. 42 ; Wood- house V. Meredith, 1 Jac. & Walk. 204 ; Wliitcomb v. Minchin, 5 Madd. 91 ; Watt -'. Grove, 2 Sch. & Lef. 492 ; Lowther v. Lovvtlier, 13 Ves. 95. Commissioners of bankrupts. — Ex parte Bennett, 10 Ves. 381 ; Ex parte Harrison, 1 Buck. 17 ; Ex parte Dura- bell, 2 Glyn. & J. 121, Mort. notes 33, cited. Assiijiiees of bankrupts. — Ex parte Bage, 4 Madd. 459; Ex parte Bad- cock, 1 Mont, & Mac. 231 ; Ex parte Lacey, 6 Ves. 625 ; Ex parte Rey- nolds, 5 Ves. 707. Solicitors to the commission. — Ex parte Dumbell, 2 Glyn. & J. 121, Mort. notes, cited; 3 Mer. 200; see 12 Ves. 372; Ex parte Bennett, 10 Ves. 381 ; Ex parte Churchill, cited in 8 ^'es. 343 ; Owen v. Foulkes, 6 Ves. 630, note b ; Ex parte Linwood, cited in 8 Ves. 343. Auctioneers. — Oliver ik Court, 8 Price, 127 ; Coles v. Trecothick, 1 Smith's Rep. 233; s. c. 9 Ves. 234; Ex parte Hughes, 6 Ves. 617. See 1 White & P. Lead. Cas. in Eq. (Ed.l876),(12,238; 2 White & P. Lead. Cas. in Eq. (Ed. 1228). An agent or trustee cannot directly, or indirectly, become a purcliaser of property con- fined to his care. Bank of Orleans V. Torrey, 7 Plill (N. Y.) 260 ; s. c. 9 Paige (N. Y.) 049; Dobson v. Eacey, 3 Sandf. Ch. (N. Y.) 60; Church V. Mar. Ins. Co., 1 Mason C. C. 341; Baker v. Whiting, 3 Sumn. C. C. 476. A.nd a purchase by an agent is in equity a purchase for the principal. Baker s. Whiting, 3 Sumn, C. C. 475. An agent employed to purchase for another cannot purchase for himself. Church V. Sterling, 16 Conn. 388; Johnson v. Blackman, 11 Conn. 342 ; Banks u. Judah, 8 Conn. 145; Beal V. McKiernan, 6 La. 407 ; Safford v. Hynds, 39 Barb. (N. Y.) 025 ; Park- ist V. Alexander, 2 John. Ch. (N. Y.) 394; Tear v. Matthews, Wright (Ohio) 371 ; Bartholemew v. Leach, 7 Watts (Pa.) 472; Taylor w. Salmon, 4 Myl. & Cr. 139; Massey t'. Davies, 2 Ves. Jr. 317; East I. Co. v. flenchraan, 1 Ves. Jr. 289. And an agent em- ployed to sell cannot buy the prop- erty in question. McDonald v. Lord, 2 Robt. (X. Y.) 7. A trustee is dis- qualified from purcliasing an interest adverse to that of his cestui qne trust in the trust property. Jlichoud v. Girod, 45 U. S. (4 How.) 503 ; bk. 1.1, L. ed. 1077; Walden r. Bodley, 39 U. S. (14 Pet.) 156; bk. 10, L. ed. 398; Sloo v. Law, 3 Blatchf. C. C. 459; Lenox v. Notrebe, Hempst. C. C. 251 ; Prevost v. Gratz, Pet. C. C. 364 ; Matter of Thorp, 2 Ware (Dav.) C. C. 200. 1 Gibbs V. Merrell, 3 Taunt. 307; Hunt !•• Massey, 5 B. & Ad. 902 ; Holt !'. Clareucieux, 2 Str. 988; Zouch v. Parsons, 3 Burr. 1794; per Abbott C. J. in The King v. Inhabitants of Chillesford, 4 B. & C. at p. lOll. Chandler v. Simmons, 97 M.iss. 512 ; Adelphia Loan Association v. Fair- hurst, 9 Ex. 422, 430. Purchase bij infant. — If an infant lives with his parents, wlio provide for him everything which in their 58 PART I.] PARTIES. •^22 judgment appears to he proper) the infant cannot bind liimself for sucli articles as miglit under otlier circum- ptances be deemed necessary. Bain- bridge V. Pickering, 2 "Wm. Bl, 1325; Cook V. Deaton, 3 Carr. & P. 114; s. c. 14 Eng. C. L. 232 ; Barrensdale V. Greville, 1 Selw. N. P. 127. If he lives apart from his parents, laboring and receiving the profits of his labor to his own use, he is pro tempore acting as his own man by the assent of his parents, and will be lia- ble for necessaries suitable to his condition. Guthrie v. Morris, 22 Ark. 411 ; Cantine v. Phillips, 5 Harr. (Del.) 428; Price v. Sanders, 60 Ind. 310; Stone V. Denison, 30 Mass. (13 Pick.) 1; s. c. 23 Am. Dec. 654; Conn v. Coburn, 7 N. H. 368; s. c. 26. Am. Dec. 746; Randall v. Sweet, 1 Den. (N. Y.) 460; Smith v. Young, 2 Dev. & Bat. (N. C.) 26; Hyman i', Cain, 3 Jones (N. C.) L. Ill ; Haine v. Tar- rant, 2 Hill (S. C.) L. 100 and *400 ; Dubose V. Wheddon, 4 McC. (S. C.) L. 221 ; McMinn v. Richmonds, 6 Yerg. (Tenn.) 9; Maddox v. Miller, 1 Maule & S. 738. Contra, Maples v. Wightman, 4 Conn. 376; Alsop v. Todd, 2 Root (Conn.) 105; Martin V. Mayo, 10 Mass. 137 ; s. c. 6 Am. Dec. 103 ; Hussey v. Jewett, 9 Mass. 100; Smith v. Mayo, 9 Mass. 02; s. c. 6 Am. Dec. 28; Van Winkle v. Ketchum, 3 Cai. (N. Y.) 323 ; Swasey V. Adm'r of Vanderheyden, 10 Johns. (N. Y.) 34; Wailing v. Toll, 9 Johns. (N. Y.) 141 ; Williamson v. Watts, 1 Campb. N. P. 552. But the amount covered will not necessarily be the price agreed upon, but only the rea- sonable value of the articles fur- nished. Guthrie v. Morris, 22 Ark. 411; Morton v. Steward, 5 111. App. 533; Earle v. Reed, 51 Mass. (10 Mete.) 387 ; Rainwater v. Durham, 2 Nott & McC. (S. C.) 524 ; s. c. 10 Am. Dec. 637. Whether the articles fur- nished are of the class for which an infant is liable, is a matter of law; whether they were actually necessa- ries, and the price reasonable, is a matter of fact for the jury. Stanton V. Willson, 3 Day (Conn.) 37 ; s. c. 3 Am. Dec. 255; Beeler v. Young, 1 Bibb (Ky.) 519; Davis v. Caldwell, 06 Mass. (12 Cush.) 514; Swift v. Bennett, 64 Mass. (10 Cush.) 436; s. c. 26 Am. Dec. 746 ; Smith v. Young, 2 Dev. & Bat. (N. C.) 26; Mohney V. Evans, 51 Pa. St. 80; Glover v. Ott, 1 McC. (S. C.) 572; Bent i: Manning, 10 Vt. 225 ; Warton v. Mac- kenzie, 5 Q. B. 606; Mackarell v. Bachelor, Cro. Eliz. 583; Stone a. WithypoU's Case, 1 Leon. 114 ; Peters V. Fleming, 6 Mces. & W. 42 ; Cheve v. Chester, Palmer, 301 ; Jene v. Chester, Popham, 151; Hands v. Slaney, 8 T. R. 578. In clear cases the court may authoritatively direct as a matter of law, when the infant is not primarily liable. This has frequently been done where the purchase was made for business purposes and not for neces- saries. See McKanna ;;. Merry, 61 III. 177 ; Price v. Sanders, 60 Ind. 311 ; Beeler !>. Young, 1 Bibb (Ky.) 520; Smithpeters v. Griflfin, 10 B. Mon. (Ky.) 259 ; McCarty v. Henderson, 138 Mass. 310; Wallis v. Bardwell, 120 Mass. 366 ; Merriam v. Cunningham, 65 Mass. (11 Cush.) 40; Mason v. Wright, 54 Mass. (13 Mete.) 306; Tupper V. Cadwell, 53 Mass. (12 Mete.) 559; s. c. 46 Am. Dec. 704; Decell V. Lewenthal, 57 Miss. 331 ; s. c. .34 Am. Rep. 449 ; Freeman u. Bridger, 4 Jones (N. C.) L. 1 ; s. c. 67 Am. Dec. 258; New Hampshire Mut. Fire Ins. Co. v. Noyes, 32 N. H. 345; Phelps v. Worcester, 11 N. H. 51 ; Mohney v. Evans, 51 Pa. St. 80 ; West (■. Greg, 1 Grant (Pa.) 53; Hughes V. Gallans, 10 Phila. (Pa.) 618; Count v. Bates, Harp. (S. C.) 464 ; Rainwater v. Durham, 2 Nott & McC. (S. C.) 624; s. c. 10 Am. Dec. 637 ; Graces;. Hale, 2 Humph. (Tenn.) 27; s. c. .36 Am. Dec. 296; Jliddle- bury College v. Chandler, 16 Vt. 686. But see Epperson v. Nugent, 57 Miss. 45. Necessaries Jbr infants are all things which are adapted to his personal 59 *22 FORMATION OF THE CONTEACT. [book I. ■wants, and the jury find to have been suitable in kind, quality, and degree. Barnes v. Barnes, 50 Conn. .072 ; Jor- dan V. Cofficld, 70 N. C. 110; Peters V. Fleming, Mees. & W. 46. Thus recovery has been had for — 1. Attorneys' services. Munson v. Washband, 31 Conn. 303; Barker v. Hibbard, 54 N. H. 530; s. c. 20 Am. Rep. 100; Thrall ;■. Wright, 38 Vt. 494 ; Brown v. Ackroyd, 34 Eng. L. & Eq. 214. But see New Hampshire Mutual Ins. Co. v. Noyes, 32 K. H. 345, 351; Phelps v. Worcester, 11 N. H. 51 ; IMcCrillis v. Bartlett, 8 N. H. 509. 2. For dental services. Strong v. Foote, 42 Conn. 203. 3. For money paid on request to a third person for necessaries fur- nished. Swift V. Bennett, 04 Mass. (10 Cush.) 430 ; s. c. 26 Am. Dec. 746 ; Conn V. Coburn, 7 N. H. 308; s. c. 26 Am. Dec. 746; Randall v. Sweet, 1 Den. (N. Y.) 400. See Clarke v. Leslie, 5 Esp. 28 ; Probart v. Kuouth, 2 Esp. 472; Ellis v. Ellis, 12 Mod. 197 ; Earle v. Peale, 1 Salk. 386; s. c. 10 Mod. 67; Marlow v. Pitfield, 1 P. Wm. 558. 4. For wedding outfits. Sams v. Stockton, 14 B. Hon. (Ky.) 232 ; Jor- dan V. Coffield, 70 N. C. 110. 5. For necessaries supplied to in- fant's wife. Cantine v. Phillips, 5 Harr. (Del.) 428 ; Price v. Sanders, 00 Ind. 311. Citing Stanton !■. Willson, 3 Day (Conn.) 37 ; s. c. 3 Am. Dec. 255; Carpenter v. Carpenter, 45 Ind. 142; Grossman v. Lauber, 29 Ind. 618 ; Dorrell v. Hastings, 28 Ind. 478 ; Pick- ler V. Slate, 18 Ind. 266 ; Henderson V. Fox, 5 Ind. 489; Beeler u. Young, 1 Bibb (Ky.) 519; Smith r. Kelley, 54 Mass. (13 Mete.) 309; Mason v. Wright, 54 Mass. (13 Mete.) 306; New Hampshire Mutual Ins. Co. c. Koyes, 32 N. H. 345; Phelps v. Worces- ter, 11 N. H. 51; Cunningham v. Ir- win, 7 Serg. & R. (I'a.) 247; s. c. 10 Am. Dec. 458 ; Haine i'. Tarrant, 2 Hill (S. C.) L. 100 and *400; Glover v. Ott, 1 McC. (S. C.) 351, »571; Grace v. Hale, 2 Humph. (Tenn.) 27 ; s. c. 36 Am. Dec. 296; Rainwater p. Durham, 2 Nott & McC. (S. C.) 524; s. c. 10 Am. Dec. 637; Middlebury Coll. V. Chandler, 16 Vt. 683 ; s. c. 42 Am. Dec. 537; Bent v. Manning, 10 Vt. 225; Waithman v. Wakefield, 1 Campb. 120; Charters v. Bayntun, 7 Carr. & P. 52; Rainsford v. Fen- wick, Cart. 215; Coates v. Wilson, 5 Esp. 152; Dilk v. Keighley, 2 Esp. 480; Crantz v. Gill, 2 Esp. 471 ; Wil- liams V. Harrison, Holt, 359; Peters V. Fleming, 6 Mees. & W. 42; Burg- hart V. Hall, 4 Mees. and AV. 727 ; Clowes V. Brooke, 2 Str. 1101; Hands I'. Slaney, 8 T. R. 578. The plaintiff has the burden of establishing that the articles furnished were necessa- ries. Nicholson ;'. Wilborn, 13 Ga. 475; Wood v. Losey, 50 Mich. 475; Thrall v. AVright, 38 Vt. 494. Where an infant has parents or a guardian, he is presumed to have no wants, and will not be liable for necessaries. See McKanna v. Merry, 61 111. 117 ; Swift V. Bennett, 04 Mass. (10 Cush.) 437; Perrin v. Wilson, 10 Mo. 451 ; Atchison V. Bruff, 50 Barb. (N. Y'.) 381; Wail- ing V. Toll, 9 Johns. (N. Y.) 141; Klive c. L'Amoureux, 2 Paige Ch. (N. Y'.) 419 ; Connolly v. Hull, 3 McC. (S. c.)e. An infant will not be liable for necessaries furnished him merely be- cause his father is poor and unable to pay for them. Hoyt v. Casey, 114 Mass. 397; s. c. 19 Am. Rep. 371, Where an infant was fully supplied, there can be no recovery, although the article were suitable and the ven- dor had no knowledge of the supply (Trainer v. Trumbull, 141 Mass. .527. See D. Barnaby, 18 Mass. (1 Pick.) 221, 223; Ford ;;. Phillips, 18 Mass. (1 Pick.) 202; Whitney v. Dutch, 14 Mass. 457; s. c. 7 Am. Dec. 229; Martin v. Mayo, 10 Mass. 137, 140 ; s. c. 6 Am. Dec. 103; Smith v. Mayo, 9 Mass. 62, 64 ; s. c. 6 Am. Dec. 28 ; Mayer V. McLure, 36 Miss. 389 ; New Hamp- shire Mut. F. Ins. Co. V. Noyes, .32 N. 73 *29 FORMATION OF THE CONTRACT. [book I. H. 345; Edgerly v. Shaw, 25 N. H. (5 Fost.) 514; s. c. 57 Am. Dec. 349; Emmons v. Murray, 16 N. H. 385; Aldrich v. Grimes, 10 N. H. 194; Williams v. Mabel, 7 N. J. Eq. (3 Halst.) 500; Henry v. Root, 33 N. Y. 526 ; Taft v. Sergeant, 18 Barb. (N. Y.) 320 ; Ackerman v. Runyon, 1 Hilt. (N. Y.) 169; s. c. 3 Abb. (N. Y.) Pr. Ill ; Millard ;;. Hewlett, 19 Wend. (N. Y.) 301 ; Delano v. Blake, 11 Wend. (N. Y.) 85; s. c. 25 Am. Dec. C17 ; Goodsell v. Myers, 3 Wend. (N. Y.) 479; Alexander v. Hutche- son, 2 Hawks. (N. C.) 535; Armfield V. Tate, 7 Ired. (N. C.) L. 258; Alex- ander V. Heriot, 1 Bailey (S. C.) Ch. 223 ; Summers v. Wilson, 2 Coldw. (Tenn.) 469; Reed v. Boshears, 4 Sneed (Tenn.) 118; Wheaton v. East, 5 Yerg. (Tenn.) 41; s. c. 26 Am. Dee. 251; Buckner v. Smith, 1 Wash. (Va.) 295; s. u. 1 Am. Dec. 463; Forsyth v. Hastings, 27 Vt. 646; Farr v. Sumner, 12 Vt. 28; s. c. 36 Am. Dec. 327; Stokes v. Brown, 4 Chand. (Wis.) 39. Knowledge of freedom from liability is necessary in order to render a ratifi- cation, after attaining majority, bind- ing. Deason v. Boyd, 1 Dana (Ky.) 45 ; Boody v. McKenney, 23 Me. 517 ; Thing V. Libbey, 16 Me. 57 ; Lawson V. Lovejoy, 8 Me. (8 Greenl.) 405; s. c. 23 Am. Dec. 526 ; Smith v. Kel- ley, 54 Mass. (13 Mete.) 309; Boy- den V. Boyden, 50 Mass. (9 Mete.) 519; Ford v. Phillips, 18 Mass. (1 Pick.) 203; Smith v. Mayo, 9 Mass. 64 ; s. c. 6 Am. Dec. 28 ; Robbins v. Eaton, 10 N. H. 561; Aldrich v. Grimes, 10 N. H. 194; Kitchen v. Lee, 11 Paige Ch. (N. Y.) 107; s. c. 42 Am. Dec. 101 ; Curtin v. Patton, 11 Serg. & R. (Pa.) 305 ; Eubanks v. Peak, 2 Bail. (S. C.) L. 497, 499; Alexander v. Heriot, 1 Bail. (S. C.) Eq. 223 ; Norris v. Vance, 3 Rich. (S. C.) L. 168; Cheshire v. Barrett, 4 McCord (S. C.) L. 241; a. c. 17 Am. Dec. 735 ; Reed v. Boshears, 4 Sneed (Tenn.) 118; Harmer v. Killing, 5 Esp. 102. Disaffirmance of contract : return of property. — Where an infant disaffirms a contract on attaining majority, he must return the property before he can recover the money. Strain v. Wright, 7 Ga. 568; Bailey v. Bam- berger, 11 B. Mon. (Ky.) 113; Hill V. Anderson, 13 Miss. (5 Smed. & M.) 216 ; Bartholomew v. Finnomere, 17 Barb. (N. Y.) 428; Hillyer v. Ben- nett, 3 Edw. Ch. (N. Y.) 222 ; Kitchen V. Lee, 11 Paige Ch. (N. Y.) 107 ; s. c. 42 Am. Dec. 101 ; Ottman ;;. Moak, 3 Sandf. Ch. (N. Y.) 431 ; Kilgore v. Jordan, 17 Tex. 341. It is otherwise where the property is not in his hands or under his control. Fitts v. Hall, 9 N. H. 441 ; Price v. Furman, 27 Vt. 268, 271 ; s. c. 65 Am. Dec. 194. Infant's deed to real estate. — An infant may ratify or disaffirm a deed given to real estate during majority (Voorhies v. Voorhies, 24 Barb. (N. Y.) 150) ; but a mere expression or acknowledgment that the conveyance had been made, or a failure to dis- affirm for a great length of time, will not amount to a ratification of the transaction. Doe v. Abernathy, 7 Blackf. (Ind.) 442; Boody v. Mc- Kenney, 23 Me. 517 ; Jackson v. Burchin, 14 Johns. (N. Y.) 124; Jackson v. Carpenter, 11 Johns. (N. Y.) 542, 543 ; Bool v. Mix, 17 Wend. (N. Y.) 120; s. c. 31 Am. Dec. 235; Drake v. Ramsay, 5 Ohio, 251 ; Cur- tin V. Patton, 11 Serg. & R. (Pa.) 307. But where such conveyance is recog- nized in an instrument executed after attaining majority, this will be deemed a ratification. Phillips v. Green, 5 T. B. Mon. (Ky.) 344; Boston Bank v. Chamberlain, 15 Mass. 220 ; Story v. Johnson, 2 Y. & Coll. 586. And a deed of confirmation is not necessary. Dearborn v. Eastman, 4 N. H. 441 ; Hoyle V. Stowe, 2 Dev. & Bat. (N. C.) L. 320; Wheaton v. East, 5 Yerg. (Tenn.) 41; s. c. 26 Am. Dec. 251; Houser v. Reynolds, 1 How. (N. C.) 143; s. c. 1 Am. Dec. 55. Acts which amount to a confirmation. — ^The contract of an infant may be 74 PART I.] PARTIES. *29 ratified expressly or implicitly, after the disability has ceased. Vaughan V. Parr, 20 Ark. 600 ; Johnson v. Al- den, 15 La. An. 605 ; Taylor v. Kun- dell, 2 La. An. 367 ; Lawson v. Love- joy, 8 Me. (8 Greenl.) 405 ; Kennedy V. Doyle, 92 Mass. (10 Allen) 161; Boyden v. Boyden, 50 Mass. (9 Mete.) 519; Whitney v. Dutch, 14 Mass. 457; s. c. 7 Am. Dec. 229; Mayer v. McLure, 36 Miss. 389 ; s. c. 72 Am. Dec. 190 ; New Hampshire Mut. Tire Ins. Co. V. Noyes, 32 N. PI. 345; Al- drich V. Grimes, 10 N. H. 194 ; Henry V. Eoot, 33 N. Y. 526; Delano v. Blake, 11 Wend. (N. Y.) 85; s. c. 25 Am. Dec. 617 ; Alexander v. Heriot, 1 Bail. (S. C.) Ch. 223; Forsyth v. Hastings, 27 Vt. 646; Parr v. Sum- ner, 12 Vt. 28; s. c. 36 Am. Dec. 327. The acts and declarations of an in- fant after he becomes of age, which are sufficient to ratify a contract made during infancy, must be direct and positive, a mere acknowledgment not being sufficient for that purpose. Wilcox V. Roath, 12 Conn. 550; Kline V. Beebe, 6 Conn. 494; Wallace v. Lewis, 4 Harr. (Del.) 75 ; Martin v. Byrom, Dudley (Ga.) 203 ; Chandler V. Simmons, 97 Mass. 511, 512 ; Morse V. Wheeler, 86 Mass. (4 Allen) 570 ; Proctor V. Sears, 86 Mass. (4 Allen) 95; Thompson v. Lay, 21 Mass. (4 Pick.) 48; s. e. 16 Am. Dec. 325; Barnaby v. Barnaby, 18 Mass. (1 Pick.) 221, 223; Ford v. Phillips, 18 Mass. (1 Pick.) 202; Whitney v. Dutch, 14 Mass. 457, 460 ; s. c. 7 Am. Dec. 229 ; Martin v. Mayo, 10 Mass. 139, 140 ; s. c. 6 Am. Dec. 103; Smith V. Mayo, 9 Mass. 62, 64; s. c. 6 Am. Dec. 28; Glamorgan v. Lane, 9 Mo. 447, 473 ; Edgerly v. Shaw, 25 N. H. (5 Post.) 514; s. c. 57 Am. Dec. 349; Taft V. Sergeant, 18 Barb. (N. Y.) 320; Ackerman v. Bunyon, 1 Hilt. (N. Y.) 169 ; s. c. 3 Abb. (N. Y.) Pr. Ill- Jackson v. Carpenter, 11 Johns. (N Y.) 542, 543 ; Goodsell v. Myers, .3 Wend. (N. Y.) 479; Millard v. Hewlett, 19 Wend. (N. Y.) .301; Hoyle V. Stowe, 2 Dev. & Bat. (N. C.) 320 ; Alexander v. Hutcheson, 2 Hawks. (N. C.) 535 ; Armfield v. Tate, 7 Ired. (N. C.) L. 258; Scott v. Bu- chanan, 11 Humph. (Tenn.) 468; Reed o. Boshears, 4 Sneed (Tenn.) 118; Wheaton v. East, 5 Yerg. (Tenn.) 41 ; s. c. 26 Am. Dec. 251 ; Buckner v. Smith, 1 Wash. (Va.) 295 ; s. c. 1 Am. Dec. 463 ; Richard- son V. Boright, 9 "Vt. 368 ; Stokes v. Brown, 4 Chand. (Wis.) 39; Tucker V. Moreland, 35 tJ. S. (10 Pet.) 75, 76; bk. 9, L. ed. 345, 352. Infant's deed to land is not void, but voidable. — Slaughter v. Cunningham, 24 Ala. 260 ; s. c. 60 Am. Dec. 463 ; Harrod v. Myers, 21 Ark. 592 ; ». c. 76 Am. Dec. 409; Wallace v. Lewis, 4 Harr. (Del.) 75 ; Chapman v. Chap- man, 13 Ind. 396 ; Johnson v. Rock- well, 12 Ind. 76 ; Babcock v. Doe, 8 Ind. 110 ; Moore v. Abernathy, 7 Blackf. (Ind.) 442; Jenkins v. Jen- kins, 12 Iowa, 195 ; Phillips v. Green, 5 T. B. Mon. (Ky.) 344; Lowe v. Gist, 5 Har. & J. (Md.) 106 ; Kendall V. Lawrence, 39 Mass. (22 Pick.) 540; Worcester a. Eaton, 13 Mass. 871, 375; s. c. 7 Am. Dec. 155; Boston Bank v. Chamberlain, 15 Mass. 220 ; Cook V. Toumbs, 36 Miss. 685 ; Fer- guson V. Bell, 17 Mo. 347 ; Merchants Fire Ins. Co. v. Grant, 2 Edw. Ch. (N. Y.) 544 ; Eagle Fire Ins. Co. v. Lent, 1 Edw. Ch. (N. Y.) 301; Gillet v. Stanley, 1 Hill (N. Y.) 121; Van Nostrand v. Wright, Hill & Den. (N. Y.) 260; Dominick v. Michael, 4 Sandf . (N. Y.) 374 ; Bool v. Mix, 17 Wend. (N. Y.) 119 ; s. c. 31 Am. Dec. 285 ; White v. Flora, 2 Overt. (Tenn.) 426; Wheaton v. East, 5 Yerg. (Tenn.) 41; s. c. 26 Am. Dec. 251; Cummings v. Powell, 8 Tex. 80. In some states an infant's deed may be superseded or annulled by the mere execution of another conveyance, after he arrives of age, to a pur- chaser for value. See Eagle Fire Ins. Co. V. Lent, 6 Paige Ch. (N. Y.) 635 ; Hoyle v. Stowe, 2 Dev. & Bat. (N. C.) L. 220; Cressemer v. AVelch, 15 Ohio, 156; Tucker v. Moreland, 75 rOBMATION OF THE CONTEACT. [book I. 35 U. S. (10 Pet.) 58 ; bk. 9, L. ed. 343. In some states it is held that where the infant has not retained possession, he must make an actual entry upon the land before such con- veyance will operate. See Harrison V. Adcock, 8 Ga. 68 ; Dominick v. Michael, 4 Sandf. (N. Y.) 374. Infant's sale of personal property. — AVhere an infant has sold his personal property and received payment for it, such sale will not be aflfirmed by a similar execution, after attaining ma- jority, but any positive act on his part, clearly indicating an intention to confirm the contract, will be binding. See Boody y. McKenney, 23 Me. 525. Where he disaflSrms the sale on at- taining majority, and reclaims the property sold, he must restore the purchase money or other considera- tion received by him. Bailey v. Bam- berger, 11 B. Mon. (Ky.) 113 ; Boody u. McKenney, 23 Me. 17-25; Hubbard J). Cummings, 1 Me. (1 Greenl.) 13; Bartlett v. Cowles, 81 Mass. (15 Gray) 445 ; Badger u. Phinney, 15 Mass. 363; Hill v. Anderson, 5 Smed. & M. (Miss.) 216; Heath v. West, 28 N. H. 101; Carr v. Clough, 26 N. H. 280; o. c. 59 Am. Dec. 345 ; Bartholomew V. Finnemore, 17 Barb. (N. Y.) 430; Root V. Stafford, 7 Cow. (N. Y.) 179; Smith v. Evans, 5 Humph. (Tenn.) 70; Taft v. Pike, 14 Vt. 405; Farr v. Sumner, 12 Vt. 28. However, it has been said that where he has wasted or spent the money during his minority, he may avoid the contract without restoring the same. Chandler v. Simmons, 97 Mass. 508. See, also, Bassett u. Brown, 106 Mass. 551, 559 ; Bartlett V. Drake, 100 Mass. 174, 177. See, also, Gibson v. Soper, 72 Mass. (6 Gray) 279; Price u. Purman, 27 Vt. 268. See, as to the equity rule, Hill- yer v. Bennett, 3 Edw, Ch. (N. Y.) 222. Contract of suretyship made by an infant is held in some states to be against his interest and therefore void. Maples v. Wightman, 4 Conn. 376; s. c. 10 Am. Dec. 149. See, also, Beeler v. Young, 1 Bibb (Ky.) 519; Tandy v. Masterson, 1 Bibb (Ky.) 380 ; Hardy v. Waters, 38 Me. 450; Nightingale v. Withington, 15 Mass. 272; s. c. 8 Am. Dec. 101. And where regarded as voidable only, the infant must not only acknowl- edge his liability, after arriving at full age, but must make a deliberate and express voluntary promise to pay, with the knowledge that he is not legally liable. Fetrow o. Wise- man, 40 Ind. 148. See, also, Wilcox V. Eoath, 12 Conn. 550; Rogers v. Hurd, 4 Day (Conn.) 57 ; s. u. 4 Am. Dec. 182 ; Martin v. Byrom, Dudley (Ga.) 303; Conklin v. Ogborn, 7 Ind. 553 ; Deason v. Boyd, 1 Dana (Ky.) 45; Boody v. McKenney, 23 Me. 517; Thing o. Libbey, 16 Me. 55; Hubbard v. Cummings, 1 Me. (1 Greenl.) 11 ; Thompson v. Lay, 21 Mass. (4 Pick.) 48; s. c. 16 Am. Dec. 325 ; Ford v. Phillips, 18 Mass. (1 Pick.) 202 ; Whitney ;;. Dutch, 14 Mass. 457; s. c. 7 Am. Dec. 229; Smith V. Mayo, 9 Mass. 60 ; s. c. 6 Am. Dec. 28 ; Mayer v. McLure, 36 Miss. 389; s. c. 72 Am. Dec. 190; Hoit V. Underbill, 10 N. H. 220; s. c. 34 Am. Dec. 148 ; Hale v. Gerrish, 8 N. H. 374 ; Merriam v. Wilkins, 6 N. H. 432; s. c. 25 Am. Dec. 472; Bank of Silver Creek v. Browning, 16 Abb. (N. Y.) Pr. 272; Watkins v. Stevens, 4 Barb. (N. Y.) 168; Bigelow u. Grannis, 2 Hill (N. Y.) 120 ; Jackson V. Carpenter, 11 Johns. (N. Y.) 539, 542; Millard v. Hewlett, 19 Wend. (N. Y.) 301; Gay v. Ballou, 4 Wend. (N. Y.) 403; s. c. 21 Am. Dec. 158; Goodsell V. Jlyers, 3 Wend. (N. Y.) 479 ; Dunlap v. Hales, 2 Jones (IST. C.) L. 381; Hinely v. Margaritz, 3 Pa. St. 428; Curtin v. Patton, 11 Serg. & R. (Pa.) 305; Tucker v. Moreland, 35 U. S. (10 Pet.) 68 ; bk. 9, L. ed. 343 ; Brooke v. Gaily, 2 Atk. 34; Thornton v. lUingworth, 2 Barn. & Cres. 824 ; Harmer v. Killing, 5 Esp. 102 ; Thrupp u. Fielder, 2 Esp. 628. 76 PABT I.] PARTIES. *29 What constitutes a ratification. — The voidable contract of an infant may be ratified on attaining majority, by acts of recognition, acquiescence, or estoppel, as well as by express promises. See Wilcox o. Eoath, 12 Conn. 550; Kline o. Beebe, 6 Conn. 494 ; Rogers v. Hurd, 4 Day (Conn.) 57; s. c. 4 Am. Dec. 182; Proctor v. Sears, 86 Mass. (4 Allen) 95 ; Smith V. Kelley, 54 Mass. (13 Mete.) 309 ; Peirce v. Tobey, 46 Mass. (5 Mete.) 168 ; Thompson v. Lay, 21 Mass. (4 Pick.) 48; s. c. 16 Am. Dec. 325; Pord V. Phillips, 18 Mass. (1 Pick.) 203; Jackson v. Mayo, 11 Mass. 147 ; Martin v. Mayo, 10 Mass. 137 ; s. c. 6 Am. Dec. 103 ; Aldrich i.. Grimes, 10 K. H. 194; Hoit v. Underbill, 9 N. H. 439; s. c. 34 Am. Dec. 148; Hale u. Gerrish, 8 N. H. 374; Mer- riam <;. "Wilkins, 6 N. H. 432; Orvis V. Kimball, 3 N. H. 314 ; Hodges v. Hunt, 22 Barb. (N. Y.) 150; Bigelow V. Grannis, 2 Hill (N. Y.) 120 ; Gay V. Ballou, 3 Wend. (N. Y.) 403 ; s. c. 21 Am. Dec. 158 ; Millard ;;. Hewlett, 19 Wend. (N. Y.) 301, 302 ; Morrill v. Aden, 19 Vt. 505. And every void- able contract which is not disaffirmed within a reasonable time after becom- ing of full age will be binding. Wright u. Germain, 21 Iowa, 585; Deason v. Boyd, 1 Dana (Ky.) 45; Jones V. Butler, 30 Barb. (N. Y.) 641; Flynn u. Powers, 35 How. (N. Y.) Pr. 279; Eichardson v. Boright, 9 Vt. 368. Thus, where an infant has purchased property on credit, and after attaining majority retains it for an unreasonable length of time, he thereby ratifies the contract and becomes liable for the purchase price. Deason u. Boyd, 1 Dana (Ky.) 45 ; Boody V. McKenney, 23 Me. 517; Thing V. Libbey, 16 Me. 55; Lawson V. Lovejoy, 8 Me. (8 Greenl.) 405; Smith V. Kelley, 54 Mass. (13 Mete.) 809 ; Boyden v. Boyden, 50 Mass. (9 Mete.) 519 ; Robbins v. Eaton, 10 N. H. 561 ; Aldrich v. Grimes, 10 N. H. 194 ; Eubanks u. Peak, 2 Bailey (S. C.) L. 497, 499 ; Alexander v. Heriot, 1 Bailey (S. C.) Eq. 223; Cheshire v. Barrett, 4 McCord (S. C.) L. 241. And an infant's voidable deed may be ratified on attaining majority, by any act for that express purpose, or by such a course of conduct as neces- sarily excludes a contrary supposi- tion. Kline v. Beebe, 6 Conn. 494; Wimberly u. Jones, 1 Ga. Dec. 91; Hartman v. Kendall, 4 Ind. 403 ; Boody u. McKenney, 23 Me. 517; Levering v. Heighe, 2 Md. Ch. 81 ; Emmons c. Murray, 16 N. H. 385; Williams v. Mabee, 7 N. J. Eq. (3 Halst.) 500; Summers v. Wilson, 2 Coldw. (Tenn.) 469; Wheaton v. East, 5 Yerg. (Tenn.) 41; s. c. 26 Am. Dec. 25. But the promise to pay must be un- conditional; if conditioned on the happening of a, certain event, it must be shown that that event has oc- curred. Everson u. Carpenter, 17 Wend. (N. Y.) 419. Disaffirming contract : Restoration of consideration. — A minor on attain- ing majority may avoid his contract by any act clearly showing an inten- tion to do so. Shipman v. Horton, 17 Conn. 481; Walker v. Ellis, 12 111. 470; Moore v. Abernathy, 7 Blackf. (Ind.) 442; Carr v. Clough, 26 N. H. (6 Post.) 280 ; s. c. 59 Am. Dec. 345; Heath v. West, 26 N. H. (6 Post.) 191; Grace ■;. Hale, 2 Humph. (Tenn.) 27; s. c. 36 Am. Dec. 296. It is the general doctrine that where an infant disaffirms a sale that he has made, and reclaims the property, he must restore or oifer to restore the purchase price or other consideration. Strain v. Wright, 7 Ga. 568; Bailey i". Bamberger, 11 B. Mon. (Ky.) 113; Hubbard v. Cum- mings, 1 Me. (1 Greenl.) 13; Bart- lett V. Cowles, 81 Mass. (15 Gray) 445; Badger u. Phinney, 15 Mass. 363 ; Hill v. Anderson, 5 Smed. & M. (Miss.) 216; Heath v. West, 28 N. H. 101; Carr u. Clough, 26 N. H. 280; s. c. 59 Am. Dec. 345; Barthol- omew V. Pinnemore, 17 Barb. (X. Y.) 430; Kitchen ,y. Lee, 11 Paige Ch. 77 *29 FORMATION OF THE CONTRACT. [book I. but only in writing.^ By the 9 Geo. IV. c. 14, s. 5 (usually called Lord Tenterden's Act), it was provided, "that no action shall be maintained whereby to charge any person upon any promise made after full age, to pay any debt con- tracted during infancy, or upon ratification after full age, of any promise or simple contract made during infancy, unless such promise or ratification shall be made by some writing signed by the party to be charged therewith." ^ The legal interpretation of the words (also used in the Statute of Frauds), " some writing signed by the party to be charged therewith," is treated of in Part II. Ch. VI. of this Book. On the question of the sufficiency of the words used in the written promise to satisfy the requirement of the stat- ute, Rolfe B. in delivering the judgment of the Exchequer of Pleas in Harris v. Wall,* held, that the Act distinguished between a new promise and a ratification ; and in the case be- fore the Court, the defendant was held liable on the letters (N. Y.) 107; Oltman v. Moak, 3 Sandf. Ch. (N. T.) 431; Smith v. Evans, 5 Humph. (Tenn.) 70; Kil- gore V. Jordan, 17 Tex. 341; Taft v. Pike, 14 Vt. 405 ; Parr u. Sumner, 12 Vt. 28. However, it seems otlierwise in those cases where the infant has wasted or spent the consideration money. Bartlett v. Drake, 100 Mass. 174, 177; s. c. 1 Am. Rep. 101; Chandler v. Simmons, 97 Mass. 508. See, also, Bassett v. Brown, 105 Mass. 551, 559 ; Gibson v. Soper, 72 Mass. (Q Gray) 279; Price v. Purman, 27 Vt. 268. See White u. Branch, 51 Ind. 210; Carpenter v. Carpenter, 45 Ind. 142 ; Euchizky v. DeHaven, 97 Pa. St. 202. Avoidance as to third person. — A right of an infant to avoid a sale may be exercised against a bond fide purchaser for value. Myers v. San- der's Heirs, 7 Dana (Ky.) 506; Hill V. Anderson, 5 Smed. & M. (Miss.) 216, 224. But see Carr v. Clough, 26 N. H. 280; s. u. 59 Am. Dec. 345. However, in all cases the ratification must take place before action is brought. Thing v. Libbey, 16 Me. 78 55, 57; Smith v. Kelley, 54 Mass. (13 Mete.) 309; Goodridge v. Ross, 47 Mass. (6 Mete.) 487, 490 ; Aldrich u. Grimes, 10 N. H. 194; Hale v. Ger- rish, 8 N. H. 374; Conn v. Coburn, 7 N. H. 368 ; Merriam v. Wilkins, 6 N. H. 432; Thornton v. Illingworth, 2 Barn. & C. 824. 2 Acknowledgment in writing^ after attaining majority, is necessary to bind an infant on a contract under the statutes of Kentucky, Maine, New Jersey, and perhaps other states. See Bonney v. Keardin, 6 Bush (Ky.) 34, 40 ; Thurlow v. Gilmore, 40 Me. 378, 380. But in a majority of the states a parol ratification is sufficient. Hoit «. tJnderhill, 10 N. H. 220 ; s. c. 34 Am. Dec. 148 ; Orvis v. Kimball, 3 N. H. 314. "Similar statutes have been passed in some of the American states. See Fetrow v. Wiseman, 40 Ind. 148 ; Turner v. Gaither, 83 N. C. 357; s. c. 35 Am. Rep. 574; Hinely V. Margaritz, 3 Pa. St. 423 ; Curtin v. Palton, 11 Serg. & R. (Pa.) 315. * 1 Ex. 122. See Mawson v. Blane, 10 Ex. 206 ; ante, § 33, note 1. PART I.J PABTIES. *30 written by him, as amounting to a ratification, thougli not a new promise. And the test of a ratification was given in these words : " Any written instrument which in the case of adults would have amounted to the adoption of the act of a party acting as agent, will, in the case of an infant who has attained his majority, amount to a ratification." In the report of that case, the reader will find all the previous cases cited and reviewed in the arguments of the counsel.^ § 34. But the writing must do more than merely acknowl- edge the correctness of an account as set forth, and the satis- faction of the party with the prices charged. It must further contain something to recognize the contract as an existing liability, in order to constitute a ratification. On this principle * the Queen's Bench in Rowe v. Hopwood ^ [*30] held insufficient to bind the defendant his signature to a writing at the foot of the account in these words : " Par- ticulars of account to end of year 1867, amounting to 162Z. lis. Qd., I certify to be correct and satisfactory." Nothing in the words indicated the intention to pay the account, or to admit it as an existing liability.^ § 35. [However, sect. 5 of 9 Geo. IV. c. 14, has now been repealed by the Statute Law Revision Act, 1875 (38 and 39 Vict. c. 66) ; and by the Infants' Relief Act, 1874 (37 and 38 Vict. c. 62) it is provided, by the 1st section that, " All con- tracts whether by specialty or by simple contract henceforth entered into by infants for the repayment of money lent or 6 Hartley i-. "Wharton, 11 A. & E 934; Hunt u. Massey, 5 B. & Ad 902; Lobb v. Stanley, 5 Q. B. 574 Williams v. Moor, 11 M. & W. 256 Cohen v. Armstrong, 1 M. & S. 724 Tanner v. Smart, 6 B. & C. 603 Whippey v. Hillary, 3 BI & Ad, 399 ; Routledge v. Ramsay, 8 A. & E Mass. (10 Mete.) 387; Reed k. Batch- elder, 42 Mass. (1 Mete.) 559; "Wright V. Steele, 2 N. H. 51 ; Erer- son V. Carpenter, 17 Wend. (N. Y.) 419 ; Goodsell u. Myers, 3 Wend. (N. Y.) 479; Young v. Bell, 1 Cr. C. C. 342. But an acknowledgment that he owes the debt, or a part payment. 221. after he becomes of age, is not a 1 L. R. 4 Q. B. 1. ratification of the promise to pay the 2 Promissory note : ratification. — note. Benham v. Bishop, 9 Conn. The promissory note of an infant is 380 ; Smith v. Kelley, 54 Mass. (13 void, not voidable. Buzzell v. Ben- Mete.) 810 ; Robbins v. Eaton, 10 N. nett, 2 Cal. 101 ; Best v. Givens, 3 B. H. 561 ; Hinely v. Margaritz, 3 Pa. Men. (Ky.) 72; Earle v. Reed, 51 St. 428. 79 *31 FORMATION OF THE CONTRACT. [BOOK I. to be lent, or for goods supplied or to he supplied (other than contracts for necessaries), and all accounts stated with in- fants, shall be absolutely void: provided always that this enactment shall not invalidate any contract into which an infant may by an existing or future statute, or by the rules of common law or equity, enter, except such as now by law are avoidable." And by the 2d section that, " No action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or con- tract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age." The 2d section has been held to apply to a ratification after the passing of the Act of a contract made during infancy before it.^ It would probably also be held that a ratification could not be used as a set-off.^ The ratio decidendi of Raw- ley V. Rawley, which was decided under 9 Geo. IV. c. 14, s. 5, was that a set-off under the Statutes of Set-Off must be of an actionable debt; and that the debt in that case, [*31] not having been ratified in writing so as to * comply with the provisions of the statute, and therefore, not being actionable, could not be used by way of set-off. Mr. Pollock points out in his work on Contracts (3d ed. at p. 62), that the expression contracts "for goods supplied or to be supplied" is not free from obscurity. Had the words been instead '•'•for payment for goods supplied, &c." the meaning would have been clear. No cases illustrating the operation of the Act upon sales and purchases of goods ^ have been met with in the reports, but from a consideration of its language, the effect of the Act with reference to this class of contracts seems to be as follows : — When the infant is the purchaser (except where he con- tracts for the purchase of necessaries) by the 1st section tlie 1 Ex parte Kibble, 10 Ch. 373. 439 ; Northcote v. Doughty, 4 C. P. D. 2 Eawley v. Rawley, 1 Q. B. D. 385; Ditcham u. Worrall, 5 C. P. D. 460, C. A. 410; all cases of breach of promise ^ See Coxhead v. MuUis, 3 C. P. D. of marriage. 80 PART I.] PARTIES. *32 contract is absolutely void ; it follows therefore that the 2d section is superfluous. When the infant is the seller the 1st section seems to have no application, and the legal effect of the contract remains the same as it was at common law before the Act, i.e. it is voidable at the infant's option, and he may adopt and enforce it upon attaining his majority, or even before.^ But the 2d section, where the words " JSFo action shall be brought whereby to charge any person " are to be observed, will have the effect of protecting the infant seller against an action by the pur- chaser, although the infant may have ratified the contract after reaching full age.^] § 36. As to lunatics and persons non compotes mentis, the rules of law regulating their capacity to purchase do not dif- fer materially from those which govern such contracts when made by infants.^ There is no doubt that it is competent for the lunatic or his representatives to show that when he made the purchase his mind was so deranged that he did not know nor understand what he was doing.^ Still, if that state of mind, though really existent, be unknown to the other party, and no advantage be taken of the lunatic, the de- fence cannot * prevail; especially where the contract [*32] is not merely executory, but executed in the whole * Warwick v. Bruce, 2 M. & S. 205. contract the infant may recover the ^ Sale by infant is void where no chattel sold, but only on condition delivery is made (Chapin v. Schafer, that he restore the consideration, 49 N. Y. 407, 412 ; Stafford v. Eoof, where it lies in his power. See Dis- 9 Cow. (N. Y.) 626 ; Ponda v. Van affirmance : Restoration of consider- Home, 15 Wend. (N. Y.) 6.31; s. c. ation, ante, § 33, note 1. If he 30 Am. Dec. 77) ; and voidable where cannot restore the consideration he there has been a delivery. Williams may still recover. Carpenter v. Car- V. Brown, 34 Me. 594; Thompson v. penter, 45 Ind. 142; Chandler v. Sim- Hamilton, 29 Mass. (12 Pick.) 425; mons, 97 Mass. 508; Betts v. Carroll, s. c. 23 Am. Dec. 619; Whitney c-. 6Mo. App. 518; Price w. Furman, 27 Dutch, 14 Mass. 457 ; s. c. 7 Am. Dec. Vt. 268. 229; Oliver y. Houdlet, 13 Mass. 237 ; -i liallett v. Cakes, 55 Mass. (1 s. c. 7 Am. Dec. 134 ; Baker v. Lovett, Cush.) 298 ; Kendall v. May, 92 Mass. 6 Mass. 78; s. c. 4 Am. Dec. 88; (10 Allen) 67. Miller v. Smith, 26 Minn. 248 ; Cogly ^ McCarty v. Kerman, 86 III. 291 ; V. Cushman, 16 Minn. 401 ; Chapin v. Titcomb v. Vantyle, 84 111. 371 ; Mol- Schafer, 49 N. Y. 407; Stafford v. ton v. Camroux, 2 Ez. 487; in error, Roof, 9 Cow. (N. Y.) 626. See, 4 Ex. 17. also, § 33, note 1. On avoiding the 81 *32 EOEMATION OF THE CONTKAGT. [book I. or in part, and the parties cannot be restored altogether to their original position. In the case cited in the note, all the authorities will be found quoted and examined.^ So far as relates to supplies of necessaries to a person of unsound mind, there can be no question that where no advantage is taken of his condition by the vendor, the pur- chase will be held valid.^ 3 Molton ,,. Camroux, 2 Ex. 487 ; and in error, 4 Ex. 17. See, also, Niell V. Morley, 9 Ves. 478 ; Beavan u. M'Donnell, 9 Ex. 309. American authorities. — Fay v. Bur- ditt, 81 Ind. 433; Abbott v. Creal, 56 Iowa, 175 ; Busk v. Fenton, 14 Bush (Ky.) 490; Barnes v. Hathaway, 66 Barb. (N. Y.) 452; Mutual Life In- surance Co. V. Hunt, 14 Hun (N. Y.) 169; McDonald ,/. McDonald, 14 Grant (Ont.) 545; Campbell zi. Hill, 23 Up. Can. C. P. 473. Contracts with lunatics are voidable, and not void. Crowther v. Rowland- son, 27 Cal. 376 ; Maddox v. Sim- mons, 31 Ga. 512 ; Somers v. Pumph- rey, 24 Ind. 231 ; Gates o. Woodson, 2 Dana (Ky.) 452 ; Breckenridge v. Ormsby, 1 J. J. Marsh (Ky.) 236; s. c. 19 Am. Dec. 71 ; HoTey v. Hob- son, 53 Me. 461 ; Arnold v. Richmond Iron Works, 67 Mass. (1 Gray) 434 ; AUis V. Billings, 47 Mass. (6 Mete.) 415 ; s. c. 39 Am, Dec. 744 ; Fitzgerald V. Reed, 17 Miss. (9 Smed. & M.) 94; Ingraham u. Baldwin, 9 N. Y. 45; Cook «. Parker, 4 Phila. (Pa.) 265. And such as are fairly made, for necessaries or things suitable to their condition and habits of life, will be sustained. Ex parte Northington, 37 Ala. 496 ; s. c. 1 Ala. Sel. Cas. 400 ; 79 Am. Dec. 67; Pearl v. McDowell, 3 .1. J. Marsh (Ky.) 658; s. c. 20 Am. Dec. 199 ; Skidmore v. Romaine, 2 Bradf. (N. Y.) 122; Richardson v. Strong, 13 Ired. (N. C.) L. 106 ; s. c. 55 Am. Dec. 430. An executed con- tract, where the parties have been dealing fairly, and in ignorance of the lunacy, if no undue advantage has been taken, will not be set aside. Carr v. HoUiday, 1 Dev. & Bat. (N. C.) Eq. 344 ; Sims v. McLure, 8 Rich. (S. C.) Eq. 286 ; s. c. 70 Am. Dec. 196; Ballard v. McKenna, 4 Rich. (S. C.) Eq. 358 ; Dodds v. Wilson, 1 Treadw. (S. C.) Const. 448; Elliot ». Ince, 7 De G., M. & G. 475. It is said in the case of Elliot v. Ince, supra, that "the result of the authori- ties seems to be, that dealings of sale and purchase by a person apparently sane, though subsequently found to be insane, will not be set aside against those who have dealt with him on the faith of his being a per- son of competent understanding." See McCormick v. Littler, 85 111. 62 ; Carr v. Holliday, 5 Ired. (N. C.) Eq. 167; Lincoln r. Buckmaster, 32 Vt. 652; Manning o. Gill, L. R. 13 Eq. 485. But it has been held that where one contracts with a lunatic, and under such contract furnishes him with money and renders him services whicli, however, prove of no benefit to him, he cannot recover of the lunatic therefor, even though he, in good faith, supposed him to be sane, provided such circumstances were known to him, in regard to the mental condition, as where suflicient to convince a reasonable and prudent man of his insanity, or even to put him on an inquiry by which he might, if reasonably prudent, have ascertained the fact. Lincoln o. Buckmaster, 32 Vt. 652. See, also, Seaver v. Phelps, 28 Mass. (11 Pick.) 304 ; s. c. 22 Am. Dec. 372. * Marby v. Seott, 1 Sid. 112; Lane V. Kirkwall, 8 0. & P. 679; Weut- 82 PABT I.] PARTIES. *S2 § 37. A drunkard, when in a state of complete intoxica- tion, so as not to know what he is doing, has no capacity to contract in general,^ but he would be liable for absolute nec- worth V. Tubb, 1 Y. & C. (N. C.) 171 ; Nelson v. Duiicombe, 9 Beav. 211 ; Baxter v. Earl of Portsmouth, 5 B. & C. 170; but see In re Weaver, 21 Ch. D. 615, C. A. American authorities. — ^Sawyer u. Lufkin, 56 Me. 308 ; ?Iallett v. Oakes, 55 Mass. (1 Cush.) 296, 298; Seaver V. Phelps, 28 Mass. (11 Pick.) 304, 307; Fitzgerald v. Eeed, 9 Smed. & M. (Miss.) 94; McCrillis v. Bartlett, 38 N. H. 569 ; Richardson ^. Strong, 13 Ired. (N. C.) L. 106. Necessaries for lunatics. — Contracts for necessaries for lunatics, suited to their condition and habits of life, will be binding. Ex parte Northing- ton, 37 Ala. 496 ; s. c. 69 Am. Dec. 67; 1 Ala. Sel. Cas. 400; Crowther V. Eowlandson, 27 Cal. 376 ; Maddox V. Simmons, 31 Ga. 512 ; Pearl v. Mc- Dowell, 3 J. J. Marsh (Ky.) 658 ; s. c. 20 Am. Dec. 199; Fitzgerald v. Reed, 17 Miss. (9 Smed. & M.) 94; Van Home v. Hann, 39 N. J. L. (10 Vr.) 207 ; Skidmore v. Romaine, 2 Bradf. (N. Y.) 122; Richardson v. Strong, 13 Ired. (N. C.) L. 106; ». >.. 55 Am. Dec. 430. What are necessaries. In re Persse, 3 Molloy, 94, it said : " The main- tenance of a lunatic is not limited as an infant's is, within the hounds of his income. It is not limited except by the fullest comforts of the lunatic. Fancied enjoyments and eyen harmless caprice are to be indulged up to the limits of income, and for solid enjoyments and sub- stantial comforts tlie court will, if necessary, go beyond the limits of income. In this commonwealth it is not thus limited in respect to an infant, and there is, therefore, less reason for limiting it in respect to a person of full age." In Ken- dall V. May, 92 Mass. (10 Allen) 59 it was held that : " Where the guardian of an insane person has been remoTed, and no new guardian appointed, one who takes such person upon ii journey for pleasure outside of the commonwealth at the insane person's request, may recover from him the expenses therefor, if the jury find them reasonable and proper." Executed contracts with a lunatic made before the appointment of a committee in lunacy are valid, where no undue advantage is taken of him. Sims V. McLure, 8 Rich. (S. C.) Eq. 286; ». c. 70 Am. Dec. 196; Dodds v. Wilson, 1 Treadw. (S. C.) Const. 448. See Grouse v. Holman, 19 Ind. 30; Holland v. Miller, 12 La. An. 624. And where a sale of goods has been made to such a person, under such circumstances, it cannot be avoided unless fraud or a knowledge of his actual insanity is shown. McCormick V. Littler, 85 III. 62; ». c. 28 Am. Rep. 610; Matthiessen v. McMahon, 38 N. J. L. (9 Vr.) 530; Riggs v. Amer. Tract Soc, 84 N. Y. 330; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541 ; Lancaster County Bank v. Moore, 7 Pa. St. 407; s. c. 21 Am. Rep. 24 ; Beals v. See, 10 Pa. St. 56 ; s. c. 49 Am. Dec. 573. 1 Molton V. Camroux, uhi supra ; Pitt V. Smith, 3 Camp. 33 ; Fenton v. Holloway, 1 Stark. 126 ; Gore v. Gib- son, 13 M. & W. 623; Cook „. Clay- worth, 18 Ves. Jr. 12. American authorities. — Drummond V. Hopper, 4 Harr. (Del.) 327 ; Hutch- inson V. Brown, 1 Clark (Pa.) 408 ; White V. Cox, 4 Hayw. (Tenn.) 213 ; King V. Bryant, 2 Hayw. (N. C.) L. 394 ; Taylor v. Patrick, 1 Bibb (Ky.) 168; Harbison u. Lemon, 3 Blackf. (Ind.) 51 ; s. c. 23 Am. Dec. 376-; Reinicker u. Smith, 2 Harr. & J. (Md.) 421; Foss v. Hildreth, 92 Mass. (10 Allen) 76, 79; Walker v. Davis, 67 Mass. (1 Gray) 506, 508; 83 *32 FORMATION OP THE CONTEACT. [BOOK I. essaries supplied to him while in that condition ; and Pollock C. B. put the ground of the liabihty as follows: "A contract may be implied by law in many cases, even where the party protested against any contract. The law says he did con- tract, because he ought to have done so. On that ground the creditor might recover against him when sober, for neces- saries supplied to liim when drunk." ^ Broadwater i). Darne, 10 Mo. 277 ; Seymour v. Delancy, 3 Cow. (N. Y.) 445; 8. c. 15 Am. Dec. 270; Dorr v. Munsell, 13 John. (N. Y.) 430; Pren- tice V. Achorn, 2 Paige Ch. (N. Y.) 30; Burroughs v. Eichman, 13 N. J. L. (1 Gr.)2.33; s. c. 23 Am. Dec. 717; Curtis V. Hall, 4 N. J. L. (1 South.) 361 ; French v. French, 8 Oliio, 214 ; s. c. 31 Am. Dec. 441 ; Duncan ;;. Mc- Cullough, 4 Serg. & R. (Pa.) 484; Clark V. Caldwell, 6 Watts (Pa.) 139 ; Rutherford v. RufC, 4 Desau. (S. C.) Eq. 364; "VVigglesworth u. Steers, 1 Hen. & Munf. (Va.) 70; s. u. 3 Am. Dec. 602 ; Foot v. Tewksbury, 2 Vt. 07 ; Barrett v. Buxton, 2 Aiken (Vt.) 167; s. c. 16 Am. Dec. 691; Lazell v. Pinnick, 1 Tyler (Vt.) 247; s. c. 4 Am. Dec. 722 ; Reynolds l,. Waller, 1 Wash. (Va.) 164. 2 Gore V. Gibson, ubi $upi-a. See McCrillis u. Bartlett, 8 N. H. 569; Richard u. Strong, 13 Ired. (N. C.) L. 106. Contract hy intoxicated person. — It is well settled in this country that if a person at the time of entering into a contract is so intoxicated as to be without a contracting mind, his con- tract will be aToided in equity at the notice of such intoxicated party. Wade V. Colvert, 2 Mill (S. C.) 27; s. c. 12 Am. Dec. 652; Woodson V. Gordon, Peck. (Tenn.) 196; s. c. 14 Am. Dec. 743; Wigglesworth v. Steers, 1 Hen. & Munf. (Va.) 70; s. c. 3 Am. Dec. 602. Mental inca- pacity at the time of contracting, pro- duced by excessive use of intoxica- ting liquors, is a good defence against a contract, whether it be by deed or parol. Jenners v. Howard, 6 Blackf. (Ind.) 240. Intoxication. — The contract will be set aside although such intoxica- tion was voluntary and in no wise at- tributable to the other party. See Warnock v. Campbell, 26 N. J. Eq. (IOC. E. Gr.)485; French ». French, 8 Ohio, 214; s. c. 31 Am. Dec. 441; Barrett v. Buxton, 2 Aik. (Vt.) 167 ; s. c. 16 Am. Dec. 691. Such contract however is only voidable, not abso- lutely void, and may be ratified when sober. Carpenter v. Rogers, 69 Mich. And where a person has been placed under the care of a committee as an habitual drunkard, he cannot in his sober moments make contracts to bind himself or his property. Wadsworth 0. Sharpsteen, 8 N. Y. 388; s. c . 59 Am. Dec. 499; Imhoff v. Whitmer, 31 Pa. St. 243. And where a contract is entered into by a person in a state of intoxication, it may, after his death, be avoided by his legal representatives. Wigglesworth v. Steers, 1 Hen. & Munf.' (Va.) 70; s. c. 3 Am. Dec. 602. See Reynolds V. Waller, 1 Wash. (Va.) 164. In New Hampshire, where a com- plaint has been made to the judge of the probate court under the statutes, by the selectmen of the town, setting forth that an individual, by excessive drinking and idling, is wasting his estate, etc., and praying that a guard- ian may be appointed ; and a copy of the complaint and order of notice thereon has been filed with the clerk of the town in which he resides, pur- suant to the statute, a contract made by him, pending such action, wiU. not 84 PAKT I.J PARTIES. ^33 [But a contract entered into by a person who is so drunk as not to know what he is doing, is voidable only and not void, and may therefore be ratified by him when he becomes sober.^ § 38. A married woman is at common law absolutely in- competent to enter into contracts during coverture : in con- templation of law she has no separate existence, her husband and herself forming but one person.^ She cannot even, while living apart from her husband and enjoying a separate * maintenance secured by deed, make a [*33] valid purchase on her own account, even for necessa- ries, and when credit is given to her there is no remedy but an appeal to her honor.^ The contract with her was not, as in the case of an infant voidable only, but absolutely void, and therefore incapable of ratification after her coverture had ceased.^ be binding, if a guardian is afterwards appointed on sucli complaint. Mc- Crillis V. Bartlett, 8 N. H. 669. See Manson v. Felton, 30 Mass. (13 Pielt.) 206; Sinitli v. Spooner, 20 Massu (3 Pick.) 229. 8 Matthews v. Baxter, L. R. 8 Ex. 132, where tlie use of the word " void " in Gore v. Gibson, ubi supra, is com- mented on. American authorities. — Foss v. Hil- dreth, 92 Mass. (10 Allen) 76, 79; Warnock w. Campbell, 25 N. J. Eg. (10 C. E. Gr.) 485; Van Wyck v. Brasher, 81 N. Y. 260; French r. French, 8 Ohio, 214.'> Where there has been an inquest Jind- {ng a man to be a habitual drunkard, such finding is only prima facie evi- dence of incapacity before such find- ing, but conclusive thereafter. Kohls V. Kohls, 61 Pa. St. 245; Leckey v. Cunningham, 66 Pa. St. 370; Noel v. Karper, 53 Pa. St. 97; ImhofE v. Witmer, 31 Pa. St. 243 ; In re Gang- were's Estate, 14 Pa. St. 417, 428; s. c. 53 Am. Dec. 554; Kogers v. Walker, 6 Pa. St. 371 ; s. c. 47 Am. Dee. 470; Hutchinson v. Sandt, 4 85 Rawle (Pa.) 234; ». c. 26 Am. Dec. 127 ; Sergeson v. Sealey, 2 Atk. 412. 1 Jolmston V. Jones, 12 B. Mon. (Ky.) 326 ; Stephenson v. Osborne, 41 Miss. 119; Young v. Paul, 10 N. J. Eq. (2 Stock.) 401 ; Jacobs v. Featherstone, 6 Watts & S. (Pa.) 346; Dorranee v. Scott, 3 Wharf. (Pa.) 309. Co. Littleton, 112, d. 2 Marshall v. Button, 8 T. R. 545. 2 Zouch V. Parsons, 3 Burr. 1794, 1805; Com. Dig. Baron & Feme (W.). American authorities, • — Howe v. Wildes, 34 Me. 666; Pond o. Car- penter, 12 Minn. 430 ; Mallett v. Par- ham, 52 Miss. 922; Blake v. Hall, 57 N. H. 373 ; Eaton v. George, 40 N. H. 259; Pippen r. Wesson, 74 N. C. 437 ; Walker v. Simpson, 7 Watts & S. (Pa.) 83. Purchase of necessaries. — A mar- ried woman may purchase necessa- ries on the credit of her husband, if he neglects to provide them. Bea v. Durkee, 25 111. 503 ; Eames v. Sweet- ser, 101 Mass. 78; Clark v. Cox, 32 Mich. 204; Hultz v. Gibbs, 66 Pa. St. 360; Jolly v. Rees, 15 C. B. (N. S.) 628 ; followed by the House of Lords *33 FORMATION OF THE CONTKACT. [BOOK I. § 39. The common law exceptions to the general and very rigid rule as to the incapacity of a married woman to bind herself as purchaser are well defined. The first is, when the husband is civiliter mortuus, dead in law, as when he is under sentence of penal servitude, or transportation, or ban- ishment.i The disability of the wife in such cases is said to in Debenham u. Mellon, L. E. 5 Q. B. Div. 394; Seaton v. Benedict, 8 Bing. 28; s. c. 2 Smith Lead. Cas. 439. 1 Ex parte Franks, 7 Bing. 762 ; Sparrow v. Caruthers, cited in n., 1 T. R. p. 6 ; De Gaillon v. L'Aigle, 1 B. & P. 357. See, also, Lady Belknap's Case, Tear-book, 2 Hen. TV./, a; 1 Hen. IV. 1, pi. 12; Bac. Abr. Baron and Feme, (M.); Lean v. Schutz, 2 W. BI. 1197, 1199; Marsh v. Hutchinson, 2 Bos. & Pull. 231 ; 2 Roper's Law of Husband and Wife, 121. See Cornwall v. Hoyt, 7 Conn. 420; Troughton u. Hill, 2 Hayw. (N. C.) 406 ; Wright v. Wright, 2 Desaus. (S. C.) 244. TWien married woman majj trade as a feme sole.' — The Supreme Court of the United States say in Rhea v. Rhenner, 26 U. S. (1 Pet.) 105 ; bk. 7, L. ed. 72, that " the law seems to be settled, that when the wife is left without maintenance or support, by the husband, has traded as a. feme sole and has obtained credit as such, she ought to be liable for her debts. And the law is the same, whether the hus- band is banished for his crimes, or has voluntarily abandoned the wife. It is for the benefit of the feme covert^ that she should be answerable for her debts, and liable to an action in such a case ; otherwise she could not ob- tain credit, and would have no means of gaining a livelihood, A decision to this effsct, by tlie Court of Com- mon Pleas, in England, is reported in 1 Bos. & Pull. (Leader v. Danvers) 359. In delivering the opinions of the court, Mr. Justice Buller refers to the case of Lady Belknap, whose hus- band was exiled. She was permitted to sue in her own name. The hus- band of Lady Sandys was banished by an act of Parliament during life ; and it was decreed in her case, that she might, in all things, act as a. feme sole, and as if her husband was dead ; and that the necessity of the case required that she should have such power. Anonymous, 1 Vern. 104. And the same reason applying where the husband had abjured the realm, the wife, in that case, was allowed to sue as a widow for her dower. In such case she has been permitted to alien her land without her husband, and is exempted from the disabilities of coverture. It has been uniformly considered that banishment or ab- juration is a, civil death of the hus- band." See Gregory v. Paul, 15 Mass. 31; reviewing the cases on this sub- ject and citing Eliza Wilmbt's Case, Moore, 351 ; Dubois v. Hole, 2 Vern. 613 ; Countess of Portland v. Progers, 2 Vern. 104; Derry v. The Duchess of Mazarine, 1 Ld. Raym. 147 ; Ring- stead 0. Lady Lanesborough, Co. Bl L. 24; Barwell v. Brooks, Co. B. L 28; Corbett v. Poelnitz, 1 T. R. 8 Marshall v. Rutton, 8 D. & E. 545 Lean v. Schutz, 2 W. Black. 1196 Newsome a. Bowyer, 3 Pr. Wm. 37 De Gaillon v. L'Aigle, 1 Bos. & Pull. 357; Walford r. The Duchess of Pienne, 2 Esp. 554; and see Franks V. The Duchess de Pienne, 2 Esp. 587 ; Burfleld o. The Duchess de Pienne, 2 Bos. & Pull. N. R. 380; Kay v. The Duchess de Pienne, 3 Camp. 123 ; Hookham v. Chambers, 3 Brod. & Bing. 92 ; Carroll v. Blencow, 4 Esp. 27; Bogget v. Frier, 11 East, 150; Co. Lit. 132 a. However, the mere tem- porary absence of a husband, or a separate maintenance, or a living 86 PAKT I.] PAETIES. *34 be suspended, for her . own benefit, that she may be able to procure a subsistence. She may therefore bind herself as purchaser, when her husband, a convict sentenced to trans- portation, has not yet been sent away,^ and also when he remains away after his sentence has expired.^ But not if he abscond and go abroad in order to avoid a charge of felony.* § 40. It was held in some early cases that where a wo- man's husband was an alien, and resided abroad, and she lived in England, and contracted debts here, she was liable ; Lord Kenyon, in one case, putting the decision " on the prin- ciple of the old common law, where the husband had abjured the realm." ^ But this principle was held not to apply to the case of Englishmen who voluntarily abandoned the country .^ More modern cases seem to throw very strong doubt on the earlier doctrine as regards the capacity of a woman, whose husband is an alien, residing abroad, to * con- [*34] apart of tlie wife, will not enable her to sue or subject her to be sued alone. Robinson v. Rej'nolds, 1 Aik. (Vt.) 174. Where the husband is civiliter mortuus, as where he has ab- jured the realm, been banished, or exiled, his wife may sue or be sued as a, feme sole. Robinson v, Reynolds, 1 Aik. (Vt.) 174. And the same is true where the husband is an alien, and has never resided in this coun- try. Robinson a. Reynolds, 1 Aik. (Vt.) 174. 2 Ex parte Franks, 7 Bing. 762. 8 Carroll v. Blencow, 4 Esp. 27. ^ Williamson v. Dawes, 9 Bing. 292. American authorities. — Smith v. Silence, 4 Iowa, 321 ; Gregory v. Paul, 15 Mass. 31; Rhea v. Rhenner, 26 U. S.(l Pet.) 105, 108; bk. 7, L. ed. 72 ; Williamson v. Dawes, 9 Bing. 292. 1 Walford v. Duchesse de Pienne, 2 Esp. 653; Franks u. De Pienne, 2 Esp. 587; Burfield v. De Pienne, 2 B. & P. N. R. 380; De Gaillon v. L'Aigle, ztbi supra. Abandonment by husband enables a married woman to trade as ajeme sole while such abandonment lasts. Mead V. Hughe, 15 Ala. 141 ; s. c. 50 Am. Dec. 123; Tobin v. Galvin, 49 Gal. 34 ; Lawrence u. Spear, 17 Cal. 421 ; Ahern u. Easterby, 42 Conn. 546; Moore v. Stevenson, 27 Conn. 14; Hazelbaker v. Goodfellow, 64 111. 238; Love u. Moynehan, 16 111. 277; s. c. 63 Am. Dec. 306; Abshire v. Mather, 27 Ind. 381 ; Smith v. Silence, 4 Iowa, 321; s. c. 66 Am. Dec. 137; Stith V. Patterson, 3 Bush (Ky.) 132 ; Abbot V. Bayley, 23 Mass. (6 Pick.) 89; Gregory v. Paul, 15 Mass. 31; Coughhn V. Ryan, 43 Mo. 99 ; Rose v. Bates, 12 Mo. 32 ; Harrison v. Stew- art, 18 N. J. Eq. (3 C. E. Gr.-) 451 ; Wilson V. Brown, 13 N. .T. Eq. (2 Beas.) 277 ; Osborn v. Nelson, 59 Barb. (N. Y.) 375 ; Benadum v. Pratt, 1 Ohio St. 403; Black v. Tricker, 59 Pa. St. 13; Spier's Appeal, 20 Pa. St. 233 ; Frary v. Booth, 37 Vt. 78 ; Rhea t,. Rhenner, 26 U. S. (1 Pet.) 107 ; bk. 7, L. ed. 72. 2 Farrar i\ Countess of Granard, 1 B. & P. N. R. 80; Marsh v. Hutchin- son, 2 Boss. & P. 226; Williamson v. Dawes, 9 Bmg. 292. 87 "34 FOEMATION OF THE CONTRACT. [book I. tract debts for which she can be sued in England. In Kay V. Duchesse de Pienne, where Lord EUenborough's rul- ing at Nisi Prius was confirmed by the Court in Banco (3 Camp. 123), his Lordship confined the doctrine of Lord Ken- yon to cases where the husband has never been in the Idngdom, not simply residing abroad, separate from his wife. And in Boggett V. Frier (11 East, 303), the Court observed to coun- sel, that all these old oases were, so far as opposed to Mar- shall V. Rutton (8 T. R. 645), overruled by that case. In Barden v. Keverberg,^ where the defendant pleaded cover- ture, plaintiff replied that defendant's husband was an alien residing abroad, and had never been within the United Kingdom ; and that the debt was contracted by the defend- ant in England, where she was living separate and apart from her husband, as a; feme sole, and that the plaintiff gave credit to her as a feme sole ; and that she made the promise in the declaration mentioned as a feme sole. There was no 8 2 M. & W. 61. Abandonment in a foreign country. — Where a husband deserted his wife in a foreign country and she afterwards maintaining herself in this country as a single woman, she is competent to contract, sue and be sued as a feme sole. Gregory v. Pierce, 45 Mass. (4 Mete.) 478; Gregory v. Paul, 15 Mass. 31. For this purpose an abandonment in an- other state of tlie United States is equivalent to an abandonment in a foreign state, because the husband is equally beyond operation of the laws of the state and the jurisdiction of its courts. Gregory v. Pierce, 45 Mass. (4 Mete.) 478 ; Abbot v. Bayley, 23 Mass. (6 Pick.) 89. In the former ease the courts say : " The principle is now to be considered as established in Massachusetts, as a necessary ex- ception to the rule of the common law placing a married woman under disability to contract or maintain a suit, that where the husband was never within the commonwealth, or has gone beyond its jurisdiction, has wholly renounced his marital rights and duties, and deserted his wife, she may make and take contracts, and sue and be sued in her own name, as a feme sole. It is an application of an old rule of the common law, which took away the disability of coverture when the husband was exiled or had abjured the realm. In Abbot I'. Bayley, 2o Mass. (6 Pick.) 89, it was held that, in this respect, the residence of the husband in another state of the United States was equivalent to a residence in a foreign state, he being equally be- yond the operation of the laws of the commonwealth and the jurisdic- tion of the courts." See, also, James u. Stewart, 9 Ala. 855; Common- wealth V. Cullins, 1 Mass. 116 ; Chou- teau V. Merry, 3 Mo. 254 ; Edwards v. Davies, 16 Johns. (N. Y.) 281; Troughton v. Hill, 2 Hayw. (N. C.) 406 ; Valentine v. Ford, 2 Browne (Pa.) 193 ; Wright v. Wright, 2 De- saus. (S. C.) Eq. 242; Bean v. Mor- gan, 4 McC. (S. C.) 148; Boyce u. Owens, 1 Hill (S. C.) 8 ; Robinson v. Reynolds, 1 Aik. (Vt.) 174; Story on Partn. § 10. PART I.J PAETIBS. *35 demurrer, but the case was tried on the facts alleged by the replication, and denied by rejoinder, and the verdict for plaintiff Avas set aside by the Court in Banco. Parke B. said : — " Supposing the replication good, although I have a strong opinion that it is not (because the cases in which the wife has been held liable, her husband being abroad, apply only where he is eiviliter mortuus), you are bound under it, to make out that the husband was an alien, that he was resi- dent abroad, and never in this country, which facts are now admitted — and aZso that the defendant represented herself as a, feme sole, or that the plaintiff dealt with her believing her to be a. feme sole ;" and the same learned judge threw doubt upon the report of what Lord EUenborough said in Kay V. Duchesse de Pienne. § 41. More recently the case of De Wahl v. Braune ^ came before the Exchequer. The declaration was on an agree- ment to purchase the interest of the plaintiff in the benefit of a lease and school for young ladies. Plea in abatement, plain- tiff's coverture. Replication, that her husband was an alien, born * in Russia, did not reside in this country [*35] at the commencement of the action, was never a subject of this country; that the cause of action accrued to plaintiff in England, while she was a subject of our lady the Queen, residing here separate and apart from her husband ; that defendant became liable to her as a single woman, and that before and at the time of the commencement of the suit war existed between Russia and this country, and that her husband resided in Russia, and adhered to the said enemies of our lady the Queen. On demurrer, held that the wife could not sue as a feme sole; that her husband was not eiviliter mortuus, and that the contract made during cover- ture was the husband's. In this case the action was by the wife, but the reasoning of the Court would have been equally applicable if her condition had been reversed, and she had been the defendant instead of the plaintiff. § 42. The only remaining exception to the absolute inca- pacity of a married woman to bind herself as purchaser 1 1 H. & N. 178. and 25 L. J. Ex. 343. 89 *35 FORMATION OF THE CONTRACT. [book I. during coverture, is one which arises under the custom of London, and is confined to the City of London. By that custom, a feme covert may be a sole trader, and when so, she may sue and be sued in the City Courts in all matters aris- ing out of Irer dealings in her trade in London. In the well- known case of Beard v. Webb,^ where Lord Eldon C. J. delivered the judgment of the Exchequer Chamber, revising that of the King's Bench, this custom is elaborately consid- ered, in connection with the general law on the subject of the wife's capacit)" to contract as a feme Hole during mar- riage; and the custom is described in the pleadings as a cus- tom "that where 2k. feme covert of a husband useth any craft in the said city on her sole account, whereof her husband meddleth nothing, such a woman shall be charged as feme sole concerning everytlnng that touched her craft." ^ § 43. Li equity where a married woman had separate estate, without restraint on anticipation, she was, to a certain 1 2 B. & P. 93; see also Macqueen, Husband and Wife, 361, ed. 1872, where this custom is set out at length. ^ See Langham v. Bewett, Cro. Cas. 67 ; Beard v. Webb, 2 Boss. & Bull. 93, 101. In Pennsylvania, see Cleaver v. Scheetz, 70 Pa. St. 496; Burke v. Winkle, 2 Serg. & E. (Pa.) 189 ; Jacobs v, Peatherstone, 6 Watts & S. (Pa.) 340; and Soutli Carolina, Newbiggin v. Pillans, 2 Bay (S. C.) L. 162 ; McDaniel v. Cornwell, 1 Hill (S. C.) L. 428 ; Starr v. Taylor, 4 McC. (S. C. ) L. 413; Blytliwood «. Everinghara, 3 Rich. (S. C.) L. 285; Hobart v. Lemon, 3 Rich. (S. C.) L. 131 ; Dial v. NeufEer, 3 Rich. (S. C.) 78. Married women as feme sole tra- ders : South Carolina doctrine. — A married woman may act as a, feme sole trader, and become liable as such where she is technically a trader. Newbiggin v. Pillans, 2 Bay (S. C.) 162; Surtell v. Brailsford, 2 Bay (S. C.) 333; Robards v. Price, 3 McC. (S. C.) L. 476; McDowall „. Wood, 2 N. c& McC. (S. C.) 242. See McDaniel ... Cornwell, 1 Hill (S. C.) L. 428 ; Ervart v. Nagel, 1 McMulI. (S. C.) L. 50. A wife may become a sole trader by permission of her husband and become entitled to her earnings and separate estate even without deeds. McGrath v. Robert- son, 1 Desaus. (S. C.) Eq. 445. A married woman acting as a feme sole trader may enter into a bond which relates to or is in some man- ner connected with her business. McDowall V. Wood, 2 N. & McC. (S. C.) 242. A feme covert acting as sole trader, living apart from her husband and not under his power, is liable to an indictment for retailing spirituous liquors witliout a license (State V. Collins, 1 JIcC. (S. C.) L. 355); and she will be liable per- sonally under an ordinance prohib- iting retailers of liquors from sell- ing to persons of certain classes, or admitting them into the premises, although the liquor was given to such persons by her husband acting as her agent and in her presence. City Council v. Van Roven, 2 N. c& McC. (S. C.) L. 465. 90 PART I.] PARTIES. *36 extent, considered as a feme sole with respect to tliat prop- erty, and might so contract as to render it liable for the payment *of her debts. In respect of her [*36] purchases the rule was that if she, having separate property unfettered by any restraint on anticipation, entered into a pecuniary engagement, whether by ordering goods or otherwise, which, if she were a feme sole, would constitute her a debtor, and in entering into such engagement she pur- ported to contract not for her husband but "for herself, and on the credit of her separate estate, and it was so intended by her, and so understood by the person with whom she was contracting, that constituted an obligation for which the person with whom she contracted had the right to make her separate estate liable.-' 1 Mrs. Matthewraan's Case, 3 Eq. 781, 787. See, also, Shattock v. Shat- tock, 2 Eq. 182 ; Johnson v. Gallagher, 3 De G., E. & J. 404 ; London Char- tered Bank v. Lerapriere, L. R. 4 P. C. 572; Picard ,.. Hine, 5 Ch. 274; Pike u. Eitzgibbon, 17 Ch. D. 454, C. A. American authorities. — Craft v. Rol- land, 37 Conn. 491 ; Wells v. Thorn- man, 37 Conn. 318; WlUard v. East- ham, 81 Mass. (15 Gray) 328; John- son V, Cummins, 16 N. J. Eq. (1 C. E. Gr.) 97 ; Johnson v. Vail, 14 N. J. Eq. (1 McCar.) 423 ; Gosman u. Cruger, 69 N. Y. 87 ; Yale v. Dederer, 68 N. Y. 329; s.o. 18]Sr.Y. 265; Conlin «. Can- trell, 34 N. Y. 217 ; Baqk of Watkins V. Miller, 63 N. Y. 639 ; Downing o. O'Brien, 67 Barb. (N. Y.) 582; Len- nox V. Eldred, 65 Barb. (N. Y.) 410; Bogert V. Gulick, 65 Barb. (N. Y.) 322 ; Kelso v. Tabor, 52 Barb. (N. Y.) 125; Manchester ;;. Sahler, 47 Barb. (N. y.) 155; Hutchinson v. Under- wood, 27 Tex. 255; La Touche v. La Touche, 3 H. & C. 576; Johnson v. Gallagher, 3 De G., F. & J. 494, and note 2; Butler v. Cumpston, L. R. 7 Eq. 20, 21. Charging separate property of mar- ried women. — The English doctrine as laid down in the text has been adopted in a majority of the Ameri- can states. Sliort v. Battle, 52 Ala. 456 ; Cowles v. Pollard, 51 Ala. 445 ; Brame v. McGee, 46 Ala. 170, 174; Nunn u. Givhan, 45 Ala. 375; Wil- kinson V. Cheatham, 45 Ala. 341 ; Gunter v. Williams, 40 Ala. 561; Paulk V. Wolf, 34 Ala. 541 ; Baker v. Gregory, 28 Ala. 544; o. c. 65 Am. Dee. 366; Ozley c. Ikelheimer, 26 Ala. 332 ; Puryear v. Puryear, 16 Ala. 486 ; Palmer v. Rankins, 30 Ark. 771 ; Buckner v. Davis, 29 Ark. 444, 447; Oswalt v. Moore, 19 Ark. 257; Dobbin D. Hubbard, 17 Ark. 189,196; s. c. 65 Am. Dec. 425; Maclay v. Love, 25 Cal. 367 ; Miller v. Newton, 23 Cal. 554; Piatt v. Hawkins, 43 Conn. 139, 143 ; Buckingham v. Moss, 40 Conn. 461 ; Wells u. Thorman, 37 Conn. 318; Taylor v. Slielton, 30 Conn. 122; Imlay o. Huntington, 20 Conn. 149 ; Caulk v. Fox, 13 Fla. 148 ; Alston V. Rowles, 13 Fla. 117 ; Aber- nathy v. Abernathy, 8 Fla. 243 ; San- derson V. Jones, 6 Fla. 430 ; s. c. 63 Am. Dec. 217 ; Maiben v. Robe, 6 Fla. 381 ; Lewis v. Yale, 4 Fla. 418 ; Smith V. Poythress, 2 Fla. 92 ; s. c. 48 Am. Dec. 176; Morrison v. Solomon, 52 Ga. 206 ; Seabrook u. Brady, 47 Ga. 650; Van Arsdale u. Joiner, 44 Ga. 174; Hufi V. Wright, 39 Ga. 41 ; Dal- 91 *36 FORMATION OF THE CONTRACT. [book I. § 44. Previous to the Married Women's Property Act, 1882, legislation had already made wide inroads upon the las V. Heard, 32 Ga. 604 ; Robert v. West, 15 Ga. 123; Fears v. Brooks, 12 Ga. 195; Wylly v. Collins, 9 Ga. 223; Weeks v. Sego, 9 Ga. 199,201; Furness o. McGovern, 78 111. 338; Williams v. Hugunin, 69 111. 214; s. u. 18 Am. Dec. 607 ; Schmidt v. Pos- tel, 63 111. 58 ; Carpenter ;;. Mitchell, 50 111. 470; Pomeroy v. Manhattan Life Ins. Co., 40 111. 398; Shannon v. Bartholomew, 53 Ind. 54 ; Hodson v. Davis, 43 Ind. 258 ; Hasheagan c. Specker, 36 Ind. 414; Kantrowitz v. Prather, 31 Ind. 105 ; Abdil v. Abdil, 26 Ind. 287 ; Co.x's Adm'r v. Wood, 20 Ind. 54 ; Reese v. Cochran, 10 Ind. 195 ; Patton v. Kinsman, 17 Iowa, 428 ; Knaggs V. Mastin, Kan. 532; Wicks V. Mitchell, 9 Kan. 88 ; Deering v. Boyle, 8 K.an. 525 ; s. c. 12 Am. Rep. 480; Long v. White, 5 J. J. Marsh. (Ky.) 226; Burch v. Breekenridge, 16 B. Mon. (Ky.) 482; Coleman v. Wooley, 10 B. Mon. (Ky.) 320; Lill- ard V. Turner, 10 B. Mon. (Ky.) ■074; Sweeney v. Smith, 15 B. Mon. (Ky.) 325; Bell v. Keller, 13 B. Mon. (Ky.) 381 ; Jarraan i-. Wilkerson, 7 B. Mon. (Ky.) 293; Barbet u. Roth, 16 La. An. 271; Hall v. Eccleston, 37 Md. 510 ; Cooke v. Husbands, 11 Md. 492 ; Miller v. Williamson, 5 Md. 219 ; Al- len V. Fuller, 118 Mass. 402 ; Tracy v. Keith, 02 Mass. (11 Allen) 214; Rog- ers ;;. Ward, 90 Mass. (8 Allen) 387 ; Willard v. Eastham, 81 Mass. (15 Gray) 328; s. c. 77 Am. Dec. 366; Powers V. Russell, 26 Mich. 179 ; Ran- kin V. West, 26 Mich. 195 ; Denison V. Gibson, 24 Mich. 187 ; De Vries u. Conklin, 22 Mich. 255 ; Pond v. Car- penter, 12 Minn. 432 ; Whiteley v. Stewart, 63 Mo. 303 ; Gage v. Gates, 62 Mo. 412, 417 ; Bank i'. Taylor, 62 Mo. 338; Lincoln v. Rowe, 51 Mo. 571; Miller r. Brown, 47 Mo. 504; B. c. 4 Am. Dec. 345 ; Kimm v. Weip- pert, 46 Mo. 532; s. c. 2 Am. Rep. 541; Schafroth v. Ambs, 46 Mo. 114; Claflin V. Van Wagoner, 32 Mo. 252 ; Segond v. Garland, 23 Mo. 547 ; White- sides V. Cannon, 23 Mo. 457 ; Coats v. Robinson, 10 Mo. 757 ; Vogt v. Tick- nor, 48 N. H. 242 ; Batchelder v. Sar- gent, 47 N. H. 262; Nims v. Bigelow, 45 N. H. 343; Hutchins v. Colby, 43 N. H. 159 ; Perkins v. Elliott, 23 N. J. Eq. (8 C. E. Gr.) 526; Armstrong v. Ross, 20 N. J. Eq. (5 C. E. Gr.) 109; Johnson ; . Cummins, 16 N. J. Eq. (5 C. E. Gr.) 97, 104; Oakley v. Pound, 14 N. J. Eq. (McCar.) 178; Leay- croft V. Hedden, 4 N. J. Eq. (3 H. W. Gr.) 512; Pentz v. Simonson, 3 N. J. Eq. (2 Beas.) 2.32; AVilliams v. Urm- ston, 35 Ohio St. 296; s. e. 35 Am. Rep. Oil ; Phillips i'. Graves, 20 Ohio Stat. 390 ; s. c. 5 Am. Rep. 675 ; Hardy V. Van Harlingen, 7 Ohio St. 208; Milburn v. Walker, 11 Tex. 329 ; Pat- ridge V. Stocker, 36 Vt. 117 ; Darnall o. Smith, 26 Gratt. (Va.) 878 ; Bur- net V. I-Iawpes, 25 Gratt. (Va.) 480 ; Muller V. Bayley, 21 Gratt. (Va.) 528; Penn v. Whitehead, 17 Gratt. (Va.) 503 ; Nixon «. Rose, 12 Gratt. (Va.) 431; Woodson v. Perkins, 5 Gratt. (Va.) 345; Lee v. Bank of the U. S., 9 Leigh (Va.) 200 ; Williamson v. Beckham, 8 Leigh (Va.) 20; Vizon- neau v. Pegram, 2 Ijeigh (Va.) 183; West V. West, 3 Rand. (Va.) 373; Ellis r. Baker, 1 Rand. (Va.) 47 ; Rad- ford V. Carwile, 13 W. Va. 572 ; Todd V. Lee, 10 Wis. 484 ; Todd v. Lee, 15 Wis. 380. In Mississippi, North Car- olina, Pennsylvania, Rhode Island, South Carolina and Tennessee (Davis u. Wilkerson, 48 Miss. 585 ; Wichter V. Wilson, 47 Miss. 603; Pollen o. James, 45 Miss. 129 ; Witworth c. Carter, 43 Miss. 01 ; Armstrong i . Stovall, 20 Miss. 275; Robertson v. Bruner, 24 Miss. 242 ; Doty v. Mitch- ell, 17 Miss. (9 Smed. & M.) 435; Atkinson v. Richardson, 74 N. C. 458 ; Pippen V. Wesson, 74 N. C. 442 ; New- ' lin V. Freeman, 4 Ired. (N. C.) Eq. 92 PART I.j PARTIES. *37 common law rules to wMcli reference has been made. By 20 & 21 Vict. c. 85, s. 21, a wife deserted by her husband may obtain an order to protect her earnings and property, the effect of which order during its continuance is to place her " in the like position in all respects with regard to property and contracts as she would be under this Act if she obtained a decree of judicial separation." And the effect of such a decree is stated by the 26th section to be that " the wife shall while so separated be considered as a feme sole for the pur- poses of contract, and wrongs and injuries, and suing and being sued in any civil proceeding." ^ Further provision is made by the 21 & 22 Vict. c. 108, ss. 8, 9, 10, for the protection of persons dealing with wives who have obtained the order above described. The 33 & 34 Vict. c. 93 (amended by 3T & 38 Vict. c. 50), conferred upon married women a separate estate in certain specified property, including their wages or earnings and the investments thereof, deposits made by them in savings banks, property in the funds, and property devolving upon them on an intestacy, and also conferred upon them the *same capacity to contract with reference to this [*37] " statutory " separate estate which they possessed in equity, with reference to their equitable separate estate ; but 312 ; ITrazier v. Brownlow, 3 Ired. 61 ; Armstrong v. Stoval, 26 Miss. (N. C.) Eq. 237; s. c. 43 Am. Dec. 275; Robertson v. Bruner, 24 Miss. 165; Harris V. Harris, 7 Ired. (N. C.) 242; Doty v. Mitchell, 17 Miss. (9 Eq. Ill; s. c. 53 Am. Dec. 393; Smed. .Sb M.) 435; Atkinson ■..Rich- Knox V. Jordan, 5 Jones (N. C.) Eq. ardson, 74 N. C. 458; Pippen ;;. Wes- 175 ; Rogers u. Hinton, Phil. (N. C.) son, 74 N. C. 442 ; JSfewlin v. Free- Eq. 101; Metcalf u. Cook, 2 R. I. man, 4 Ired. (N. C.) Eq. 312; Erazier 355 ; Kirby v. Miller, 4 Coldw. (Tenn.) u. Brownlow, 3 Ired. (N. C.) Eq. 237 ; 4; Mar-shall o. Stephens, 8 Humph. s. c. 43 Am. Dec. 165; Harris v. (Tenn.) 159; Ware f. Sharp, 1 Swan. Harris, 7 Ired. (N. C.) Eq. Ill; s. c. (Tenn.) 489; Morgan K.Elam, 4 Terg. 53 Am. Dec. 393; Knox ;;. Jordan, 5 (Tenn.) 375), it is held that a mar- Jones (IST. C.) Eq. 175; Rogers v. ried woman is feme sole as to her sep- Hinton, Phil. (N. C.) Eq. 101; Met- arate estate only in so far as the calf v. Cook, 2 R. I. 355; Kirby v. instrument granting it has expressly Miller, 4 Coldw. (Tenn.) 4 ; Marshall conferred upon her the power to act v. Stephens, 8 Humph. (Tenn.) 209; as such. See Davis v. Wilkerson, 48 Ware v. Sharp, 1 Swa.i. (Tenn.) 489; Miss. 585; Wichter v. Wilson, 47 Morgan i;. Elam, 4 Yerg. (Tenn.) 375. Miss. 603 ; Pollen v. James, 45 Miss. ^ See Ramsden u. Brearly, L. R. 129 ; Whitworth c. Carter, 43 Miss. 10 Q. B. 147. 93 •^37 FORMATION OF THE COXTEACT. [book I. a creditor could not enforce a claim against the separate estate without joining the husband as a defendant in the action.^ And now the 45 & 46 Vict. c. 75 (The Marrieil Women's Property Act, 1882), repealing the earlier Acts of 1870 and 1874, except as to any rights acquired or liabilities accruing under them, lias entirely altered the position of a married woman at common law, and in some important respects her position in equity. It enables a married woman to acquire, hold and dispose of every species of property as though she were a feme sole, to contract, and to sue and be sued apart from her husband, and confers upon her for these purposes an independent status. It thus destroj's, so far as relates to property, the old common law doctrine of conjugal unity. ^ The effect of the Act, as contained in the first five sections, is that when a married woman is a purchaser the seller may now bring an action either in the Queen's Bench* or the 2 Married women's stafnles. — In the absence of the statute giving her power, a married woman, in purchas- ing goods appropriate to her family needs where she is living with her husband, cannot bind her separate estate. Powers v. Eussell, 26 Mich. 179, 184; Campbell i: White, 22 Mich. 178. See Labaree v. Colby, 99 Mass. 559; Stewart v. Jenkins, 88 Mass. (6 Allen) 300; Tillman v. Shackleton, 15 Mich. 447 ; Draper v. Stouvenel, 35 N. Y. 507 ; Knapp v. Smith, 27 N. Y. 277 ; Darby v. Cal- laghan, 16 N. Y. 71. But in most of the states of the Union the principles and rules of the common law applicable to the wife have been changed by legislation in a manner similar to the changes men- tioned in the text, but far more exten- sive and important. Sec Stims Am. Stat. Thus.for instance, under the pro- visions of the Massachusetts statutes, a wife may be sued as though she were s. feme sole. See Massachusetts Gen. Stat, of 1869, ch. 304 ; Statutes of 1874, ch. 184. See, also, Labaree V. Colby, 99 Mass. 559; Tracy 94 Keith, 93 Mass. (11 Allen) 214; Spaulding u. Day, 92 Mass. (10 Allen) 96; Granger v. Ilsley, 68 Mass. (2 Gray) 521. ' See In re Marsh, Mander v. Harris, 24 Ch. D. 222. * The Queen's Bench Division now possesses the requisite machinery for taking accounts with all necessary in- quiries and directions usual in the Chancery Division. For the form of judgment in such an action, see Mc- Queen V. Turner, .30 W. R. 81. It was decided in Stewart u. Jen- kins, 88 Mass. (6 Allen) 300, that a contract by which a married woman acquired separate property was a con- tract in reference to her separate property within the meaning of the statute, and a promissory note given by her in payment for a homestead conveyed to her sole and separate use, would be enforced against her. La- baree V. Colby, 99 Mass. 559. And in Spaulding v. Day, 92 Mass. (10 Allen) 96, it was held that a note given by a married woman for wool sold to her own credit and delivered at a house owned by her was binding. PAKT I.J PARTIES. *38 Chancery Division of the High Court against her alone, for the purpose of enforcing his claim against her separate prop- erty; but it will still be necessary to join the husband as defendant in those cases where alternative relief can be obtained against him. What will be included in the wife's separate property will depend to some extent upon the date of the marriage. It will comprise all property settled to her separate use without restraint on anticipation, and, if the marriage took place after the commencement of the Act, all real and personal property belonging to her at the time of the marriage, or acquired by or devolving upon her after marriage ; if the marriage took place before the commence- ment of the Act, all real and personal property to which her title accrued after the * commencement of [*38] the Act. The presumption Avill be th^t the married woman's contract of purchase was made with reference to her separate property, and it will bind not only separate property of which she was possessed or to which she was en- titled at the time of the contract, but also all after-acquired separate property.^ The better opinion would seem to be that the married woman under these provisions is not ren- dered personally liable, but that, as in equity before the Act, an obligation is incurred which may be discharged not by reaching her, but by reaching her separate property. A married woman is rendered subject to the bankruptcy laws in the particular case where she carries on a trade sepa- rately from her husband, but not otherwise, and this provis- ion is confirmed by the new Bankruptcy Act, 1883.^ As to what constitutes a married woman's separate trade or business, the reader is referred to the cases of Ashworth V. Outram ^ and Lovell v. Newton.^ It is important to observe that the Act does not affect set- tlements, nor render inoperative any restraint upon anticipa- tion, present or future.® 6 Thus overruling Pike v. Fitz- pressed by Mellish L. J. in Ex jmrte gibbon, 17 Ch. D. 454, C. A. CuUey, 9 Cii. 307, 311. 6 Sect. 152. This was the law ' 5 Ch. D. 923, C. A. previous to and under the Act of "4 0. P. D. 7. 1870. See Ex parte Jones, 12 Ch. ^ Sect. 19. See In re Stonor's D. 485, C. A., solving the doubt ex- Trusts, 24 Ch. D. 195. The court 95 *38a FORMATION OP THE CONTEAGT. [BOOK I. It may be a question how far the presumption which is now raised that tlie married woman contracted with respect to her separate property will be rebutted by proof that she has contracted under circumstances in which before the Act she would have had implied authority to pledge her hus- band's credit. Probably it would be held that the Act has not affected the wife's position as her husband's agent, and the husband's liability in such cases, but the point is one more properly to be considered under the law of agency.] [*38a] § 45. * The 45 & 46 Vict. c. 75 (The Married Women's Property Act, 1882), which came into op- eration on the first of January of the present year ^ received the royal assent some time after the sheets of the earlier part of this edition had been sent to the press. The new Act, which repeals the earlier Acts of 1870 and 1874, except as to any rights or liabilities accruing under them, entirely alters the position of married women at common law, and in a great measure their position in equity. It enables them to acquire, hold, and dispose of every species of property, to contract, and to sue and be sued apart from their husbands, and confers upon them for these purposes an independent status. The following sections of the Act are those which seem more or less to bear upon the special subject of this treatise. The 1st section provides that (1) "A married woman shall, in accordance with the provisions of the Act, be capa- ble of acquii-ing, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were a feme sole, without the in- tervention of any trustee. (2) A married woman shall be capable of entering into and rendering herself liable in respect of and to the extent of her separate property on any contract, and of suing and being sued, either in contract or in tort, or otherwise, in all respects as if she were a feme sole, and her husband need not be joined with her as plaintiff or defend- may dispense with the restraint under U. 483 ; Tamplin v. Miller, W. N. 44 & 46 Vict. c. 41, s. 39 (Cony. Act, (1882), 44. 1882). Hodges v. Hodges, 30 W. i 1883. 96 PART I.] PARTIES. *SSb ant, or be made a party to any action or other legal proceed- ing brought by or taken against her ; and any damages or costs recovered by her in any such action or proceeding shall be her separate property; and any damages or costs recovered against her in any such action or proceeding shall be payable out of her separate property, and not other- wise. (3) Every contract entered into by a married woman shall be deemed to be a contract entered into by her with respect to and to bind her separate property, unless the con- trary be shown. (4) Every contract entered into by a mar- ried woman with respect to and to bind her separate property shall bind not only the separate property which she is pos- sessed of or entitled to at the date of the contract, but also all separate property which she may thereafter acquire. (5) Every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a, feme sole."" And the 2d section enacts that " Every woman who * marries after the commencement of the Act shall be [*386J entitled to have and to hold as her separate property and to dispose of in manner aforesaid all real and personal property which shall belong to her at the time of marriage, or shall be acquired by or devolve upon her after marriage, in- cluding any wages, earnings, money, and property gained or acquired hy her in any employment, trade, or occupation, in which she is engaged, or which she carries on separately from her husband, or by the exercise of any literary, artistic, or scientific skill." By the 5th section "Every woman married before the com- mencement of the Act shall be entitled to have and to hold and to dispose of in manner aforesaid as her separate property, all real and personal property, her title to which, whether vested or contingent, and whether in possession, reversion, or remainder, shall accrue after the commence- ment of the Act, including any wages, earnings, money, and property so gained or acquired by her as aforesaid." By the 6th section all investments therein specified (which it is believed include every kind of investment), which at the 97 *38t; FORMATION OF THE CONTEACT. [BOOK I. commencement of the Act were standing in the sole name of a married woman, are to be deemed, unless and until the contrary be shown, to be the separate property of such married woman : and the fact that any such investments as aforesaid are standing in the sole name of a married woman shall be sufficient primd facie evidence that she is beneficially entitled thereto for her separate use, so as to authorize and empower her to receive or transfer the same without the concurrence of her husband, and to indemnify the individuals or public bodies, with whom the investments are made, in respect thereof. By the 7th section any interest in any corporation, com- pany, public body, or society, which after the commencement of the Act shall be allotted to, or placed or registered or transferred in, or into, or made to stand in the sole name of any married woman, is to be deemed, unless and until the contrary be shown, to be her separate property, in respect of which her separate estate shall alone be liable ; but nothing in the Act is to require or authorize any corporation or joint- stock company to admit a married woman to be a holder of shares, to which any liability may be incident, if they are prohibited from doing so by their constitution or by-laws. By the 8th section the foregoing provisions are to apply, as well to investments in the name of any married woman jointly with any persons or person other than her husband, as to investments in her sole name. [*38c] * By the 9th section it shall not be necessary for the husband of any married woman, in respect of her interest, to join in the transfer of any investment as aforesaid, which is at the commencement of the Act, or shall be at any time thereafter standing in the sole name of any married woman, or in the joint names of such married woman and any person or persons not being her ' husband. By the 12tli section " Every woman, ivhether married before or after the Act, shall have in her own name against all per- sons whomsoever, including her husband, the same civil reme- dies . . - for the protection and security of her oivn separate property, as if such property belonged to her as a, feme sole, . . . and in any proceeding under this section a husband 98 PART I.] PAKTIES, *38(i or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwith- standing." By the 19th section all existing and future settlements are saved, and it is provided that the Act shall not interfere with, or render inoperative, any restriction against anticipa- tion. From a consideration of these sections of the Act it is manifest that, for the future where a married woman has property which is settled to her separate use, or created her separate property by the provisions of the Act, she will, unless restrained from anticipation, be, to the extent of that property, in the same position as if she were a feme sole. It is pre- sumed that with regard to property acquired by her as a separate trader, she will be in the same position. The rights and liabilities acquired and incurred by married women under the Married Women's Property Acts, 1870 and 1874, are pre- served by the new Act. The question raised in Summers v. The City Bank ^ as to a married woman's general right to maintain an action in her own name for damages for breach of contract, is settled by sec. 1, sub-sect. 2, of the new Act, while the doctrine of Ashworth v. Outram ,^ as to stock-in- trade, is rendered obsolete by sect. 2. A married woman, deserted by her husband, would seem no longer to require a protection order under 20 & 21 Vict. c. 85.* As to a married woman's liability to bankruptcy, the Act will probably give rise to some doubt. A married woman carrying on a trade separately from her husband is expressly made liable to bankruptcy by sect. 1 sub-sect. 5, and the natural inference is that as the Act points out a par- ticular *case in which married women are to be liable, [*38c?] their liability is excluded in every other. It was held in Ex parte Jones,^ that before the Married Woman's Prop- erty Act, 1870, a married woman was not liable to bank- ruptcy, and that the Act had not altered her position in that 2 L. E. 9 C. P. 580. Vide ante, p. * Vide ante, p. 35, § 42. 37, § 44. 6 12 Ch. D. 484, C. A. Vide ante, 3 5 Ch. D. 923, C. A. Vide ante, p. p. 38, § 44, note 7. 37, § 44. 99 *S8d FOEMATION OP THE CONTEACT. [book I. respect.^ But the ground of the decision of the Court of Appeal in that case was, that the Act of 1870 had not ren- 5 Enabling statutes. — In most, if not all, of the states, enabling statutes have been passed, similar to those given in the text, by which all the property that a woman has at the time of her marriage, or which comes to her by inheritance, or is acquired after marriage, remains her separate property and is under her separate management and control the same as though she were a feme sole. These statutes invade and abrogate the common law to the extent of the inter- est and rights, conferred by them, but they do not invade or interfere with the equity doctrine, because the prin- ciples of both are the same. See Short V. Battle, 52 Ala. 463 ; Morri- son V. Norman, 47 111. 481 ; Richard- son V. Stodder, 100 Mass. 530 ; Mitch- ell V. Otey, 23 Miss. 236; Batch- elder V. Sargent, 47 N. H. 262 ; Albin V. Lord, 39 N. H. 196 ; Peake v. La- Baw, 21 N. J. Bq. (6 C. E. Gr.) 269; Ballin v. Dillaye, 37 N. Y. 35 ; Colvin V. Currier, 22 Barb. (N. T.) 371. Con- sequently the common law prevails ex- cept in so far as the statutes expressly or by necessary implication change it. Alverson v. Jones, 10 Cal. 9; s. c. 70 Am. Dec. 689; Farrell o. Patterson, 43 111. 52 ; Johnson u. Runyon, 21 Ind. 115 ; Smith v. Hewett, 13 Iowa, 94 ; Brookings v. White, 49 Me. 479 ; Edwards v. Stevens, 85 Mass. (3 Al- len) 315; Lord v. Parker, 85 Mass. (3 Allen) 129; Mallett v. Parham, 52 Miss. 922 ; Cary v. Dixon, 51 Miss. 599; Staton v. New, 49 Miss. 309; Whitworth u. Carter, 43 Miss. 72; Smith V. Henry, 35 Miss. 369; Stew- art V. Ball, 33 Mo. 154; Perkins v. Perkins, 62 Barb. (N. Y.) 531 ; Hurd V. Cass, 9 Barb. (N. Y.) 366 ; Berley V. Rampacher, 5 Duer (N. Y.) 183 ; Mahon v. Gormley, 24 Pa. St. 82; Diver v. Diver, 56 Pa. St. 106 ; Stan- ton V. Kirsch, 6 Wis. 338. Some of these statutes give the express power to married women to contract; and where it is not given they have the same capacity to contract with refer- ence to their separate estates that they had in equity before the passage of the statutes. These statutes are held to operate on the right of prop- erty and not on the power to dispose of it. Yale v. Dederer, 18 N. Y. 265 ; Owen V. Cawley, 36 N. Y. 600 ; Todd V. Lee, 15 Wis. 365, 380; Jones v. Crosthwaite, 17 Iowa, 393; Shonk V. Brown, 61 Pa. St. 320; Kantro- witz V. Prather, 31 Ind. 92 ; Tracy v. Keith, 93 Mass. (11 Allen) 214; Whitworth v. Carter, 43 Miss. 61; Dqnbar v. Meyer, 43 Miss. 679 ; Pond V. Carpenter, 12 Minn. 430 ; Bauer v. Bauer, 40 Mo. 61 ; Eckert v. Reuter, 33 N. J. L. (4 Vr.) 266; Clyde v. Keister, 1 Grant (Pa.) 465. Purchase of separate estate by mar- Tied women. — Whether or not a mar- ried woman having no separate estate can under the enabling statute pur- chase property on her personal credit and thus incur a debt and acquire a separate estate by the same act, is a question that is unsettled. See Kan- trowitz V. Prather, 31 Ind. 92 ; Jones u. Crosthwaite, 17 Iowa, 393 ; Dun- ning V. Pike, 46 Me. 461; Tracy v. Keith, 93 Miss. (11 Allen) 214 ; Pond V. Carpenter, 12 Minn. 430 ; Dunbar V. Meyer, 43 Miss. 679 ; Whitworth v. Carter, 43 Miss. 61 ; Bauer v. Bauer, 40 Mo. 61 ; Eckert v. Reuter, 33 N. J. L. (4 Vr.) 266; Owen v. Cawley, 36 N. Y. 600 ; Yale v. Dederer, 18 N. Y. 265; s. c. 72 Am. Dec. 503; Bucher V. Ream, 68 Pa. St. 421; Shonk v. Brown, 61 Pa. St. 320; Robinson v. Wallace, 39 Pa. St. 129; Clyde v. Keister, 1 Grant (Pa.) 461 ; Lanier V. Ross, 1 Dev. & B. (N. C.) Eq. 39; Todd V. Lee, 15 Wis. 365, 380. How- ever, it seems that where she has a separate estate which is the founda- tion of the credit, she may buy on [ t i f 100 PAET I.] PARTIES. dered the married -woman liable to be personally sued as a debtor. Now, under sec. 1, sub-sect. 2, of the Act 1882, a married woman is liable to be sued in all respects as if she credit. Sixbee v. Bov^en, 91 Pa. St. 149; Silveus v. Porter, 74 Pa. St. 448 ; Seeds v. Kahler, 76 Pa. St. 262. See, also, Dunbar v. Meyer, 43 Miss. 679 ; Carpenter v. Mitchell, 50 111.470. It has been held in Alabama (Wil- kinson «. Cheatham, 45 Ala. 337, 342), Arkansas (Wood v. Terry, 30 Ark. 385, 391 ; Stidham v. Matthews, 39 Ark. 650, 658), Illinois (Carpenter 1-. Mitchell, 50 111. 472), Indiana (Light V. Lane, 41 Ind. 539, 542; Kyger v. Hull Skirt Co.. 34 Ind. 249; Haugh V. Blythe's Ex'rs, 20 Ind. 24 ; Johnson v. Chissom, 14 Ind. 415, 416), formerly in Iowa (Jones v. Cros- thwaite, 17 Iowa, 393, 402) ; but a con- trary doctrine prevails in that state now (Chamberlin v. Robertson, 31 Iowa, 408), Maine (Dunning v. Pike, 46 Me. 461, 463), Mississippi (Doyle V. Orr, 51 Miss. 232; Porterfield v. Butler, 47 Miss. 165; Whitworth v. Carter, 43 Miss. 72 ; Ratcliffe v. Col- lins, 35 Miss. 581), Missouri (John- son i;. Houston, 47 Mo. 227), New Hampshire (Ames v. Poster, 42 N. H. 381), North Carolina (Atkinson v. Richardson, 74 N. C. 458), Pennsyl- vania (Bucher v. Ream, 68 Pa. St. 421 ; HoUowell v. Horter, 35 Pa. St. (11 Casey) 375) that a married woman cannot purchase real estate on credit; that she cannot use her disability in this as a means to de- fraud (Foxworth V. Bullock, 44 Miss. 464) ; and that if she paid anything on the purchase, she can have it rescinded, and recover back the money. Cowles v. Marks, 47 Ala. 622. However, the true doctrine appears to be that a married woman can pur- chase on credit, and the thing pur- chased will be her separate estate (Prieber v. Stover, 30 Ark. 729 ; Don- ovan's Appeal, 41 Conn. 555 ; Elder V. Cordray, 54 111. 244; Mitchell v. Smith, 32 Iowa, 486 ; Chamberlin v. Robertson, 31 Iowa, 408 ; Shields v. Keys, 24 Iowa, 313; Allen v. Fuller, 118 Mass. 402 ; Larabee t;. Colby, 99 Mass. 559; Spaulding u. Day, 92 Mass. (10 Allen) 98 ; Stewart v. Jen- kins, 88 Mass. (6 Allen) 300 ; Fisk ;;. Wright, 47 Mo. 352; Pemberton v. Johnson, 46 Mo. 342 ; Huyler v. At- wood, 26 N. J. Eq. (11 C. E. Gr.) 506 ; Frecking v. RoUand, 58 N. Y. 425; Knapp v. Smith, 27 N. Y. 279; Brown V. Hermann, 14 Abb. (N. Y.) Pr. 394; Abbey v. Deyo, 44 Barb. (N. Y.) 379; Williamson v. Dodge, 5 Hun (N. Y.) 498 ; Bugbee v. Blood, 48 Vt. 500; Pringle v. Dunn, 37 Wis. 468,) free from her husband's control and his antecedent debts, where neither his money nor anything of value belonging to him was used in the purchase thereof. Spaulding u. Day, 92 Mass. (10 Allen) 96 ; Ham V. Boody, 20 N. H. 411; Coffin «. Morrill, 2 Post. (N. H.) 352 ; Conrad u. Shomo, 8 Wright, (Pa.) 193 ; Buck V. Gilson, 37 Vt. 653. In New York the doctrine that a married woman may purchase a separate estate on credit is upheld. See Ackley v. Wester- velt, 86 N. Y. 448, 452. The court say in the course of the opinion that, " it is no longer open to dispute in this state that a married woman, although she carries on no business on her own account, and has no separate estate, is liable, like a feme sole, for debts contracted in the purchase and leasing of real estate, or other property. See, also, Westervelt v. Ackley, 21 N. Y. 617; ». u. 62 N. Y. 505. In New Jersey the same doctrine prevails as in New York, except that a married woman cannot bind herself to pay the debt of another. See Vankirk v. Skillman, 34 N. J. L. (5 Vr.) 109; Perkins v. Elliott, 23 N. J. Eq. (8 C. E. Gr.) 526. 101 *38c? POEMATION OF THE CONTRACT. [BOOK I. were a feme sole, but it is not clear from the context whether the liability is intended to be a personal one or to be limited to the amount of her separate estate, in which latter case it is submitted, she would not be personally liable. It is obvi- ous that the exemption from bankruptcy is of no benefit to the married woman, for all her property can be taken in exe- cution by her creditors, and it is certainly a hardship on them to be under the necessity of adopting so circuitous a method of reaching the property of a person who is now for all prac- tical purposes sui Juris. The great change which the Act has introduced in the equitable doctrine of a married woman's capacity to contract is contained in sect. 1, sub-sect. 4, supra. It was held by the Court of Appeal in Pike v. Fitzgibbon "^ that a married woman could not bind by her contract any but the separate property of which she was possessed at the time of making the con- tract. But by the above sub-section of the Act every con- tract entered into by a married woman mth respect to and to bind her separate property, will bind all her separate property, both that of which she is possessed at the time of the contract and any which she may have afterwards acquired. It is also to be noticed, with regard to a married woman contracting as agent, whether for her husband or another, that by sect. 1, sub-sect. 3, sujyra, her contract will be deemed to have been entered into with respect to and to bind her sepa- rate property unless the contrary be shown. It is not clear that this enactment will affect the husband's liability in cases where his wife would have been presumed to be his agent before the Act, although it makes the wife liable unless she can prove that she did not contract on the faith of her sepa- rate estate.^ ' 17 Ch. D. 454, C. A. Vide ante, referred to Mr. Thicknesse's book on p. 38, § 44, note 7. The Married Women's Property Acts, 8 On these and other questions who has kindly assisted the editors suggested by the Act, the reader is in the preparation of this note. 102 PART I.] MUTUAL ASSENT. *39 CHAPTER III. MUTUAL ASSENT. [*39] SECTION I. — OF MUTUAL ASSENT. PAGE Assent, express or implied ... 39 Must be mutual 40 And unconditional 40 And communicated .... 40 Inquiry as to terms not a rejec- tion 41 Proposal retracted before ac- ceptance ... . . 44 Promise to leave proposal open for acceptance 44 Eetractation where parties in immediate communication . 46 By correspondence .... 48 Implied sale 54 Fraudulent third person ... 55 Sale implied by recovery in trover 55 Mistake in assent 56 As to thing sold 56 As to quantity 56 As to price 57 When language of agreement is unintelligible .... 57 As to collateral facts by one party < . . ... 58 A party is estopped from deny- ing that an intention mani- fested by him was his real in- tention .58 PAGE Showing wrong sample by mis- take 59 As to person contracted with in general 60 When caused by fraud ... 63 Conditional assent 64 Sale or return 64 SECTION H. — CIVIL AND AMERICAN LAW ON THIS SUBJECT. Civil law — Quasi contracts . . 64 American law 66 Criticisms on Cooke v. Oxley 66 Professor Bell's criticisms 66 Mr. Story's criticisms ... 66 Chancellor Kent's Editor's crit- icisms 67 Mr. Duer 67 Review of the criticisms . . 67 American decisions as to bar- gains by correspondence . . 71 Civilians, on the same question Pothier 72 His reasoning unsatisfactory . 73 Distinction between sale by cor- respondence, and order for pur- chase or sale, to an agent by letter 74 Where a letter of acceptance and a subsequent letter withdraw- ing acceptance, reach proposer at the same time 76 Section I. — OP MUTUAL assent. § 46. The assent of the parties to a sale need not be ex- press.^ It may be implied from their language,^ or from 1 See Street v. Chapman, 29 Ind. 17 C. B. N. S. 84, 101 ; Payne v. 142, 162; Gowing v. Knowles, 118 Cave, 3 T. R. 148 ; s. c. 1 Langdell's Mass. 232, 283 ; Hoadly v. McLaine, Cas. on Contr. 1. 10 Bing. 482, 487; Joyce v. Swann, Hfutual assent. — A contract of sale 103 *39 FOEMATION OP THE CONTEACT. [BOOK I. is complete and binding upon the parties when their minds have met and they have mutually agreed to the terms and conditions. This mutual assent may be either implied or ex- pressed ; but it must be reciprocal and concurrent in time. See Groden- kemper v. Achtermeyer, 11 Bush (Ky.) 222 ; Phillips u. Moor, 71 Me. 78 ; O'Neill ;■. James, 4.3 N. Y. 84, 90; Clark V. Dales, 20 Barb. (N. Y.) 42, 60 ; Vassar v. Camp, 14 Barb. (N. Y.) 341 ; Brisban v. Boyd, 4 Paige (N. Y.) Ch. 17; Mactier v. Frith, 6 Wend. (N. Y.) 103 ; s. c. 21 Am. Dec. 262 ; Slayniaker v. Irwin, 4 Whart. (Pa.) 369 ; Fitzhugh v. Jones, 6 Munf. (Va.) 83; Mattesonu. Scofield, 27 Wis.671; Adams v. Lindsell, 1 Barn. & Aid. 681; Cooke .,. Oxley, 3 T. R. 658; Payne v. Cave, 3 T. R. 148; s. c. Langd. Cas. on Contr. 1. But a mere offer to sell or preliminary negotia- tions (Lyman v. Robinson, 96 Mass. (14 Allen) 254), do not constitute a contract of sale. Smith v. Gowdy, 90 Mass. (8 Allen) 566; Beaupre t. Pacific & Atlantic Tel. Co., 21 Minn. 155; Slayraaker v. Irwin, 4 Whart. (Pa.) 369, 380 ; Moulton c. Kershaw, 59 Wis. 316; s. c. 48 Am. Dec. 516; Kinghorne v. Montreal Tel. Co., 18 Up. Can. Q. B. 60. The proposal must in some way be accepted before the contract of sale is complete, and at any time before such acceptance the proposal may be withdrawn. Larmon v. Jordan, 56 111. 204 ; School Directors v. Tre- fethren, 10 111. App. 127 ; Grodenkem- per V. Achtermeyer, 11 Bush (Ky.) 2;i2 ; Downing v. Brown, Hardin (Ky.) 181; Boston & M. E. R. v. Bartlett, 57 Mass. (3 Cush.) 224; Fisher v. Sheltzer, 23 Pa. St. 308; s. c. 62 Am. Dec. 355; Faulkner u. Hebard, 26 Vt. 452 ; Payne v. Cave, 3 T. R. 148 ; s. c. Lang. Cas. on Contr. 1. Thus a bidder at a sheriff sale (Downing u. Brown, Hardin (Ky.) 181; Fisher v. Sheltzer, 23 Pa. St. 308 ; s. u. 62 Am. Dec. 355), or at an auction sale (Grodenkemper r. Ach- termeyer, 11 Bush (Ky.) 222 ; Payne V. Cave, 3 T. R. 148; s. c. Langd. Cas. on Contr. 1), may retract his bid at any time before the hammer falls. Where an offer has been accepted, although not within the time limited in the original proposition, if acted on it will be binding upon the party. Boston & M. E. R. u. Bartlett, 57 Mass. (3 Cush.) 224. See Bean v. Burbank, 16 Me. 458; s. c. 33 Am. Dee. 681. The language used must be positive and definite to amount to an accept- ance. Falls V. Gaither, 9 Port. (Ala.) 605; Craig v. Harper, 51 Mass. (3 Cush.) 158 ; McDonald v. Bewick, 51 Mich. 79; Tucker v. Woods, 12 Johns. (N. Y.) 190; Johnston v. Fessler, 7 Watts (Pa.) 48; s. c. 32 Am. Dec. 738 ; Fenno v. Weston, 31 Vt. 345 ; Johnson v. Filkington, 39 Wis. 62. Assent hy performance signifies an acceptance of the proposition, for there is nothing more significant of the acceptance of a proposition than a compliance with it, especially where no notice of acceptance is required. Patton V. Hassinger, 69 Pa. St. 311. See Lungstrass v. German Ins. Co., 48 Mo. 201; s. c. 8 Am. Rep. 100; Crook V. Cowen, 64 N. C. 743 ; Cooper ... Altimus, 62 Pa. St. 486, 490; Fenton u. Braden, 2 Cr. C. C. 550; Adams V. Lindsell, 1 Barn. & Aid. 081. But the performance must be in strict accordance with the terms of the offer. Northam v. Gordon, 46 Cal. 582 ; Mil- ler V. McMannis, 57 III. 126; Smith V. Wetherell, 4 111. App. 655; Morrill V. Tehama C. M. & M. Co., 10 Nev. 125 ; Ueberroth i . Riegel, 71 Pa. St. 280. As to what acts are sufiicient to constitute a contract, see Atwater v. Hough, 29 Conn. 508; s. c. 79 Am. Dec. 229; Loomis ti. Smith, 17 Conn. 115; Forbes l. Marsh, 15 Conn. 384; Yulee u. Canova, 11 Fla. 9 ; Mason !-. Thompson, 35 Mass. (18 Pick.) 305; Lungstrass!). German Ins. Co., 48 Mo. 201 ; s. c. 8 Am. Rep. 100 ; Bass V. Walsh, 39 Mo. 192 ; Eodee v. Wade, 47 Barb. (N, Y.) 53 ; Naested u. Scott, 4 Dev. & B. (N. C.) L. 389; 104 PART I.J MUTUAL ASSENT. *40 their conduct ; ^ may be signified by a nod or a gesture,* or may even be inferred from silence in certain cases ; as if a customer takes up wares of a tradesman's counter and carries them away, and nothing is said on either side, the law presumes * an agreement of sale for the reason- [*40] able worth of the goods.^ § 47. But the assent must, in order to constitute a valid contract, be mutual^ and intended to hind on both sides? It Pennsylvania R. Co. v. Hughes, 39 Pa. St. 821; Bank of the United States V. Lyman, 20 Vt. 666 ; Beall v. Coelcburn, 4 Call (Va.) 162 ; Pleas- ants !•. Pendleton, 6 Rand. (Va.) 473; s. c. 18 Am. Dec. 726. Implied ac- ceptance cannot be raised where an express agreement controls the terms of the contract. Wood v. Edwards, 19 Johns. (N. y.) 212; Commercial Bank u. Pfeiffer, 29 N. Y. Sup. Ct. (22 Hun) 327 ; Walker v. Brown, 28 111. 378 ; Voorhees v. Combs, 33 N. J. ,L. (4 Vr.) 494. Sham assent, or a merely colorable sale, will not pass title to property. Bradley v. Hale, 89 Mass. (8 Allen) 59; Cox W.Jackson, 88 Mass. (G Allen) 108; Bruce v. Bishop, 43 Vt. 161. 2 See a curious case of what one of the judges termed a "grumbling" assent, in Joyce v. Swann, 17 C. B. N. S. 84. American authorities. — Pickrel v. Rose, 87 111. 263 ; Western Un. Tel. Co. f. Chicago & P. R. R. Co., 86 111. 246; s. c. 29 Am. Rep. 28; Tilt v. La Salle Silk MTg Co., 5 Daly (N. Y.) 19; Brown o. Shaw, 1 Out. App. 293 ; Barrett v. Rapelje, 4 Up. Can. Q. B. (O. S.) 175; Brogden v. Metropolitan Ry. Co., L. R. 2 App. Cas. 666. 5 Brogden v. Metropolitan Railway Company, 2 App. Cas. 666, where the parties had acted upon the terras of a draft, proposed agreement, which was intended to form the basis of a for- mal contract, to be afterwards exe- cuted by them both. ^ What a sufficient assent. — The fall of the auctioneer's hammer(Payne V. Cave, 3 T. R. 149 ; s. c. Langd. Cas. on Contr. 1 ) , or a " grumbling assent " (Joyce V. Swan, 17 C. B. N. S. 84, 101), are sufficient; but loose conver- sation will not be. Thruston v. Thorn- ton, 35 Mass. (1 Cush.) 89, 93 ; Bruce o. Bishop, 43 Vt. 161. 5 Bl. Com. book ii. ch. 30, p. 443; Hoadley v. McLaine, per Tindal C. J. 10 Bing. 482. 1 What amounts to a contract. ■ — Where the plaintiff gave the defend- ant a writing containing an order for certain articles, naming a port of de- livery, and a price to be paid ; it is not a contract of both parties. Brigg V. Hilton, 99 S. Y. 517 ; s. c. 1 Cent. Rep. 307, 311; Union Trust Co. v. Whiton, 79 N. Y. 172 ; Chapin v. Dob- son, 78 N. Y. 74. But where there is an unrestricted offer, giving time for acceptance, when once accepted the contract is complete. Boston & M. R. R. Co. V. Bartlett, 57 Mass. (3 Cush.) 224; s. c. 1 Langdell Cas. Contr. 103. See, also, Stevenson u. McLean, L. R. 5 Q. B. Div. 346 ; s. c. 29 Moak. Eng. Rep. 341, 345 ; follow- ing Bryne c. Van Tienhoven, L. R. 5 C. P. Div. 344; s. c. 49 L. J. C. P. 316 ; 42 L. T. 371 ; 44 J. P. 667. 2 A proposal must be accepted be- fore it is a binding contract. Gowing V. Knowles, 118 Mass. 232 ; Smith v. Gowdy, 90 Mass. (8 Allen) 566; Thruston i: Thornton, 35 Mass. (1 Cush.) 89, 93; De Eonclear v. Shot- tenkirk, 3 Johns. (N. Y.) 170; 2 Kent 105 *40 FOEMATION OF THE CONTRACT. [BOOK I. Com. 477. But if there is any error or mistake of a fact, or in circum- stances going to tlie assent of tiie contract, tliere will be no contract. Hammond v. Allen, 2 Sumn. C. C. 395, 399 ; Thornton v. Kempster, 5 Taunt. 786. The acceptance viust correspond with the offer, neither falling short nor go- ing beyond the terms proposed, but meeting and closing with them at all points, Crocker v. New London, W. 6 P. R. R. Co., 24 Conn. 262, 263; Salomon o. Webster, 4 Col. 333; Maclay v. Harvey, 90 111. 526; s. c. 32 Am. Dec. 35; McKinley v. "Wat- kins, 13 111. 140 ; Fox v. Turner, 1 111. App. 153 ; Plant Seed Co. v. Hall, 14 Kan. 553; Jenness v. Mount Hope Iron Co., 53 Me. 20, 23; Gowing v. Knowles, 118 Mass. 232; Smith v. Gowdy, 90 Mass. (8 Allen) 566; AU- cott I'. Boston Steam Flour Mill, 63 Mass. (9 Cush.) 17 ; Thruston v. Thornton, 55 Mass. (1 Cush.) 89; Wagner v. Bggleston, 49 Mich. 218 ; Eggleston u. Wagner, 46 Mich. 610 ; Abbott V. Shepard, 48 N. H. 16; Potts I'. Whitehead, 23 N. J. Eq. (8 C. E. Gr.) 512, 514; s. c. 20 N. J. Eg. (5 C. E. Gr.) 55; McKibbin v. Brown, 2 McCart. (N. J.) 498; s. c. 1 Mc- Cart. (N. J.) 13 ; McGrath v. Brown, 66 Barb. (N. Y.) 481; Sourwine o. Truscott, 17 Hun (N. Y.) 4.32 ; Tuqker V. Woods, 12 Johns. (N. Y.) 190; s. c. 7 Am. Dec. 305; Tuttle v. Love, 7 Johns. (N. Y.) 470 ; Bruce v. Pearson, 3 Johns. (N. Y.) 526 ; Bruce v. Bishop, 43 Vt. 161, 163 ; Utley v. Donaldson, 94 U. S. (4 Otto) 29 ; bk. 24, L. ed. 54; Carr v. Duval, 39 U. S. (14 Pet.) 77; bk. 10, L. ed. 361; Eliason v. Henshaw, 17 V. S. (4 Wheat.) 225, 228 ; bk. 4, L. ed. 556 ; Snow v. Miles, 3 Cliff. C. C. 608; Oriental Inland Steam Co. v. Briggs, 4 De G., F. & J, (Am. ed.) 191 ; Chinnock v. Mar- chioness of Ely, 4 De G., J. & S. 638 O'Fay V. Burke, 8 Ir. Ch. Rep. 225 511 ; Heyward v. Barnes, 23 L. T. 68 Bickford v. Great Western Ry. Co. 28 Up. Can. C. P. 516 ; Johnson v. Wil- son, 28 Up. Can. C. P. 432; Murphy V. Thompson. 58 Up. Can. C. P. 233 ; Mcintosh V. Brill, 20 Up. Can. C. P. 426 ; Thorne v. Barwick, 16 Up. Can. C. P. 369 ; Marshall u. Jamieson, 42 Up. Can. Q. B. 115 ; Carter v. Bingham, 32 Up. Can. Q. B. 615 ; Kinghorne v. Montreal Tel. Co., 18 Up. Can. Q. B. 60. An acceptance varying the terms of the offer is a rejection thereof, and amounts to a new contract, and must be accepted by the vendor. See Bel- fast & M. L. Ry. Co. V. Unity, 62 Me. 148 ; Gowing v. Knowles, 1 18 Mass. 232 ; Johnson v. Stephenson, 26 Mich. 61 ; Potts V. Whitehead, 23 N. J. Eq. (8 C, E. Gr.) 512; Demuth v. Ameri- can Institute, 75 N. Y. 502 ; Corning V. Colt, 5 Wend. (N. Y.) 253; North Western Iron Co. v. Meade, 21 Wis. 474; National Bank v. Hall, 101 U. S. (11 Otto) 43; bk. 25, L. ed. 822; Utley V. Donaldson, 94 U. S. (4 Otto) 29 ; bk. 24, L. ed. 54 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Carter v. Bingham, 32 Up. Can. C. P. 615 ; Mcintosh v. Brill, 20 Up. Can. C. P. 426. Force of acceptance. The accept- ance of an oifer is a sufficient consid- eration to bind the party making it. See Bean u. Burbank, 16 Me. 458; s. c. 33 Am. Dec. 681; Boston &. M. R. R. V. Bartlett, 57 Mass. (3 Cush.) 224 ; Abbott v. Shepard, 48 N. H. 14 ; 2 Kent Com. 477. The bargain is closed and the contract binding when nothing remains to be done to give either party the right to have it en- forced. Abbott V. Shepard, 48 N. H. 14. See Thayer v. Middlesex Mut. F. Ins. Co., 27 Mass. (10 Pick.) 332 ; Martin v. Frith, 6 Wend. (N. Y.) 103; Chinnock v. Marchioness of Ely, 4 De G., J. & S. 688. Intent of the parties. — Whether negotiations amount to a contract is to be determined from the inten- tion of the parties. See Eskridge v. Glover, 5 Stew. & Port. (Ala.) 264; s. c. 56 Am. Dec. 344 ; Ricketts v. Hays, 13 Ind. 181; Carlisle o. Wal- 106 PART I.] MUTUAL ASSENT. *40 lace, 12 Ind. 252 ; Johnson v. McLane, 7 Blackf. (Ind.) 501 ; s. c. 43 Am. Dec. 103; Train v. Gold, 22 Mass. (5 Pick.) 380; Smith v. Clark, 21 Wend. (N. Y.) 83 ; s. c. 34 Am. Dec. 213; Johnston v. Fessler, 7 Watts (Pa.) 48; s. c. 32 Am. Deo. 738; Boyd V. Moyle, 2 C. B. 644; Johnston V. Nicholls, 1 C. B. 251. And it has been said that to render a proposed contract binding, it must be acceded to by both parties at the time ; that a mere voluntary compliance with its terms, by one who had not previously agreed to it, does not render the other liable upon it. Johnston v. Fessler, 7 Watts (Pa.) 48; s. c. 32 Am. Dec. 738; but see "Assent by Performance," ante, sec. 48, note 1. Offer of reward. — It has been said that if a reward be offered for the apprehension of a criminal, or for the doing of any other lawful act, the promise, when made, is nudum pac- tum ; but that when any one relying on the promised reward, performs the condition, this is a. good consid- eration for the previous promise, and it therefore becomes binding upon the promisor. Train v. Gold, 22 Mass. (5 Pick.) 380. And where the offer is made to pay a sum of money to any person, who will do a particular thing, the promise will become bind- ing if the act is performed before recovery, although the party does not, at the time, engage to do the act (Barnes a. Perine, 9 Barb. (N. Y.) 202. See Hilton v. Southwick, 17 Me. 305; s. c. 35 Am. Dec. 253; Chapin v. Lapham, 37 Mass. (20 Pick.) 467 ; Hamilton College v. Stew- art, 1 N. Y. 585) ; provided it be done within a reasonable time. Loring v. Boston, 48 Mass. (7 Mete.) 409. Bi/ advertisement. — A reward of- fered by public advertisement will be binding when accepted and acted upon by any one. Crocker v. New London, W. & P. R. R.Co., 24 Conn. 249, 261 ; Freeman v. Boston, 46 Mass. (5 Mete.) 56, 57. Because the performance of the service is a sufficient considera- tion to support the promise and make it binding upon the one offer- ing. Crocker v. New London, W. & P. R. R. Co., 24 Conn. 261; Eagle V. Smith, 4 Houst. (Del.) 293 ; County of Montgomery v. Robinson, 85 111. 174 ; Jenness v. Mount Hope Iron Co., 53 Me. 20, 23; Smith v. Gowdy, 90 Mass. (8 Allen) 566 ; AUcott v. Bos- ton Steam Flour Co., 63 Mass. (9 Cush.) 17 ; Craig v. Harper, 57 Mass. (3 Cush.) 158 ; Loring u. Boston, 48 Mass. (7 Mete.) 409; Beckwith v. Cheever, 21 N. H. 41 ; Pierson v. Morch, 82 N. Y. 503; Tucker v. Woods, 12 Johns. (N. Y.) 190; s. c. 7 Am. Dec. 305; Burnet v. Bisco, 4 Johns. (N. Y.) 534 ; Grady v. Crook, 2 Abb. (N. Y.) N. C. 53. And an action lies to recover such reward. England v. Davidson, 11 Ad. & E. 856 ; Williams v. Carwardine, 4 Barn. cSb Ad. 621 ; Neville v. Kelly, 12 C. B. (N. S.) 740; Thatcher v. England, 3 C. B. 254 ; Smith V. Moore, 1 C. B. 438 ; Fallick v. Barber, 1 Marsh & S. 108; Lan- caster V. Walsh, 4 Mees. & W. 16; Tarner v. Walker, L. R. 2 Q. B. 301 ; s. c. L. R. 1 Q. B. 641. In Loring ;;. Boston, 48 Mass. (7 Mete.) 411, the court say : " The offer of a reward for the detection of an offender, the recovery of property, and the like, is an offer or proposal on the part of the person making it to all persons, which any one capable of performing the service may accept any time be- fore it is revoked, and perform the service ; such an offer on one side, and acceptance and performance of the service on the other, is a valid contract, made on a good considera- tion, which the law will enforce." See Crawshaw v. Roxbury, 73 Mass. (7 Gray) 374; Freeman tj. Boston, 46 Mass. (5 Mete.) 56 ; Wentworth v. Day, 44 Mass. (3 Mete.) 352; s. c. 37 Am. Dec. 145; Symmes v. Frazier, 6 Mass. 344; Furman v. Parke, 21 N. J. L. (1 Zab.) 310; Gilrjore c>. Lewis, 12 Ohio, 281; Denton v. Great N. Ry. Co., 5 El. & Bl. 860, 865, 868. 107 ^40 PORJIATION OF THE CONTRACT. [book I. must also co-exist at the same moment of time?" A mere pro- posal by one obviously constitutes no bargain of itself.^ ^^ Sale " on request." — An accept- ance of an order for a certain quan- tity of steel, to be taken out on or before a certain date, at designated prices for different kinds of steel, but without naming the amounts of each kind, the terms to be four months from date of invoice, constitutes a sale of goods on request, and an exe- cution sale thereof as the property of the vendor will not operate as waiver of demand. Spratt v. Merchants' & M. N"at. Bank (Pa.) 5 Cent Eep. 286. Where a verbal warranty was a part of tlie preliminary negotiations, which were afterwards consummated by execution of a written and printed order for the machinery, which was accepted, it became a mutual binding contract on both parties. Brown v. Russell, 105 Ind. 46; s. c. 2 West. Eep. 666, 669; Chicago & A. Ey. Co. V. Derkes, 103 Ind. 520; s. c. 1 West. Eep. 553 ; Herman v. Babcock, 103 Ind. 461; =. c. 1 West. Eep. 477; Fairbanks v. Meyers, 93 Ind. 92. ^ A proposal. — A mere proposal, or offer, constitutes no bargain of itself (see Leigh v. Mobile & 0. E. E. Co., 58 Ala. 165, 174; Smith v. Weaver, 90 111. 392; Whitmore v. Alley, 46 Me. 428, 431 ; Chamberlain V. Smith, 44 Pa. St. 431; Bruce v. Bishop, 43 Vt. 161, 163), and imposes no obligation until accepted accord- ing to its terms (Minneapolis & St. L. E. Co. V. Columbus EoUing Mill Co., 119 U. S. 149 ; bk. 30, L. ed. 376), because it is nothing more than a treaty or negotiation for a sale. Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L, ed. 361. The offer must be definite, leaving nothing to he set^ tied by future arrangements ; other- wise it is simply a proposal to enter into an agreement. Lincoln u. Erie Preserving Co., 132 Mass. 129 ; Potts V. Whitehead, 20 N. J. Eg. (5 C. E. Gr.) 55; s. c. 23 N. J. Bq. (8 C. E. Gr.) 512 ; Dominion Bank v. Knowl- ton, 25 Grant (Ont.) 125; Chinnock V. Marchioness of Ely, 4 De Gex., J. & S. 638 ; Eummens v. Eobins, 3 De Gex, J. & S. 88. Notice to the trade. — It is held that a price list is a mere proposition, which may be withdrawn at pleasure, where it has not been accepted on the terms offered before notice of withdrawal. Schenectady Stove Co. V. Holbrook, 4 N. E. Eep. 4. But it has been said that a letter, stating that the senders were " authorised to offer " goods on certain terms, is not such an offer to sell as will on a tele- graphic reply, accepting the terms, bind the party for any amount the persons to whom the letter was ad- dressed might see fit to order. Keller V. Ybarru, 3 Cal. 147 ; Beaupre v. Pacific & A. Tel. Co., 21 Minn. 155; Moulton u. Kershaw, 95 Wis. 316 ; s. c. 48, Am. Eep. 516, 519 ; Kinghorne V. Montreal Tel. Co., 18 Up. Can. Q. B. 60. Quotations and statement oj price. — A distinction is made between an offer to sell and a price named. Beau- pre V. Pacific & Atl. Tel. Co., 21 Minn. 155 ; Moulton o. Kershaw, 59 Wis. 316 ; s. c. 48 Am. Eep. 516, 519. Withdrawal of offer. — Where an offer has been made by publication or otherwise, it may be withdrawn or revoked before acceptance. Crocker V. New London, W. & P. E. E. Co., 24 Conn. 249, 261; Ereeman (..Boston, 46 Mass. (5 Mete.) 56. " Statement of price." — Merely nam- ing the price at which the goods will be sold in response to the inquiry from a purchaser, does not constitute an agreement to sell to him at that price. Smith v. Gowdy, 90 Mass. (8 Allen) 566; Slaymaker v. Irwin, 4 Whart. (Pa.) 369; Moulton v. Ker- shaw, 59 Wis. 316; s. c. 48 Am. Rep. 108 PART I.] MTJTUAIi ASSENT. *40 516, 519; Beaupre v. Pacific & Atl. Tel. Co., 21 Minn. 155. Ambiguiti/. — It is a well-settled rule that in ascertaining the meaning of a written oSer of sale, all its parts and words must be examined in the light of the circumstances, and, if possible, effect given to each ; and where such writing may hare differ- ent meanings, and the receiver of such writing, on inquiry of a third person, is given the true intent and meaning of the sender of the same, and such person without further inquiry, acts upon the same and then seeks to hold the sender upon such writing, he is bound by the true intent and mean- ing of the sender ; and where a propo- sition to sell goods is sent by a writ- ing that, by mistake, is ambiguous, and the receiver knowing of such am- biguity, claims an improbable mean- ing, unreasonably favorable to him- self, and not intended or thought of by the sender, and without notice to the sender of his interpretation of the mistaken proposition, or inquiry of him as to his intended meaning, or- ders goods, obtains, and uses them, such receiver of the goods will be liable to the seller for the value thereof as though no proposition had been sent. Butler v. Moses, 4 Ohio St. 166. Agreement to put in writing where it is a part of the ofier or accept- ance, there will be no contract bind- ing upon the parties until this is done. Vide ante, sec. 47, note 9. However, this is not the case where the parties actually conclude an agreement in- tending to be bound by it, but con- templating a more formal expression of their contract. See Chinnock v. Marchioness of Ely, 4 De G., J. & S. 638, 645; Kennedy v. 'Lee, 3 Meriv. 441 ; Fowle v. Freeman, 9 Ves. 351 ; Kidgway v. Wharton, 6 H. L. Cas. 237, 264, 268; Powell u. Dillon, 2 Ball. & B. 416 ; Thomas v. Bering, 1 Keen. 729 ; Verlander v. Codd, 1 Turn. & Russ. 352. Neither does a contemporaneous agreement to re- duce to writing make the validity de- pend upon a reduction to writing and signing. Bell v. OfEutt, 10 Bush (Ky.) 632. In the case of Powle v. Preeman, supra, the parties liad been negotiating for the sale and purchase of a large es- tate, and finally, there having been some previous negotiations which they did not need in an agreement, they met together and Freeman signed a docu- ment which read as follows : " I agree to sell to Mr. Powle my estate, booths, and manor at Chute Lodge, together with the woods, trees, and fixtures (except Cadley cottage), for the sum of 27001, upon the following condi- tions," the conditions being fully set out. After signing the instrument Freeman addressed a letter to his so- licitor desiring him to prepare a proper agreement for Mr. Freeman and himself to sign. This was held to be a valid agreement to all intents and purposes. Signing by the party to he charged is necessary only in those cases where the contract is within the Statute of Frauds. Bell v. Offutt, 10 Bush (Ky.) 632; Peck v. Miller, 39 Mich. 594; Pratt V. Hudson E. E. R., 21 N. Y. 305; Wharton u. Stoutenburgh, 35 N. J. Eq. (8 Stew.) 266, 273 ; Blaney V. Hoke, 14 Ohio St. 292 ; Mackey v. Mackey, 29 Gratt. (Va.) 158 ; Blight W.Fisher, Pet. C. C. 15; Thomas v. Bering, 1 Keen. 729 ; s. c. 15 Eng. Ch. 729. Thus if two persons enter into a verbal agreement about a mat- ter, it would be no defence when one of them is sued for a breach of the contract that he understood that it would not be obligatory unless reduced to writing. And neither does a contemporaneous agreement to re- duce a contract to writing make its validity depend upon its being actu- ally reduced to writing and signed; because an agreement to reduce a contract to writing is merely an agree- ment to provide a particular kind of evidence as to the terms of the con- tract. Bell V. Offutt, 10 Bush (Ky.> 632. 109 *40 FORMATION OF THE CONTRACT. [book I. It must be accepted ^"^ by another, and this acceptance must be unconditional.^ If a condition be affixed by the party 2* Time of acceptance. — An offer must be accepted within a reasonable time, where no time is fixed ; the ques- tion as to what is a reasonable time is to be determined from a considera- tion of all the circumstances con- nected with the transaction. Averill V. Hedge, 12 Conn. 424 ; s. c. 1 Lang- dell's Cas. on Contr. 90; Craig t'. Harper, 57 Mass. (3 Cush.) 158, 160 ; Loring v. City of Boston, 48 Mass. (7 Mete.) 409, 412; s. c. 1 Langdell's Cas. on Contr. 99 ; Chicago &c. E. R. Co. ... Dane, 43 N. Y. 240, 243; Tre- vor V. Wood, 36 N. Y. 307; b. c. 3 Abb. (N. Y.) Pr. N. S. 355 ; reversing s. c. 41 Barb. (N. Y.) 255; Minnesota Oil Co. V. Collier Lead Co., 4 Dill. C. C. 431. But what is a reasonable time must be determined in each in- stance from the circumstances ; no precise time can be fixed upon as a reasonable time. Loring ;;. Boston, 48 Mass. (7 Mete.) 409, 414. An acceptance within four months (Chi- cago & G. E. R. R. Co. V. Dane, 43 N. Y. 240), and within eight months (Field V. Nickerson, 13 Mass. 131), is not an acceptance within reasonable time. Where a proposition gives time in which to accept it, no definite time being specified, it must be ac- cepted within a reasonable time. Mar- tin !,'. Black, 21 Ala. 721 ; Beckwith 0. Cheever, 21 N. H. 41. ^ A.ssent must be unconditional and unqualijied in order to bind the party making the offer (Hutcheson c;. Blakeman, 3 Met. (Ky.) 80 ; Elia- son V. Henshavv, 17 U. S. (4 Wheat.) 225 ; bk. 4, L. ed. 250 ; Hazard v. New England Marine Ins. Co., 1 Sumn. C. C. 218; Appleby v. Johnson, L. R. 9 C. P. 158; Duke v Andrews, 2 Ex. 290, 296), and must correspond in every respect with the terms of the offer (Potts o. Whitehead, 23 N. J. Eq. (8 C. E. Gr.) 512; McKibbin u. Brown, 14 N. J. Eq. (1 McC.) 13; s. c. 15 N. J. Eq. (2 McC.) 498; Summers V. Mills, 21 Tex. 77 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361; Eliason v. Henshaw, 17 TJ. S. (4 Wheat.) 225 ; bk. 4, L. ed. 856 ; Rout- ledge V. Grant, 4 Bing. 653 ; Hutchi- son V. Bowker, 5 Mees. & W. 535 ; Kennedy v. Lee, 3 Meriv. 441 ; Hud- dleston v. Briscoe, 11 Ves. 583 ; Honey- man u. Marryatt, 6 H. L. Cas. 112) ; at least, no material condition must be added in the acceptance. Maclay V. Harvey, 90 111. 525; s. c. 32 Am. Rep. 35 ; Hutcheson u. Blakeman, 3 Met. (Ky.) 80; Maynard u. Tabor, 53 Me. 511 ; Eggleston v. Wagner, 46 Mich. 610 ; Myers v. Smith, 48 Barb. (N. Y.) 614 ; North Western Iron Co. V. Meade, 21 Wis. 474 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Snow v. Miles, 3 Cliff. C. C. 608. Thus where goods are ordered and a less quantity shipped than was speci- fied, there is no contract. Bruce v. Pearson, 3 Johns. (N. Y.) 634. And see Plant Seed Co. v. Hall, 14 Kan. 653; Jenness v. Mt. Hope Iron Co., 53 Me. 20 ; Corning v. Colt, 5 Wend. (N. Y.) 253 ; McMillan v. MaLloy, 10 Neb. 228; s. c. 35 Am. Rep. 471; Avery v. Wilson, 81 N. Y. 341 ; s. c. 37 Am. Rep. 503; Hughes v. The Mercantile Mut. Ins. Co., 55 N. Y. 265, 268; s. c. 14 Am. Rep. 254; Leeds V. Dunn, 10 N. Y. 469; Corning v. Colt, 6 Wend. (N. Y.) 263, 266 ; Bruce V. Pearson, 3 Johns. (N. Y.) 526; Wontner v. Shairp, 4 C. B. 440, 441 ; Chapin v. Clark, 4 Ex. 403, 409 ; Duke V. Andrews, 2 Ex. 290, 296 ; Crossley V. Maycock, L. R. 18 Eq. 180, 181; Beck's Case, L. R. 9 Ch. Cas. 392. And it has been held that conditions of small importance may prevent the consummation of contracts by corre- spondence. Maclay v. Harvey, 90 111. 525 ; s. c. 32 Am. Rep. 35 ; Merriam V. Lapsley, 2 McCr. C. C. 606, 607. In all cases the assent must be direct, 110 PAUT I.] MtJTTJAL ASSENT. *40 unconditional, unqualified. Corcoran V. "White, 117 111. 118; s. c. 7 New Eng. Kep. 625 ; Clay v. Ricketts, 66 Iowa, 362; s. c. 23 N. W. Rep. 755; Hutcheson v. Blakeman, 3 Met. (Ky.) 30 ; Baker v. Holt, 56 Wis. 100, 103 ; Tayloe u. Merchants' Fire Ins. Co., 50 U. S. (9 How.) 390 ; bk. 13, L. ed. 187; s. c. 1 Lang. Cas. Contr. 106, 109 ; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225; bk. 4, L. ed. 556; s. c. 1 Lang. Cas. Contr. 70, 71. Compare Stanley v. Dowdswell, L. R. 10 C. P. 102. The acceptance must be entirely in accordance with the terms and con- ditions of the purpose in order to bind the party making the offer. Thus where an offer was made to sell malt " delivered " on the boat, an accept- ance " deliverable " on the boat is not binding. Myers v. Smith, 48 Barb. (N. Y.) 614, 634. See, also, Clark v. Dales, 20 Barb. (N. Y.) 42. Assent must correspond with offer, — The parties must assent to the same thing in the same sense, to constitute a contract. See Thomas v. Black- man, 1 Colo. 301, 312 ; Dana v. Short, 81 111. 468 ; Stagg v. Compton, 81 Ind. 171; Cartmel v. Newton, 79 Ind. 1; Hutcheson v. Blakeman, 8 Met. (Ky.) 80; Lyman v. Robinson, 96 Mass. (14 Allen) 242 ; Johnson v. Stephen- son, 26 Mich. 63; Butler v. Moses, 43 Ohio St. 166, 171; Summers v. Mills, 21 Tex. 77, 86, 87; Merriam V. Lapsley, 2 McCr. C. C. 606 ; Hazard V. New England Marine Ins. Co., 1 Sumn. C. C. 218 ; Willing v. Currie, 36 Up. Can. Q. B. 46 ; McPherson v. Cameron, 15 Up. Can. Q. B. 48 Pierce v. Small, 10 Up. Can. C. P. 161 ; Chevely v. Fuller, 13 C. B. 122 Ridgway v. Wharton, 6 H. L. Cas 238, 268, 304. See, also, Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225 bk. 4, L. ed. 556. The acceptance must comprehend the whole of the proposal, and be equal in extent to the provisions of the offer, not quali- fying it by any addition or limita- tions. Fox V. Turner, 1 111. App. 153; Hutcheson v. Blakeman, 3 Met. (Ky.) 80; Potts v. Whitehead, 23 N. J. Eq. (8 C. E. Gr.) 512, 514 ; Stacy V. Ross, 27 Tex. 3 ; Summers v. Mills, 21 Tex. 77, 86, 87 ; Wynne's Case, L. R. 7 Chan. Cas. 229. Thus an offer by letter to buy a horse, if warranted " sound and quiet in harness " is not met by a reply, stating that the ani- mal is warranted to be " sound and quiet in double harness." Jordan V. Norton, 4 Mees. & W. 155, 161. Where a defendant offered, by letter, to sell " first quality Jefferson County barley," such letter is not accepted by a letter specifying " two-rowed barley." Vassar o. Camp, 11 N. Y. 441 ; s. c. 1 Langd. Cas. on Contr. 102. And where the plaintiffs, in a letter, offered a certain quantity of "good barley," upon certain terms, to which the plaintiffs replied, saying of the offer, "we accept, expecting you to give us fine barley of full weight," it was held that the reply was not an acceptance, it being in evidence of the trial that the terms " good " and " fine " were terms well known to the trade, and represented different kinds of barley. Hutchison V. Bowker, 5 Mees. & W. 535. Thus it was held in Johnson v. Stevenson, 26 Mich. 63, that an offer to sell and deliver goods at a certain time and place, was not duly accepted by an answer changing the time of delivery, though in all other respects corre- sponding with the offer. And an offer to sell a specified quantity of butter at a given price, has been held not accepted by a reply, " will take your butter at twenty cents, if good." Mcintosh V. Brill, 20 Up. Can. C. P. 426. And see Carter v. Bingham, 32 Up. Can. Q. B. 615. And it is held in the case of the Minneapolis & St. L. R. R. Co. V. Columbus Rolling Mill, 119 U. S. 149, that an offer to sell a given quantity is not made binding by a reply ordering a less quantity. Such modified offer closes the negotiations, and the original offer cannot afterwards be accepted unless renewed. Salomon v. Webster, 111 *40 FOEMATION OP THE CONTEACT. [book I. to whom the offer is made, or any modification ^ or change in the offer be requested, this constitutes in law a rejection of the offer ^ and a new proposal," equally ineffectual to com- 4 Colo. 353; Fox v. Turner, 1 111. App. 153 ; Cartmel n. Newton, 79 Ind. 1 ; McCotter v. Mayor, 37 N. Y. 325; Baker v. Holt, 56 Wis. 100 Merrlam u. Lapsley, 2 McCr. C. C, 606 ; Minneapolis & St. L. R. R. Co, V. Columbus Rolling Mill, 119 U. S. 149; Fulton Brothers v. Upper Can ada Furniture Co., 9 Ont. App. 211 Hyde v. Wrench, 3 Beav. 334. Although the parties must assent to the same subject-matter in the same sense (Falls v. Gaither, 9 Port. (Ala.) 605 ; Keller v. Ybarru, 3 Cal. 147 ; Hartford & N. H. R. R. Co. v. Jackson, 24 Conn. 514; s. c. 63 Am. Dec. 177 ; Holtzman v. Millaudon, 18 La. An. 29 ; Hutcheson v. Blakeman, 3 Met. (Ky.) 80 ; Gibbs v. Linabury, 22 Mich. 490 ; s. c. 7 Am. Rep. 678 ; Barlow v. Scott, 24 N. Y. 40; Tuttle V. Love, 7 Johns. (N. Y.) 470 ; Bruce V. Pearson, 3 Johns. (N. Y.) 534; Hedge's Appeal, 63 Pa. St. 273 ; Elia- son V. Henshaw, 17 U. S. (4 Wheat.) 225; bk. 4, L. ed. 556; Hazard v. New Eng. Marine Ins. Co., 1 Sum. C. C. 218 ; Greene v. Bateman, 2 Woodb. & M. C. C. 359, 361 ; Hamilton v. Terry, 11 C. B. 954; s. u. 10 Eng. L. & Eq. 473; Hutchison r. Bowker, 5 Mees. & W. 535), — yet this assent need not be expressed, but may be inferred from the circumstances of the transaction. Bruce v. Tallton, 4 Ont. App. 144 ; Joyce v. Swann, 17 C. B. N. S. 84 ; s. c. 112 Eng. C. L. 84. See Browne v. Hare, 4 Hurls. & N. 822; Wait v. Baker, 2 Ex. 1. Immaterial addition to the proposal will not prevent the taking effect of the contract. Phillips v. Moor, 71 Me. 78, 79; Proprietors u. Arduin, L. R. 5 H. L. Eng. & Ir. App. 64, and the like. See Gibbons o. Board &c., 11 Beav. 1 ; Clive r. Beaumont, 1 De G. & S. 397, 403; Bransom v. Stannard, 41 L. T. N. S. 434, 435 ; Bonnewell v. Jenkens, 38 L. T. N. S. 531, 532. Thus a mere expression of a hope that the vendee will pay a greater sum for the article, when hauled, does not vary the contract. Phillips 512 ; Demuth v. American Institute, 75 N. Y. 502; Corning v. Colt, 5 Wend. (N. Y.) 253; Borland u. Guffey, 1 Grant (Pa.) 394; John- ston V. Fessler, 7 Watts (Pa.) 48; Fenno v. Weston, 31 Vt. 345 ; N. W. Iron Co. V. Meade, 21 Wis. 474; Bank v. Hall, 101 U, S. (11 Otto) 43,, 50 ; bk. 25, L. ed. 822, 826 ; Utley v. Donaldson, 94 U. S. (4 Otto) 29; bk. 24, L. ed. 54 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Eli- ason V. Henshaw, 17 U. S. (4 Wheat.) 225 ; bk. 4, L. ed. 556 ; Mcintosh v. Brill, 20 Up. Can. C. P. 426; Mar- shall V. Jamieson, 42 Up. Can. Q. B. 115; Webb v. Sharman, 34 Up. Can. Q. B. 410 ; Carter v. Bingham, 32 Up. Can. Q. B. 615. Manner of acceptance. — Where a proposal designates a manner in which it shall be accepted, the ac- ceptance must be in that manner, or the contract will not be binding, be- cause the manner of acceptance is a condition of the proposal. Barber v. Burrows, 51 Cal. 404; Eads a. City of Carondelet, 42 Mo. 113 ; Bourney V. Shapleigh, 9 Mo. App. 64; Morrill V. Tehama Consolidated Mill and Mining Co., 10 Nev. 125 ; Maitland v. Wilcox, 17 Pa, St. 231 ; Carr v. Du- val, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 12S; bk. 4, L. ed. 566. Thus where an answer by return mail is required, and the letter con- taining the acceptance of the ofler is not sent by return mail, the offer will be considered as rejected. Taylor v. Rennie, 36 Barb. (W. Y.), 277 ; Carr V. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225; bk. 4, L. ed. 566. In Eliason o. Henshaw, supra, the court say, " An acceptance communicated at a place different from that pointed out by the plain- tiffs, and forming a part of their proposal, imposes no obligation- bind- ing upon them unless they had acqui- esced in it." This doctrine rests upon the well-established principle that where there is no variation from or qualification of the terms of the pro- posal, there is no binding agreement. Ocean Ins. Co. o. Carrington, 3 Conn. 357; Myers v. Keystone Mutual L. Ins.- Co., 27 Pa. St, 268 ; s. c. 67 Am. Dec. 462 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 361 ; Head V. Providence Ins. Co., 6 U. S. (2 Cr.) 127; bk. 2, L. ed. 229; Snow o. Miles, 3 Cliff. C. C. 608. Partial assent. — To render it ef- fective and binding the assent must be full, complete, and unconditional. See Hutcheson v. Blakeman, 3 Met. (Ky.) 80, 82; Appleby v. Johnson, L. R. 9 C. P. 158 ; Duke v. Andrews, 2 Ex. 290, 296. Where the details 113 *40 FORMATION OF THE CONTKACT. [book [The assent must either be communicated'^'^ to the other party, or some act must have been done which the other are to be arranged, it is not a com- plete acceptance, and there is no con- tract. Northam v. Gordon, 46 Cal. 582 ; Lyman v. Robinson, 96 Mass. (14 Allen) 2.54 ; McKibbin v. Brown, 14 N. J. Eq. (1 McCar.) 13 ; Brown v. New York Central R. R,, 44 N. Y. 79 ; Bigley r. Eisher, 63 Pa. St. 152 ; Brown v. Finney, 53 Pa. St. 373; Ridgeway v. Wharton, 6 H. L. Cas. 268. The New York Court of Ap- peals say, in Brown v. New York Central R. R., supra, that " a valid contract may doubtless be made by correspondence, but care should al- ways be taken not to construe as an agreement letters which the parties intended .only as a preliminary nego- tiation. The question in such cases always is, Did they mean to contract by their correspondence, or were they only settling the terms of an agree- ment into which they proposed to enter after all its particulars were adjusted, which was then to be for- mally drawn up, and by which alone they designed to be bound ? " How- ever, where a proposal is accepted, the contract afterwards to be reduced to writing, a mere disagreement in regard to the terms of the contract, on attempting to reduce it to writing, where the contract is executed by both parties, will be binding upon them. Peck v. Miller, 39 Mich. 594 ; Blight V. Ashley, 1 Pet. C. C. 41. Implied assent to a proposition can- not be presumed until after the mat^ ter has been brought to the attention of the vendee. Dudley v. Deming, 34 Conn. 169; Ball v. Newton, 61 Mass. (7 Cush.) 599; McCutchin v. Piatt, 22 Wis. 561; Welch o. Sackett, 12 Wis. 243. Although the law pre- sumes that a party will accept that which is for his benefit. See Welch V. Sackett, 12 Wis. 243, 259; Stirling V. Vaughan, 11 East, 623. 1° The assent must he communicated to the party making the proposal actually or constructively. Jenness V. Mount Hope Iron Co., 53 Me. 20; Beckwith v. Chcever, 21 N. H. (1 Fost.) 41 ; White v. Corlies, 46 N. Y. 467 ; Emerson v. Graff, 29 Pa. St. 358 ; Borland v. Guftey, 1 Grant (Pa.) 394; The Navan Union i;. JIcLauglilin, 4 Ir. C. L. R. 451. It is said in White u. Corlies, supra, that in order to con- stitute an agreement, there must be a proposition by one accepted by the other; and when the parties are not together, tliat the acceptance must be manifested by some appropriate act and such manifestation put in the proper way of writing and proposal, a mere mental determination to ac- cept not indicated by speech or put in course of indication by act, is not an acceptance. Nor does the act which in itself is no indication of acceptance, because accompanied by an unevinced mental determination. In this instance Corlies wrote to White on the strength of former negotia- tions, saying : " Upon your agreement to fit up my oflBce, 57 Broadway, in two weeks, you can begin at once." Without replying. White bought lum- ber and commenced work, and Corlies without knowing it, countermanded the order. The court held that there was no complete contract, for want of notice of acceptance on tlie part of White, In Beckwith v. Cheever, 21 N. H. (1 Fost.) 41, one Bellows, who owned a lot of land, on which some hemlock trees were growing, proposed to sell them to Beckwith, who said he would accept the offer, if his brother would help him in the payment, to which Bellows replied, that he need not give him a decided answer, but might do so thereafter. Whereupon they separated, with the understanding that Beckwith might go upon the land, cut and haul the timber, without seeing Bellows fur- 114 PAET I.] MTJTTJAL ASSENT. *40 party has expressly or impliedly offered to treat as a com- munication, as, e.g. in contracts by correspondence ^^ the pftsting of the letter of acceptance ^^ or the assent may be inferred from subsequent conduct ; ^^ but an assent which is neither communicated to the other party nor followed up by action, a mere "mental assent," as it is termed, is insuffi- cient.i^] The cases are very numerous ^^ in support of these ther on the subject. Beckwith's brother agreed to assist him, but Bellows was never notified of the fact, and subsequently sold the tim- ber to Cheever. Tlie court held that there was no sale to Beckwith, be- cause of his failure to notify Bellows within a reasonable time of his accept- ance. In the course of the opinion, the court say, referring to the fact that the plaintiff was to inform Bel- lows, at some future day, whether he would accept the offer or not, "This should have been done within a rea- sonable time ; and the proper time would have been whenever the plain- tiff should determine to accept the proposition. ... It cannot with pro- priety be said that the fact that the plaintiff had engaged his brother to assist him, not brought home to the knowledge of B., can be regarded as an acceptance. Neither party did anything to make the proposition binding, and neither was bound." Vide infra, p. 48, § 54, note 2. 11 Vide infra, § 54, note 1. 12 See Hutcheson c. Blakeman, 3 Met. (Ky.) 80, 82; Appleby v. John- son, L. R. 9 C. P. 1.58 ; Duke u. An- drews, 2 Ex. 290, 296. 13 Mental assent or itncomniunicated acceptance. — In a case where A. sent goods to B. to be purchased by him or sold on A.'s account, as B. should elect, in an action of replevin, brought by A. against B. for the goods, it was held that B. was properly allowed to testify that he had decided to exercise his option and elected to purchase the goods. Yeager Milling Co. v. Brown, 128 Mass. 171. But the doctrine in this case is open to serious question for two reasons : (1) because an option to pay is a mere offer, and in no sense a contract (see Hunt v. Wyman, 100 Mass. 198) ; (2) because it holds that an uncommunicated or mental assent is sufficient to close a contract and bind a vendor. A man's mental processes are not cognizable, and to make the validity of contracts and title to property rest upon them is to throw the door wide open to fraud and impositions. We find in the Year Books that as early as the reign of Edward IV. it was settled for English-speaking people that the thoughts of a man are not triable in a court of justice. Chief Justice Brian said in T. Pasch, Cas., Year Book, 17 Edward IV. 2, that "it is trite law that the thought of a man is not triable, for even the devil does not know what the thought of man is." See, also, McCall v. Powell, 64 Ala. 254; Jenness v. Mount Hope Iron Co., 53 Me. 20; McCuUoch v. Eagle Insurance Co., 18 Mass. (1 Pick.) 278; Shupe v. Galbraith, 32 Pa. St. 10; Brogden o. Metropolitan Ry. Co., L. R. 2 App. Cas. 666, 692. 14 Champion v. Short, 1 Camp. 63 Eoutledge v. Grant, 4 Bing. 653 Hutchinson u. Bowker, 5 M. & W, 535; Jordan v. Norton, 4 M. & W, 155; Wontner u. Sharp, 4 C. B. 404 ^ Duke V. Andrews, 2 Ex. 290 ; Chap lin V. Clarke, 4 Ex. 403; Poster v Rowland, 7 H. & N. 103, and 30 L. J. Ex. 376; Honeyman v. Marryat, 6 H, 115 *41 FORMATION OF THE CONTEACT. [book I. [*41] * principles, which are common to all contracts.!^ A few only of those peculiarly illustrative of the rules as applied to contracts of sale need be specially noticed. § 48. In Hutchinson v. Bowker,i the defendant wrote an offer to sell a cargo of ffooil barley; the plaintiff replied: " Such offer we accept, expecting you will give us fi^te barley, and full iveiyht." The defendant wrote back: "You say you expect we shall give you ' fine barley.' Upon reference to our offer you will find no such expression. As such, we must decline shipping the same." It was shown on the trial that good barley and fine barley were terms well known in the trade, and that fine barley was the heavier. The jury, L. C. 112; Andrews u. Garrett, 6 C. B. N. S. 262; Proprietors Eng. & For. Cr. Co. v. Arduin, L. R. 5 H. L. 6i ; Addinel's Case, 1 Eq. 225, aff. in H. L. sub. nom. Jackson i>. Tur- quand, L. R. i H. L. 395; Crossley V. Maycock, 18 Eq. 180, and cases there cited; Appleby v. Johnson, L. E. 9 C. P. 158; Stanley v. Dowdes- well, L. R. 10 C. P. 102; Wynne's Case, 8 Ch. 1002 ; Beck's Case, 9 Ch. 392 ; Lewis v. Brass, 3 Q. B. D. 667, C. A. Conversely, an uncomniuni- cated revocation is, in point of law, no revocation at all. Stevenson v. McLean,L. R.5Q.B.DiT. 346; s.c.29 Eng. Rep. 341 ; Byrne v. Van Tien- hoven, 49 L. J. C. P. 313. See Snyder V. Leibengood, 4 Pa. St. 305 ; Johnson ,;. Fessler, 7 Watts (Pa.) 48 ; s. c. 32 Am. Dec. 738; Clark ;;. Russel, 3 Watts (Pa.) 213; s. c. 27 Am. Dec. .348, 15 Intent to sell is necessary on the one part and to purchase on the other ; consequently where there is no intention that title shall be trans- ferred in reality, but only in appear- ance, it is a colorable sale, and no title passes to the purchaser. Brad- ley V. Hale, 90 Mass. (8 Allen) 59; Cox V. Jackson, 88 Mass. (6 Allen) 108 ; Weston's Case, L. E. 6 Eq. 238 ; s. c. L. R. 4 Ch. App. 20; Ilyam's Case, 1 De G. F. & J. 75; Bowes i,. Foster, 2 Hurls. & N. 779; Fx parte Hunt, 2 N. R. 50 ; In re National As- surance & Investment Co., 1 N. R. 5. Vide infra, p. *467, § 617, note 6. Mere loose conversation by wiiy of banter, jest, or negotiation, without any definite intention to make an agreement, will not constitute a, con- tract of sale, although it may assume such a shape. Thruston v. Thornton, 55 Mass. (1 Cush.) 89, 93. In this case the court say, " It was a question for the jury to decide what was the meaning and intention of the parties. The conversation was loose and in- definite, and the jury, when they meet, will find that no contract was in fact made." But, although this may be, it was a question of fact for the jury. See Bourne v. Shapleigh, 9 Mo. Ap. p. 64 ; Bruce v. Bishop, 43 Vt. 161. And a paper signed, pur- porting to create a contract, may be shown to have been signed for an- other purpose, and that the parties had no intention of creating a bind- ing contract. Methudy v. Ross, 10 Mo. App. 101 ; Mildren v. Pennsyl- vania Steele Co., 90 Pa. St. 317 Jones V. Littledale, 6 Ad. & El. 486 Rogers v. Hadley, 2 Hurls. & C. 227 Allen V. Pink, 4 Mees. & W. 140. See Moore v. Clementson, 2 Campb. 22. 1 5 Mees. & W. 536. 116 PART I.] MUTUAL ASSENT. *42 although finding that there was a difference in the meaning of the two words, found a verdict for plaintiff. The Court held that it was for the jury to determine the meaning of the words, and for the Court to decide whether there had been mutual assent to the contract; and the plaintiff was nonsuited, on the ground that he had not accepted the de- fendant's offer. In Hyde v. Wrench,^ defendant offered to sell his farm to plaintiff for lOOOL The plaintiff, thereupon, offered him 950L, which defendant refused. Plaintiff then accepted the offer at lOOOL, but defendant declined to complete the bar- gain. Held, on demurrer, by Lord Langdale, that when plaintiff, instead of accepting the first offer unconditionally answered it by a counter-proposal to purchase at a lower price, " he thereby rejected the offer,'" and that no contract had ever become complete between the parties. [But a mere inquiry^ of the proposer whether he will agree to modify the terms of his offer, is not a counter-proposal entitling him to treat his offer as rejected. Thus, in Steven- son V. McLean,* the defendant, being possessed of warrants for iron, wrote to the plaintiffs offering to sell them for " 40s. nett cash, open till Monday. On the Monday * morning the plaintiffs telegraphed to the defendant, [*42] " Please wire whether you would accept forty for de- livery over two months, or if not, longest limit you would give." Held, not to be a refusal of the defendant's offer, and the plaintiffs having afterwards accepted the offer while it remained open, that the defendant was bound, and Hyde V. Wrench was distinguished.^] '' 3 Beav. 336. 20, 23 ; Hyde v. Wrench, 3 Beav. 334 ; 8 A mere inquiry does not necessa- s. c. 1 Langd. Lead. Cas. on Contr. rily amount to a counter-proposal and 16. An acceptance on different terms a rejection of the offer. Stevenson terminates a negotiation (Hyde v. V. McLean, L. E. 5 Q. B. Div. 346; Wrench, 3 Beav. 334; s. u. 1 Langd. s. c. 29 Eng. Rep. 341, 344. Lead. Cas. on Contr. 16), and a sub- * 5 Q. B. D. 346. sequent acceptance on terms will not 6 Counter-proposal amounts to a re- bind the proposer without his con- jection of the original offer. Baker sent (Fox v. Turner, 1 111. App. 153 ; V. Johnson County, 37 Iowa, 186; Baker v. Johnson County, 37 Iowa, Alsberg v. Latta, 30 Iowa, 442 ; Jen- 186 ; Jenness ». Mount Hope Iron ness V. Mount Hope Iron Co., 58 Me. Co., 53 Me. 20, 23; Eliason v. Hen- 117 *43 FORMATION OP THE CONTRACT. [BOOK I. In The Governor, Guardians, &c. of the Poor of Kingston- upon-HuU V. Petch,^ plaintiffs advertised for tenders to supply meat, stating, " all contractors will have to sign a written contract after acceptance of tender." Defendant tendered, and received notice of the acceptance of his tender, and then wrote that he declined the contract. Held, that by the terms of the proposal, the contract was not complete till the terms were put in writing, and signed by the parties, and that the defendant had the right to retract. In Jordan v. Norton,'' defendant offered to buy a mare, if warranted " sound, and quiet in harness." Plaintiff sent the mare, with warranty that she was "sound, and quiet in double harness." Held, no complete contract. In Felthouse v. Bindley,^ a nephew wrote to his uncle that he could not take less than thirty guineas for a horse, for which the uncle had offered 30Z. The uncle wrote back say- ing, " Your price I admit was thirty guineas, I offered SOL, never offered more, and you said the horse was mine ; how- ever, as there may be a mistake about him I will split the difference, 30Z. 15s., I paying all expenses from Tamworth. You can send him at your convenience between now and the 25th of March. If I hear no T/iore about him, I consider the horse is mme at 30L 15s." This letter was dated on the 2d of January ; on the 21st of February the nephew sold all his stock at auction, the defendant being the auctioneer, but gave special orders not to sell the horse in question, say- ing it was his uncle's. The defendant by mistake sold the horse, and the action was trover by the uncle. Held, [*43] * that there had been no complete contract between the uncle and the nephew, because the latter had never communicated to the former any assent to the sale at shaw, 17 U. S. (4 Wheat.) 228 ; bk. « lo Ex. 610, and 24 L. J. Ex. 23 ; 4, L. ed. 556; Snow v. Miles, 3 Cliff. The New Brunswick, C. Ry. & L. Co. C. C. 608), because the refusal of a v. Muggeridge, 4 Hurls. & N. 100, 580; proposition exhausts its force. Leake Bog Lead Mining Co. v. Montague, 10 Contr. 22; Sheffield Canal Co. ... C. B. N. S. 481, 491. Sheffield & Rotheram Ry. Co.. 8 Ry. '4 Mees. & W. 155. &Can. Cas.121,132; Hyde «. "Wrench, » 11 C.B.N. S. 868 ; 31 L.J. C.P. 3 Beav. 334 ; Honeyman v. Marryat, 204. 21 Beav. 14. 118 PART I.] MUTUAL ASSENT. *44 30Z. 15s. ; that the uncle had no right to put upon his nephew the burden of being bound by the offer unless rejected ; and that there was nothing up to the date of the auction sale to prevent the nephew from dealing with the horse as his own. The plaintiff, therefore, was nonsuited, on the ground that he had no property in the horse at the date of the alleged § 49. [In Appleby v. Johnson,^ the plaintiff wrote to the defendant proposing to enter his service as salesman upon cer- tain terms, including, amongst others, a commission upon all sales to be effected by him : for which purpose a list of mer- chants with whom he should deal was to be prepared. The defendant replied as follows : " Yours of yesterday embodies the substance of our conversation and terms. If we can define some of the terms a little clearer, it might prevent mistakes ; but I tJdnk we are quite agreed on all. We shall, therefore, expect you on Monday ; " and in a postscript added, " I have made a list of customers, which we can consider together." Held, not to be an absolute and unconditional acceptance of the defendant's proposal. This decision seems open to some criticism. The defend- ant's letter may fairly be read as a substantial acceptance of the plaintiff's offer, coupled with the expression of a desire that some of its terms should be more clearly defined and reduced into writing. It would then fall within the principle of that numerous class of cases ^ where the existence of a binding contract has been upheld, although the parties to the contract have contemplated a subsequent formal expression of * its terms. Brett J. appears to have [*44] taken this view at the trial of the action: while Honeyman J. expressed reluctance in concurring in the judgment of the Court.] 8 It was further held in this case i L. K. 9 C. P. 158. that the nephew's acceptance of the ^ Crossley v. Maycock, 18 Eq. 180; offer after conversion, but before the Brogden v. Metropolitan Rail. Co., 2 action brought by plaintiff, did not App. Cas. at p. 672 ; Lewis u. Brass, relate back to tlie date of the offer, 3 Q. B. D. 667, C. A. ; Rossiter v. so as to enable the plaintiff to main- Miller, 3 App. Cas. 1124; BonneweU tain the action. v. Jenkins, 8 Ch. D. 70, C. A. 119 *44 rOEMATION OF THE CONTRACT. [book I. In Watts V. Ainsworth ^ will be found a good illustration by Bramwell B. of the mode of construing a correspondence wben a contest arises as to the existence of mutual assent. See also the opinions delivered in the House of Lords in the case of The Proprietors of the English and Foreign Credit Company v. Arduin, where the unanimous judgments of the Exchequer of Pleas, and of the Exchequer Chamber, were unanimously reversed.* § 50. It is a plain inference from these cases, that a pro- poser may withdraw his offer so long as it is not accepted ; for if there be no contract till acceptance, there is nothing by which the proposer caji be bound; and the authorities quite support this inference. Even when on making the offer the proposer expressly promises to allow a certain time^ to the other party for acceptance,^ the offer may nevertheless be retracted in the interval, if no consideration has been given for the promise^ [and provided that the s 1 H. & C. 83 ; 31 L. J. Ex. 448. 4 Proprietors Eng. & For. Cred. Co. V. Arduin, L. R. 5 H. L. 64. 1 Time for acceptance. — Where an offer allows time for acceptance, while it remains in force and unre- voked, it is a continuing offer, issued on time limited for acceptance ; and during the whole of that time, it is an offer every instant, but when accepted it ripens into a contract. Boston & M. R. R. Co. V. Bartlett, 57 Mass. (3 Cush.) 224 ; s. c. 1 Langd. Lead. Cas. on Contr. 94. ^ Acceptance after time. ■ — It is a general rule that where an offer is made in which the time for its accep- tance is limited, an acceptance after the expiration of that will not be binding upon the party making the offer. Potts V. Whitehead, 23 N. J. Eq. (8 C. E. Gr.) 512; Tarrell v. Hunt, 21 Up. Can. C. P. 117. Be- cause an acceptance to be good and to bind the party making the offer must be such as to conclude an agree- ment by the parties ; and to do this, it must, in every respect, meet and correspond with the offer, neither falling within nor going beyond the terms proposed, but exactly meeting with them at all points and closing with them just as they stand. It is as essential as any other element in such a contract. See McKibbin v. Brown, 14 N. J. Eq. (1 McCar.) 13; s. c. 15 N. J. Eq. (2 McCar.) 498; Longworth v. Mitchell, 26 Ohio St. 334 ; Carr v. Duval, 39 U. S. (14 Pet.) 77 ; bk. 10, L. ed. 861 ; Eliason v. Hen- shaw, 17 U. S. (4 Wheat.) 225 ; bk. 4, L. ed. 556; Routledge u. Grant, 4 Bing. 653 ; Kennedy v. Lee, 3 Meriv. 441; Honeyman v. Maryatt, 6 H. L. Cas. 112 ; Hutchison v. Bowker, 5 Mees. & W. 533 ; Huddleston v. Bris- coe, 11 Ves. 583. 8 See Falls v. Gaither, 9 Port. (Ala.) 605; Eskridge v. Glover, 5 Stew. & Port. (Ala.) 264; s. u. 26 Am. Dec. 344; Burton v. Shotwell, 13 Bush (Ky.) 271 ; Boston & Maine R. R. V. Bartlett, 57 Mass. (3 Cush.) 224; Craig v. Harper, 57 Mass. (3 Cush.) 158; Abbott v. Shepard, 48 N. H. 16; Potts a. Whitehead, 20 120 PART I.] MUTUAL ASSENT. *44 retraction is duly communicated^ to the other party before he has accepted the offer.^] M. J. Eq. (5 C. E. Gr.) 59; s. c. 23 N. J. Eq. (8 C. E. Gr.) 512 ; Hochster V. Baruch, 5 Daly (N. Y.) 440; Dix V. Shaver, 14 Hun (N. Y.) 392 ; Faulkner v. Hebard, 26 Vt. 452 ; Dominion Bank v. Knowlton, 25 Grant. (Ont.) 125 ; Ciiinnock v. Mar- chioness of Ely, 6 N. R. 1; g. c. 4 De G., J. & S. 638; Lucas v. James, 7 Hare, 410 ; Martin v. Mitchell, 2 J. & W. 428; 1 Sugdeu, V. & P. (8th Am. ed.) 132; Leake, Contr. 20, 21. Retraction of offer. — An offer of proposal may be withdrawn at any time prior, to its acceptance. Esk- ridge o. Glover, 5 Stew. & Port. (Ala.) 264 ; s. c. 26 Am. Dee. 344. See Craig v. Harper, 67 Mass. (3 Cush.) 158; Abbott v. Shepard, 48 N. H. 16; Potts V. "Whitehead, 23 N. J. Eq. (8 C. E. Gr.) 512 ; Faulk- ner V. Hebard, 26 "Vt. 452; Carr v. Duval, 39 U. S. (14 Pet.) 77; bk. 10, L. ed. 361; Smith v. Hudson, 6 Best & S. 431; s. c. 34 L. J. Q. B. 145; Eoutledge u. Grant, 4 Bing. 653 ; Lucas u. James, 7 Hare, 410 ; Martin v. Mitchell, 2 Jac. & "W. 413; Head u. Diggon, 3 Man. & R. 97; Cooke v. Oxley, 3 T. R. 653; Payne v. Cave, 3 T. R. 148. In Esk- ridge v. Glover, supra, the defendant agreed to exchange horses with the plaintiff and give him a specified amount as a difference, with the priv- ilege of determining upon the prop- osition by a certain day, but before that day transpired, gave notice to the plaintiff that he retracted and would not consummate the proposed trade. The plaintiff brought suit to recover the amount he was to receive as " boot money " or a " difference." The court held that the action could not be maintained. In the course of the opinion it is said " the important but nice distinction is that this con- tract seems not to have been actually concluded with only reservation of the right to one to renounce it, but an agreement was that it should become a bargain, if on trial of the horse, the plaintiff should determine to af- firm the contract ; under these cir- cumstances the law implied the far- ther condition that the defendant did not in the meanwhile retract his offer, which, however, he did, and thereby avoided the agreement." Acceptance before ' retraction, — "Where time is given for acceptance, it must be made within the specified time, and before notice of retraction to constitute a valid contract of sale. Boston & M. R. R. Co. v. Bartlett, 57 Mass. (3 Cush.) 224. In this case the court commented and criticised Cooke V. Oxley, 3 T. R. 653, cited supra. An acceptance after the time limited is not sufficient. Potts v. "Whitehead, 20 N. J. Eq. (5 C. B. Gr.) 55; Farrell o. Hunt, 21 Up. Can. C. P. 117; Leake on Contr. 17. Vide ante, sec. 50, note 2. An acceptance must be made by the offeree; an acceptance by any other party will not be binding. Boulton v. Jones, 2 Hurls. & N. 564; Meynell V. Surtees, 3 Smale & Gif. 101, 117. Vide infra, sec. 72, note 1. ^ Retraction must be communicated, to be binding upon the proposee, and relieve the party making the offer from liability, if the acceptance is duly signified or mailed before any knowledge of such retraction, although one may have really been sent, the acceptance will be binding. "Wheat V. Cross, 31 Md. 99; s. c. 1 Am. Rep. 28; Tayloe v. Merchants' F. Ins. Co., 50 U. S. (9 How.) 390; bk. 13, L. ed. 187 ; The Palo Alto, Daveis (2 "Ware) C. C. 343. ^ Byrne v. Van Tienhoven, 5 C. P. D. 344; Stevenson u. McLean, 5 'Q. B. D. 346. 121 *45 FORMATION OF THE CONTEACT. [BOOK I. Cooke V. Oxley^ is the leading case on this point. The declaration was that the defendant had proposed to sell and deliver to the plaintiff 266 hhds. of tobacco on certain terms if the plaintiff would agree to purchase them on the terms aforesaid, awl would give notice thereof to the defendant before the hour of four in the afternoon of that day. Averment, plaintiff did agree, &c. and did give notice, &c. and re- quested delivery, and offered payment. Judgment arrested after verdict for the plaintiff. Kenyon C. J. delivering judgment, said : " Nothing can be clearer than that, at the time of entering into this contract, the engagement was all on one side. The other party was not bound. It was, [*45] therefore, Mtfc^wm parfMTO." Buller J. said: "It is * im- possible to support this declaration in any point of view. In order to sustain a promise, there must be either a damage to the plaintiff, or an advantage to the defendant ; but here Avas neither when the contract (promise ?) was first made. Then as to the subsequent time : the promise can only be supported on the ground of a new contract made at four o'clock ; but there is no pretence for that. It has been argued that this must be taken to be a complete sale, from the time when the condition was complied with; but it was not complied with, for it is not stated that the de- fendant did agree at four o'clock to the terms of the sale ; or even that the goods were kept till that time." Grose J. said : " The agreement was not binding on the pht'mtijf before four o'clock ; and it is not stated that the parties came to any subsequent agreement; there is, therefore, no considera- tion for the promise." This decision was afterwards affirmed in the Exchequer Chamber, M. 32 Geo. III.' § 51. [The principle of Cooke v. Oxley has been affirmed in the most recent cases, with this limitation, that the re- tractation of the offer must have been in some way commu- nicated to the other party before his acceptance of it.^ A 6 3 T. R. 653. 1 Dickenson v. Dodds, 2 Ch. D. ' So stated in note at the end of 463, C. A. ; Byrne v. Van Tienhoven, the Report, in 3 T. E. 653. ' 5 C. P. D. .344 ; Stevenson t;. McLean, 5 Q. B. D. 346. 122 PAET I.] MUTUAL ASSENT. *46 tacit retractation is insufficient.^ In Dickenson v. Dodds notice aliunde that the defendant had agreed for the sale of the property in question to a third party was held to be sufficient notice to the plaintiff of the retractation of the defendant's offer, but there is nothing in the judgment to Avarrant the statement in the head-note ; " semble, the sale of property to a third person would of itself amount to a with- drawal of the offer, even although the person to whom the offer was first made had no knowledge of the sale." It should be observed that Cooke v. Oxley, which was a motion in arrest of judgment after verdict for plaintiff, turned solely upon the insufficiency of the plaintiff's allega- tion. Viewed in the light of subsequent decisions, it is clear that * it would have been sufficient for the [*46] plaintiff to have alleged that at the time when he gave notice of acceptance of defendant's offer, no notice of its withdrawal had been communicated to him. It is to be observed that in no case has it yet been decided that, when the parties are in immediate communication with one another, a retractation of an offer, to be effectual, must be communicated. Both Byrne v. Van Tienhoven and Ste- venson V. McLean were cases where the parties had contracted by correspondence, but the language there used by the judges to the effect that an uncommunicated revocation is, for all practical purposes and in point of law, no revocation at all, is perfectly general, and it is conceived that the rule would apply equally when the parties are in immediate communi- cation with one another.] § 52. In Routledge v. Grant,i which was the case of an offer by defendant to purchase a house, and to give plain- 2 Per Lush J. in Stevenson v. Mc- v. Unity, 62 Me. 148 ; Boston & M. Lean, 3 Q. B. D. at p. 351 ; per Lind- R. B. v. Bartlett, 57 Mass. (3 Cush.) lej' J. in Byrne v. Van Tienhoven, 224; Weiden v. Woodruff, 38 Mich. 5 C. P. D. at p. 347. 130; Brown v. Eice, 29 Mo. 322; 1 4 Bing. 653. See, also, Hum- Water Commissioners of Jersey City phries v. Carvalho, 16 East, 45. v. Brown, 32 N. J. L. (3 Vr.) 504; American authorities. — Falls v. Houghwout v. Boisaubin, 18 N. J. Gaither, 9 Port. (Ala.) 605; Moltine Eq. (3 C. E. Gr.) 315; Johnson v. Scale Co. i'. Beed, 52 Iowa, 307 ; s. c. Pilkington, 39 Wis. 62. 35 Am. Rep. 272 ; Belfast, &c. R. R. Giving refusal. — The proposition 123 H6 rOEMATION OP THE CONTRACT. [book I. tiff six weeks for a definite answer, Best C. J. nonsuited the plaintiff, on proof tliat defendant had retracted his offer within the six weeks, and on the rule to set aside the non- suit, said : " If six weeks are given on one side to accept an offer, the other has six weeks to put an end to it ; one party cannot be bound without the other." The Chief Justice in this case cited Cooke v. Oxley with marked approval. In Payne v. Cave,^ it was held that a bidder at an auc- tion may retract his bidding any time before the hammer is down ; and per curiam, " Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. But, according to what is now contended for, one party would be bound by the offer, and the other not, which can never be allowed." ^ to sell may be withdrawn at any time before acceptance, unless it be with- drawn and due notice given. Lar- mon V. Jordan, 56 111, 204 ; Burton v. Shotwell, 13 Bush (Ky.) 271; Long- worth II. Mitchell, 26 Ohio St, 334, 342 ; Faulkner v. Hebard, 26 Vt. 452. And this is true although ii refusal has been given for a specified length of time. Larmon v. Jordan, 56 111. 204 ; Boston & M. E. R, Co, f. Bart- lett, 57 Mass. (3 Cush.) 224; Faulk- ner V. Hebard, 26 Vt. 452. And where the contract is not withdrawn, and not accepted within the time limited, it will not be binding, be- cause it is of the essence of such contract, Longworth v. Mitchell, 26 Ohio St. 334, 342. Vide ante, § 50, note 2, Where the offer is made to several persons jointly, the same rule applies as where made to a single person. Burton v. Shotwell, 13 Bush (Ky.) 271. Retraction by operation of law, — The law in force, when a proposal of a contract is made, it forms part of it; and if such proposal be not ac- cepted until after the law, under which it is made, is essentially modi- fled or repealed, the acceptance comes too late, and the proposal fails, with the repeal or change of the law which induced it. Mercer County v. Pitts- burgh & E. R. R, Co., 27 Pa. St. 389. Retraction by death. — The death of a party making an offer works a retraction of the same as a death of a master revokes the authority of his agent. Lee v. Griffin, 1 Best & S. 272; s. c. 101 Eng, C. L. 270. See Blades v. Free, 9 Barn, & Cress. 167 ; Campanari v. Woodburn, 15 C. B. 400; s. c. 80 Eng. C. L. 400, And so the death of the party to whom the offer is made terminates the con- tract, "Werner v. Humphreys, 2 Man. & Gr. 853 ; s. c. 40 Eng. C. L. 659. 2 8 T. E. 148. 3 The ordinary condition of sale which negatives the bidder's right to retract his bidding, and which was suggested to Lord St. Leonards by the decision in Payne v. Cave, is in the opinion of conveyancers, not en- forceable, unless the sale has taken place under certain special circum- stances. See Sugden, V, & P, 11 (14th ed,), and Dart, V. & P. (ed. 1876) 124. American authorities. — Downing v. Brown, Hard. (Ky.) 181; Grotenken- per V. Achtermeyer, 11 Bush (Ky.) 222 ; Nat. Bank of Metropolis" v. Sprague, 20 N. J. Eq. (5 C, E, Gr,) 159; Fisher v. Seltzer, 23 Pa. St, 308; 124 PART I.J MUTUAL ASSENT. *47 § 53. * In Head v. Diggon,i the defendant, on [*47] Thursday, the 17th of April, gave the plaintiff a writ- ten order in these words : " Offered Mr. Head, of Bury, the under wool, &c. &c. with three days' grace from the above date." These words were put in by the defendant expressly as a prom- ise to wait three days for the plaintiff's acceptance of the of- fer. The plaintiff went on Monday to accept, but the defend- ant refused, saying that the three days were out the day before — Sunday. Holroyd J. nonsuited the plaintiff, on the authority of Cooke v. Oxley. In the course of the argument for a new trial. Lord Tenterden said : " Must both parties be bound, or is it sufficient if only one is bound ? You contend that the buyer was to be free during three days, and that the seller was to be bound." The new trial was refused, his Lordship saying: "If the contract is to be taken as made only at the time when the plaintiff signified his acceptance of the offer, it is disproved by the circumstance that the defendant did not then agree." And Bayley J. concurred on the ground that " unless both parties are bound, neither is." s. c. 62 Am. Dee. 335. In the case the parties are in immediate commu- of Fisher v. Seltzer, supra, the right nication, that is, where they meet and to withdraw a bid before sale was negotiate in person, a reasonable time sustained, though the auctioneer had is limited to the interview ; and an announced as one of the terms of sale acceptance, after they have parted, that no bid could be withdrawn. when there is no further understand- Acceptance within reasonable time. — ing, and no giving of time for con- Where no time is fixed within which sideration, such an acceptance is a an offer must be accepted, the ac- nullity, because there is no continuing ceptance must be within a reasonable offer. See Story on Sales, § 126. time, considering the nature of the Where a contract is made by mail, contract. Martin v. Black, 21 Ala. and from its note or express terms, 721 ; Averill v. Hedge, 12 Conn. 424 ; requires an acceptance by the return Judd V. Day, 50 Iowa, 247 ; Moxley v. mail, the acceptance must be so Moxley, 2 Met. (Ky.) 309 ; Peru v. made or the contract will not be bind- Turner, 1 Fairf. (Me.) 185 ; Wilson ing. See Averill v. Hedge, 12 Conn. V. Clements, 3 Mass. 1 ; Craig v. Har- 424; Maclay v. Harvey, 90 111. 525; per, 57 Mass. (3 Cush.) 158; Beck- s. c. .32 Am. Rep. 35; Batterman v. with 0. Cheever, 21 N. H. 41 ; Chi- Morford, 76 N. Y. 622 ; Carr v. Du- cago, &c. E. E. V. Dane, 43 N. Y. 241; val, 39 U. S. (14 Pet.) 77, 82; bk. 10, Johnston v. Fessler, 7 Watts (Pa.) L. ed. 361. 43; s.u. 32 Am. Dec. 738; Minnesota i 3 M. & E. 97; Burton y. Great Oil Co. V. Collier Lead Co., 4 Dill. C. Northern Railway Company, 9 Ex. C. 431 ; vide ante, p. *40, § 47, note 3a. 507. What is reasonable time. — Where 125 H8 FOEMATION OF THE CONTRACT. [book I. [The Great Northern Rail. Co. v. Witham ^ offers a fur- ther illustration of the same principle. The defendant sent in a tender to supply the company with iron in such quanti- ties as they might from time to time order. The company accepted his tender, and the defendant received and executed several orders, bat ultimately the defendant refused to carry out an order which the company had given. Held, that the order given by the company was a sufficient consideration for the defendant's promise. The Court, however, pointed out that their decision did not affect the question of the defend- ant's, right, before any order had been given by the com- pany, to withdraw his offer by giving due notice. It is clear that, so far as the agreement was executory, it was unilateral, the company was under no obligation to give any order, and no action would lie against it for not so doing.^] [*48] * Another illustration of the same principle is to be found in the case of Smith v. Hudson.* There, a quantity of barley had been verbally sold according to 2 L. R. 9 C. P. 16 ; and see Chi- cago and Great Eastern Railway Company v. Dana, 43 N. Y. 240, post, p. 70. " For this, see Burton v. Great Northern Railway Company, 9 Ex. 507. An agreement to sell lumher. ■ — Where a lumber dealer offers to furnish lumber at stated prices, and receives money on the same, but the contract is never closed by an ac- ceptance of the offer, although a portion of the lumber is delivered, the dealer may treat such lumber as has been delivered as sold at the price named, or lie may withdraw his offer on the whole contract, and charge what the lumber sold is rea- sonably worth, and retain enough of the money advanced for his pay- ment. Smith V. AVeaver, 90 111. 392. * 6 B. & S. 431 ; 34 L. J. Q. B. 145. See, also, Taylor v. "Wakefield, 6 E. & B. 765. Sale by sample. — As a general rule. it is well established that where there is neither fraud nor express warranty on an executed contract, for the sale of a chattel, the buyer takes the risk of its quality and condition. No war- ranty of any kind (unless it be in re- spect to the title of the seller), can be implied from the fact that a sound price was paid. The maxim is caveat emptor, and not carrnt venditor. Beirne V. Dord, 5 N. Y. 95 ; s. c. 55 Am. Dec. 321; Siexas v. Wood, 2 Cai. Cas. (N. Y.) 482; s. e. 2 Am. Dec. 215; Oneida Manuf. Co. v. Lawrence, 4 Cow. (N. Y.) 440; Moses v. Mead, 1 Den. (N. Y.) 378; s. c. 43 Am. Dec. 076; Swett v. Colgate, 20 Johns. (N. Y.) 196; s. c. 11 Am. Dec. 26; Heermance v. Vernoy, 6 Johns. (N. Y.) 5 ; Davis v. Meeker, 5 Johns. (N. Y.) 354; Holden v. Dakin, 4 Johns. (N. Y.) 421; Defreeze u. Trumper, 1 Johns. (N. Y.) 274 ; s. c. 3 Am. Dec. 320 ; Perry c. Aaron, 1 Johns. (N, Y.) 129; Snell v. Moses, 1 Johns. (N. Y.) 96 ; Welsh o. Carter, 126 PART I.] MUTUAL ASSENT. •^48 sample, and the goods had been actually delivered to the order of the vendee, at the railway station, so as to put an end to the right of stoppage in transitu. But the b\iyer had not yet accepted so as to make the contract valid under the Statute of Frauds, because it was still in his power to exercise the option of accepting or rejecting after examining the quality of the bulk, to see if it corresponded with the sample. The buyer became bankrupt, and the seller at once gave notice to the railway company to hold the bar- ley, subject to his orders; and countermanded the order to convey it to the vendee. The assignees of the buyer insisted on their right to accept the goods in his place, on the ground of the actual delivery to him. But the court held that the withdrawal of the offer by the countermand of the vendor, before final acceptance, prevented the comple- tion of the contract. § 54. Where parties living at different places are com- pelled to treat by correspondence ^ through the post, there is 1 Wend. 185; s. c. 19 Am. Dec. 473; v. Kneeland, 6 Cow. (N. Y.) 354; 2 Kent Com. 479, 480. There is how- erer an exception to this rule of the common law, as well established in our law and in the English law as the rule itself, which allows a warranty to be implied on a sale of goods by sample, that the article is in bulk of the same kind and equal in quality with the sample exhibited, in ref- erence to which the parties contracted. Magee v. Billingsley, 3 Ala. 696 ; Rix V. Dalyhunty, 8 Port. (Ala.) 140; Mure V. Donuell, 12 La. An. 369; Hall u. Plassan, 19 La. An. 11 ; Coo- lidge V. Brigham, 42 Mass. (1 Mete.) 553 ; Bradford o. Manly, 13 Mass. 138 ; s. u. 7 Am. Dec. 122 ; Smithers 17. Bircher, 2 Mo. App. 510 ; Guerney V. Atlantic, &c. R. R., 58 N. Y. 564; Peraberton v. Hawkins, 51 N. Y. 198; s. c. 10 Am. Rep. 591 ; Beirne v. Dord, 5 N. Y. 95, 99 ; s. c. 55 Am. Dec. 3^1 ; Hargous v. Stone, 5 N. Y. 87 ; Koop V. Handy, 41 Barb. (N. Y.) 464; Seixas v. Woods, 2" Cai. Cas. (N. Y.) 48 ; s. c. 2 Am. Dec. 215 ; Andrews Moses V. Mead, 1 Den. (N. Y.) 378; s. c. 43 Am. Dec. 676 ; Sands c'. Tay- lor, 5 Johns. (N. Y.) 395; s. c. 4 Am. Dec. 374. ^ Contract by correspondence. — The prevailing rule is that if a definite proposition is made by letter, and is accepted by letter, within a reason- able time, and before knowledge of any retractiion, the contract is closed on the mailing of the acceptance duly addressed and prepaid. Bryant v. Booze, 55 Ga. 438 ; Levy v. Cohen, 4 Ga. 1; Haas ... Myers, 111 111. 421; Kentucky Mut. Ins. Co. v. Jenks, 5 Ind. 97 ; Ferrier v. Storer, 63 Iowa, 484; Moore v. Pierson, 6 Iowa, 279; s. c. 71 Am. Dec. 409; Chiles v. Nel- son, 7 Dana (Ky.) 281 ; Hutcheson V. Blakeman, 3 Met. (Ky.) 80 ; Stock- ham V. Stockhani, 32 Md. 196 ; Lung- strass V. German Ins. Co., 48 Mo. 204; s. c. 8 Am. Eep. 100; Hallock v. In- surance Co., 26 N. J. L. (2 Dutch.) 268 ; Bentley v. Columbia Ins. Co., 17 N. Y. 421, 424 ; Vassar v. Camp, 11 127 •^48 FORMATION OF THE CONTEACT. [book I. N. Y. 441 ; Myers v. Smith, 48 Barb. (N. Y.) 614 ; Underbill v. North Am. &c., 36 Barb. (N. Y.) .354 ; Brisban v. Boyd, 4 Paige Ch. (N. Y.) 17; Mac- tier V. Frith, 6 Wend. (N. Y.) 103 ; s. c. 21 Am. Dec. 262; Hamilton v. Ly- coming Mut. Ins. Co., 5 Pa. St. 339; Washburn «. Fletcher, 42 Wis. 152; Matteson v. Scofield, 27 Wis. 671; Winterport, &c. Co. v. Schooner Jas- per, 1 Holmes C. C. 101; Tayloe v. Merchants' Ins. Co., 50 XJ. S. (9 How.) 390 ; bk. 13, L. ed. 187 ; In re Im- perial Land Co. of Marseilles, Harris's Case, L. R. 7 Ch. App. 587 ; s. c. 3 Eng. Rep. 529; Dunlop o. Higgins, 1 H. L. Cas. 381; Proprietors, &c. V. Arduin, L. R. 5 H. L. 64 ; and this is true although the acceptance may be delayed or may not be received owing to the fault of the post. Falls 0. Gaither, 9 Port. (Ala.) 614; Ave- rill IK Hedge, 12 Comm. 436 ; Levy v. Cohen, 4 Ga. 1 ; Hutcheson v. Blake- man, 3 Met. (Ky.) 80; Wheat v. Cross, 31 Md. 99 ; s. c. 1 Am. Rep. 28 ; Abbott V. Shepard, 48 N. H. 14; Potts V. Whitehead, 20 N. J. Eq. (5 C. E. Gr.) 55; Trevor v. Wood, 36 N. Y. 307 ; Hamilton u. Lycoming Mut. Ins. Co., 5 Pa. St. 339; Wash- burn V. Fletcher, 42 Wis. 152 ; Tay- loe V. Merchants' Ins. Co., 50 U. S. (9 How.) 390; bk. 13, L. ed. 187; Adams V. Linsdell, 1 Barn. & Aid. 681 ; Dun- can V. Topham, 8 C. B. 225; Potter i'. Sanders, 6 Hare, 1 ; Dunlop v. Hig- gins, 1 H. L. Cas. 381; Stocken v. Collin, 7 Mees. & W. 515; Town- send's Case, L. R. 1.3 Eq. 148 ; Hebb's Case, L. R. 4 Eq. 9; In re Imperial Land Co. of Marseilles, Harris' Case, L. R. 7 Ch. App. 587. The case of British & Am. Tel. Co. u. Colsom, L. R. 6 Ex. 108, holding a contrary doc- trine must be regarded as of no au- thority. The gist of that decision is thus stated by Kelley C. B. : " It ap- pears to me that if one proposes to another by a letter through the post, to enter into a contract for the sale or purchase of goods, or as in this case, of shares in a company, and the proposal is accepted by letter, and the letter put into the post, the party having proposed the contract is not bound by the acceptance of it until the letter of acceptance is delivered to him, or otherwise brought to his knowledge, except (in some cases) where the non-receipt of the accept- ance has been occasioned by his own act or default." The like doctrine has been held in Massachusetts (McCul- loch y. Eagle Ins. Co., 18 Mass. (1 Pick.) 278 ; but this case is criticised and dis- approved by both Story and Parsons), and in Tennessee (Gillespie v. Edmon- ston, 1 1 Humph. (Tenn.) 553) . On this principle the New York Supreme Court has held that the deposit of an acceptance in the letter box of the de- fendant's place of business completes the contract even though it is never received by him. Howard v. Daly, 61 N. Y. 362; s. c. 19 Am. Rep. 285. What letters must contain. — Where a contract is made by letters, they must embody the contract. Napier V. French, 40 N. Y. Super. Ct. (8 J. & S.) 122; Trevor ■!;. Wood, 36 N. Y. 307 ; reversing s. c. 41 Barb. (N. Y.) 255. A letter referring to a previous verbal proposition, stating its terms according to the understanding of the writer, accepting them and requiring the party addressed to acknowledge his acceptance in writing, does not constitute a contract, but a propo- sition for a contract. Hough v. Brown, 19 N. Y. 111. So where a letter is addressed to another, inquir- ing whether he is the owner of cer- tain real estate, and the price thereof, to which he responds, stating the price at which he holds it, such re- sponse will not be construed as a prop- osition of sale. Knight v. Cooley, 34 Iowa, 218. It is held that letters unexplained fall short of proving what the con- tract was, and where the first was merely a letter of inquiry which, if unanswered, it was totally irrelevant ; and, if answered, the answer would have shown the terms and description 128 PABT I.] MUTUAL ASSENT. *48 of the property, which are not shown by any of the other letters ; and that Buch evidence does not make a prima facie case, so as to justify taking the case from the jury. Gumey o. Col- lins (Mich.) 7 West. Eep. 670. Continuing offer. — The legal pre- sumption is that the will of the party sending the proposal continues until the letter reaches the party to whom it is directed. Mactier v. Frith, 6 "Wend. (N. Y.) 103. For this reason an offer by letter is a continuing oifer until the letter be receired, and for a reasonable time thereafter, during which the party to whom it is ad- dressed may accept the offer and communicate the fact of his accept- ance. But the oHer may be with- drawn by the maker at any moment, and it is withdrawn as soon as notice of such withdrawal reaches the party to whom the offer is made, and not before ; if, therefore, the party ac- cepts the offer before such withdrawal the bargain is completed. There is then a contract founded on mutual assent. And it is held that an ac- ceptance to this effect is made, and is communicated, when the party re- ceiving the offer puts into the mail his answer accepting it. Adams v. Lindsell, 1 Barn. & Aid. 681; Potter V. ■ Sanders, 6 Hare, 1 ; Kennedy u. Lee, 3 Meriv. 441. Accefiance by tetter. — An accept- ance by letter is valid the moment deposited in the post office, properly addressed (Chiles t. Nelson, 7 Dana (Ky.) 281 ; Vassar v. Camp, 11 N. Y. 441 ; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225; bk. 4, L. ed. 556; 1 Pars, on Contr. 406, 408; 2 Id. 94), if no different time for acceptance be specified in the offer. Falls v. Gaither, 9 Port. (Ala.) 605 ; Averill ;>. Hedge, 12 Conn. 424 : Levy v. Cohen, 4 Ga. 1; Chiles V. Nelson, 7 Dana (Ky.) 281 ; Thayer v. Middlesex Fire Ins. Co., 61 Mass. (10 Pick.) 326 ; Beck- with V. Cheever, 21 N. H. 41 ; Brisban V. Boyd, 4 Paige Ch. (N. Y.) 20 : Mac- tier V. Frith, 6 Wend. (N. Y.) 104; s. c. 21 Am. Dec. 262; Eliason v. Henshaw, 17 U. S. (4 Wheat.) 225 ; bk. 4, L. ed. 556 ; Adams v. Linsdell, 1 Barn. & Aid. 681 ; Eyles v. Ellis, 4 Bing. 112; Duncan c^. Topham, 8 C. B. 225 ; Eoutledge v. Grant, 3 Car. & P. 298; s. c. 4 Bing. 653; Humphries V. Carvalho, 16 East, 45; Kufh .. Weston, 3 Esp. 54; Head v. Diggon, 3 Man. & By. 97 ; Doe & Keeling, 1 Maule & S. 95 ; Potter v. Sanders, Hare, 1 ; Dunlop v. Higgins, 1 H. L. Cas. 381; Cooke v. Oxley, 3 T. E. 653 ; Robinson v. Thompson, 2 Ves. 118. And this is held to be true al- though the acceptance is never re- ceived by the party to whom it is ad- dressed. Washburn v. Fletcher, 42 Wis. 152. See, also, Merrill r. Swifi, 18 Conn. 257 ; s. c. 46 Am. Dec. 315 ; Johnson v. Sharp, 31 Ohio St. 611; s. c. 27 Am. Rep. 529; Wilt v. Franklin, 1 Binn. (Pa.) 502; s. c. 2 Am. Dec. 474 ; Smith v. Bank of Washington, 5 Serg. & E. (Pa.) 318 ; McKinney v. Rhoads, 5 Watts (Pa.) 343; Read V. Robinson, 6 Watts & S. (Pa.) 329; Shubar v. Winding, Cheves (S. C.) L. 218; Dargin v. Richardson, Cheves (S. C.) L. 197; Prime o. Yates, 2 Tread. (S. C.) 770; Skipwith v. Cun- ningham, 8 Leigh (Va.) 271 ; s. c. 31 Am. Dec. 742. But simply showing that a letter was written and placed among other letters to be sent to the post office, is not sufficient evidence that it was in fact mailed. Fellows V. Prentiss, 3 Den. (N. Y.) 512, 522 ; s. c. 45 Am. Dec. 484. However, it seems that if the parties reside in the same place, an acceptance by mail is not sufficient. Britton v. Phillips, 24 How. (N. Y. Pr.) 111. When the offer is by letter, or tele- gram, the acceptance signified in the same manner is sufficient, irrespective of the time when it comes to the knowledge of the proposing party, or whether the answer is ever received. Such acceptance is sufficient subscrip- tion to take the case out of the Stat- ute of Frauds. Trevor v. Wood, 36 N. Y. 307 ; reversing s. u. 41 Barb. (N. 29 FORMATION OP THE CONTRACT. [BOOK I. Y.) 255 ; Minnesota Linseed Oil Co. V. Collier Lead Co., 4 Dill. C. C. 431 ; Newcomb v. De Roos, 2 Ell. & E. 27L It is not necessary to prove that the assent actually came to the knowledge of the proposer, nor does evidence that it did not come to his knowledge avail. Vassar v. Camp, 11 N. Y. 441, affirming s. c. 14 Barb. (N. Y.) 341 ; Parks V. Comstock, 59 Barb. (N. Y.) 16. Negligence of servant or other person in mailing letter. — Where a person sent by letter an offer to engage the plaintiff in his millinery shop, asking for a prompt reply, which letter was received by plaintiff on the twenty- second day of the month, which she answered by postal card the next day, accepting the offer, and which, if then mailed, would have reached the de- fendant on the 24th, but which she gave to a boy to mail, who neglected to mail it until the 25th, it was held that the defendant was not bound by his offer, the plaintiff not having mailed notice of her acceptance in sufficient time, nor was he bound after receiving her answer to notify her that her acceptance had not been signified in time ; and his intention afterwards to accept her services and attempt to see her not having been acted on would not change the rule of law. Maclay v. Harvey, 90 111. 525 ; s. c. 32 Am. Rep. 35, 40, note. The negligence of a party's agent in mailing her letter, accepting an offer to employ the writer of the letter, is her own negligence, and the writer must bear the consequences of the delay in her agent in mailing the same. Maclay v. Harvey, 90 111. 525 ; s. c. 32 Am. Rep. 35, 40, note. And this is true even where the agent is the postmaster. Thayer v. Middlesex Mutual E. Ins. Co., 27 Mass. (10 Pick.) 326 ; Bryant v. Booze, 55 Ga. 4.38. Imposing conditions. — But the send- er may limit the time for accept- ance. Britton u. Phillips, 24 How. (N. Y.) Pr. Ill ; Lewis v. Browning, 130 Mass. 173. Thus if the letter containing the offer requests an an- swer by return mail, and the letter containing the acceptance of the offer is not sent by return mail, the person making it may consider it refused, and may proceed in the same manner as if it had never been made. Taylor V. Eennie, .32 Barb. (N. Y.) 272. And the sender may make it a condition that the proposal shall not be binding upon him until notice of its accept- ance is received by him. Vassar v. Camp, 11 N. Y. 441 ; Fellows v. Pren- tiss, 3 Den. (N. Y.) 520 ; s. c. 45 Am. Dec. 484. Or for a limited time only. Britton !•. Phillips, 24 How. (N. Y.) Pr. 111. And the proposal may be such as to show that an acceptance is not to be made until after examina- tion by the proposer. Myers v. Smith, 48 Barb. (N. Y.) 614. Time of acceptance. — A letter offer- ing a contract does not require the party to whom it is addressed to re- turn an answer by the very next post after its delivery, or lose the benefit of the contract; but an answer posted on the day of receiving the offer is sufficient. Dunlop v. Higgins, 1 H. L. Cas. 381. The contract is accepted by the posting of a letter declaring an acceptance of the offer ; for when a person has posted a letter declaring his acceptance of a contract offered, he has done all that is necessary for him to do, and is not answerable for casualties occurring at the post-office. Dunlop V. Higgins, 1 H. L. Cas. 381 ; Stockton V. Collin, 7 Mees. & W. 515. See also Falls v. Gaithers, 9 Port. (Ala.) 615; Averill v. Hedge, 12 Conn. 436; Levy v. Cohen, 4 Ga. 1; Chiles V. Nelson, 7 Dana (Ky.) 281 ; Hutcheson t). Blakeman, 3 Met. (Ky.) 80; Beckwith v. Cheever, 21 N. H. 41 ; Meyers v. Smith, 48 Barb. (N. Y.) 614; Underbill v. North Am. K. G. Co., 36 Barb. (N. Y.) 364 ; Clark v. Dales, 20 Barb. (N. Y.) 42; Vassar v. Camp, 14 Barb. (N. Y.) 341 ; s. c. 11 N. Y. 441 ; Brisban v. Boyd, 4 Paige Ch. (N. Y.) 17; Mactier v. Frith, 6 Wend. (N. Y.) 103; s. c. 21 Am. Dec. 262 ; Hamilton v. Lycoming Mut. Ins. 130 PART I.J MUTUAL ASSENT. *48 Co., 5 Pa. St. 339 ; Matteson u. Sco- field, 27 "Wis. 671; In re Imperial Land Co. of Marseilles ; Harris' Case, L. K. 7 Ch. App. 587 ; s. u. 3 Eng. Rep. 529. Where a person makes an offer by post, asking for, or where from the nature of the busi- ness he has a right to expect, an an- swer by return mail, the offer can only endure for a limited time, and the making of it is accompanied by an implied stipulation that the an- swer shall be by return mail ; and if that implied stipulation is not satis- fied, the person making the offer is released from it. Maclay v, Harvey, 90 111. 525 ; s. c. 32 Am. Rep. 35, 40, note. Reasonable time. — The answer must be mailed within a reasonable time, unless a time is limited in the offer. The next day will answer. Dunlop V. Higgins, 1 H. L. Cas. 381. But four months after will not. Chicago & C. R. Co. V. Dans, 43 N. Y. 240. Where the answer is not mailed with- in a reasonable time (Taylor v. Ren- nie, 35 Barb. (N. Y.) 272 ; s. c. 22 How. (N. Y.) Pr. 101), in view of all the circumstances, it will be too late and will not bind the other party. Trevor v. Wood, 36 N.Y. 307 ; revers- ing s. c. 41 Barb. (N. Y.) 255 ; Minne- sota Linseed Oil Co. u. Collier, 4 Dill. C. C. 431. Retractions. — The general princi- ple is that in negotiations and engage- ments between persons at a distance, when the negotiations are carried on by letters or messengers, an offer by one party, until it is made known to the other, is but an intention not ex- pressed ; and if the. letter or messen- ger can be overtaken before it arrives at its destiiiation, it may be revoked or withdrawn before acceptance. Esk- ridge v. Glover, 5 Stew. & Port. (Ala.) 264; s. i;. 26 Am. Dec. 344; Burton V. Shotwell, 13 Bush (Ky.) 271 ; Beck- with V. Cheever, 21 N. H. 41 ; Faulk- ner V. Hebard, 26 Vt. 452 ; Honeyman V. Marryatt, 21 Beav. 14 ; Hyde v. Wrench, 3 Beav. 334; Boutledge u. Grant, 4 Bing. 653 ; Chinnock v. Mar- chioness of Ely, 6 N. R. 1. And so an acceptance may be retracted be- fore or simultaneously with its re- ceipt. Dunraore o. Alexander, 9 Shaw & Dunl. 190. See, also. Wheat v. Cross, 31 Md. 99; s. c. 1 Am. Rep. 28 ; Tayloe v. Merchants' Ins. Co., 50 U. S. (9 How.) 390; bk. 13, L. ed. 187 Eoutledge v. Grant, 4 Bing. 653 ; Dun- lop u. Higgins, 1 H. L. Cas. 381 Byrne v. Tienhoven, L. R. 5 C. P, Div. 344; s. c. 42 L. T. (N. S.) 371 Household Fire Co. v. Grant, 41 L. T, (N. S.) 298; s. c. L. R. 4 Ex. Div 216 ; Brit. & Am. Tel. Co. v. Colson 23 L. T. (N. S.) 868; s. c. L. R. 6 Ex. 108. But if the revocation does not arrive until after the offer is re- ceived and accepted, it is too late. McCullough V. Eagle Ins. Co., 18 Mass. (1 Pick.) 278 ; Mactier v. Frith, 6 Wend. (N. Y.) 103; s. c. 21 Am. Dec. 262; The Palo Alto, 2 Were (Davies) C. C. 343 ; s. i;. 6 N". Y. Leg. Obs. 262, 271 ; Adams v. Lindsell, 1 Barn. & Aid. 621 ; Eoutledge v. Grant, 4 Bing. 653. Where a proposition of sale is made by letter, the party mak- ing the proposition cannot retract after the acceptance by his corre- spondent has been deposited in the post-ofSce. Tayloe v. Merchants' Ins. Co., 50 U. S. (9 How.) 390 ; bk. 13, L. ed. 187. Nor can the party accept- ing retract his acceptance after post- ing the letter, although prior to his correspondent's receipt of it, nor even if it never be received. Wheat v. Cross, 31 Md. 99; s. c. 1 Am. Rep. 28 ; Hallock v. Commercial Ins. Co., 26 N. J. L. (2 Dutch.) 263; Vassar V. Camp, 11 N. Y. 441 ; Duncan «. Topham, 8 C. B. 225 ; In re Imperial Land Co. of Marseilles, Harris' Case, L. R. 7 Ch. App. 587 ; s. c. 3 Eng. Rep. 529. Acceptance in terms. — ■ An accept- ance of an offer by letter must be without qualification. Trevor v. Wood, 36 N. Y. 307 ; Deshon v. Fos- dick, 1 Wood C. C. 286; Willing v. Currie, 36 Up. Can. Q. B. 46; Bick- 131 "48 FOKMATION OF THE CONTRACT. [book I. ford r. Great Western Ey., 28 Up. Can. C. P. 516. And must be in the terms of the proposal and not a vari- ation therefrom. Myers v. Smith, 48 Barb. (N. Y.) 614 ; Honeyman v. Mar- ryatt, 6 H. L. Cas. 112 ; affirming s. c. 21 Beav. 14. And in accordance with the terms of the offer, and given with- in the time prescribed, if any, by the offer. Jenness c. Mt. Hope Iron Co., 53 Me. 20 ; Tuttle v. Love, 7 Johns. (N. T.) 470; Bruce v. Pearson, 3 Johns. (N. Y.) 526 ; Eliason v. Hen- shaw, 17 U. S. (4 Wheat.) 225 ; bk. 4, L. ed. 556 ; Routledge v. Grant, 4 Bing. 653 ; Andrews v. Garrett, 6 C. B. (N. S.) 262 ; Wontner v. Shairp, 4 C. B. 404; Thomas v. Blackman, 1 Coll. Ch. 301; Jordan v. Norton, 4 Mees. & W. 155 ; Holland v. Eyre, 2 Sim. & Stu. 194; see McCoUum v. Cushing, 22 Ark. 540 ; Taylor v. Mc- Clung, 2 Houst. (Del.) 24 ; Baker v. Johnson Co., 37 Iowa, 186; Barns v. Barrow, 61 N. Y. 39 ; s. c. 19 Am. Rep. 247; White v. Corlies, 46 N. Y. 467; Chicago and Great E. R. Co. v. Dane, 43 N. Y. 240 ; Baldwin v. Mildeberger, 2 Hall (N.Y.) 176; Coles v. Bowne, 10 Paige Ch. (N. Y.) 526 ; Suydam v. Clark, 2 Sandf. (N. Y.) 133; Hunt v. Smith, 17 Wend. (N. Y.) 179; s. c. 31 Am. Dec. 296; Taylor v. Wetmore, 10 Ohio, 490; Bleeker h. Hyde, 3 McL. C. C. 279 ; Russell v. Perkins, 1 Mas. C. C. 368; Cremer v. Higgin- son, 1 Mas. C. C. 323; First Nat. Bank of Quincy i:. Hall, 101 U. S. (11 Otto) 43 ; bk. 25, L. ed. .322 ; Ut- ley V. Donaldson, 94 TJ. S. (4 Otto) 48 ; bk. 24, L. ed. 57 ; Adams v. Jones, 37 TJ. S. (12 Pet.) 207; bk. 9, L. ed. 1058 ; Grant v. Maylor, 8 U. S. (4 Cr.) 224 ; bk. 2, L. ed. 603 ; Appleby v. Johnson, L. R. 9 C. P. 158 ; Story on Contr. § 1130. Yet an immaterial addition to an acceptance, which does not in any way vary the proposition, will not render the acceptance void and pre- vent the taking effect of the contract. Gibbens v. N. E. Met. Asylum Dis- trict, 11 Beav. 1 ; Clive v. Beaumont, 1 De G. & Sm. 397; Dickinson v. Dodds, L. R. 2 Ch. Div. 463 ; Bran- som V. Stannard, 41 L. T. (N. S.) 434; Bonnewell v. Jenkins, 38 L. T. (N. S.) 581 ; Proprietors, &c. v. Arduin, L. R. 5 H. L. 64. Neither will an accept- ance with a proposal for variation not made a condition. Matteson f. Scofield, 27 Wis. 671. Where an option is given to the person to whom the proposal is addressed, he may elect which he will accept. tJn- derhill v. North American Kerosene Gaslight Co., 36 Barb. (N. Y.) 354. Variance. — When the contract is made by letter it cannot be varied, although proof of subsequent waiver of some of its provisions is admissi- ble. Whitmore v. South Boston Iron Co., 84 Mass. (2 Allen) 52; s. c. 1 Am. Law Reg. N. S. 403. A letter written in reply to an offer which re- states the terms of the offer, but with some variation, though slight, cannot be regarded as the consummation of a contract, and requires an accept- ance upon the terms thus stated, and until unequivocally accepted, is only a mej-e proposition or offer. Maclay V. Harvey, 90 111. 525; s. c. 32 Am. Rep. 35. Agreement for insurance made hy letter. — • A written offer by insurers to insure becomes binding on a despatch of an acceptance, provided the ac- ceptance reaches them before being countermanded. In such case, how- ever, the offer must be specific as to the subject, risk, and terms, and the acceptance must reach the insurance within the time prescribed in the offer. McCulloch u. Eagle Ins. Co., 18 Mass. (1 Pick.) 278; 1 PhiU. on Ins. 14. Thus where an insurance company made known by letter the terms on which they were willing to insure, the contract was held to be complete when the insured placed a letter in the post-oflBlce accepting the terms ; and the house having been burned down while the letter of ac- ceptance was in progress by the mail, the company were held responsible. 132 PAET I.J MUTUAL ASSENT. *48 a modification of the rule to this extent, that the party making the offer cannot retract after the acceptance by his correspondent has been duly posted, although it may not have reached him;^ [or may never reach him;^ and the retractation to be effectual must reach his correspondent before he has posted his acceptance ; *] nor can the party accepting retract his acceptance after posting his letter, although prior to his correspondent's receipt of it, nor indeed, if it never be received.^ Bentley v. Columbia Ins. Co., 17 N. Y. 423 ; The Palo Alto, 2 Davies (Ware) C. C. 344; Tayloe v. Merchants' Fire Ins. Co., 50 U. S. (9 How.) 390; bk. 13, L. ed. 187. This is true although the letter of acceptance never reaches its destination. Duncan v. Topham, 8 C. B. 225. Contract by telegraph. — The party who sends an_, order by telegraph makes the telegraph company his agent for its transmission and deliv- ery, and is bound by the message as delivered ; and where legal rights of the receiver, found upon such order, are in question, he is entitled to put in evidence the message actually re- ceived, as the original. Saveland u. Green, 40 Wis. 431. But see 12 Eng. Rep. 242, note. Where an unrevoked offer is accepted by telegraph, it be- comes a binding contract the moment the telegram accepting the offer is received. Schonberg v. Cheney, 6 N. Y. Sup. Ct. (6 T. & C.) 200; Bal- lantine v. Watson, 30 Up. Can. C. P. 529 ; Thorne v. Barwick, 16 Up. Can. C. P. 369 ; Harty v. Gooderham, 31 Up. Can. Q. B. 18 ; Prosser v. Hen- derson, 20 Up. Can. Q. B. 438. Some courts hold that an acceptance, if sent by telegraph, binds the parties from the time of depositing the ac- ceptance in the telegraph office for transmission. Trevor v. Wood, 36 N. Y. 307 ; reversing s. c. 41 Barb. (N. Y.) 255 ; Perry v. Mount Hope Iron Co., 15 R. I. 66 ; Utley v. Don- aldson, 94 U. S. (4 Otto) 29 ; bk. 24, L. ed. 54; Minnesota L. 0. Co. v. Collier L. Co., 4 Dill. C. C. 431; Thorne v. Barwick, 16 Up. Can. C. P. 369; Marshall v. Jamieson, 42 Up. Can. Q. B. 115 ; Harty v. Gooderham, 31 Up. Can. Q. B. 18. But it is held in some cases that the rule, that the mailing of a letter of acceptance com- pletes the contract, does not apply to negotiations by telegraph ; and that an acceptance sent by telegraph is not completed until delivered to the per- son to whom it is addressed. See Trevor .■. Wood, 41 Barb. (N. Y.) 225; s. u. 26 How. (N. Y.) Pr. 451. 2 Adams v. Lindsell, 1 B. & Aid. 681; Dunlop u. Higgins, 1 H. L. C. 381 ; Potter v. Saunders, 6 Hare, 1 ; Harris's Case, 7 Ch. 587. See, also, Byrne v. Van Tienhoven, L. R. 5 C. P. Div. 344 ; Thompson v. James, 18 Dunlop, 1 ; Stevenson v. McLean, L. E. 5 Q. B. Div. 346. In Byrne v. Van Tienhoven the court say that " it may be taken as now settled that where an offer is made and accepted by letters sent through the post, the contract is complete the moment the letter accepting the offer is posted." ^ Household Fire Insurance Com- pany V. Grant, 4 Ex. D. 216, C. A. * Byrne v. Van Teinhoven, 5 C. P. D. 344 ; Stevenson u. McLean, 5 Q. B. D. 346. s Duncan v. Topham, 8 C. B. 225; Potter V. Saunders, 6 Hare, 1 ; House- hold Fire Insurance Company u. Grant, 4 Ex. D. 216, C. A., per Baggallay and Thesiger L. JJ., but see per Bramwell, L. J., at p. 235 ; Dunmore o. Alexander, 9 Shaw & 133 *49 POEMATION OF THE CONTBACT. [BOOK I. In Adams v. Lindsell,^ the defendants wrote on [*49] the 2d *of September to the plaintiff, offering to sell a quantitjr of wool on specified terms, "receiving your answer in course of post." The letter was misdirected by the defendants, so that it only reached the plaintiff on the evening of the 7th. An answer was sent on the same even- ing accepting the offer. This answer was received by defend- ants on Tuesday, the 9th, in due course. On Monday, the 8th, the defendants not having received the answer, which would have been due on Sunday, the 7th, according to the course of the post, if they had not misdirected their letter making the offer, sold the wool to another person. Action for non-delivery, and verdict for plaintiff. On motion for new trial, it was contended on behalf of the defendants, on the authority of Payne v. Cave,^ and Cooke v. Oxley,^ that they had a right to retract their offer until notified of its acceptance ; that they could not be bound on their side until the plaintiff was bound on his. But the court said : " If that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer, when accepted by the plaintiff, till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer, and assented to it ; and so it might go on ad infinitum. The defendants must be considered in law as making, during every instant of the time their letter was travelling, the same identical offer to the plaintiffs, and then Dunlop, 190 ; and see post, page 53. Dutch.) 268, 283 ; Potts v. White- See, also, Adams v. Lindsell, 1 Barn. head, 23 N. J. Eq. (8 C. E. Gr.) 512 ; & Aid. 681 ; Dunlop v. Higgins, 1 H. O'Neill v. James, 43 N. Y. 84 ; Mac- L. Cas. 381. tier v. Frith, 6 Wend. (N. Y.) 104 ; American authorities. — The leading s. c. 21 Am. Dec. 262; Tayloe v. Mer- cases upon this subject in America chants' Ins. Co., 50 U. S. (9 How.) are: Bryant u. Booze, 55 Ga. 438; 390, bk. 13, L. ed. 187; The Palo Woolbright v. Sneed, 5 Ga. 167; Alto, Daries (2 Ware), C. C. 344; Leyy v. Cohen, 4 Ga. 1; Hutcheson Winterport, G. & B. Co. r. Schooner V. Blakeman, 8 Met. (Ky.) 80; Stock- Nickerson, 1 Holmes C. C. 99. But ham V. Stockham, 32 Md. 196 ; Wheat see McCuUoch v. Eagle Ins. Co., 18 V. Cross, 31 Md. 99; s. c. 1 Am. Eep. Mass. (1 Pick.) 278. 28 ; Finch v. Mansfield, 97 Mass. 89 ; ^ 1 Barn. & Aid. 681. Abbott V. Shepard, 48 N. H. 14; Hal- ' 3 T. R. 148. lock V. Insurance Co., 26 N. J. L. (2 83 x. E. 653. 134 PART I.] MUTUAL ASSENT. *50 the contract is completed by the acceptance of it by the latter." » This case was cited with approval by Lord Cottenham in Dunlop V. Higgins i" as a leading case, his Lordship remark- ing that " common sense tells us that transactions cannot go on without such a rule." In Dunlop v. Higgins, a proposal sent by mail on the 28th of January was received on the 30th, and answered on the same day, but not by the first post of the day, so that it reached the proposer on the 1st of February, instead of the 31st of January. It was held that * the answer was posted in time, and that [*50] the contract was complete by acceptance when the letter of acceptance was posted; the party accepting not being answerable for casualties at the post-office delaying or preventing the arrival of his letter of acceptance. ^^ § 55. The Court of Exchequer in The British and Amer. Tel. Co. V. Colson,^ held, however, that where the defendant had applied for shares in the plaintiff's company, and a letter allotting the shares to him had been posted to his address, but not received by him, the contract was not complete, and the learned Barons held, that the cases cited supra, in sup- port of the contrary proposition, do not warrant the inference that has been deduced from them. But this last case has in its turn been criticised by the Lords Justices in the case of In re The Imperial Land Co. of Marseilles — Harris' Case,^ in which their Lordships inti- mate their inability to reconcile the decisions of the Barons " Construction of contracts by corre- 1" 1 H. L. C. 381. See, also, Pot- spondence. ■ — In the construction of a ter v. Saunders, 6 Hare, 1, V. C. Wig- contract arising out of letters and ram's decision. telegraphic communications, a rea- ^^ On this point, see, also, Duncan sonable interpretation will be given v. Topham, 8 C. B. 225; 18 L. J. C. to the contract ; the party making a P. 310. But see the remarks on the proposal must be considered as re- accuracy of the report of this case in newing his offer every moment until 8 C. B., by Bramwell B. in Colson's the time at which the answer is to be Case, L. E. 6 Ex. at p. 120. sent, and then the contract is com- i L. R. 6 Ex. 108. pleted by the acceptance of the offer. ^ 7 ch. 587. See, also. Wells' Case, Thome v. Barwick, 16 Up. Can. C. P. 15 Eq. 18. 369. 135 *50 rOKMATION OF THE CONTRACT. [BOOK I. of the Exchequer with that of the House of Lords in Dunlop V. Higgins.^ ' 1 H. L. C. 381. See Household Fire Insurance Co. v. Grant, 4 Ex. D. at p. 228. Goods ordered bij letter : when con- tract completed. (1) English doctrine. — Where a person who carries on business in one town posts a letter there containing an order for goods addressed to a person in another town, if no letter be sent accepting an offer, but instead the goods them- selves are sent by a servant or agent and delivered to the party ordering at his place of business, the contract is completed, and a cause of action on it arises in the place where the goods are delivered. Harris's Case, L. R. 7 Ch. •587, 593; Taylor v. Jones, L. R. 1 C. P. Div. 87. See, also, Duncan v. Topham, 8 C. B. 225 ; Adams u. Lindsell, 1 Barn. & Aid. 681; Dunlop v. Higgins, 1 H. L. Cas. 381 ; Evans v. Nicholson, 32 L. T. 778. In the case of Taylor v. Jones, supra, Archibald J. says : " Here there was a complete order when the buyer posted the letter ordering the goods, and the acceptance of it was the sending of the goods into the city and there de- livering them to the buyer. If the seller had posted in Surrey a letter ac- cepting the offer, the contract would have been made at the place where the offer was accepted ; but there being no letter of acceptance, and the goods being delivered in the city where the letter was posted, made the offer and sale completed there." See Hurdle o. Waring, L. R. 9 C. P. 4-35; Wall's Case, L. R. 15 Eq. 18; Evans v. Nicholson, 32 L, T. 778. See Jackson v. Spittall, L. R. 5 C. P. 542 ; Vaughan v. Weldon, L. R. 10 C. P. 47 ; Earina v. Home, 16 Mees. & W. 119 ; Meredith v. Meigh, 2 El. & Bl. 364; s. c. 22 Eng. L. & Eq. 91; Hunt V. Hecht, 22 Law J. Rep. (N. S.) Ex. 293 ; s. c. 20 Eng. L. & Eq. 524. (2) American doctrine. — However, it is held in this country that when a proposal to purchase goods is made by letter, sent to another state, and is there assented to, the contract of sale is made in the latter state. Boit V. Maybin, 52 Ala. 252; Finch ^. Mansfield, 97 Mass. 89 ; Mclntyre v. Parks, 44 Mass. (3 Mete.) 207 ; Gar- bracht u. Commonwealth, 96 Pa. St. 449; s. c. 42 Am. Rep. 550; Shriver V. Pittsburg, 66 Pa. St. 446. And if it is valid by the law of the latter state, it will be enforced in the state whence the letter is sent, although the contract would have been invalid if made there. 1 Parsons on Contr. 525. See Knight v. Mann, 120 Mass. 219; s. c. 118 Mass. 143; Frostburg Mining Co. v. New England Glass Co., 63 Mass. (9 Cush.) 115; Rindskopf D. De Ruyter, 39 Mich. 1 ; s. c. 33 Am. Rep. 340 ; Grimes o. Van Vech- ten, 20 Mich. 410; Stone v. Brown- ing, 68 N. Y. 598 ; Caulkins v. Hell- man, 47 N. Y. 449 ; s. c. 7 Am. Rep. 461. (3) Canadian doctrine. — In O'Don- ohoe V. Wiley, 43 Up. Can. Q. B. 350, the plaintiff telegraphed to merchants in New York, offering to represent them in bankruptcy proceedings in Toronto, which was accepted by tele- graph, and after services rendered, the bill was sent by letter to the de- fendants in New York, which they, by letter, rejected; it was held that the contract was completed and the cause of action arose in New York. The same doctrine was held by the same court in McGiveren «. Smith, 33 Up. Can. Q. B. 203, where the plaintiff, at Kingston, wrote defend- ant at Montreal, offering certain ar- ticles, to which the defendant replied from Montreal. The court held that the contract was made in Montreal, that being the place where the final assent was given. Vide supra, sec. 54, note 1. 136 PART I.J MUTUAL ASSENT. *51 [In Harris's Case the appellant had applied by letter for shares in the respondent company. After the letter of allot- ment had been duly posted, but before it had reached him, Harris wrote withdrawing his application. Held, on the authority of Dunlop t). Higgins, that the contract was com- plete and irrevocable from the time that the letter of allot- ment was posted ; but it was unnecessary for the decision of the case to consider the correctness of the judgment of the Court of Exchequer in Colson's Case. However, the Court of Appeal has now expressly overruled Colson's Case in The Household Fire Insurance Co. v. Grant.* The facts were precisely similar to those in Colson's Case. The defendant had applied for shares in the plaintiff company, and the letter of allotment, duly addressed and posted, never reached him. * It was held by the majority of the Court [*51] (Baggallay and Thesiger L.JJ.) that the defendant was liable as a shareholder. ^ Bramwell L. J. who dissented, dwelt strongly upon the in- convenience and hardship that must in many instances result to the person making the offer, when, without any default on his part, the letter of acceptance is lost in transmission. Prac- tically, however, this may be avoided by taking the precaution to stipulate, as suggested by Mellish L. J. in Harris's Case, that the contract shall only be complete upon the actual receipt of the letter of acceptance. The rule is restricted to cases where, by reason of general usage, or of the relation between the parties to any particular transaction, or of the terms in which the offer is made, the acceptance of such offer through the post is expressly or impliedly authorized ; ^ but this limi- tation can hardly be of much practical importance. For the same principle, as applied to the posting of a letter containing an offer, see Taylor v. Jones, 1 C. P. D. 87. And as to the property in a letter and its contents, see Ex parte Cote, 9 Ch. 27.] § 56. In both the above cases of Adams v. Lindsell and Dunlop V. Higgins it will be observed that the acceptance of * 4 Ex. D. 216, C. A. ^ Household Fire Insurance Com- pany V. Grant, 4 Ex. D. at p. 228. 137 *52 FORMATION OP THE CONTRACT. [BOOK I. the offer was complete by the posting of the answer before the offer was retracted, in accordance with the principle which makes the bargain complete at the moment when mw- tual and reciprocal assent has been given. But the language of the Court in Adams v. Lindsell is broader than was needed for the decision of that case, for it would extend to an offer sent by mail and retracted by posting a second letter hefore the first reached its destination. This point has not yet been presented directly for decision in our Courts; and it will be considered in connection with the American cases referred to at the end of the chapter. [Two recent decisions have now covered the point in ques- tion.i In Byrne v. Van Tienhoven (5 C. P. D. 344) [*52] the * defendants, who carried on business at Cardiff, wrote to the plaintiffs at New York offering goods for sale. Their letter was posted on the 1st of October and received by the plaintiffs on the 11th, who accepted the offer by telegram on the same day and also by letter on the 15th. Meanwhile, on the 8th of October, three days previous to the arrival in New York of their letter of the 1st, the defendants wrote a second letter withdrawing their offer. This letter was not received by the plaintiffs until the 20th, several days after they had posted their letter of acceptance. Held, that the notice of withdrawal was too late. In considering the question whether a withdrawal of an offer had any effect until it is communicated to the person to whom it has been sent, Lindley J. said : " I am aware that Pothier and some other writers of celebrity are of opinion that there can be no contract if an offer is withdrawn before it is accepted, al- though the withdrawal is not communicated to the person to whom the offer has been made. The reason for this opinion is that there is not in fact any such consent by both parties as is essential to constitute a contract between them. Against this view, however, it has been urged that a state of mind not notified cannot be regarded in dealings between man and man ; and that an uncommunicated revocation is for all prac- tical purposes and in point of law no revocation at all. This ^ Byrne v. Van Tienhoven, 5 C. P. J). 344, and Stevenson u. McLean, 5 Q. B. D. 346. 138 PAKT I.J MUTUAL ASSENT. *53 is the view taken in the United States. . . . This view, moreover, appears to me much more in accordance with the general principles of English law than the view maintained by Pothier." The learned judge then proceeded to consider the question whether the mere posting of the letter of revo- cation could be regarded as a communication of it to the plaintiff, and answered it in the negative on the ground that there was no analogy between the two cases of posting a letter of acceptance and one of withdrawal. It is a principle of law that a person who makes an offer by post must be taken to have assented "to treat an answer to him by a letter duly posted as a sufficient acceptance and notification to himself;" but there is neither principle nor authority to show that the * party accepting has assented to treat the [*53] posting of a letter of withdrawal in the same way. But an offer is effectually revoked by the death of the party making it ; nor is it necessary, it would seem, for the fact of death to be notified to the other party .^ § 57. The second proposition submitted in the text, namely, that a party accepting cannot retract his acceptance after posting his letter, although prior to his correspondent's receipt of it, nor, indeed, if it never be received, has not yet been directly decided. In Dunmore v. Alexander,^ before the Court of Sessions in Scotland, it was held that there was no contract where the letters of acceptance and revocation arrived together. In the English Courts, however, the principle is now firmly established that the contract is complete and irrevocable 2 Per Mellish L. J. in Dickenson v. Alexander, 72 Mo. 134. Thus a V. Dodds, 2 Ch. D. at p. 475. bill of credit (Michigan Savings Bank Revocation bi/ death or insanity.— v. Leavenworth, 28 Vt. 209), to pay The death or insanity of a person the expenses of a niece at boarding- making an offer before such offer is school (Browne v. McDonald, 129 accepted, works its revocation. Pratt Mass. 66), a promise to pay for the V. Trustees of the Baptist Society of accomplishment of a particular ob- Elgin, 93 111. 475; Browne v. Me- ject (Campanari v. AVoodburn, 15 C. Donald, 129 Mass. 66; Michigan B. 400), are all terminated by the State Bank v. Leavenworth, 28 Vt. death of the promisor. 209 ; The Palo Alto, Dav. (2 Ware) i 9 Shaw & Dunlop, 190, referred U. S. D. C. 343 ; Campanari v. Wood- to post, p. 76. burn, 15 C. B. 400. But see Scruggs 139 *54 FORMATION OF THE CONTRACT. [BOOK I. upon tlie posting of the letter of acceptance. It follows, then, that the acceptor, as well as the proposer, is bound from that time and cannot afterwards escape from his obli- gation. There are dicta to support this view. Lord Black- burn says, in Brogden v. Metropolitan Railway Company (2 App. Cas. at p. 691), that the acceptor by posting his letter has "put it out of his control and done an extraneous act which clenches the matter, and shows beyond all doubt that each -fide is bound." " The moment one man has made an offer," says James L. J. in Harris's Case (7 Ch. at p. 591), " and the other has done something binding himself to that offer, then the contract is complete, and neither party can afterwards escape from it," and this passage was cited with approval by Thesiger L. J. in the Household Fire Insurance Company v. Grant (4 Ex. D. at p. 219). It is true that the argument ai inconvenienti has no weight here as in the case of the withdrawal of an offer. The acceptor may notify the revocation by a letter reaching the proposer at the same time as the letter of acceptance, or by means of a telegram the revocation of the acceptance might be the fnst intimation to the proposer that his offer had been originally [*54] * accepted, and in neither case would the proposer sustain any loss or inconvenience from the other party's change of intention. This is the view of Bramwell L. J. : " The arrival of the letter of acceptance might," he says, "be anticipated by hand or telegram, and there is no case to show that such anticipation would not prevent the letter from binding." ^ Consistently, however, with the view of the finality of the contract, consequent upon the posting of the letter of accepi> ance, a view adopted in a series of cases closing with the decision of the Court of Appeal in The Household Fire In- surance Company v. Grant (from which Bramwell L. J. dis- sented), there can be little doubt that the proposition now being considered will, when occasion arises, receive judicial sanction. " See the Household Fire Insur- burn C. J. in Newcombe v. De Roos, ance Company v. Grant, 4 Ex. D. 216, 2 E. & E. 271. C. A. at p. 235. See, also, per Cock- 140 PAET I.] MUTUAL ASSENT. •^54 § 58. Contracts of sale are implied under certain circum- stances -without any expression of the will or intention of the parties ; ^ as where, for example, an express contract has been made, and goods are sent, not in accordance with it, but are nevertheless retained by the purchaser.^ In such a case a new contract is implied that the purchaser will pay for them their value : as where the purchaser retained 130 bush- els of wheat furnished on a contract to supply 250 bushels ; ^ and where 152 tons of coal were delivered and retained on an order for 200 or 300 tons.* The rule was fully recognized ^ Appropriating goods to use. — A person who receives goods sent him knowing that the sender claims that the receiver has purchased them of him, cannot, in the absence of mistake or fraud, appropriate them to his own use and then disclaim the purchase. Wellauer v. Fellows, 48 Wis. 105; Beal V. Park T. Ins. Co., 16 Wis. 241 ; Paine v. Wilcox, 16 Wis. 202, 217 ; Ballston Spa Bank v. Marine Bank, 16 Wis. 120. ^ Acceptance of proposal : Commu- nication to vendor. — A proposition may be made in such terms that the doing of the act merely will be a suf- ficient acceptance of it, without any communication of acceptance to the party making the offer; but in all cases some act must be done or an acceptance made known within the time fixed in the offer. Curtice v. Blair, 26 Miss. 325 ; s. c. 59 Am. Dec. 257 ; Potts V. Whitehead, 20 N. J. Eq. (5 C. E. Gr.) 55; Longworth v. Mitch- ell, 26 Ohio St. 334. Because the time is of the essence of the contract. Liddell v. Sims, 14 Miss. (9 Smed. & M.) 612 ; Longworth v. Mitchell, 26 Ohio St. 334;' Bank of Columbia v. Hagner, 1 Pet. C. C. 455. And where no time is fixed, must be done within a reasonable time. Martin v. Black, 21 Ala. 721 ; Averill v. Hedge, 12 Conn. 424 ; Peru v. Turner, 10 Me. 185; Loring v. Boston, 48 Mass. (7 Mete.) 409 ; Curtis v. Blair, 26 Miss. 325; s. c. 59 Am. Dec. 257; Potts v. Whitehead, 20 N. J. Eq. (5 C. E. Gr.) 55; Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 240; Longworth v. Mitchell, 26 Ohio St. 334 ; Minnesota L. Oil Co. u. Collier W. Lead Co., 4 Dill. C. C. 431 ; Cocker v. Franklin Man. Co., 3 Sum. C. C. 530. What is a reasonable time is a question of law for the court. Craft v. Isham, 13 Conn. 41; Averill v. Hedge, 12 Conn. 424 ; Loring v. Boston, 48 Mass. (4 Mete.) 409. 3 Oxendale v. Wetherell, 9 B. & C. 386. * Richardson «. Dunn, 2 Q. B. 222. See, also, Star Glass Co. v. Morey, 108 Mass. 570; Bowker v. Hoyt, 35 Mass. (18 Pick.) 555; Wilson v. Wa- gar, 26 Mich. 452 ; Richardson v. Dunn, 2 Q. B. 222. If the vendee of a specified quan- tity of goods, under an entire con- tract, receive a part thereof and re- tains them after the vendor refuses to deliver the residue, this is a sever- ance of the entire contract, and the vendee becomes liable for the price of such part, but he may refuse the vendor's claim by showing that he has sustained damages by the ven- dor's failure to fulfil his contract. Bowker v. Hoyt, 35 Mass. (18 Pick.) 555. See also Harralson v. Stein, 50 Ala. 347 ; Martin v. Hill, 42 Ala. 275 ; Waldron v. Chase, 37 Me. 414; s. c. 59 Am. Dec. 56; Davis v. Moore, 13 Me. 424 ; Morse v. Brackett, 98 Mass. 205 ; Bee Printing Co. u. Hichborn, 141 *54 FOEMATION OF THE CONTEACT. [book I. by Parke J. in Read v. Runn,^ and was well exemplified in the case of Hart v. Mills in the Exchequer, in 1846.^ 86 Mass. (4 Allen) 63 ; Snow v. Ware, 54 Mass. (13 Mete.) 49; Clark ;;. Baker, 46 Mass. (5 Mete.) 452, 461 ; Connor i. Henderson, 15 Mass. 319; Wilson V. Wagar, 20 Mieh. 452; Strong t-. Saunders, 15 Mich. 339; Allen V. MeKibbin, 5 Mieh. 449; Ward V. Fellers, 3 Mich. 281 ; Clark V. Moore, 3 Mich. 55 ; Flanders v. Putney, 58 N. H. 358 ; Gault v. Brown, 48 N. H. 183, 187 ; s. c. 2 Am. Rep. 210; Kelsea v. Haines, 41 N. H. 246, 253 ; Read v. Eann, 10 Barn. & Cres. 439 ; Oxendale i-. Wetherell, 9 Barn. & Cres. 386; Champion v. Short, 1 Campb. 53; Baker v. Sutton, 1 Campb. 55 note ; Sedgwick on Damages,- 496. ° 10 B. & C. 441 ; and see Morgan v. Gath, 34 L.J. Ex. 165; 3 H. & C. 748. ^ Implied contract of sale cannot exist where there is an express con- tract. Walker v. Brown, 28 111. 378 ; Whiting V. Sullivan, 7 Mass. 109 ; Commercial Bank i-. Pfeiffer, 22 Hun (N. Y.) 327; Wood v. Edwards, 19 Johns. (N. Y.) 205, 212; Robertson V. Lynch, 18 Johns. (N. Y.) 456; Raymond v. Bearnard, 12 Johns. (N. Y.) 274 ; s. c. 7 Am. Dec. 317 ; Young V. Preston, 8 U. S.' (4 Cr.) 239 ; bk. 2, L. ed. 607 ; Cutler d. Powell, 6 T. R. 324; Toussaint v. Martinnant, 2 T. R. 104. Appropriation of goods by purchaser. — When receiving goods sent to him under a claim that he has purchased them, and afterwards disclaims the purchase, such person cannot appro- priate them to his own use, and is liable for their value. Wellauer v. Fellows, 48 Wis. 105, 109. Should he disclaim the purchase and permit a third person to take and use a por- tion of them, although he afterwards recovered the residue, and return them to the sender, he will be liable as purchaser. Bartholamae v. Paull, 18 W. Va. 771. Delivery and acceptance of part. — It is held that if the vendee of a specified quantity of goods, sold under an entire contract, received a part thereof, and retained it after the vendor had refused to deliver the residue, he will be liable for the part received. Sentell v. Mitchell, 28 Ga. 196; Richards u. Shaw, 67 111. 222; Star Glass Co. v. Morey, 108 Mass. 570 ; Knight v. New Eng. W. Co., 56 Mass. (2 Cush.) 271, 289; Dorr v. Fisher, 55 Mass. (1 Cush.) 271; Miner v. Bradley, 39 Mass. (22 Pick.) 457 ; Bowker v. Hoyt, 85 Mass. (18 Pick.) 555, 557 ; Conner v. Hender- son, 15 Mass. 319 ; s. c. 8 Am. Dec. 103 ; Kimball v. Cunningham, 4 Mass. 502; s. c. 3 Am. Dec. 230; Shaw v. Badger, 12 Serg. & R. (Pa.) 275; Godwin 0. Merrill, 13 Wis. 658 ; Ox- endale V. Wetherell, 9 Barn. & Cres. 386; Champion t. Short, 1 Campb. 53 ; Hunt v. Silk, 5 East, 449 ; Hart V. Mills, 15 Mees. & W. 85 ; Bragg v. Cole, 6 J. B. Moore, 114; Richardson V. Dunn, 2 Q,. B. 218. Although such vendee will be entitled to recover such damages as he may have sus- tained, by reason of the vendor's fail- ure to fulfil his contract. Ruiz v. Norton, 4 Cal. 355 ; s. c. 60 Am. Dec. 618; Richards v. Shaw, 67 Bl. 222; Bowker v. Hoyt, 35 Mass. (18 Pick.) 555; Oxendale u. Wetherell, 9 Barn. & Cres. 386 ; s. c. 17 Eng. C. L. 401 ; Poulton V. Lattimore, 9 Barn. & Cres. 259; s. c. 17 Eng. C. L. 373. See Star Glass Co. u. Morey, 108 Mass. 570 ; Morse v. Brackett, 98 Mass. 205 ; Clark V. Baker, 46 Mass. (5 Mete.) 452, 461 ; Conner v. Henderson, 15 Mass. 319; Chapman v. Dease, 34 Mich. 375 ; Begole v. McKenzie, 26 Mich. 470 ; Wilson v. Wagar, 26 Mich. 452 ; Kearney v. Doyle, 22 Mich. 294 ; Allen V. MeKibbin, 5 Mich. 449; Shaw V. Badger, 12 Serg. & R. (Pa.) 274; Booth v. Tyson, 15 Vt. 515; 142 PAET I.] MUTUAL ASSENT. •^54 Goodwin u. Merrill, 13 Wis. 658; Dermott v. Jones, 69 U. S. (2 Wall.) 1; bk. 17, L. ed. 763; s. o. 64 U. S. (23 How.) 220; bk. 16, L. ed. 442; Shipton 0. Casson, 5 Barn. & Cres. 378. See, also, McMillan v. Malloy, 10 Neb. 228 ; s. c. 35 Am. Rep. 471 ; Parcell v. McComber, 11 Neb. 209; Duncan v. Baker, 21 Kan. 99 ; Stee- ples V. Newton, 7 Oreg. 110 ; s. c. 33 Am. Rep. 705. The limit of recovery in such cases will be the contract price of the true value, at the time and place of delivery and acceptance. Chapman v. Dease, 34 Micli. 375; Carter u. McNeeley, 1 Ired. (N. C.) L. 448. New Y'arlc Doctrine. — But in New York the rule is that on an entire contract of sale there can be no re- covery for part delivery. Kein v. Tupper, 52 N. Y. 550, 555; Tomp- kins . Borry, 2 B. &B. 369; Cork- Mass. (19 Pick.) 528). See Phelps v. ing v. Jarrard, 1 Camp. 37; Clarke v. Sheldon, 30 Mass. (13 Pick.) 50; s. c. Shee, Covvp. 197. 144 PART I.] MUTUAL ASSENT. *55 § 60. There is also one special case, in which a sale takes place by the operation of certain principles of law, rather than by the mutual assent of the parties, either express or implied. The rule is thus stated in Jenkins, 4th Cent. Ca. 88: "A in trespass against B for taking a horse, recovers damages : by this recovery and execution done thereon, the property in the horse is vested in B."i Cooper v. Shepherd^ ' Implied contract. — Implied con- tract to pay for articles furnished or services rendered, will not be raised, where the circumstances indicate a gratuity or gift. Thus where a per- son is maintained in the family as a member thereof, in the absence of an express contract there can be no recovery for articles, necessaries fur- nished, and services rendered. Cau- ble V. Eyman, 26 Ind. 207 ; Adams V. Adams, 23 Ind. 50 ; Pitts «. Pitts, 21 Ind. 309 ; House v. House, Ind. 60; Oxford v. McFarland, 3 Ind. 156; Resor v. Johnson, 1 Ind. 100 ; Wil- liams V. Hutchinson, 3 N. Y. 312; s. c. 53 Am. Dec. 301 ; Carpenter v. Weller, 15 Hun (N. Y.) 134; Whaley V. Peak, 49 Mo. 80; Allen v. Rich- mond College, 41 Mo. 309. Whether there was an agreement to pay is always a question for the jury. Whaley v. Peak, 49 Mo. 80 ; Hart v. Hart, 41 Mo. 441 ; Guenther v. Bir- kicht, 22 Mo. 439; Smith u. Myers, 19 Mo. 433. However, where goods are sent to a person with the claim that they have been purchased by him, and with full knowledge that they were not a gratuity he accepted and used them, he will be liable for their value. Wellauer v. Fellows, 48 Wis. 105, 109. See Seal v. Park Fire Ins. Co., 16 Wis. 241 ; Paine v. Wil- cox, 16 Wis. 202,217; Ballston Spa Bank v. Marine Bank, 16 Wis. 120. Sale by suit. — A judgment in tro- ver, for goods followed by payment, transfers the title to the defendant. See Hepburn u. Sewell, 5 Har. & J. (Md.) 211; s. u. 9 Am. Dec. 512; Lovejoyu. Murray, 70 U. S. (3 Wall.) 16 ; bk. 18, L. ed. 134 ; Osterhout v. Roberts, 8 Cow. (N. Y.) 43; Brady V. Whitney, 24 Mich. 154; Fox v. Prickett, 34 N. J. L. (5 Vr.) 13; Marsden ,,. Cornell, 62 N. Y. 220; Thayer v. Manley, 73 N. Y. 309. Some courts go so far as to hold that the title passes upon the mere recovery of a judgment therefor against the wrong-doer without any satisfaction. See Floyd v. Browne, 1 Rawle (Pa.) 121; s. c. 18 Am. Dec. 602 ; Marsh v. Pier, 4 Rawle (Pa.) 287; ». u. 26 Am. Dec. 131. But it is not plain how this is so. See White v. Philbrick, 5 Me. (5 Greenl.) 145, 152; b. c. 17 Am. Dec. 214. 2 3 C. B. 266. See, also, Adams V. Boughton, 2 Str. 1078, more fully reported in Andrews, 18 ; Holmes v. Wilson, 10 A. & E. 503; Barnett v. Brandon, 6 M. & G. 640, note. Implied sale : enforcement against fraudulent third persons. — Where one takes the goods of another wrong- fully and cenverts them to his own use, the owner may waive the tort, treat the wrong-doer as a purchaser, and sue in assumpsit as for goods sold and delivered. Cummings v. Noyes, 10 Mass. 433, 436; Evans v. Miller, 58 Miss. 120; s. c. 38 Am. Rep. 313; Floyd V. Wiley, 1 Mo. 430, 643 ; Hill 0. Davis, 3 N. H. 384. See Munsey V. Goodwin, 3 N. H. 272; Dalton v. Hamilton, 1 Hannay (N. B.) 422; Cooper V. Chitty, 1 Burr. 31 ; Ham- bly V. Trott, 1 Cowp. 371, 375 ; John- son V. Spiller, Doug. 167, note 55; Lamine v. Dorrell, 2 Ld. Raym. 1216 ; Hill u. Perrott, 3 Taunt. 274 ; Birch 145 *55 FORMATION OP THE CONTRACT. [BOOK I. was an action in trover for a bedstead. Plea, a former recovery by plaintiff in trover, of the same bedstead, in an action against C, and that the conversion by C was not later than the conversion charged against the defendant, and that C being possessed of the bedstead, sold it to the defendant, and the taking by the defendant under such sale was the conversion complained of in the declaration. The Court held that this plea averred a sale of the bedstead from the plaintiff to C, the vendor of the defendant. On principle. V. Wright, 1 T, R. 387 ; 1 Chitty on Contr. 160; 2 Greenlf. Ev. § 118. Some of the goods, sold, and a tort, can only be waived at an auction ex contracto, maintained where the tort- feasor has converted into money the proceeds of his wrongful act, and thus subjected himself to an action for the money received. An intima- tion of this sort is thrown out in O'Conneley v. Natchez, 1 Smed. & M. (Miss.) 46 ; s. c. 40 Am. Dec. 87 ; and in Mhoon v. Greenfield, 52 Miss. 440. See Fuller v. Duren, .36 Ala. 73; s. c. 76 Am. Dec. 318 ; Pike v. Bright, 29 Ala. 332 ; Tucker v. Jewett, 32 Conn. 563 ; Bonnell v. Chamberlin, 26 Conn. 487 ; Barlow v. Stalworth, 27 Ga. 617 ; Johnston v. Salisbury, 61 111. 316; Creel v. Kirkham, 47 111. 349 ; O'Reer V. Strong, 13 111. 688; Morrison u. Rogers, 3 111. (2 Scam.) 317; San- ders V. Hamilton, 3 Dana (Ky.) 560; Guthrie v. Wickliffe, 1 A. K. Marsh. (Ky.) 83; Noyes v. Loring, 55 Me. 408, 412 ; Emerson v. McNamara, 41 Me. 565 ; Berkshire Glass Co. v. Wol- cott, 84 Mass. (2 Allen) 227 ; ». c. 79 Am. Dee, 787 ; Jones v. Hoar, 22 Mass. (6 Pick.) 286, 290; Tolan .;. Hodgeboom, 38 Mich. 624; Watson V. Stever, 25 Mich. 386; Smith ,.. Smith, 43 N. H. 536 ; Mann v. Locke, 11 N. H. 246, 248 ; Bethlehem v. Per- severance Fire Co., 81 Pa. St. 445; Pearsoll v. Chapin, 44 Pa. St. 9 ; Wil- let V. Willet, 3 Watts (Pa.) 277; Stearns v. Dillingham, 22 Vt. 624; Elliott V. Jackson, 3 Wis. 649 ; Kelty V. Owens, 4 Chand. (Wis.) 166; Ben- 146 nett V. Francis, 2 Bos. & Pul. 550; Read u. Hutchinson, 3 Campb. 352; Best V. Boice, 22 Up. Can. Q. B, 439. But the more correct doctrine seems to be that the tort may be waived and assumpsit maintained when the prop- erty taken has been converted either into money or into any other benefi- cial use, by the wrong-doer, particu- larly where it has been so applied to his use as to lose its identity. Evans V. Miller, 58 Miss. 120 ; s. c. 38 Am. Rep. 313. See Johnson v. Reed, 8 Ark. (3 Eng.) 202 ; Halleck v. Mixer, 16 Cal. 674; Cooper v. Berry, 21 Ga. 526; Moses v. Arnold, 43 Iowa, 187; s. c. 22 Am. Rep. 239; Webster v. Drinkwater, 5 Me. (5 Greenl.) 323; Stockett V. Watkins, 2 Gill. & J. (Md.) 326; s. c. 20 Am. Dec. 4.38; Ladd u. Rogers, 93 Mass. (11 Allen) 209; Boston & W. R. R. Corp. v. Dana, 67 Mass. (1 Gray) 83; Appleton v. Bancroft, 51 Mass. (10 Mete.) 231; Miller v. Miller, 24 Mass. (7 Pick.) 133; Jones o. Hoar, 22 Mass. (5 Pick.) 286; Cravath c. Plympton, 13 Mass. 4.54 ; Watson v. Stever, 25 Mich. 386; Fiquet v. Allison, 12 Mich. 328 ; Welch v. Bagg, 12 Mich. 42 ; Labeaume v. Hill, 1 Mo. 42 ; Floyd V. Wiley, 1 Mo. 430, 643; Hill V. Davis, 3 N. H. 384; Chauncy v. Yeaton, 1 N. H. 151 ; Randolph Iron Co. u. Elliott, 34 N. J. L. (5 Vr.) 184; Budd v. Hiler, 27 N. J. L. (3 Dutch.) 43 ; Barker v. Cory, 15 Ohio, 9; Dundas v. Muhlenberg's Execu- tors, 35 Pa. St. 351 ; Gray v. Griffith, 10 Watts (Pa.) 431; Ford ■;. Cald- PART I.] MUTUAL ASSENT. "56 however, it is plain that the recovery in trover would only have this effect * in cases where the value of [*56] the thing converted is included in the damages recovered.^ But an unsatisfied judgment in trover does not pass the property, and is a mere assessment of damages on payment of which the property vests in the defendant.* § 61. From the general principle that contracts can only be effected by mutual assent, it follows that where, through some mistake of fact,^ each was assenting to a different con- well, 3 Hill (S. C.) 248 ; Putnam v. Wise, 1 Hill (N. Y.) 240 ; s. c. 37 Am. Dec. 309; Schweizer u. Weiber, 6 Rich. (S. C.) 159; Janes v. Buzzard, 1 Hempst. C. C. 240. * See reasoning of the court, in Chinnery v. Viall, 5 Hurl. & N. 288; 29 L. J. Ex. 180. * Brinsmead t. Harrison, L. R. 6 C. P. 584, affirmed in Cam. Scac. L. R. 7 C. P. 547 ; Ex parte Drake, 5 Ch. D. 866, C. A. American authorities. — Sharp u. Gray, 5 B. Mbn. (Ky.) 4 ; Carlisle v. Burley, 3 Me. (3 Greenl.) 250, 255 ; Hepburn v. Sewell, 5 Har. & J. (Md.) 211; s. c. 9 Am. Dec. 512; Rotch v. Hawes, 29 Mass. (12 Pick.) 138 ; s. c. 22 Am. Dec. 414 ; Brady v. Whitney, 24 Mich. 154; Hyde v. Noble, 13 N. H. 494, 502 ; s. c. 38 Am. Dec. 508 ; Thayer v. Manley, 78 N. Y. 305, 309 ; Marsden V. Cornell, 62 N. Y. 215, 220; Ball u. Liney, 48 N. Y. 6, 16; s. c. 8 Am. Rep. 511 ; Osterhout u. Roberts, 8 Cow. (N. Y.) 43 ; Jones u. McNeil, 2 Bail. (S. C.) 466 ; Sanderson v. Cald- well, 2 Aik. (Vt.) 203; Lovejoy v. Murray, 70 U. S. (3 Wall.) 1, 16 ; bk. 18, L. ed. 129, 134; 2 Kent Com. 388. Judgment in trover. — If execution be issued thereon, though without sat- isfaction, it is a bar to an action of trespass, afterwards brought by the same plaintiff against another person. AVhite V. Philbrick, 5 Me. (5 Greenl.) 147; s. c. 17 Am. Dec. 214; Floyd v. Browne, 1 Rawle (Pa.) 121 ; s. c. 18 Am. Dec. 602 ; Eox v. Northern Lib- erties, 3 Watts & S. (Pa.) 107. In Pennsylvania the judgment, without payment, transfers title. Floyd v. Browne, 1 Rawle (Pa.) 121; s. c. 18 Am. Dec. 602; Marsh <,•. Pier, 4 Rawle (Pa.) 286 ; s. >;. 26 Am. Dec. 131 ; Fox V. Northern Liberties, 3 Watts & S. (Pa.) 10.3, 107. In the case of Fox u. Northern Liberties, supra, the court say : " The authority in this state, so far as we have any evidence of it, seems to be in favor of the principle that the judgment alone in such case transfers the property." See White v. Philbrick, 5 Me. (5 Greenl.) 147 ; s. c. 17 Am. Dec. 214; Merrick's Estate, 5 Watts & S. (Pa.) 9. 1 A material mistake as to the exist- ence, identity, species, or kind of the subject-matter, or as to the price to be paid, will vitiate a contract, where it is the foundation thereof. See Ro- vegno V. Defferari, 40 Cal. 459 ; Hart- ford, &c. R. R. u. Jackson, 24 Conn. 514 ; s. c. 63 Am. Dec. 177 ; Harvey v. Harris, 112 Mass. 32 ; Hills v. Snell, 104 Mass. 173; ». c. 6 Am. Rep. 216; Kyle V. Kavanagh, 103 Mass. 356; s. c. 4 Am. Rep. 560; Winchester v. Howard, 97 Mass. 304; Gardner v. Lane, 91 Mass. (9 Allen) 492 ; Mudge V. Oliver, 83 Mass. (1 Allen) 74 ; Gib- son f. Pelkie, 37 Mich. 380 ; McGoren V. Avery, 37 Mich. 120; Webb v. Odell, 147 'S3 FORMATION OF THE CONTRACT. [book 49 N. Y. 583; Calkins v. Griswold, 11 Hun (N. Y.) 208 ; Byers v. Chapin, 28 Ohio St. 300 ; Barker v. Dinsmore, 72 l^a. St. 427 ; o. c. 13 Am. Rep. 697 ; Decan v. Shipper, 35 Pa. St. 239; s. u. 78 Am. Dec. 334; Ketchum v. Catlin, 21 Vt. 191 ; Utley v. Donaldson, 94 U. S. (4 Otto) 29 ; bk. 24, L. ed. 54 ; Allen V. Hammond, 30 U. S. (11 Pet.) 63 ; bk. 9, L. ed. 633 ; Greene v. Bate- man, 2 Woodb. & M. C. C. 359. It has been said that " the cases founded on mistake seem to rest on this principle — tliat if parties believ- ing that a certain state of things exist, come to an agreement with such belief for its basis, on discovering their mu- tual error they are remitted to their original rights." Barfield v. Prince, 40 Cal. 535, 542; Hills t.. Snell, 104 Mass. 173; s. c. Am. Rep. 216; Cutts V. Guild, 57 N. Y. 229; Ketchum V. Stevens, 19 N. Y. 499 ; FuUerton u. Dalton, 58 Barb. (N. Y.) 236 ; Mowatt „. Wright, 1 Wend. (N. Y.) 355, 302 ; B. u. 19 Am. Dec. 508; Baker u. Ly- man, 38 Up. Can. Q. B. 498. Where valuables are secreted in an article sold, of which fact both vendor and purchaser are ignorant, no title will pass to the secreted articles. See Ray r. Light, 34 Ark. 421 ; Bovven v. Sullivan, 62 Ind. 281 ; s. c. 30 Am. Rep. 172; Huthmacher v. Harris, 38 Pa. St. 491; s. c. 80 Am. Dec. 502. And where a person at a public sale bids upon one parcel or lot of goods, supposing it to be another, there will be no sale of either lot. Sheldon v. Capron, 3 R. I. 171. Mistake as to price. — Where there is a mutual mistake in regard to the price of the article, there will be no sale, and neither is bound. Thus, where a vendor gave the price of goods as $165 and the purchaser understood the price to be $65, it was held that there was no sale. Rupley c. Daggett, 74 111. 351. See Greene v. Bateman, 2 Woodb. & M. C. C. 359. See § 63, loot-note 2. Mistake as to quality, quantity, or fitness of articles purchased for some intended but unexpressed purpose, will not have the effect to avoid the sale. Ordinarily, mistakes on the part of the purchaser relative to the qualities of the property, caused by the com- munication of the seller, did not call forinterposition of the court of equity. Relief will be granted only when the mistake as to a fact, that it is of such a nature that the party could not by reasonable diligence get knowledge of it when put upon inquiry. Taylor v. Fleet, 4 Barb. (N. Y.) 95*. Where the mistake as to a fact wholly collateral and not affecting the essence of the contract, there can be no relief. Wheat V. Cross, 31 Md. 99; s. c. 1 Am. Rep. 28. Particularly is this so where the purchase is made for some unintended and undisclosed purpose. Mistake as to identity of party. — Where A. sells goods to B., who sells them to C, the fact that A. supposed he was selling the goods to C. through B. as his agent, and would under no circumstances have sold them to B. on his sole credit, A. cannot maintain an action again against C. for the conver- sion of the goods. Stoddard v. Ham, 129 Mass. 383; s. c. 37 Am. Rep. 369; distinguishing Boston Ice Co. v. Pot- ter, 123 Mass. 28; s. c. 25 Am. Rep. 9; Hardman v. Booth, 1 Hurls. & Colt. 803. If A., in such purchase, had fraudulently represented himself as B., a reputable merchant of a neigh- boring town, the title to the goods would have passed to him, on deliv- ery to a common carrier. Edmunds V. Merchants' Des. Trans. Co., 135 Mass. 283. See Western Union Tel. Co. 0. Meyer, 61 Ala. 158; s. c. 32 Am. Rep. 1 ; Samuel v. Cheney, 135 Mass. 278 ; ». c. 46 Am. Rep. 467 Dunbar v. Boston & P. R. R. Co., 110 Mass. 26; s. c. 14 Am. Rep. 576 Cundy v. Lindsay, L. R. 3 Ap. Cas 459 ; Clough v. London & N. W. R. R Co., L. R. 7 Ex. 26 ; McKean u Mclvor, L. R. 6 Ex. 36 ; Heugh v London & N. W. R. R. Co., L. R. 5 Ex. 51. But see Southern Express Co. ... Van Meter, 17 Fla. 783; s. c. 148 PABT I.] MUTUAL ASSENT. *56 35 Am. Rep. 107 ; Elwood v. Western Union Tel. Co., 45 N. Y. 549; s. c. 6 Am. Eep. 140 ; Houston, &c. R. Co. V. Adams, 49 Tex. 748; s. c. 30 Am. Rep. 116. But if A. represented him- self to be the brother of B., and, buy- ing for him, buys goods in person of another, the title to such goods does not pass to him. Rodliff v. Dallinger, 141 Mass. 1 ; Edmunds v. Merchants' Des. & Trans. Co., 135 Mass. 283 ; Ran- dolph Iron Co. V. Elliott, 34 N. J. L. (5 Vr.) 184; Hamet v. Letcher, 37 Ohio St. 356 ; s. c. 41 Am. Rep. 519 ; Dean v. Yates, 22 Ohio St. 388 ; Barker c;. Dinsmore, 72 Pa. St. 427 ; s. c. 13 Am. Rep. 697 ; McCrillis v. Allen, 57 Vt. 505 ; Fields v. Stearns, 42 Vt. 106; Poor V. Woodburn, 25 Vt. 234; Fitz- simmons v. Joslin, 21 Vt. 129. See Fawcett v. Osborn, 32 111. 411 ; Moody V. Blake, 117 Mass. 28; s. c. 19 Am Rep. 394 ; Saltus v. Everett, 20 Wend, (N". Y.) 267 ; s. u. 22 Am. Dec. 541 Barker v. Dinsmore, 72 Pa. St. 427 s. c. 13 Am. Rep. 697 ; Lickbarrow v. Mason, 1 Smith's L. C. 2d pt. 1195 Fowler v. HoUins, L. R. 7 Q. B. 616 afBrmed, L. E. 7 H. L. 757 ; In re Reed, 3 Chan. Dir. 123; Hardman v. Booth, 1 Hurls. & C. 803 ; Kingsford V. Merry, 1 Hurls. & N. 503; Higgons V. Burton, 26 L. J. Ex. 342. And the same is true where A. fraudulently represented that he was acting for a responsible but undisclosed principal. Rodliff V. Dallinger, 141 Mass. 1 ; Ed- munds i,'. Merchants' Des. & Trans. Co., 135 Mass. 283. Mistake as to subject-matter. — A contract made while the parties thereto are under a mutual mistake as to, or in ignorance of, the mate- rial facts affecting the subject-mat- ter is invalid (Ketehum i/. Catlin, 21 Vt. 191, 194. See Cutts v. Guild, 57 N. Y. 229; Booth v. Bierce, 38 N. Y. 463 ; Baldwin v. Middleberger, 2 Hall (N. Y.) 176 ; FuUerton u. Dalton, 58 Barb. (N. Y.) 236; Dana v. Monro, 38 Barb. (N. Y.) 528; Scranton u. Booth, 29 Barb. (N. Y.) 171 ; Saltus V. Pruyn, 18 How. (N. Y.) Pr. 512 ; Wheadon t. Olds, 20 Wend. (N. Y.) 174; Mo watt v. Wright, 1 Wend. (N. Y.) 362; s. c. 19 Am. Dec. 508; Sheldon v. Capron, 3 R. I. 171 ; Flight V. Booth, 1 Bing. N. C. 370; s. c. 27 Eng. C. L. 421 ; Cox v. Prentice, 3 Maule & S. 344), and may be avoided either in a court of law or equity. Ketehum v. Catlin, 21 Vt. 191, 194. See, also, Sherwood v. Walker (Mich.) 36 Alb. L. J. 243 ; s. c. 10 West. Rep. 636. See 2 Chicago L. T. 18; Mowatt 0. Wright, 1 Wend. 355, 356 ; s. c. 19 Am. Deo. 508. Such as a mistake in the quantity of grain in a bin (Wheadon v. Olds, 20 Wend. (N. Y.) 174), or the number of acres in a tract of land (Williams v. Hatha- way, 36 -Mass. (19 Pick.) 387 ; Smith 1. Ware, 13 Johns. (N.Y.) 257). But where this ignorance or mistake is as to law, and there is no mistake as to facts, there will be no relief. Chap- man V. City of Brooklyn, 40 N. Y. 380 ; Rheel v. Hicks, 25 N. Y. 291 ; Lott V. Swezey, 29 Barb. (N. Y.) 87 ; Wyman v. Farnsworth, 3 Barb. (N. Y.) 369; Hargous v. Ablon, 3 Den. (N. Y.) 408 ; o. c. 45 Am. Dec. 481 ; Boyer v. Pack, 2 Den. (N. Y.) 107; Super- visors of Onondago v. Briggs, 2 Den. (N. Y.) 40 ; Granger v. Olcott, 1 Lans. (N. Y.) 169 ; Goddard v. Merchants' Bank, 2 Sandf. (N. Y.) 253; Wheadon V. Olds, 20 Wend. (N. Y.) 176; Mow- att i>. Wright, 1 Wend. (N. Y.) 355, 362 ; s. u. 19 Am. Dec. 508. Thus in Chapman v. Cole, 66 Mass. (12 Gray) 141 ; s. c. 71 Am. Dec. 739, where A., intending to pay B. fifty cents, gave him by mistake a gold coin of the value of ten dollars, supposing that it was half a dollar, and B., by like mis- take, paid it to C, the defendant, the court held that the mistake of fact prevented it from being a binding transaction, and that A., having ten- dered fifty cents to C, the defendant, could recover from him. And it is on this ground of mistake, that the sale of a piece of furniture with a concealed drawer containing valua- bles does not pass title to the arti- 149 *56 rOEMATION OF THE CONTliACT. [book I. cles in such drawer. Eay v. Light, 34 Ark. 421 ; Bowen v. SuUiran, 62 Ind. 281 ; Livermore v. White, 74 Me. 452; s. c. 43 Am. Rep. 600; Hath- macher v. Harris, 38 Pa. St. 491 ; s. e. 80 Am. Dec. 602 ; Durfee v. Jones, 11 R. I. 588; s. c. 23 Am. Rep. 528. Michigan doctrine. — In the recent case of Sherwood u. "Walker (Mich.) 36 Alb. L. J. 243 ; s. o. 10 West. Rep. 636 ; 2 Chicago L. T. 18, the Supreme Court of Michigan passed upon the question of mistake of fact in the sale of chattels. This case grew out of the bargain and sale of a blooded cow which was supposed by the owner to be barren, and the purchaser affected to believe so also. If barren, as sup- posed, the cow was useless for all pur- poses except beef, and was worth for that purpose no more than other beef cattle ; but if she was not barren, she was worth from $750 to .$1000. On the supposition that she was barren the cow was bargained at five and one-half cents per pound, for beef, at which price she was worth about $80. Before the cow was delivered to the purchaser she was found to be with calf, and to be valuable as a breeder, and the seller undertook to rescind the contract of sale by refusing to deliver the cow to the purchaser. The ques- tion raised was whether the owner and vendor could rescind the contract of sale, and it was held that he could. The court said : " It appears from the record that both parties supposed this cow was barren and would not breed, and she was sold by the pound for an insignificant sum as compared with her real value if a breeder. She was evidently sold and purchased on the relation of her value for beef, unless the plaintiff had learned of her true condition, and concealed such knowl- edge from the defendants. Before the plaintiff secured the possession of the animal the defendants learned that she was with calf, and therefore of great value, and undertook to re- scind the sale by refusing to deliver her. The question arises whether they had a right to do so. The circuit judge ruled that this fact did not avoid the sale, and it made no difference whether she was barren or not. I am of the opinion that the court erred in this holding. I know that this is a close question, and the dividing line be- tween the adjudicated cases is not easily discerned. But it must be considered as well settled that a party who has given an apparent consent to a contract of sale may refuse to execute it, or he may avoid it after it has been completed, if the assent was founded, or the contract made, upon the mistake of a material fact, such as the subject-matter of the sale, the price, or some collateral fact materially inducing the agreement. And this can be done when the mis- take is mutual." See, to the same effect, Harvey v. Harris, 112 Mass. 32; Gardner v. Lane, 91 Mass. (9 Allen) 492; s. c. 94 Mass. (12 Allen) 44; Gibson v. Pelkie, 37 Mich. 380 ; Cutts «. Guild, 57 N. Y. 229; Byers v. Cha- pin, 28 Ohio St. 300; Huthmacher v. Harris, 33 Pa. St. 491 ; s. c. 80 Am. Dec. 502 ; Allen v. Hammond, 36 U. S. (11 Pet.) 03, 71; bk. 9, L. ed. 636. Leake on Contr. 339; Story on Sales (4th ed.) §§ 148, 377. Wisconsin doctrine. " The diamond case." — It would seem that a differ- ent doctrine prevails in Wisconsin. In the case of Wood v. Boynton, 64 Wis. 265; s. c. 54 Am. Rep. CIO; 36 Alb. L. J. 243; 25 N. W. Rep. 42, a poor woman sold a stone which she had been informed was topaz, and which she believed to be topaz, to jewellers in Milwaukee for the sum of one dollar. Tlie stone was about the size of a canary bird's egg, nearly the shape of an egg — worn pointed at one end — and was "straw color" or a little darker. When examined by a skilful lapidary it was ascer- tained that the stone was not topaz, as supposed, but an uncut diamond, and worth from $700 to $1000. On learning that the stone was a dia- mond, and not a to{)az, as she had 150 PART I.J MUTUAL ASSENT. *56 tract, there is no real valid agreement, notwithstanding the apparent mutual assent.^ supposed, Mrs. "Wood tendered back to the jewellers the one dollar she had receired for the stone, together with ten cents as interest, and de- manded a return of the stone. The jewellers rejected the tender and re- fused to deliver the stone. In an action brought by Mrs. Wood to re- cover the possession of the stone it was held that the stone being open to the inspection of both parties, both being ignorant of its real nature and true value, and supposing the sum offered and received to be a fair price, and there being no show- ing of actual fraud on the part of the jewellers in procuring the sale made to them, that the sale could not be rescinded. The court says: "The only question in the case is whether there was anything in the sale which entitled the vendor (the appellant) to rescind the sale and so revest the title in her. The only reasons we know of for rescinding a sale and revesting the title in the vendor so that he may maintain an action at law for the recovery of the possession as against his vendee are (1) that the vendee was guilty of some fraud in procuring a sale to be made to him; (2) that there was a mistake made by the vendor in deliv- ering an article sold — a mistake, in fact, as to the identity of the thing sold with the thing delivered upon tlie sale." The Supreme Court of Michigan, however, have since dis- covered or found a third reason, and that is, the vendor's misapprehension as to the substance of the thing bar- gained and sold. They say : "If there is a difference or misapprehension as to the substance of the thing bar- gained for — if the thing actually delivered or received is different in substance from the thing bargained for and intended to be sold, then there is no contract ; but if it is only a difference in some quality or acci- dent, even though the mistake may have been the actuating motive to the purchaser or seller or both of them, yet the contract remains bind- ing. The difficulty in every case is to determine whether the mistake or misapprehension is as to the sub- stance of the whole contract, going, as it were, to the root of the matter, or only to some point, even though at a material point, an error as to which does not affect the substance of the whole consideration." Sherwood v. Walker (Mich.), 36 Alb. L. J. 243; s. c. 10 West. Rep. 636, 640. See Kennedy o. Panama, N. Z. & A. R. M. Co., L. R., 2 Q. B. 679, 587. Irving Browne has well said (see 54 Am. Rep. 614, note) that the case of Wood V. Boynton is nearly if not quite unique; and it. certainly stands alone in the doctrine that a person wlio sells property under a mistake of fact, or misapprehension as to the substance of the thing bargained and sold, may not rescind the contract and recover his property. In that case a woman bargained and sold a stone supposed to be topaz, for topaz : and inasmuch as the stone was not topaz, but a diamond, the ignorance of the parties as to the true nature of the stone puts the case on all fours with that of Sherwood v. Walker, supra. It is evident that there was no sale, and that the delivery of the stone did not carry title. See Sher- man V. Barnard, 19 Barb. (N. Y.) 291; Silvernail v. Cole, 12 Barb. (N. Y.) 685; Suydam v. Clark, 2 Sandf. (N. Y.) 133 ; Hazard v. New England Ins. Co., 1 Sumn. C. C. 218; Allen v. Hammond, 30 U. S. (11 Pet.) 61, 73 ; bk. 9, L. ed. 636 ; Gove 0. Wooster, Lalor's Sup. 30; Couturier ;;. Hastie, 5 H. L. 673; Metcalf on Contr. 30; 1 Poth. Ob. by Evans, 113; 2 Kent Com. 468. 151 •^56 FORMATION OP THE CONTRACT. [BOOK I. - ifisiake as to identity, — Where there is a mistake respecting the identity of the subject-matter of the contract, as where the article bar- gained contains goods not intended to be sold and not known to be (Ray V. Light, 34 Ark. 421 ; Bovven r. Sullivan, 62 Ind. 281 ; s. c. 30 Am. Rep. 172 ; Huthmacher u. Harris, 38 Pa. St. 491 ; s. c. 80 Am. Dec. 502), there will be no sale. And where in a negotiation for a sale the vendor refers to one article and the purchaser to another, tlieir minds do not meet and the property does not pass. Kyle v. Kavanagh, 103 Mass. 3.jC ; s. c. 4 Am. Rep. 560 ; Spurr r. Benedict, 99 Mass. 463 ; Gardner v. Lane, 94 Mass. (12 Allen) 39, 44; s. c. 91 Mass. (9 Allen) 492, 499; Chapman v. Cole, 78 Mass. (12 Gray) 141 ; s. c. 71 Am. Dec. 739 ; Rice v. Dwight Manuf . Co., 56 Mass. (2 Gush.) 80, 80; Webb u. Odell, 49 N. Y. 583; Slieldon v. Capron, 3 R. L 171; Calverley o. Williams, 1 Ves. Jr. 210. Thus where cotton was sold by sample, which was supposed to be long stapled cotton, but when delivered proved to be short stapled cotton, it was held that the cotton was different in kind from that which the purchaser had contracted to buy, and that he was entitled to reject it. Azemar u. Casella, L. R. 2 C. P. 077; where damaged flour was offered at auction, divided into two classes, one class, slightly damaged, offered in the barrels in which it is ordinarily packed, and the much damaged flour offered by the pound as. repacked flour or dough, and these classes of flour were arranged in rows outside of the office, where the arrangement was made, and the plaintiff purchased some of the barrels which had been misplaced from the first row to the second, the person selling being ignorant of the displacement, and supposing it to be a different quality of goods, it was held that there was no sale, because their minds did not meet as to the subject-matter of the sale. Harvey v. Harris, 112 Mass. 32. In Gardner v. Lane, 91 Mass. (9 Allen) 492, a number of barrels of No. 1 mackerel were sold, and by mistake some barrels of No. .3 mack- erel and some barrels of salt were delivered ; it was held that no title passed to the purchaser. Although the articles delivered were not of the same description nor of as great value as those jjurchased, yet the pur- chaser was willing to keep the goods delivered as and for the property for which the bargain was made; but the court held that tliere was no sale, that the title did not pass, and the parties claiming it as the property of the vendor might intervene and take it from the purchaser. When this case was before the court again in 94 Mass. (12 Allen) 39, the court said, "it cannot be doubted that if under a contract of sale a delivery was made through mistake of an article different from that agreed upon by the parties, tliere would be no sale of the article delivered, and no property in it would pass, for the simple reason that the vendor had not agreed to sell, nor the vendee to buy it. There would in fact be no contract by the parties in respect to the articles actually furnished. To express it in different words, when a material mis- take occurs in respect to the nature of the subject-matter of a sale, there was no mutual assent, and therefore the contract is void. This principle is well expressed in the maxim of the civil law, ciDii in corpore cUssentitvr, apparet nullam esse P3:cpjitionem" Story on Sales, sec. 148, 458. Yet it was held in a Massachusetts case, that a vendee to whom goods other than those purchased had been delivered by a fraudulent vendor, could elect to take the substituted goods under a contract of sale, and hold them as against the fraudulent vendor. Gard- ner V. Lane, 91 Mass. (9 Allen) 492. See Cowles v. Bacon, 21 Conn. 451; s. c. 56 Am. Dec. 371 ; Dyer v. Cady, 20 Conn. 563 ; Grace v. Mercer, 10 B. 152 PART I.] MUTUAL ASSENT. *56 Mon. (Ky.) 157 ; Matthews v. Light, 32 Me. 305; Copeland v. Copeland, 28 Me. 625 ; Stewart v. Emerson, 52 N. H. 301, 318, 319; Davis v. Handy, 37 N. H. 65, 75 ; Townsend v. Shep- ard, 64 Barb. (N. Y.) 39, 53 ; Pickard V. Sears, 6 Ad. & El. 469. In Town- send V. Shepard, supra, a contract provided for the purchase by the plaintiff and sale by the defendant of a specified number of bales of cloves at a specified price per pound, to arrive " deliverable, sound, and in good order." The cloves arrived soon after making the contract, and on examination part of them proved to be sound and part neither sound nor in good order. The plaintiffs offered to sign the whole of the invoice, the sound as well as the un- sound, and pay therefore the contract price. The court say " it is entirely clear that the plaintiffs could not have been required to receive the damaged cloves ; it was the purchaser's option to receive or refuse the dam- aged or unsound cloves. The vendor could not compel the purchaser to receive them, but they might waive the objection that they were unsound, and the vendor might then deliver them." Mistake a>s to name. — Kent says, "if the object of the contract be present, an error in the name does not vitiate it ; as if A. gives a horse to C. (D. being present), says to him (C.) ' D., take this horse,' the gift is good notwithstanding the mistake in the name ; for the presence of the grantee gives a higher degree of cer- tainty of the identity of the person than the mention of his name." 2 Kent Com. 557. See Smith v. Smith, 1 Edw. Ch. (N. Y.) 189; Doe V. Cranstoun, 7 Mees. & W. 1 ; Bacon's Maxims of the law, Reg. 25 ; Leake on Coutr. 334. What passes. — Title to the subject- matter of the sale only passes, and where the minds of the parties do not meet upon the whole and exact terms of the contract, it is void. Cutts !). Guild, 57 N. Y. 229, 234; Fullerton v. Dalton, 58 Barb. (N. Y.) 236, 239 ; Ketchum v. Catlin, 21 Vt. 191, 194. Thus where other property is held delivered with the subject- matter of the negotiation, no title to such other property will pass; Ray V. Light, 34 Ark. 421 ; Bowen v. Sulli- van, 62 Ind. 281 ; s. c. 30 Am. Rep. 172 ; Huthmacher v. Harris, 38 Pa. St. 491; s. c. 80 Am. Dec. 502. Thus a party who purchased at an administrator's sale a " drill machine," which, unknown to the parties, con- tained money and other valuables, secreted therein by the decedent, it was held that the sale passed to the purchaser, the right to the machine and other constituent parts of it, but not to the valuables contained in it. Huthmacher v. Harris, 38 Pa. St. 491; s. c. 80 Am. Dec. 502. In Ray V. Light, supra, it was held that where a safe was sold on execution, no title passes to its contents. In a case where warehousemen had on storage two lots of flour, one belong- ing to A., and the other, a more valuable lot, belonging to B. ; and the warehousemen by mistake de- livered to a consignee of A. a portion of B.'s flour, which such consignee received and consumed, not know- ing, supposing, or having any reason to believe that it was different from that which he ordered, and for that reason gained no advantage from the mistake, the court held that such consignee was not liable to the ware- housemen in contract for the value of the flour, or any part of its value, and also that he was not liable in tort for its conversion. Hills v. Snell, 104 Mass. 178. The court say, "There is no privity of contract established between the plaintiffs and the defendant. Without such privity the possession and use or conversion of the property will not sustain an implied assumpsit. See Ladd v. Rogers, 93 Mass. (11 Allen) 209. The fact that the flour was delivered by mistake, the court say, "might 153 *56 FORMATION OF THE CONTRACT. [BOOK I. Thus, in Thornton v. Kempster,^ the sale was of ten tons of sound merchantable hemp, but it was intended by the vendor to sell St. Petersburg hemp, and by the buyer to pur- chase Riga Rhine hemp, a superior article. The broker had made a mistake in describing the hemp to the buyer, and the Court held that there had been no contract whatever, the assent of the parties not having really existed as to the same subject-matter of sale.* So in Raffles v. Wichelhaus,^ there was a contract for the sale of " 125 bales of Surat cotton, guaranteed middling fair merchants' DhoUerah, to arrive ex Peerless from Bombay," and the defendant pleaded to an action against him for not accepting the goods on arrival, that the cotton which he intended to buy was cotton on another ship Peerless, which sailed from Bombay, in October, not that which arrived in a ship Peerless that sailed in December, the latter being the cotton the plaintiff had offered to deliver. On demurrer, held that on this state of facts there was no consensus ad idem, no contract at all between the parties.^ § 62. [In Henkel v. Pape ^ there was a mutual mistake as to the quantity of the thing sold, but as the defendant did have entitled the plaintiffs to reclaim American authorities. — Franklin v. the property from one having it in Long, 7 Gill & J. (Md.) 407; Harvey- possession, or to recover , its value v. Harris, 112 Mass. 32 ; Gardner v. from one who had disposed of it Lane, 91 Mass. (9 Allen) 492 ; s. c. 94 without knowledge of the mistake." Mass. (12 Allen) 39 ; Rice v. Dwight, See Chapman v. Cole, 78 Mass. (12 Manuf. Co., 56 Mass. (2 Cush.) 80, Gray) 141; s. c. 71 Am. Dec. 739; 86; Thompsons. Gould, 37 Mass. (20 see, also, Dalton v. Hamilton, 1 Pick.) 139; Gibson u. Pelkie, 37 Mich. Hannay (N. B.) 422; Best o. Boice, 380; Suydamw. Clark, 2 Sandf. (N.Y.) 22 Up. Can. Q. B. 439. In the case 133; Jennings v. Gratz, 3 Eawle (Pa.) . where the owner of an old tannery 168; s. c. 23 Am. Dec. Ill; Sheldon sold it, and accidentally omitted to v. Capron, 3 E. I. 171 ; Ketchum v. remove from the vats a few hides, Catlin, 21 Vt. 191 ; Allen v. Ham- which were discovered many years mond, 36 U. S. (11 Pet.) 63 ; hk. 9, after by a laborer, it was held that L. ed, 633 ; Hitchcock v. Giddings, 4 they did not pass with the sale of Price, 135. the tannery, and belonged to the * 2 H. & C. 906 ; 33 L. J. Ex. 160. representatives of the original owner. " See, also, Smidt v. Tiden, L. E. Livermore v. White, 74 Me. 452; s. 9 Q. B. 446, a mistake as to charter- c. 43 Am. Eep. 600 ; 27 Alb. L. J. parties caused by the broker's fraud. 414. 6 Riley v. Spotswood, 23 Up. Can. 3 5 Taunt. 786. See, also, Keele C. P. 318. V. Wheeler, 7 M. & G. 665. i L. E. 6 Ex. 7. 154 PART I.J MUTUAL ASSENT. *57 not rely on his right to have the contract rescinded, the * decision does not involve the application of the [*57] principle now being considered. § 63. In Phillips v. Bistolli,^ the defendant, a foreigner, not understanding our language, was sued as purchaser of some ear-rings, at auction, for the price of eighty-eight guin- eas, and alleged in defence that he thought the bid made by him was forty-eight guineas, and that there was a mistake in knocking down the articles to him at eighty-eight guineas, and Abbot C. J. left it to the jury to find whether the mis- take had actually been made, as a test of the existence of a contract of sale.^ 1 2 Barn & Cress. 511. See, also, Cochrane v. Willis, 1 Ch. 58. 2 Eovegno u. Defferari, 40 Cal. 469 ; Hartford & N. H. R. R. v. Jack- son, 24 Conn. 514; s. c. 63 Am. Dec. 177; Calkins v. Griswold, 18 N. Y. Sup. Ct. (11 Hun) 208. ilislake as to price. — Where there is a mutual mistake as to the price of an article sold, there is no sale, and neither party will be bound. Wilkin- son V. Williamson, 76 Ala. 163, 168 ; Rovegno v. Defferari, 40 Cal. 459, 462 I Rupley v. Daggett, 74 111. 351 ; Calkins v. Griswold, 11 Hun (N, Y.), 208; Harran v. Foley, 62 Wis. 584; s. c. 22 N. W. Rep. 837 ; Greene v. Bateman, 2 Woodb. & M. C. C. 359 ; Phillips V. Bistoli, 2 Barn. & Cres. 511. Thus where personal property by mis- take was offered for sale at a lower price than was intended, and the offer was accepted by one who knew or had good reason to believe that it was a mistake, the sale was not bind- ing upon the vendor. Rupley W.Dag- gett, 74 111. 351 ; Harran v. Foley, 62 Wis. 584; s. c. 22 N. W. Rep. 837; Greene v. Bateman, 2 Woodb. & M. C. C. 359 ; Webster v. Cecil, 30 Beav. 62 ; Tamplin v. James, L. R. 15 Chan. Div. 221 ; 1 Whart. Contr. sec. 202 a. And in Fear v. Jones, 6 Iowa, 169, where the plaintiffs had two kinds of machines for sale, one selling for §195 and the other for $315, which prices were shown to be posted in plaintiff's store, and to which defend- ants were shown at the time they in- quired for the prices, and they under- took to pay $195 for a machine, and a bill of sale was executed, which in its terms described a machine of a higher value, and they received one of that class, and when notified of the mistake they refused to deliver up the machine, the court held that there was no sale, and that the de- fendants would be liable for the value of the machine received. However, a different doctrine was recently held in Georgia in a case of Star Glass Co. V. Longley, 64 Ga. 576, in one case A. prices goods to B., who or- dered at the price named, and A. de- livered the goods ordered to a com- mon carrier, consigned to B. After the receipt of the goods B. received a notice from A. that there was a. mis- take in the prices, and that the goods must not be used except at a higher price. In a suit for such higher price it was held that B.'s right to hold the goods at the price first named was not affected by A.'s notice. And where there is a mutual misunder- standing between the parties in re- gard to the amount of the considera- tion to be paid on a supposed contract of sale, a subsequent sale between 155 *57 FORMATION OF THE CONTKACT. [book I. § ij-i. And so if the parties have expressed themselves in language so vague and unintelligihle that the Court find it impossible to affix a definite meaning to their agreement, it cannot take effect.^ Thus in Guthing v. Lynn,^ the action the apparent vendor passes a valid title. Rovegno ». Dei^erari, 40 Cal. 459, 402. ^ An unintelligihle contract is invalid. — See Wheelan v. Sullivan, 102 Mass. 204 ; Hurley v. Brown, 98 Mass. 545 ; Morton r. Dean, 54 Mass. (13 Mete.) 385; Atwood v. Cobb, 33 Mass. (16 Pick.) 227; s. c. 26 Am. Dec. 057; Cummer v. Butts, 40 Mich. 322 ; s. c. 29 Am. Rep. 530; Caswell i. Gibbs, 33 Mich. 331; Crane r. Partland, 9 Mich. 493 ; Buckmaster v. Consumers' Ice Co., 5 Daly (N. Y.) 313; Hazard V. New England Marine Ins. Co., 1 Sumn. C. C. 218; Greene u. Bateman, 2 Woodb. & M. C. C. 3.59; Smidt v. Tiden, L. E. 9 Q. B. 446; s. c. 9 Eng. Rep. 379; Coles v. Hulme, 8 Barn. & Cres. 568, 673 ; Guthing v. Lynn, 2 Barn. & Adol. 2.32 ; Bayley r. Fitzmau- rice, 8 El. & Bl. 664 ; s. c. 9 H. L. Cas. 78 ; Mete, on Contr. 316 ; 2 Pars, on Contr. 561 ; 1 Chitty on Contr. 92, 93 ; 1 Sugd. V. & P. (8 Am. ed.) 134. Thus a written agreement which does not. show who the parties to it are is void for uncertainty. Webster <•. Ela, 5 N. H. 540. Where the price of an article sold was made to be reg- ulated by a certain profit to the ven- dor is void for uncertainty. Buck- master r. Consumers' Ice Co., 5 Daly (N. Y.) 313. Ambiguous contract. Where offer by mistake is ambiguous. — Where the offer by mistake is ambiguous, the receiver claiming an unreasonable meaning, and without notice to, or inquiry of, the sender orders the goods, he is liable as if no proposi- tion had been sent. Butler v. Moses, 43 Ohio St. 166; a. c. 1 West. Rep. 50. Whether the contract be such as can be proved by parol or is required by the statute of frauds to be in writ- ing, it must be certain and unequivo- cal in all its essential elements, either within itself or by reference to some other agreement or matter. Jordan V. Deaton, 23 Ark. 704 ; Agard d. Valencia, 39 Cal. 202; Minturn v. Baylis, 33 Cal. 129 ; Morrison v. Ros- signol, 5 Cal. 64 ; Miller a. Gotten, 5 Ga. 341 ; Bowman v. Cunningham, 78 HI. 48 ; Allen v. Webb. 64 111. .342 ; Fitzpatrick v. Beatty, 6 111. (1 Gilm.) 454 ; Waters' Heirs i . Brown, 7 J. J. Marsh. (Ky.) 123; Burke v. His Cred- itors, 9 La. An. 56; Reese v. Reese, 41 Md. 554 ; Gelston u. Sigmond, 27 Md. 334; MoClintock v. Laing, 22 Mich. 212; Millard r. Ramsdell, 1 Ilarr. Ch. (Mich.) 373; McMurdrie V. Bennette, 1 Harr. Ch. (Mich.) 124 ; Sherburne v. Shaw, 1 N. H. 131 ; s. c. 8 Am. Dec. 47 ; McKibbin v. Brown, 14 N. J. Eq. (1 McCart.) 13 ; Loker- son V. Stillwell, 13 N. J. Eq. (2 Beas.) 357 ; Rockwell v. Lawrence, 6 N. J. Eq. (2 Halst.) 90 ; Robeson v. Horn- baker, 3 N. J. Eq. (2 H. W. Gr.) 60; Stanton v. Miller, 58 N. Y. 192; Buckmaster v. Thompson, 36 N. Y. 558 ; Abeel u. Eadcliff, 13 Johns. (N. Y.) 297 ; s. e. 7 Am. Dec. 377 ; Bailey v. Ogden, 3 Johns. (N. Y.) 399; s. c. 3 Am. Dec. 509; Hammer V. McEldowney, 46 Pa. St. .334; Par- rish V. Koons, 1 Pars. Sel. Cas. (Pa.) 78; Givens v. Calder, 2 Deasus. (S. C.) Eq. 172 ; s. c. 2 Am. Dec. 686 : Mead- ows r. Meadows, 3 McC. (S. C.) 458; s. c. 15 Am. Dec. 645 ; Pigg v. Corder, 12 Leigh (Va.) 69. 2 2 B. & Ad. 282. See, also, Bourne r. Seymour, 24 L. J. C. P. 207; and Pearce v. Watts, 20 Eq. 492, the case of a sale of real estate ; Robinson v. Bullock, 58 Ala. 618 ; Buckmaster c Consumers' Ice Co., 5 156 PART I.J MTJTXJAL ASSENT. *57 was on an alleged warranty on the sale of a horse, and the declaration averred the sale to have been for " a certain price or sum of money, to wit, QSl." The proof was of a sale for sixty guineas, and " if the horse was lucky to the plaintiff he was to give ol. more, or the buying of another horse." This was insisted on as a variance. On motion for nonsuit accord- ing to leave reserved, the Court refused to nonsuit, on the ground that the additional clause was unintelligible ; that no man could say under what circumstances a horse was to be considered "lucky," nor could any definite meaning be at- tached to the words "• or the buying of another horse," as part of the price of the horse sold. The contract must therefore be considered as proven for the price of 63Z., the remainder being looked on as some honorary understanding between the parties.^ Daly (N. Y.) 313 ; Baker t. Lyman, 38 Up. Can. Q. B. 498. ^ Contract to furnish articles " to satisfaction." — Where a person under- takes to manufacture an article or deliver goods, which he guarantees shall be satisfactory to the buyer, the purchaser is sole judge whether the article is satisfactory, and there is no remedy left for the seller, where the purchaser is not satisfied. Mc- Clure V. Briggs, 58 Vt. 82; s. c. 1 New Eng. Rep. 621 ; 2 Atl. Eep. 583. In the case of Silsby Manf. Co. v. Chico, 24 Fed. Rep. 893, the Circuit Court of the United States say : " The authorities are abundant to the effect that upon a contract containing a provision that an article to be made and delivered shall be satisfactory to the purchaser, it must be satisfactory to him, or he is not required to take it. It is not enough that he ought to be satisfied with the article ; he must be satisfied, or he is not bound to accept it. Such it contract may be unwise, but of its wisdom the party so con- tracting is to be his own judge ; and if he deliberately enters into such an agreement, he must abide by it. To this effect are : Hallidie v. Sutter St. R. R. Co., 63 Cal. 575; Zaleski v. Clark, 44 Conn. 218; s. o. 26 Am. Rep. 446 ; Brown v. Foster, 113 Mass. 136; s. c. 18 Am. Rep. 463; McCar- ren o. McNulty, 73 Mass. (7 Gray) 139 ; Gibson v. Cranage, 39 Mich. 49 ; Wood Reaping and Mowing Machine Co. V. Smith, 50 Mich. 565; s. c. 215 N. W. Rep. 906 ; Heron v. Davis, 3 Bosw. (N. Y.) 336 ; Hoffman v. Gal- laher, 6 Daly (N. Y.) 42; Gray v. Central R. R. Co., 11 Hun (N. Y.) 70." Thus where one undertakes " to satisfaction " to make a suit of clothes (Brown v. Foster,*113 Mass. 136; s.c. 18 Am. Rep. 463), to fill a particular place as agent (Tyler v. Ames, 6 Lans. (N. Y.) 280), to mould a bust (Zaleski v. Clark, 44 Conn. 218; s. c. 26 Am. Rep. 446), or paint a portrait (Gibson u. Cranage, 39 Mich. 49; Hoffman v. Gallaher, 6 Daly (N. Y.) 42 ; Moore v. Goodwin, 43 Hun (N. Y.) 534), he may not unreason- ably expect to be bound by the opin- ion of his employer, honestly enter- tained; and neither the opposite party nor the jury can decide that he ought to be satisfied with the ar- ticle made. Moore v. Goodwin, 43 Hun (N. Y.) 534. See Wood Reap- ing & Mowing Machine Co. v. Smith, 50 Mich. 565; ». c. 16 N. W. Rep. 15T *57 FORMATION OF THE CONTRACT. [BOOK I. 006. Thus it has been held that a contract to erect a patent hydraulic hoist " warranted satisfactory in ev- ery respect," constitutes the pur- chaser sole judge of its fitness, and does not mean that it should be such as would satisfy other persons or that the promisee reasonably ought to be satisfied with it. Singerly u. Thayer, 108 Pa. St. 291 ; s. c. 1 Cent. Rep. 51. And where the contract under which work is done provides for approval by a third party, no right to money earned or cause of action accrues, until that party's certificate is procured. Kirtland v. Moore (N. J.), 1 Cent. Eep. 466; Tetz V. Butterfield, 54 Wis. 242; s. c. 11 N. VV. Rep. 5.31 ; Oakwood Retreat Association v. Rathbone, 65 Wis. 177 ; s. c. 26 N. W. Rep. 742. But where the purchaser is in fact satisfied, but fraudulently and in bad faith declares that he is not satisfied, the contract has been fully performed by the vendor, and the purchaser is bound to accept the article. Silsby Manf. Co. p. Chicago, 24 Fed. Rep. 893. Thus it was held in Lynn v. Baltimore & O. E. R. Co., 60 Md. 404 ; =. c. 45 Am. Rep. 641, that on a contract by a corporation to purchase certain goods subject to inspection and approval by its agent, the corpo- ration is liable if the agent fraudu- lently or in bad faith disapproves of the goods. In Connerticut, in the case of Za- leski V. Clark, 44 Conn. 418 ; s. c. 26 Am. Rep. 446, where a sculptor un- dertook to finish a bust to the satis- faction of the defendant, who refused to accept the work when done, though in fact a fine piece of workmanship, tlie Supreme Court held that there could be no recovery. The court say : " A contract to produce a bust perfect in every respect, and one with which the defendant ought to be satisfied, is one thing; and un- dertaking to make one with which she will be satisfied is quite another thing. The latter can only be deter- mined by the defendant herself. It may have been unwise in the plaintiff to make such a contract, but having made it, he is bound by it." See also Gibson v. Cranage, 39 Mich. 49 ; Gray V. Cent. R. R. Co. of N. J., 11 Hun (N. Y.) 70. The case of Zaleski u. Clark, 44 Conn. 418; s. c. 26 Am. Rep. 446, is founded upon Brown u. Foster, 113 Mass. 136; s. c. 18 Am. Rep. 463 ; McCarren v. McNulty, 73 Mass. (7 Gray) 139, cited below. In Massachusetts, in a case where the plaintiff undertook to make a bookcase for a society wiiich was to be " to the satisfaction " of the presi- dent, the court say : " It may be that the plaintiff was injudicious or indis- creet in undertaking to labor and fur- nish materials for a compensation, the payment of which was made depend- ent upon a contingency so hazardous or doubtful as the 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." McCarren v. McNulty, 73 Mass. (7 Gray) 139. And this case was subsequently fol- lowed in Brown v. Foster, 113 Mass. 136 ; s. c. 18 Am. Rep. 463, where the court say : " Although the compensa- tion of the plaintiff for valuable ser- vice and materials may thus be dependent upon the caprice of an- other, who unreasonably refuses to ac- cept the articles manufactured, yet he cannot be relieved from the contract into which he has voluntarily entered." In Michigan, in the case of Wood Reaping & Mowing Machine Co. v. Smith, 50 Mich. 555; s. c. 15 N. W. Eep. 906, which was a suit for the con- tract price of a machine warranted to be satisfactory to the defendant, it was held that " a stipulation in the con- tract of sale that it shall be of no eSect unless the goods are satisfac- tory, is to be construed, according to the circumstances, as reserving to the promisor the absolute right to reject them without giving any rea- 158 PART I.J MUTUAL ASSENT. *57 son, or as binding him to decide on fair and reasonable grounds. In one case his conclusion cannot be re- viewed, but it can be in the other." The court say that " the cases where the parties provide that the promisor is to be satisfied, or to that effect, are of two classes ; and whether the par- ticular case at any time falls within the one or the other must depend on the special circumstances, and the question must be one of construction. In the one class the right of decision is completely reserved to the prom- isor, and without being liable to dis- close reasons or account for his course; and all right to inquire into the grounds of his action and overhaul its determination is abso- lutely excluded from the promisee, and from all tribunals. It is suffi- cient for the result that he willed it. The law regards the parties as com- petent to contract in that manner, and if the facts are sufiicient to show that they did so, their stipulation is the law of the case. The promisee is excluded from setting up any claim for remuneration, and is likewise de- barred from questioning the grounds of decision on the part of the prom- isor, or the fitness or propriety of the decision itself. The cases of this class are generally such as involve the feelings, taste, or sensibility of the promisor, and not those gross considerations of operative fitness or mechanical utility which are capa- ble of being seen and appreciated by others. But this is not always so. It sometimes happens that the right is fully reserved where it is the chief ground, if not the only one, that the party is determined to preserve an unqualified option, and is not willing to leave his freedom of choice ex- posed to any contention or subject to any contingency. He is resolved to permit no right in any one else to judge for him, or to pass on the wis- dom or unwisdom, the justice or in- justice, of his action. Such is his will. He will not enter into any bar- gain, except upon the condition of reserving the power to do what oth- ers might regard as reasonable. The following cases sufficiently illustrate the instances of the first class : Zaleski V. Clark, 44 Conn. 218; s. c. 26 Am. Rep. 446 ; Brown v. Foster, 113 Mass. 136; s. c. 18 Am. Eep. 463 ; McCarren 'v. McNulty, 73 Mass. (7 Gray) 139 ; Gibson v. Cranage, 39 Mich. 49; Hart V. Hart, 22 Barb. (N. Y.) 606 ; Tyler v. Ames, 6 Lans. (N. Y.) 280 ; Rossiter v. Cooper, 23 Vt. 522 ; Tay- lor V. Brewer, 1 Maule & Sel. 290. In the other class the promisor is sup- posed to undertake that he will act reasonably and fairly, and found his determination on grounds which are just and sensible; and from thence springs a necessary implication that his decision, in point of correctness, and the adequacy of the grounds of it, are open considerations, and sub- ject to the judgment of judicial triers. Among the cases application to this class are Daggett v. Johnson, 49 Vt. 345, and Hartford Manuf. Co. o. Brush, 43 Vt. 528." In New York, where the plaintiff repaired and set up the boilers for the defendant, under the contract that he was not to be paid until the " defend- ants were satisfied with the boilers so changed were a success," the defend- ants claimed that they alone were to determine the question whether they were satisfied that the boilers as changed were a success. The court held that this was error, and that as the work was completed according to contract, and the defendants used it without objection or complaint, the time for payment had come, and that the plaintiff had a right of action for the contract price in case payment was refused. The reason upon which this was founded seems to be " that which the law will say a contracting party ought in reason to be satisfied with, that the law will say he is sat- isfied with." Duplex Safety Boiler Co. ;;. Garden, 101 N. Y. 387 ; s. c. 54 Am. Rep. 709; 4 N. E. Rep. 749. In 159 *57 FORMATIOK OF THE CONTRACT. [BOOK I. FoUiard v. Wallace, 2 Johns. (N. Y.) 395, W. covenanted that, in case the title to a lot of land conveyed to him by F. should prove good and sufficient in law against all other claims, he would give to F. S150, three months after he should be "well satisfied" that the title was undisputed. Upon suit brought the defendant set up that he was " not satisfied," and the plea was held bad, the court saying : " A simple allegation of dissatisfac- tion, without some good reason as- signed for it, might be a mere pre- text, and cannot be regarded." This decision was followed in Miesell v. Globe M. L. Insurance Co., 76 N. Y. 115, and Brooklyn v. Brooklyn R. R. Co., 47 N. Y. 476. In Pennsi/lvanla, it was held in the recent case of Singerly v. Thayer, 108 Pa. St. 291 ; s. c. 1 Cent. Rep. 52 ; 2 Atl. Rep. 230, that a contract to furnish an article which shall be satisfactory to the purchaser is not complied with by proof that the arti- cle furnished is made in a workman- like manner, and performs its in- tended purpose in a manner which ought to be satisfactory to the pur- chaser. The contract in this case was to erect an elevator " satisfac- tory in every respect," and the court held the meaning of the language used was that the elevator, when erected, should prove satisfactory to the person for whom it was erected. As a matter of fact the elevator did not prove satisfactory, and suit was brought on the contract for the price. The court say : " When the agreement is to make and furnish an article to the satisfaction of the person for whom it is to be made, numerous authorities declare it is not a com- pliance with the contract to prove that he ought to have been satisfied. It was so held in Gray v. Central Railroad Co. of N. J., 11 Hun (N. Y.) 70, where the contract was for the purchase of a steamboat; in Brown V. Foster, 113 Mass. 1.S6; s. c. 18 Am. Rep. 463, where the agreement was to make a suit of clothes ; in Zaieski V. Clark, 44 Conn. 218; s. c. 26 Am. Rep. 446, on a contract for a plaster bust of the deceased husband of the defendant; in Gibson v. Cranage, 39 Mich, 49, where a portrait was to be satisfactory to the defendant; and in Hoffman v. Gallaher, 6 Daly (N. Y.) 42, where a portrait of defendant was to be satisfactory to his friends." Iti Vermont, in the case of McClure D.Briggs, 58 Vt. 82; b. e. 1 New Eng. Rep. 621 ; 2 Atl. Rep. 583, where A set up an organ in B's house, upon an agreement that B should keep it and pay for it, if it proved satisfac- tory to him. B thought, without cause, that he was dissatisfied, and notified A. The court held that, pro- vided he acted in good faith, he was the sole judge as to his satisfaction with the organ. See Daggett v. John- son, 49 Vt. 435 ; Hartford Manuf . Co. !•. Brush, 43 Vt. 528. The court say: " But it is said that he was bound to be satisfied, as he had no ground to be dissatisfied. He was bound to act honestlj', and to give the instrument a fair trial, and such as the seller had a right, under the circumstances, to expect he would give it, and herein to exercise such judgment and capacity as he had ; for, by the contract, he was the one to be satisfied, and not another for him. If he did this, and was still dissatisfied, and that dissatisfaction was real and not feigned, honest and not pretended, it is enougli, and plain- tiffs have not fulfilled their contract, and all these elements are gatherable from the report. This is the doctrine of Daggett V. Johnson, 49 Vt. 345, and of Hartford Manuf. Co. t. Brush, 43 Vt. 528. In the former case the de- fendant was required to bring to the trial of the evaporator only honesty of purpose and judgment according to his capacity, to ascertain his own wishes, and was not required to exer- cise even ordinary skill and judgment in making his determination. Daggett V. Johnson, 49 Vt. 345, turned on an error in the admission of testimony; 160 PART I.] MUTUAL ASSENT. *57 but Judge Redfield goes on to discuss the merits of the case somewhat, fol- lowing substantially in the line of Brush's Case, and citing it as author- ity. But Daggett v. Johnson, supra, is distinguishable in its facts from Brush's Case and from this case, in that the defendant omitted to test the pans in the very respect in which he knew it was claimed their excel- lence consisted. In McCarren v. McNulty, 73 Mass. (7 Gray) 139, plaintiff agreed to make a bookcase for defendants, of a certain kind and dimensions, in a good, workmanlike manner, 'to the satisfaction' of one of the defendants, and an action for work and labor in making it was held not to be maintained by proof that it was made according to the contract, without also proving that it was sat- isfactory to or accepted by that de- fendant. The court said that against the consequences resulting from his own bargain the law could not re- lieve the plaintiff; that, having as- sumed the obligations and risk of the contract, his legal rights were to be ascertained and determined solely by its provisions. In Brown v. Foster, 113 Mass. 136, plaintiff agreed to make defendant a satisfactory suit of clothes, but defendant returned the suit as unsatisfactory. The court said the plaintiff could recover only upon the contract as made ; and that, even though the clothes were such that the defendant ought to have been satisfied with them, it was yet in his power to reject them as unsat- isfactory, and that it was not for any one else to decide whether a refusal to £|,ccept was reasonable or not when the contract permitted the defendant himself to decide that question. In Zaleski v. Clark, 44 Conn. 218; ». c. 6 Am. Rep. 446, plaintiff made a plas- ter bust of defendant's deceased hus- band, under a contract that she was not bound to take it unless she was satisfied with it. When it was finished, she was not satisfied with it, and re- fused to accept it. It was found that the bust was a fine piece of work, a correct copy of a photograph furnished by the defendant, and that it accurately portrayed the features of the subject, and that the only fault found with it was that it did not have the expression of the deceased when living, which was caused by no im- perfection of the work, but by the nature of the material. The court said plaintiif had not fulfilled his con- tract; tliat it was not enough to say that defendant ought to have been satisfied, and that her dissatisfaction was unreasonable ; that she, and not the court, was entitled to judge of that ; that a contract to make a bust perfect in all respects, and with which the defendant ought to be satisfied, was one thing, and an undertaking to make one with which she would be satisfied was quite another thing; that the former could be determined only by experts, and the latter could be determined only by the defendant herself." In Wisconsin, in the case of Tetz V. Butterfield, 54 Wis. 242, s. c. 11 N. W. Rep. 531, it is said that where a building contract provides for the acceptance of the architect, evidence is admissible to show that he acted collusively and in bad faith. And in Glacius V. Black, 50 N. Y. 145, where by the terms of a contract for repair- ing a building it was provided that the materials to be furnished should be of the best quality and the work- manship performed in the best man- ner, subject to the acceptance or rejection of the architect, and all to be in strict accordance with the plans and specifications, the work to be paid for " when completely done and accepted," it was held that the accept- ance by the architect did not relieve the contractors from their agreement to perform the work according to the plans and specifications ; nor did his acceptance of a different class of work, or inferior materials, from those contracted for, bind the owner to pay for them ; that the provisions 161 *57 FOBMATIOK OF THE CONTEACT. [book § 65. But an agreement is not to be deemed unintelligible because of some error, omission, or mistake in drawing it up, if the real nature of the mistake can be shown, so as to make the bargain intelligible.^ Thus, in Coles v. Hulme,^ for acceptance was merely an addi- tional safeguard against defects not discernible by an unskilled person. And in the recent case of Oakvvood Retreat Ass'n v. Rathbone, 65 Wis. 177 ; s. c. 26 N. W. Rep. 742, it was held that when a contract provides for the performance of work at a stipulated price, to the satisfaction of an architect named therein, who is employed to adjust all claims of the parties to the agreement, and a bond is given to secure a faithful perform- ance of the contract, where the party agreeing to do the work does not fully perform such contract, the other party may sue the principal and sureties on the bond for a breach of the contract before the architect has adjusted any claim arising out of the breach. The rule of construction is that all contracts or agreements shall have a reasonable interpretation, according to the intention of the parties. In ascertaining what those intentions are it is essential to consider the sub- ject-matter of the contract or agree- ment; in giving a meaning to the terms used therein, and the situation and the true intention of all the par- ties, as well as the subject-matter of the contract, must always be consid- ered. Brown v. Slater, 16 Conn. 192, 196 ; s. c. 41 Am. Dec. 136 ; Robinson V. Fiske, 25 Me. 401 ; Littlefield v. Winslow, 19 Me. 394; Patrick v. Grant, 14 Me. 233 ; Howland i^ Leach, 28 Mass. (11 Pick.) 151, 154; Hop- kins V. Young, 11 Mass. .302; Fowle V. Bigelow, 10 Mass. 379; Sumner v. Williams, 8 Mass. 162, 214 ; s. c. 5 Am. Dec. 83 ; Nettleton v. Billings, 13 N. H. 446 ; Osgood v. Hutchins, 6 jST. H. 375 ; Hasbrook v. Paddock, 1 Barb. (N. Y.) 635; Wilson v. Troup, 16 2 Cow. (N. Y.) 195; s. c. 14 Am. Dec. 458 ; Whallon v. Kauffman, 19 Johns. (N. Y.) 104 ; HoUmgsworth v. Fry, 4 U. S. (4 Dall.) 345 ; bk. 1, L. ed. 860 ; Washburn v. Gould, 3 Story C. C. 122, 159 ; Saward v. Anstey, 2 Bing. 522; Robertson v. French, 4 East, 135 ; Carbonel v. Davies, 1 Str. 394; Milbourn v. Ewart, 5 T. R. 381, 385; Doe v. Burt, 1 T. R. 703; 2 Cow. & Phil. Ev. 1399, note 957; Greenl. Ev. 327 ; 1 Sugd. V. & P. on S. V. & P. (8 Am. ed.) 169, 170. To ascertain the meaning of a written offer to sell, all its parts and words must be examined in the light of the circumstances, and a receiver of the offer must act on the true intent and meaning of the sender. Butler v. Moses, 43 Ohio St., 160 ; s. c. 1 West. Reb. 50. 2 8 B. & C. 568. See, also, Cleve- land V. Smith, 2 Story C. C. 278 ; Waugh u. Bussell, 5 Taunt. 707 ; El- liott's Case, 2 East P. C. 951. Contract of sale void for uncertainty. — In an action on a contract to employ an agent to sell on commission, which stipulated that "for good cause this agreement shall be cancelled upon sixty days' notice by either party," the Supreme Court of Michigan held it impossible to give any definite meaning tc the term "for good cause," saying : " It is impossible to say that the wills of the parties con- curred and that each meant exactly what the other did, or even to say what either meant." Cummer v. Butts, 40 Mich. 322; s. c. 29 Am. Rep. 530. Agreements, either written or verbal, which are so vague and indefinite in their terms, that the in- tention of the parties cannot be fairly and reasonably collected from them, are void for uncertainty. Robinson 9 PAET I.] MUTUAL ASSENT. *58 a bond to pay 7700 was allowed to be corrected by adding * the word " pounds," the recitals in the con- dition showing that that must have been the meaning of the parties.^ [*58] 0. Bullock, 68 Ala. 618; Adams v. Adams, 26 Ala. 272; Erwin v. Erwin, 25 Ala. 236 ; Moore v. Smith, 19 Ala. 774,783; "Watson w. Byers, 6 Ala. 393; Shakespeare u. Markham, 72 N. Y. 400 ; Stanton v. Miller, 58 N. Y. 192 ; Sherman v. Kitsmiller, 17 Serg. & R. (Pa.) 45 ; Buckston v. Lister, 3 Atk. 386 ; Morgan v. Milman, 3 De G. M. & G. 24; Wilks u. Davis, 3 Meriv. 507; Figs w.Culer, 3 Stark. 139; Rose C-. Cunynghame, 11 Ves. 555; Wal- pole u. Orf ord, 3 Ves. 402 ; 1 Chitty on Contr. 92. To be valid and bind- ing a contract must be suflSciently definite and certain to establish riglits and fix liabilities under it. An agree- ment to purchase ice delivered on a future day, at a price which should afford the party delivering a net profit not exceeding §1.00 per ton, has been held void for uncertainty. Buckmaster v. Consumers' Ice Co., 5 Daly (N. Y.) 313. An agreement in writing for the conveyance of " a piece of land " which does not, either in itself, or by reference to any other writing, contain means of identifying the boundaries, is void for uncer- tainty. Whelan v. Sullivan, 102 Mass. 204 ; Hurley v. Brown, 98 Mass. 545 ; Morton v. Dean, 54 Mass. (13 Mete.) 385; Atwood v. Cobb, 33 Mass. (16 Pick.) 227; s. c. 26 Am. Dec. 327. Parol testimony of a pre- vious agreement, which is the only means of identification, referred to in the memorandum, can be taken into consideration to complete it. Water- man V. Meigs, 54 Mass. 497. A contract which may be cancelled by either party, " for good cause " is void for uncertainty. Cummer V. Butts, 40 Mich. 322 ; s. c. 29 Am. Rep. 530. See Caswell v. Gibbs, 33 Mich. 331 ; Crane v. Partland, 9 Mich. 493 ; Hazard v. New England Marine Insurance Co., 1 Sumn. C. C. 218 ; Greene v. Bateman, 2 Woodb. & M. C. C. 359 ; Smidt v. Tiden, L. R. 9 Q. B. 446 ; s. c. 9 Moak Eng. Rep. 379 ; Guthing v. Lynn, 2 Barn. & Ad. 232 ; Coles v. Hulme, 8 Barn. & Cres. 568, 573 ; Baley v. Fitzmaurice, 8 El. & Bl. 664; s. c. 9 H. L. Cas. 78; Cooper V. Hood, 28 L. J. Ch. 212. ^ Filling blanks in written contracts. — It is a question for the jury to de- termine, what words or figures were intended to be inserted in blanks left in written contracts. Burnham V. Allen, 67 Mass. (1 Gray) 496; Boyd V. Brotherson, 10 Wend. (N. Y.) 93 ; see also, Dana v. Fiedler, 12 N. Y. 40 ; s. c. 62 Am. Dec. 130 ; Cabarga 0. Seeger, 17 Pa. St. 514; as is also the deciphering illegible letters or figures. Armstrong ;;. Burrows, 6 Watts (Pa.) 266. Where a note was intended to be made for the sum of eight hundred dollars, and was in- dorsed by the payee, for the accom- modation of the maker, and delivered to him, and by mistake the words "eight hundred" were omitted, so that the note purported to be for eight, the maker, without the assent of the indorser, inserted the words " one hundred dollars," and in an ac- tion by the holder, it was held that the indorser could not object to the insertion of those words. Boyd u. Brotherson, 10 Wend. (N. Y.) 93. As to the authority of the holder of negotiable paper, executed in blank, to fill such blanks, see Coburn V. Webb, 56 Ind. 96 ; s. c. 26 Am. Rep. 15; Rich u. Starbuck, 51 Ind. 87 ; Ives v. Farmer's Bank, 84 Mass. (2 Allen) 236; Hunt v. Adams, 6 Mass. 519; McRaven u. Crisler, 53 Miss. 542; McGrath r. Clark, 56 N. Y. 34 ; s. c. 15 Am. Rep. 372 ; Red- Uch V. Doll, 54 N. Y. 234; s. c. 13 163 *58 POKMATION OF THE CONTRACT. [BOOK I. So in Wilson v. Wilson,* Lord St. Leonards said that " both Courts of law and Courts of equity may correct an obvious mistake on the face of an instrument without the shghtest difficulty " ; ^ and his Lordship cited a case in Douglas ^ where the condition of a bond declared that it was to be void if the obligor did not pay what he promised, and the Court struck out the word " not " as a palpable error. And the same principle was established in Lloyd v. Lord Say and Seale,^ in the King's Bench, and affirmed in House of Lords ; and in Langdon v. Goole : ^ the omitted name of the grantor being supplied by the Court in the first case, and that of the obligee in the second.^ § 66. But care must be taken not to confound a common mistake as to the subject-matter of the sale, or the price, or the terms, which prevent the sale from ever coming into ex- istence by reason of the absence of a consensus ad idem, with a mistake made by one of the parties as to a collateral fact, or what may be termed a mistake in motive. If the buyer purchases the very article at the very price and on the very terms intended by him and by the vendor, the sale is com- plete by mutual assent, even though it may be liable to be avoided for fraud, illegality or other cause ; or even though the buyer or the seller may be totally mistaken in the motive which induced the assent.^ Am. Rep. 473 ; Van Du2er v. Howe, (N. C.) 544 ; s. c. 29 Eng. C. L. 414 ; 21 N. Y. 531 ; Hardy v. Norton, 66 Kershaw v. Cox, 3 Esp. 246 ; s. i;. Barb. (N. Y.) 527 ; Kitchen v. Place, cited, 10 East, 437 ; Jacobs v. Hart, 41 Barb. (N. Y.) 465; Griggs v. 2 Stark. 45. Howe, 31 Barb. (N. Y.) 100; Mit- 4 5 H. L. C. 40; and see Bird's chell V. Culver, 7 Cow. (N. Y.) 336 ; Trusts, 3 Ch. D. 214 ; Burchell <-. Norris ;;. Badger, 6 Cow. (N. Y.) 449 ; Clark, 2 C. P. D. 88, C. A. Smith V. WyckoflE, 3 Saudf. Ch. » 5 H. C. L. at p. 66. (N. Y.) 77 ; Clute o: Small, 17 Wend. ^ Anonymous, per Buller, J., in (N. Y.) 238 ; Nichol r. Bate, 10 Yerg. Bache v. Proctor, Doug. 384. (Tenn.) 429 ; Frank v. Lilienfeld, 33 ^ 10 Mod. 46, and 4 Browne's P. C. Gratt. (Va.) 377, 384 ; Michigan Ins. 73. Co. V. Learenworth, 30 Vt. 11 ; Sny- » 3 Ley. 21. der V. Van Doren, 46 Wis. 602 ; s. c. ^ Marion v. Eaxon, 20 Conn. 486 ; 32 Am. Eep..778 ; Bulkeley v. Butler, Sisson v. Donnelly, 36 N. J. L. (7 Vr.) 2 Barn. & Cres. 425; Usher v. Daun- 432; Bickford v. Cooper, 41 Pa. St. cey, 4 Campb. 97; Powell v. Duff, 142; Cooke w. Graham, 3 Cr.C. C. 229; 3 Campb. 182 ; Eussel v. Langstaff, 2 Jones v. Mcintosh, 2 Pug. (N. B.) 343. Doug. 514 ; Schultz v. Astley, 2 Bing. 1 Wheat v. Cross, 31 Md. 99 ; Mc- 164 PAET I.] MUTUAL ASSENT. *59 § 67. And when the mistake is that of one party alone, it must be borne in mind that the general rule of law is, that whatever a man's real intention may be, if he manifests an intention to another party, so as to induce the latter to act upon it in making a contract, he will be estopped from deny- ing that the intention as manifested was his real intention.^ This point is treated under the subject of " estoppel," post. Book v., Part T., Ch. 2. § 68. * A mistake by the buyer in supposing that the article bought by him will answer a certain pur- [*59] pose, for which it turns out to be unavailable, is not a mistake as to the subject-matter of the contract, but as to a collateral fact, and affords no ground for pretending that he did not assent to the bargain, whatever may be his right afterwards to rescind it, if the vendor warranted its adapt- ability to the intended purpose. Thus, in Chanter v. Hop- kins,^ OUivant v. Bayley,^ and Prideau v. Bunnett,^ the pur- chasers had ordered speciiic machines from the patentees, and attempted to justify their refusal to pay, on the ground that the machines had totally failed to answer the purpose intended ; but it was held that in the absence of a warranty by the vendors, the contract was binding on the purchasers, Lean v. Robinson, 2 Pug. & B. (N. B.) tent with the defence of claim, which 83. he proposed to set up, and another 1 Per Lord Wensleydale, in Free- party must have, with his knowledge man u. Cooke, 2 Ex. 654 ; Doe v. and consent, so acted on that admis- Oliver, and cases in notes, 2 Smith's sion that he will be injured by allow- L. C. (ed. 1879) 775; Cornish v. Ab- ing an admission to be disproved, ington, 4 H. & N. 549 ; 28 L. J. Ex. See, also, Turner v. CoflBn, 94 Mass. 262 ; Alexander u. "Worman, 6 H. & (12 Allen) 401 ; Andrews n- Lyons, N. 100; 30 L. J. Ex. 198; Van Toll 93 Mass. (11 Allen) 349; Plumer d. V. South Eastern Railway Company, Lord, !»1 Mass. (9 Allen) 455 ; Auden- 12 C. B. N. S. 75 ; 31 L. J. C. P. 241 ; reid c. Bettelley, 87 Mass. (5 Alten) Carr v. London and North Western 382 ; Hawes v. Marchant, 1 Curt. C. C. Railway Company, L. R. 10 C. P. 307, 136, 144 ; Powell v. Smith, L. R. 14 per Brett, J. ; Thomas v. Brown, 1 Q. Eq. Cas. 85 ; Hotson v. Browne, 9 C. B. D. 714. See Zuchtmann c. Rob- B. N. S. 442 ; s. u. 99 Eng. C. L. 441; erts, 109 Mass. 53; b. i;. 12 Am. Rep. 2 Chitty on Contr. (11 Am. ed.) 1022, 663. In Zuchtmann v. Roberts, 109 1023 ; Leake on Contr. p. 8, 168, 169. Mass. 53 ; s. c. 12 Am. Rep. 663, it is i 4 M. & "W. 399. said that to constitute an estoppel, in ^ 5 Q. B. 288. such case the party must have de- ^ 1 C. B. N. S. 613. signedly made an admission inconsis- 165 *60 POEMATION OF THE CONTEACT. [BOOK I. notwithstanding their mistaken belief that the machines would answer their purpose.* § 69. In Scott V. Littledale,^ the vendor made a singular mistake. He sold a hundred chests of tea by a wrong sam- ple. A sale by sample imports, as will be seen hereafter, a warranty by the vendor that the bulk equals the sample. On demiirrer to a plea on equitable grounds, setting up this mistake as rendering the contract void for want of mutual assent, the Queen's Bench held that the contract was not void; that if the quality of the bulk was inferior to the sample, the buyer had the right to waive the objection ; and the court said : " Possibly a court of equity might have given the defendant some relief, but it certainly would not have set aside the contract." It is worth observing, that in this case the defendant made no mistake as to the subject-matter of the contract. He sold the very tea, for the very price, and on the very terms which he intended, but he [*60] made * a mistake in giving a warranty that it was of a particular quality. Now a warranty of quality is not an essential element of a sale, but a collateral engage- ment attached to or omitted from it, at the pleasure of the parties.^ The assent to the sale was complete ; the assent to the ivarranty was given by one of the parties under a mistake, and this mistake might or might not give ground for other relief, but could not prevent the contract from coming into existence. § 70. A mistake as to the person with whom the contract is made, may or may not avoid the sale, according to circum- stances.^ In the common case of a trader who sells for cash, * Dounce v. Dow, 64 N. Y. 411 ; i See Leake's Dig. Law of Contr. Hight V. Bacon, 126 Mass. 10 ; s. u. 334. 30 Am. Eep. 639; Deming r. Foster, As to mistaken identity of parties 42 N. H. 165 ; Simcoe Agr. Soc. u. purchasing. — See ante, Material Mis- Wade, 12 Up. Can. Q. B. 614. take, § 61, note 1. In Stoddard i. 1 8 E. & B. 816; 27 L. J. Q. B. Ham, 129 Mass. 383; s. c. 37 Am. 201; Megaw o. Molloy, 2 Ir. L. E. Rep. 369, the court say, that it is an C. P. D. 530. elementary principle in the law gov- 2 Chanter v. Hopkins, 4 M. & W. erning contracts of sale that the 399 ; Mondell v. Steel, 8 M. & W. agreement is to be ascertained ex- 858 ; Foster v. Smith, 18 C. B. 156. clusively from the conduct of the 166 PART I.] MUTUAL ASSENT. ''60 it can make no possible difference to him whether the buyer be Smith or Jones, and a mistake of identity would not prevent the formation of the contract. But where the iden- tity of the person is an important element in the sale, as if it be on credit, where the solvency of the buyer is the chief motive which influences the assent of the vendor ; ^ or when the purchaser buys from one whom he supposes to be his debtor, and against whom he would have the right to set off the price : a mistake as to the person dealt with, prevents the contract from coming into existence for wantof assent.^ parties, and the language used, when it is made as applied to the subject- matter and non-usages. That in the absence of fraud a proposal made by one party, which is accepted by another, in some kind of language intelligible to the other, tliis ends the negotiations and completes the con- tract. A party cannot escape the natural and reasonable interpretation which must be put upon what he says and does, by showing that his words were used and his acts taken with a different and undisclosed intention. Daley v. Carney, 117 Mass. 288; Wright V. Willis, 84 Mass. (2 Allen) 191; Foster v. Ropes, 111 Mass. 10, 16. See, also, Hartford & N. H. R. E. Co. u. Jackson, 24 Conn. 514 ; s. c. 63 Am. Dec. 177 ; Star Glass Co. v. Longley, 64 Ga. 576; Phillips u. Gallant, 62 N. Y. 256 ; Schuohardt v. Aliens, 68 U. S. (1 Wall.) 359; bk. 17, L. ed. 642. 2 Ex parte Barrett, 3 Ch. D. 123. ^ Mistake as to identity of the person selling. — It is a general principle that every man has a right to elect with what parties he will deal (Winches- ter V. Howard, 97 Mass. 303) ; for, as Lord Raymond remarks in Humble V. Hunter, 12 Q. B. 311, every man has a right to the benefit he contem- plates from the character, credit, and substance of the person with whom he contracts. Hence where there is a misrepresentation as to the party dealt with, this will invalidate the contract; and it seems that mistake as to identity of the party dealt with will have the same effect. Thus where an order is sent by n country merchant to a person supposed to be in business, but in consequence of a change the order was executed by another, the party sending the order will not be bound, because he had made no proposal to the party filling the order, and had a right to decide for himself with whom he would deal, (Orcutt V. Nelson, 67 Mass. (1 Gray) 536, 542 ; Boulton v. Jones, 2 Hurls. & N. 564) ; and where A. had bought ice of B., ceased to take it on account of dissatisfaction with B. and con- tracted for ice with C, and subse- quently thereto B. bought C.'s busi- ness and delivered ice to A. under C.'s contract, without notifying him of the change, until after the delivery and consumption of the ice, it was held that B. could not maintain an action against A. for the price of the ice delivered. Boston Ice Co. v. Potter, 123 Mass. 28; s. c. 25 Am. Rep. 9. The court say there is no privity of contract established between plain- tiff and defendant, and without such privity the possession and use of the property will not support an implied assumpsit. Hills v. Snell, 104 Mass. 173, 177 ; s. c. 6 Am. Rep. 216. And no presumption of assent can be im- plied from the reception and use of the ice, because the defendant had no knowledge that it was furnished by 167 *61 FORMATION OF THE CONTRACT. [BOOK I. § 71. In Mitchell v. Lepage,^ in 1816, the defendant sought to escape liability on a purchase of thirty-eight tons of hemp, on the ground that he had not contracted with the plaintiff, but with other persons. The broker gave defendant a bought note stating the vendors to be Todd, Mitchell, and Co. It turned out that, without the broker's knowl- edge, that firm had been dissolved some months before by the withdrawal of two of the partners, and succeeded by the plaintiff's firm of Mitchell, Armistead, and Graabner, the last two taking the place of the withdrawn members of the old firm. Gibbs C. J. told the jury : " I agree with the defendant's counsel that he cannot be prejudiced by the substitution. ... If by this mistake the defendant was induced to think that he had entered into a contract [*61] with * one set of men, and not with any other ; and if, owing to the broker, he has been prejudiced, or excluded from a set-off, it would be a good defence." Ver- dict for plaintiff. § 72. In Boulton v. Jones, ^ the plaintiff had bought out the stock-in-trade and business of one Brocklehurst. The defendant, ignorant of the fact, sent to the shop a written order for goods, addi'essed to Brocklehurst, on the very day of the transfer to the plaintiff, and the latter supplied the goods. The goods Avere consumed by the defendant, he not knoAving that they were supplied by the plaintiff instead of Brocklehurst. When payment of the price was afterwards demanded, the defendant refused, on the ground that he had a set-off against Brocklehurst, and had not contracted with the plaintiff. The Barons of the Exchequer were all of opinion that the action was not maintainable.^ Pollock B., but supposed that he received it would have been implied. Mudge v. under his contract made with C. Win- Oliver, 83 Mass. (1 Allen) 74 ; Orcutt Chester v. Howard, 97 Mass. 303 ; Or- ;;. Nelson, 67 Mass. (1 Gray) 5.36, cutt I.'. Nelson, 67 Mass. (1 Gray) 536, 542; Mitchell u. Lapage, Holt N. P. 542 ; Robinson v. Drummond, 2 Barn. 253. See, also, Clark v. Imlay, 12 N. & Ad. 303; Hardman v. Booth, 1 J. L. (7 Halst.) 119. Hurls. & C. 803 ; Humble o. Hunter, i Holt, X. P. 253. 12 Q. B. 310. But if he had received i 2 H. & N. 564; 27 L. J. Ex. 117. notice of the change and continued ^ Massachusetts doctrine. — Mudge to take ice as delivered, a contract v. Oliver, 83 Mass. (1 Allen) 74. The 168 PART I.j MUTUAL ASSENT. 1^61 C. B. said : " The rule of law is clear, that if you propose to make a contract with A., then B. cannot substitute himself for A. without your consent and to your disadvantage, secur- ing to himself all the benefit of the contract." Martin B. said: "Where the facts prove that the defend- ant meant to contract with A. alone, B. can never force a contract upon him." ^ Supreme Court of Massachusetts held that one who buys goods at a shop which has been occupied by a person who owes him, under the sup- position that he is dealing with his debtor, but is informed before leaving the shop that another person has be- come the owner of the stock of goods there and is selling them on his own account, and makes no objection, but retains the goods, cannot afterwards resist an action for the price, although the vendor acquired them by a con- veyance fraudulent as to the creditors of the original owner, and the pur- chaser was himself a creditor of such original owner. But see Boston Ice Co. V. Potter, 123 Mass. 28 ; s. c. 25 Am. Rep. 9. Leake on Contr. 334. See, also, ante, § 70, note 3. 3 In Clark o. Imlay, 12 N. J. L. ' (7 Halst.) 119, it was held that if A. enters into an agreement with B. to do a certain piece of work, and who pays B. for procuring materials and work- men for building machines (means to accomplish the object), the payment to be made to B. ; and B. purchases the materials of C. in his own name upon credit, and received from A. the money to pay for them, but in- stead of paying for the materials ap- propriates the money to his own use, C. cannot maintain an action against A. to recover the value of the materials sold to B., although they came to A.'s use, because to maintain assumpsit for goods sold and delivered, proof must be made that the goods were actually sold to the defendant or de- livered at his request. In Hills v. Snell, 104 Mass. 173; s. c. 6 Am. Rep. 216, a warehouseman had on stor- age two lots of flour, one belonging to A. and the other to B. A baker ordered a certain quantity of flour from C, and C, to fill the order, bought from A. the required quantity of his flour, who took from him an order on the warehouseman for it. The ware- houseman, by mistake, delivered to C. the specified quantity from B.'s flour. The baker received his flour from C. and consumed it, not knowing, supposing, or believing that it was different from that which he had ordered, and gained no benefit from the mistake. In an action brought by the warehouseman, it was held that the baker was not liable in con- tract for the flour, or any part of its value, nor in tort for its conversion, because where an owner has given to another, or permitted him to have control of his property, no one can be held responsible in tort for its con- version, but merely makes such use of the property, or exercises such dominion over it as is warranted by the authority given. Burbank v. Crocker, 73 Mass. (7 Gray) 158; s. c. 66 Am. Dec. 470; Strickland v. Bar- rett, 37 Mass. (20 Pick.) 415. In Dalton V. Hamilton, 1 Hannay (N. B.) 422, A., a gasfitter, working upon B.'s house, wanting certain articles, gave him a memorandum as follows : " You will require to send to C, No. 19 Union St., Boston, Mass., for the following goods for bathroom (de- scribing the goods) ; (signed) A." B. gave the memorandum to D. who took it to C, and the latter, suppos- ing it to be an order from A. his cus- 169 *62 FOEMATION OF THE CONTBACT. [BOOK I. Bramwell B. said : " It is clear that if the plaintiff were at liberty to sue, it would be a prejudice to defendant, because it would deprive him of a set-off, ■which he would have had if the action had been brought by the party with vs^honi he sup- posed he was dealing. And upon that my judgment proceeds. I do not lay it down, that because a contract was made in one person's name, another person cannot sue upon it, except in cases of agency. But when anj- one makes a contract in which the personality, so to speak, of the particular party contracted with is important for any reason, whether because it is to write a book, or paint a picture, or do any work of personal skill ; or whether because there is a set-off due from that party, no one else is at liberty to step in and maintain that he is the party contracted with ; that he has written the book, or painted the picture, or supplied the goods." Channell B. said: "The case is not one of princi- [*62] pal and * agent; it was a contract made with B., who had transactions with the defendant and owed him money, and upon which A. seeks to sue. Without saying that the plaintiff might not have had a right of action on an implied contract, if tlie goods had been in existence, here the defendant had no notice of the plaintiff's claim until the invoice was sent to him, which was not until after he had consumed the goods, and when he could not, of course, have returned them." * tomer, sent the goods together with 6 Am. Rep. 216), and want of im- the invoice by D. to him. A. repu- plied contract to pay. Winchester diated the contract, B. gave D. the v. Howard, 97 Mass. 303; Orcutt !■. money to pay for the articles, and D. Nelson, 67 Mass. (1 Gray) 536, 542 ; converted it to his own use, in an Hardman v. Booth, 1 Hurls. & C. action brought by C. against B., for 803; Humble o. Hunter, 12 Q. B. the value of the goods, the court held 310 ; Eobson v. Drummond, 2 Barn, that C. waived the tort of D., ratified & Ad. 303. The court say that "to D.'s sale to B., treated D. as his entitle the plaintiff to recover, it must agent, and that payment to D. dis- show some contract with the defend- eharged B. ant. There was no express contract, * See further observations on this and upon the facts stated, no contract case, post, Book III., Ch. 1. is to be implied. There was no priv- See the case of Boston Ice Co. t. ity of contract established between Potter, 123 Mass. 28; s. c. 25 Am. the plaintiff and defendant; and Rep. 9, which was based upon the without such privity the possession ground of want of privity of contract and use of the property will not sup- CHills V. Snell, 104 Mass. 173; b. c. port an imnlied assumpsit. Hills ,■. 170 PART I.] MUTUAL ASSENT. *63 [In the important case of Johnson v. Raylton,^ it was held by the majority of the Court of Appeal that where goods of a particular description are ordered of a manufacturer, who is not otherwise a dealer in them, the contract is to be treated as a personal one, and is not fulfilled by the delivery of goods of the same quality as that contracted for, but made by another firm. The buyer in such a case is assumed to have contracted in reliance upon the reputation of the particular firm with whom he deals. § 73. The principle of Boulton v. Jones has been carried out to its full extent in the case of The Boston Ice Company V. Potter,! before the Supreme Court of Massachusetts, and the fact that the defendant had or had not a right of set-off against the plaintiff's claim, upon which Bramwell B. rested his judgment in Boulton v. Jones, was treated as immaterial. It appeared that the defendant had previously bought ice of the plaintiffs, but, being dissatisfied with them, contracted to buy it from the Citizens' Ice Company. Subsequently the plaintiffs bought up the business of the Citizens' Companj^, and delivered ice to the defendant without notifying to him that they had purchased the business until after the delivery and consumption of the ice. It was held that the plaintiff company could not maintain an action for the price of the ice. It was endeavored to distinguish Boulton v. Jones, upon the ground that there the defendant had a set-off against Brocklehurst, but Endicott J. in giving judgment, said, at p. 31, referring to Boulton v. Jones : " The fact that a defendant in a particular case has a claim in set-off against the orig- inal contracting party, shows clearly the injustice of * forcing another person upon him to execute [*63] Snell, 104 Mass. 173, 177. And no determine the person with whom he presumption of assent can arise from will contract, and cannot have an- tlie reception and use of the ice, other person thrust upon him without because tlie defendant had no knowl- his consent. As he may contract edge that it was furnished by the with whom he pleases, the suflS- plaintiff, but supposed he received it ciency of his reasons for so doing under the contract made with the Citi- cannot be inquired into." zens' Ice Company. Of this change ^ 7 q. b, d. 438, C. A. post. he was entitled to be informed. 1 123 Mass. 28. A party has a right to select and 171 *63 rOEMATION OF THE CONTRACT. [bOOK I. the contract without his consent, against whom his set-off would not be available. But the actual existence of the claim in set-off cannot be a test to determine that there is no implied assumpsit or privity between the parties. Nor can the non-existence of a set-off raise an implied assumpsit. If there is such a set-off, it is sufficient to state that as a reason why the defendant should prevail ; but it by no means follows that, because it does not exist, the plaintiff can maintain his action. The right to maintain an action can never depend upon whether the defendant has or has not a defence to it. . . . It is, therefore, immaterial that the defendant had no claim in set-off against the Citizens' Ice Company." In Ex parte Barnett^ the appellants had executed an order sent to them by an undischarged liquidating debtor, under the mistaken belief that they were dealing with a firm with whom they had had previous business transactions, and whose name resembled that of the liquidating debtor. Held, by the Chief Judge in Bankruptcy, that they were entitled to the goods as against the trustee in the liquidation.] § 74. Where a person passes himself oS for another,^ or falsely represents himself as agent for another, for whom he professes to buy ,2 and thus obtains the vendor's assent to 2 3 Ch. T>. 123. 2 Higgons v. Burton, 26 L. J. Ex. 1 Hardman v. Booth, 1 H. & C. 342. 803; 32 L. J. Ex. 105; Lindsay v. American authorities. — Moody u. Cundy, 3 App. Cas. 459, reported Blake, 117 Mass. 23; s. u. 19 Am. sub nom. Cundy v. Lindsay, S. C. 2 Rep. 394; Dows v. Perrin, 16 N. Y. Q. B. D. 96, C. A. ; and 1 Q. B. D. 325; Dean v. Yates, 22 Oluo St. 388; 348, post, chapter on Fraud. Barker v. Dinsmore, 72 Pa. St. 427 ; Tlie case of Cundy v. Lindley, s. c. 13 Am. Rep. 697 ; Decan 0. L. R. 3 App. Cas. 459; s. c. sub mm. Slupper, 35 Pa. St. 239. Lindsay v. Cundy, L. R. 2 Q. B. Div. False and fraudulent representations 96; Lindsays. Cundy, C. A.; L. R. astoagenci/. — Where one by false and 1 Q. B. Div. .348, follows the case of fraudulent representations that he is Hardman v. Booth, supra. However, acting as agent for another induces where A. sells goods to B., who resells the owner to enter into a contract to C, A. will not been titled to main- for the sale of goods, and afterwards tain trover against C, merely by delivers them to a common carrier, proving that he supposed he was consigned to the firm the party was selling to C, through B. as his agent, supposed to represent, and such party and would not have sold to B. on his afterwards secures the goods from own credit. See Stoddard v. Ham, the common carrier, there is no sale, 129 Mass. 383; s. c. 37 Am. Rep. 369. and a vendee of such fraudulent pur- 172 PART I.J , MUTUAL ASSENT. *64 a sale, and even a delivery of goods, the whole contract is void ; it has never corae into existence, for the vendor never assented to sell to the persons thus deceiving him. The contracts in the cases cited below were held void, on the grovmd of fraud, but they were equally void for mistake, or the absence of the assent necessary to bring them into existence.^ The effect of mistake in preventing the contract from coming into existence, and therefore from being enforced, is the only branch of the subject that appertains to the Formation of the Contract. The effect of mistake on the rights of the parties after the contract has been per- formed * or executed, will be considered, post. Book [*64] III., Ch. 1. Of Mistake and Failure of Consideration. § 75. The assent to a sale may be conditional as well as absolute, and then the formation of the contract is suspended till the condition is accomplished. If A. deliver his horse, on trial, to B., agreeing to take a specified price for him if B. approve him after trial, B. is merely bailee until the condition is accomplished, his assent to become purchaser not having been given when he obtained possession of the horse.^ Cases of sales "on trial," or of goods "to arrive" by a particular vessel, and the bargains known as " sale or return " ^ are all instances where the assent is conditional. Most of the reported cases, however, have arisen out of disputes as to the performance of the conditions, instead of the formation of the contract, and the subject can be more intelligibly treated as a whole. The reader is therefore referred to Ch. 1, of Book IV., Part I., post. chaser will acquire no title. Dean i See Hunt v. Wyman, 100 Mass. V. Yates, 22 Ohio St. 388, 395. Thus 198. a distinction is to be made between ^ For instances of which, see Moss those cases where there was and was v. Sweet, 16 Q. B. 493; Ex parte not a delivery to the fraudulent ven- Wingfield, in re Florence, 10 Ch. D. dee. 591 C. A., where it was held that 3 Barker v. Dinsmore, 62 Pa. St. goods sent to a person " on sale or 427 ; s. c. 13 Am. Rep. 697 ; Decan return " do not pass on his bank- V. Shipper, 35 Pa. St. 239; Moody v. ruptcy under the reputed ownership Blake, 117 Mass. 23 ; Dows v. Perrin, clause. 16 N. Y. 325 ; Dean v. Yates, 22 Ohio St. 388. 173 "65 FORMATION OP THE CONTEACT. [BOOK I. CIVIL LAW. § 76. The principles of the common law upon the subject embraced in this chapter do not in general differ from those recognized in America and in countries governed by the civil law. There is, however, one striking exception. The civil law permits what are termed quasi-contracts, and enforces obliga- tions resulting from them. The negotiorum-gestor, the man who voluntarily assumed to take charge of another's business in his absence, or who, without authority of law, took under his control the person and property of an infant, was held entitled to rights as well as responsible for the obligations resulting from his unauthorized interference. If he spent money usefully in the business thus assumed, he was entitled to recover it back. If he furnished svipplies, he was entitled to charge the price as though a contract of sale had inter- vened. If he paid a debt, he took the creditor's place. [*65] The quasi-contract, in a word, produced the * effect of creating obligations ultro citroque, in the language of the civilians. These principles of the Roman law still prevail unimpaired over Continental Europe, and are found expressly sanctioned in the French Civil Code, articles 1570- 1575. Pothier says that they are founded on natural equity, and bind even infants and insane persons who are incapable of consent. If, in France, a man should repair his absent neighbor's enclosure,^ or furnish food to his cattle, without request, he could maintain an actioii on the quasi-contract implied by the law there. At common law, it need hardly be said that no such action would lie. The count for money paid by the plaintiff for the defendant must aver a request by the defendant, and this request, express or implied, must be proven.^ The principle in our law is invariable that no liability can be established against a man by the mere volun- 1 Pothier, Obi. §§ 114-15. the defendant. Where the request - But now, under the new Rules of is to be implied from the facts and Pleading, a simple averment of the circumstances of the case, those facts request will only sufllce where there and circumstances, so far as material, has been an express request made by must be set forth. R. S. C. 1875, 174 PART I.] MUTUAL ASSENT. *66 tary payment or expenditure of money in his behalf by a third person; that no man can become the creditor of another without the latter's knowledge or assent. It is of course otherwise where the payment is under compulsion or in discharge of a liability imposed on the party paying.3 § 77. The text of the Institutes laying down the princi- ples of the Roman law on this point, was not an innova- tion but a condensation of the numerous texts of the pre- existing law. " Igitur cum quis absentis negotia gesserit, ultro citroque inter eos nascuntur actiones quse appellan- tur negotiorum gestorum. Sed domino quidem rei gestse adversus eum qui gessit, directa competit actio, negotiorum autem gestori, contraria. Quas ex nuUo contractu proprie * nasci manifestum est, quippe ita nascuntur [*66] istffi actiones, si sine mandato quisque alienis nego- tiis gerendis se obtulerit ; ex qu& caus4, ii duorum negotia gesta fuerint, etiam ignorantes obligantur." The equity of the law is then stated as follows : " Idque utilitatis causa receptum est, ne absentium qui subita festinatione coacti, nuUi demandata negotiorum suorum administratione, peregre profecti essent, desererentur negotia, quia sane nemo cura- turus esset, si de eo quod quis impendisset, nuUam habiturus esset actionem."! Our action for money had and received to recover back what has been paid by mistake, is one of those that the Roman lawyers considered as arising quasi-ex- contractu. " Item is cui quis per errorem non debitum sol- vit, quasi ex contractu debere videtur."^ This action was termed condictio indehiti. " Is quoque qui non debitum accepit ab eo qui per errorem solvit, re obligatur ; datur- que agenti contra eum propter repetitionem, condictitia actio." 3 Order XIX. rules 4, 27, and see Bui- Eogers ; England v. Marston, L. R. 1 len & Leake, Free, of Plead, ed. 1882, C. P. 529 ; 35 L. J. C. P. 259. And p. 279. see a very singular case, Johnson v. 8 Stok.es V. Lewis, 1 T. R. 20; Child Royal Mail Steam Packet Co., L. R. V. Morley, 8 T. R. 610; Lord Gallo- 3 C. P. 38. way V. Matthew, 10 East, 264 ; Durn- i Inst. lib. 3, tit. 27, § 1. ford V. Messiter, 5 M. & S. 446 ; 1 = jngt. 3. 27. 6. Wms. Saund. 356, note on Osborne v. ' Inst. 3. 14. 1. 17-5 "67 FOBMATION OF THE OONTEACT. [BOOK I. AMERICAN LAW. § 78. In the text-books in America, there has been a sin- gular and almost unanimous attack upon the authority of Cooke V. Oxley,-'- and Professor Bell, in his " Inquiries into the Contract of Sale," also disapproves it, as contrary to the principles of the civil law and of the law of Scotland.^ This is the more remarkable, as it is hardly contested that the decisions accord, in the United States at least, with the principles established in the English Courts. Mr. Story, in his Treatise on Sales,^ while citing the American authorities,* which are perfectly in accord with the English law on this point, concurs with Professor Bell in the opinion that the rule in Cooke v. Oxley ^ is unjust and inequitable. In his strictures on the decision, he denies that the grant of time to accept the offer is made without [*67] * consideration. He suggests, as one sufficient legal consideration, the expectation or hope that the offer will be accepted. This appears to be more fanciful than seri- ous. The hope of A. that his offer will be accepted if he gives B. time to consider it, is not a consideration moving from B. to A., but is the spontaneous emotion of A. arising out of his own act ; for in the case supposed, B. is bound to nothing, does nothing, gives nothing, promises nothing to raise this hope. The second consideration suggested by Mr. Story is, that "the making of such an offer might betray the other party into a loss of time and money by inducing him to make examination, and to inquire into the value of the goods offered ; and this inconvenience assumed by him is a suffi- cient consideration for the offer." This argument assumes as a fact the exact reverse of the facts alleged in the decla- ration. It takes for granted that "an inconvenience is assumed " by the party to whom the offer is made ; and it is precisely on the absence of this consideration that the decis- ion was put, Buller J. saying : " In order to sustain a promise, 1 3 T. R. 653. Port. (Ala.) 264 ; Faulkner r. Heberd, 2 Bell's Inq. 27. 26 Vt. 452 ; Beokwith < . Cheever, 1 s Story on Sales, § 127. Foster (N. H.) 41. * Eskridge c. Glover, 5 Stew. & ° 3 T. R. 653. 176 PART I.] MTJTTTAL ASSENT. *68 there must be either a damage to the plaintiff, or an advantage to the defendant, but here was neither." § 79. In Kent's Commentaries it is said in the note to p. 478 (12th edition), that the " criticisms which have been made upon the case of Cooke v. Oxley^ are sufficient to destroy its authority." Mr. Duer, in his Treatise on Insur- ance,^ goes still further and says that Cooke v. Oxley decides "that when a bargain has been proposed, and a certain time for closing it has been allowed, there is no contract even when the offer has not been withdrawn, and has been accepted within the limited period ; to constitute a valid agreement, there must be proof that the party making the offer assented to its terms after it was accepted." ^ If this were indeed the decision, nothing could be more surprising than to find it upheld as sound law by a series of eminent English judges. But Cooke v. Oxley has been totally *mis- [*68] 1 " Both parties must be bound in order to make the contract binding upon either, unless time is given by one to the other, in which case, per- haps, he may be bound, altliough the other is not ; at least we should think this reasonable in mercantile contracts, though it was decided otherwise in the case of Cooke v. Oxley, 3 T. R. 653." Cooke V. Oxley is said in Hallock i'. Commercial Ins. Co., 26 N. J. L. (2 Dutch.) 268, 282, to have been effectually overruled by the English courts. This, however, is a mistake, as it seems merely to have been con- sidered in Adams v. Lindsell, 1 Barn. & Aid. 681 ; and discussed in Steven- son V. McLean, L. R. 5 Q. B. Div. 346 ; s. c. 49 L. J. Q. B. 701 ; 42 L. T. 897 ; 28 W. R. 916, without having been directly overruled, and for that reason is still to be regarded as good law in England. In the case of Boston & M. R. R. v. Bartlett, 57 Mass. (3 Cush.) 224, 228, the court say : " The case of Cooke v. Oxley, 3 T. R. 653, in which a different doc- trine was held, has occasioned con- siderable discussion, and in one or two instances has probably influenced the decisions. That case has been supposed to be inaccurately reported ; and that in fact there was in that case no acceptance. But however that may be, if the case has not been directly overruled, it has certainly, in later cases, been entirely disre- garded, and cannot now be considered as of any authority." In McCuUoch V. Eagle Ins. Co., 18 Mass. (1 Pick.) 278, 281, the court say: " Both parties must be bound in order to make the contract binding upon either, unless time is given by one to the other, in which case, perhaps, he may be bound, although the other is not ; at least we should think this reasonable in mercantile contracts, though it was decided otherwise in the case of Cooke u. Oxley, 8 T. R. 653." In this case Cooke v. Oxley is fully com- mented upon and criticised. 2 Vol. i. p. 118. 3 A similar construction to Cooke u. Oxley is given in Leake on Contr. p. 21. 177 *69 FORMATION OP THE CONTRACT. [BOOK I. apprehended by those who have thus criticised it, and there is nothing to warrant the suggestion that it is misreported, or tliat Bayley J. stated it to be misreported in the observations made by him in Humphries v. Carvalho.* It is difficult to see how the case could be misreported, for it was a motion in arrest of judgment, which presents the question exactly as on a general demurrer,^ and was decided on the ground that the declaration, which is copied in the report, showed no cause of action. An examination of it shows that the plaintiff alleged — First, an offer by the defendant to sell at a certain price ; Second, a promise to leave the offer open till four o'clock, if plaintiff would agree to purchase, and ivoidd give notice to the defendant before the hour of four o'clock ; Third, that the plaintiff did agree, and did give notice before four o'clock. There was no allegation that the defendant actually left the offer open till four o'clock, but only that he promised to do so. The plaintiff's action was tested by the Court on two theories — First, that it was for a breach of promise to leave the offer open ; or, secondly, that it was for a breach of a contract, that became complete by the plaintiff's acceptance of an offer that had actually remained open. On the first theory it was held that the declaration was insufficient, because it alleged no consider- ation for the promise. On the second theory, it was held that the declaration was insufficient, because it did not allege that the defendant had actually left the offer open for acceptance as he had promised. The Court did not decide that the contract would not have been completed if the offer, remaining open, had been accepted ; but that nothing showed that the offer was op)en when accepted. Lord Kenyon C. J. construed the declaration as proceeding on the first theory, that is, breach of promise to keep the offer open, and he said that this promise was nudum pactum. BuUer J. took both grounds, saying that the promise in the morning was without consideration ; and that it was not stated that the defendant agreed afterwards, or even that the goods were [*69] kept ; in other words, that the * plaintiff had not * 16 East, 45. 6 Collins V. Gibbs, 2 Burr. 899 ; Bowdell v. Parsons, 10 East, 359. 178 PART I.] MUTUAL ASSENT. *70 alleged a binding legal promise in the morning, nor a complete contract in the afternoon; and Grose J. also said that the defendant was not bound before four o'clock, and it is not stated that they came to a subsequent agreement. That this was really the decision is shown by what was said by Mr. Justice Bayley in Humphries v. Carvalho,^ which is strangely construed by Mr. Duer into an assertion that Cooke V. Oxley was misreported. This is the language : " The question in Cooke v. Oxley arose upon the record, and a writ of error was afterwards brought upon the judgment of this Court, by which it appears that the objection made was, that there was only a proposal of sale by the one party, and no alle- gation that the other party had acceded to the contract of sale." § 80. Both the learned American authors, Mr. Story and Mr. Duer, refer to Adams v. Lindsell,^ as overruling Cooke V. Oxley, the latter writer saying that "its authority is directly overthown" by Adams v. Lindsell. Certainly the King's Bench did not in this last case say a word in dispar- agement of Cooke V. Oxley ; and when this very point was urged by counsel in Routledge v. Grant,^ Best C. J. pointed out that there was no conflict between the cases, for Adams V. Lindsell proceeded expressly on the ground that a treaty by correspondence through the post rested on exceptional principles, because the separation of the parties prevented assent at the same instant, and ex necessitate rei, some point of time must be fixed when the contract should be considered complete ; for otherwise, the interchange of letters would go on ad infinitum. The Court was therefore driven to deter- mine either that no contract was possible by correspondence between distant parties, or to fix some point at which the contract became perfect. The rule adopted was in entire accordance with sound principle, and declared that the offer by letter was a continuing offer in contemplation of law until it reached the other party, so that when an * answer of acceptance was placed in the post, ad- [*70] dressed to the party making the offer, the aggregatio 6 16 East, 45. 1 1 B. & Aid. 681. = 4 Bing. 653. 179 *71 FOEMATION OJF THE CONTEACT. [BOOK I. mentium, the mutual assent was complete. But in Cooke v. Oxley, it did not appear that this mutual assent ever took place. There was no continuing offer till four o'clock, but only a promise to continue it, not binding for want of consid- eration. The Court held that Oxley had a right to retract, up to the moment when Cooke announced his assent to the offer. So the Court would no doubt have held in Adams v. Lindsell, that the latter had a right to retract up to the moment when Adams accepted; but Lindsell's withdrawal of his offer, and resale of the wool, occurred after acceptance, though he was ignorant of the fact of acceptance. In a word, Oxley withdrew his offer before acceptance, Lindsell after acceptance, and the contract was held incomplete in the for- mer case and complete in the latter, both decisions being consistent applications of one and the same principle, namely, that a contract becomes complete only when the mutual assent of the parties concurs at the same moment of time ; and that no number of alternate offers and withdrawals, refusals and acceptances, can ever suffice to conclude a bargain. To these remarks may be added the fact that in 1829 the King's Bench decided Head v. Diggon,^ on the authority of Cooke V. Oxley, without any intimation that it had been over- ruled, and in accordance with the point really decided in that case. (And see ante, p. 45.) § 81. In an American case^ the principle under discussion received a further illustration. The defendant wrote an offer to carry for the plaintiifs " not exceeding 6000 tons gross, in and during the months of April, Maj', June, July, and Au- gust, 1864, upon the terms and for the price hereinafter specified," and on the next day the plaintiffs answered, " We assent to your agreement and will be bovind by its terms." Held to be no binding contract, because the plaintiffs were not bound to furnish anything for carriage ; that the [*71] offer * was a mere promise of an option to them, for which promise no consideration was given, and that S3M. &R. 97. 240; and see Great Northern Rail- 1 Chicago and Great Eastern Rail- way Co. v. Witham, L. R. 9 C. P. 16, way Co. V. Dana, 43 N. Y. (4 Hand) ante, p. 47. 180 PART I.j MUTUAL ASSENT. *71 the defendant had the right to withdraw from his offer at any- time before such an acceptance as imposed some obligation on the company as a consideration ; the acceptance would have been good, if the company had agreed to furnish any specified quantity not exceeding the 6000 tons, but not otherwise, because the defendant could not be bound while the plaintiffs were left free. § 82. On the questions of the mode of completing a bar- gain by correspondence, the American authorities are not only in accordance with the decisions of our own courts, but they have gone further, and covered the point left undecided in Adams v. Lindsell, though included in the dicta} In Mac tier's Adm's v. Frith,^ the Court of Errors of New York decided, after a full review of the authorities, that where the dealing is by correspondence, " the acceptance of a written offer of a contract of sale consummates the bargain, provided the offer is standing at the time of the acceptance." The point was still left open as to the effect of a revoca- tion of the offer not communicated to the party accepting at the time of acceptance. § 83. In the more recent case of Tayloe v. Merchants' Fire Insurance Company ^ the Supreme Court of the United States has closed this last point in America, by holding that under such circumstances, " an offer prescribing the terms of insur- ance is intended and is to be deemed a valid undertaking by 1 Falls V. Gaither, 9 Port. (Ala.) J. L. (2 Dutch.) 268 ; Potts v. White- 613: Averill v. Hedge, 12 Conn. 436; head, 20 N. J. Eq. (5 C. E. Gr.) 55; Bryant v. Booze, 55 Ga. 438; Levy s. c. 23 N. J. Eq. (8 C. E. Gr.) 512; V. Cohen, 4 Ga. 1 ; Maclay v. Harvey, Hamilton v. Lycoming Mut. Ins. Co., eo 111. 525; s. c. 32 Am. Rep. 35; 5 Pa. St. 339; The Palo Alto, Davies Chiles V. Nelson, 7 Dana (Ky.) 282 ; (2 Ware) C. C. 343 ; In re Imperial Hutcheson c. Blakeman, 3 Met. Land Co. of Marseilles, Townsend's (Ky.) 80; Abbott v. Shepard, 48 Case, L. E. 13 Eq. 148 ; Hebb's Case, N. H. 14 ; Batterman v. Morford, 76 L. R. 4 Eq. 9 ; Stocken v. Collin, 7 N. Y. 622 ; Trevor v. Wood, 36 N. Y. Mees. & W. 515. 307; Myers v. Smith, 48 Barb. (N. Y.) ^ 6 Wendell (N. Y.) 104; Batter- 614 ; Clark v. Dales, 20 Barb. (N. Y.) man v. Morford, 76 N. Y. 622. 42 ; Vassar v. Camp, 14 Barb. (N. Y.) i 50 U. S. (9 How.) 390 ; bk. 13, L. 342; s. c. 11 N. Y. 441; Brisban v. ed. 187; approved by Lindley J. in Boyd, 4 Paige Ch. (N. Y.) 17 ; Hal- Byrne v. Van Tienhoven, 5 C. P. D. lock V. Commercial Ins. Co., 26 N. 344, 347. 181 *72 POEMATION OF THE CONTEACT. [BOOK I. the company that they will be bound according to the terms tendered, if an answer is transmitted in due course of mail, accepting them ; and that it cannot he withdrawn unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the accepitance has been transmitted." Although this decision was given on an insurance contract, the reasoning of the court was quite applicable to all [*72] other bargains between parties. Nelson J. * who delivered the opinion, said : " On the acceptance of the terms proposed, transmitted in due course of mail to the company, the minds of both parties have met on the subject, in the mode contemp>lated at the time of entering upon the nego- tiation, and the contract becomes complete. The party to whom the proposal is addressed, has a right to regard it as a continuing offer until it shall have reached him, and shall be in due time accepted or rejected. Such is the plain import of the offer. And besides, upon any other view, the proposal amounts to nothing, as the acceptance would be but the adop- tion of the terms tendered, to be in turn proposed by the applicant to the company for their approval or rejection. For, if the contract is still open until the company is advised of an acceptance, it follows of course that the acceptance may be repudiated at any time before the notice is received. Nothing is effectually accomjjlished by an act of acceptance. It is apparent, therefore, that such an interpretation of the acts of the parties would defeat the object ivhich both had in vieiv in entering upon the correspiondence. . . . " The fallac}' of the opposite argument, in our judgment consists in the assumption that the contract cannot be con- summated without a Icnoivledge on the part of the company that the offer has been accepted. . . . But a little reflef- tion will show that in all cases of contracts entered into between parties at a distance by correspondence, it is impos- sible that both should have a knowledge of it the moment it becomes complete. . . . The negotiation being carried on through the mail, the offer and acceptance cannot occur at the same moment of time ; nor for the same reason can the meeting of the minds of the parties on the subject be known by each at the moment of concurrence. The accept- 182 PAET I.] JirTUAL ASSENT. *73 ance must succeed the offer after the lapse of some interval of time, and if the process is to be carried further, in order to complete the bargain, and notice of the acceptance must be received, the only effect is to reverse the position of the parties, changing the knowledge of the completion from one party to the other." ^ § 84. The civilians do not accord with these views. Pothier *says: " If I write to a merchant of Leghorn [*73] a letter, in which I propose to purchase of him a cer- tain quantity of merchandise at a certain price, and before my letter can have reached him I write a second letter with- 2 The case of Tayloe v. Merchants' Fire Ins. Co., of Baltimore, cited in the text, has been referred to as authority as to when contracts by correspondence are completed. Utley V. Donaldson, 94 U. S. (4 Otto) 45; bk. 24, L. ed. 24, 54; In re Dodge, 17 Bank Reg. 506; s. ^. 9 Ben. C. C. 482 ; Winterport Granite &c. Co. v. The Jasper, 1 Holmes, C. C. 102; Northern Mut. Life Ins. Co. v. Elliott, 7 Sawy. C. C. 17, 21; s. c. 5 Fed. Rep. 229. In Utely v. Donald- son, 94 U. S. (4 Otto) 45; bk. 24, L. ed. 24, 54, it was held that telegraphic despatches may constitute a complete contract. This was a case where the defendants made a proposition by telegraph to sell bonds, which propo- sition was accepted by telegraph ; after sending their despatch the de- fendants wrote a letter, in which they qualified the proposition sent by tele- graph. The court held that the de- fendant sold the bonds absolutely by the despatch, and that if they in- tended to qualify it they should have done so in the despatch. In McCulloch ;■. Eagle Ins. Co., 18 Mass. (1 Pick.) 278, 281, the plaintiff wrote by mail to the defend- ants inquiring on what terms they would insure his ressel. On the 1st of January the defendant wrote that they would insure at a certain rate. On the 2d they wrote another letter retracting their offer made in the first letter; the plaintiff, before he received the last letter, put into the post-oflfice an answer to the defend- ant's first letter, accepting the terms proposed. The court held that there was no contract. But the great weight of authority hold in accord- ance with Tayloe c. Merchants' Fire Ins. Co., that the contract is con- summated and becomes binding on despatching the letter of acceptance, where not otherwise specified in the offer. See Falls v. Gaither, 9 Port. (Ala.) 605; Averill v. Hedge, 12 Conn. 424, 436 ; Levy v. Cohen, 4 Ga. 1 ; Chiles v. Nelson, 7 Dana (Ky.) 281; Thayer v. Middlesex Mut. Ins. Co., 28 Mass. (10 Pick.) 326; s. c. 1 Duer, Mar. Ins. 68, 121, 127, 129; Beckwith i-. Cheever, 21 N. H. (1 Post.) 41 ; Brisban v. Boyd, 4 Paige, Ch. (N. Y.) 20; Mactier v. Frith, 6 Wend. (N. Y.) 104; s. c. 21 Am. Dec. 262 ; Hamilton v. Lycoming Ins. Co., 5 Pa. St. 339 ; Eliason f. Hen- shaw, 17 U. S. (4 Wheat.) 225; bk. 4, L. ed. 556; Adams i'. Lindsell, 1 Barn. & Aid. 601 ; Eyles v. Ellis, 4 Bing. 112 ; Routledge v. Grant, 3 Carr. & P. 267 ; Duncan v. Topham, 3 C. B. 225; Humphries c-. Carvalho, 16 East, 45; Kufh v. Weston, 3 Esp. 54; Potter r. Sanders, 6 Hare, 1 ; Dunlop V. Higgins, 12 Jur. 295 ; s. c. 1 II. L. Cas. 381 ; Head v. Diggon, 3 Man. & R. 97 ; Stocken v. Collin, 7 Jlees. & W. 515 ; Cooke v. Oxley, 3 T. R. 653. 183 *74 FOEMATION OP THE CONTKACT. [BOOK I. drawing my proposal, although the merchant of Leghorn, in ignorance of the change of my intentions, answers that he accepts the proposed bargain, yet there is no contract of sale between us ; for my intention not having continued until the time at which my letter was received, and my proposal ac- cepted, the assent or concurrence of our wills necessary to form a contract of sale has not occurred. It must be observed, however, that if my letter causes the merchant to be at any expense in proceeding to execute the contract proposed, or if it occasion him any loss, as, for example, if in the intermedi- ate time between the receipt of my first and that of my second letter, the price of the merchandise falls, and my first letter has made liim miss the opportunity to sell it before the fall of the price ; in all these cases I am bound to indemnify him, unless I prefer to agree to the bargain as proposed by my first letter. This obligation results from that rule of equity that no person shall suffer for the act of another: Nemo ex alterius facto prwgravari debet. I ought, therefore, to indemnify him for the expense and loss which I occasion by making him a proposition which I afterwards refused to execute. For the same reason, if the merchant, on the receipt of my first letter, and before receiving the second, which contains a revocation of it, ships for my account and forwards the merchandise, though in that case there has not properly been a contract of sale between us, yet he will have a right to compel me to execute the proposed contract, not in virtue of any contract of sale, but of my obligation to indemnify him, which results from the rule of equity above mentioned.^ § 85. It is impossible to read the reasoning of this emi- nent jurist in the passages just cited, without feeling that it fails to meet the difficulties of the case. He [*74] places the proposer in the * instances suggested under all, and more than all, the obligations of a purchaser, while insisting that he has made no purchase. The ground suggested, that it is the act of the proposer 1 Pothier, Contrat de Vente, No. C. P. D. 344, where Pothier's opinion 32, and see the judgment of Lindley is stated not to be in accordance with J. in Byrne v. Tienhoven, L. R. 5 English law. 184 PART I.] MUTUAL ASSENT. *75 which causes damage to the other, and thus imposes an equitable obligation to repair that damage, is a petitio prin- cipii. Ex hypothesi, the party receiying the offer knows that it may legally be retracted by a second letter despatched to him before his acceptance, and he accepts subject to this risk. If, therefore, before waiting the time necessary to learn whether the offer had been actually retracted at the date of his acceptance, he incurs expense or loss in a pre- mature attempt to execute a non-existent contract, surely it is his own precipitancy, and not his correspondent's conduct, which is the real cause of the damage. So, too, if there be a fall in the market, on what ground is he entitled to make his correspondent suffer the loss, when plainly in the con- trary event the profit would accrue to himself ? To make a mere negotiation not resulting in a bargain operate so as to place the proposer in duriori casu than he would be if bound by a perfect contract; to render him liable for a fall in the market without the correlative chance of profit from a rise, is a proceeding which fails to awaken a response from that sense of equity to which Pothier appeals ; and notwith- standing the imposing authority of his name, it may be doubted whether the doctrine thus propounded would stand the test of discussion at the bar of a tribunal gov- erned even by the civil law.^ § 86. Both the common and the civil law, however, con- cur in relation to the case where an order for purchase or sale is transmitted by correspondence to an agent of the writer. If A., in Liverpool, order his correspondent, B., in New York, to purchase a cargo of flour for account of A., and B. execute the order before receiving a countermand, A. remains bound, even though he may have posted the countermand before the execution of the order. The civil law is express on this point : " Si mandassem tibi ut fundvm emeres, jjostea seripsissem * ne emeres, tu [*75] antequam scias me vetuisse, e^nisses, mandati tibi obli- gatus ero, ne damno afficiatur is qui mandatum suscepit." 1 Mr. Story is of a contrary opin- far the fairest and most intelligible ion, and lauds this doctrine as "by rule that can be found." § 130, note. 185 •75 FOEMATION OF THE CONTRACT. [book I. Dig. L. 17, tit. 1, § 15. The contract here is one of agency, not of sale, and is governed by totally different principles ; for in agencies, a revocation of authority by the principal cannot take effect till it reaches the agent.^ § 87. But although this is a different contract, the anal- ogy is very strong between it and a bargain and sale by correspondence. If A. send an agent to B. with a proposal for sale, even the civilians admit that A. cannot revoke the authority of the agent to make the offer until the revocation reaches him. So that if A. despatched C. with an order recalling the authority, even before the agent had made the offer, A. would still remain bound by a bargain made before C.'s arrival with the countermand. Why should there be any difference when the proposer sends his proposal by the public post, which he authorizes to deliver it? A., by send- ing a letter from London, addressed to B. in Manchester, 1 Story on Agency, § 470 (9th ed.). Per Bayley J. in Salte v. Field, 5 T. R. 215; Kerr v. Lefierly, 7 Grant (Ont.) 412. As to revocation of agency. — See ante, Eevocation. Revocation of authority of agent.- — The rerocation of an agent's author- ity becomes operative as to the agent, from the time it is actually made known to him ; if the revocation is by letter, it becomes operative from the time the letter is received, and not from the date when it was mailed. Robertson v. Cloud, 47 Miss. 208. As to third person, the revocation of the agency takes effect from the date when it is made known to them ; until made known it is inoperative, and his acts will bind both the prin- cipal and himself. See Fellows r. Hartford & N. Y. Savings Boat Co., 38 Conn. 197 ; Beard v. Kirk, 11 N. H. 397 ; Davis v. Lane, 10 N. H. 160 ; See, also, Morgan v. Stell, 5 Binn. (Pa.) 395 ; Bowerbank i-. Morris, 1 Wall. C. C. 119; Anon. v. Harrison, 12 Mod. 346 ; Hazard r. Treadwell, 1 Str. 507. As to revocation by death of the principal, see ante, " Revoca- tion of Agency." Revocation of agency by the death of the principal operates instantly at com- mon law. See Campbell D. Anderson, 4 Bligh, 513; Watson v. King, 4 Campb. 272 ; Smart v. Sanders, 5 C. B. 895, 917; s. c. 57 Eng. C. L. 916; Webb i: Kirby, 7 De G. M. & G. 378 ; Jaques e'. Worthington, 7 Up. Can. Ch. (Grant) 192, 196; Bayley V. CoUett, 18 Ves. 179; Shipman v. Thompson, Willes, 103. By the civil law and the French law, however, a sale by factor or an agent, after the death of the principal, but before notice, is binding. Dig. Lib. 17, tit. 1, 1. 26, sec. 1 ; ib. Lib. 17, tit. 1, 1. 68 ; Pothier, Traite du Contract de Charge, no. 168 ; Code civil des Fran- cais, no. 2008; and this is true, al- though the act was appointed to be done after the death of the principal. See Wallace v. Cook, 5 Esp. N. P. C. 117; Snaith v. Mingay, 1 Maule & S. 87; Robey v. Twelves, Stiles, 424; Salte 1-. Field, 5 T. R. 211 ; Wynne o. Thomas, Willes, 505. 186 PART I.] MUTUAL ASSENT. *76 really gives to the public post authority to hand to B. a written offer, and to receive an answer in behalf of A. Even on the doctrines of the civil law, it would seem to be permis- sible under such circumstance to hold that A.'s revocation comes too late, if it only arrives after the completion of the bargain thus authorized to be made in his behalf. In reality the true theory of the case seems to be that an offer sent by mail is an authority to the party to whom it is sent to bind the * sender by acceptance, and includes an [*76] implied promise that no revocation is to take effect till received by the agent. § 88. The cases that arise in attempts to contract by correspondence present at times very singular complexity. In Dunmore v. Alexander, the party to whom the proposal was made wrote and posted a letter of acceptance ; and then wrote and posted a letter recalling the acceptance, and both letters reached the proposer at the same time. The majority of the Court of Sessions in Scotland held that there was no contract, reversing the judgment of the lower Court ; and a very similar case is cited by Merlin, Repert. tit. Vente, sec. 1, art. 3, no. 11, where an offer was sent by letter to buy goods on certain conditions. The offer was accepted by letter, but by a subsequent letter the unconditional acceptance was recalled, the writer proposing some modifications in the con- ditions. Both letters reached the original proposer together, and he declined to execute the contract. It was held that the proposer could not be forced to perform the bargain, the second answer to his proposal authorizing him to consider the acceptance as withdrawn.^ § 89. In the case of McCulloch v. The Eagle Insurance Company,! j^ wrote to ask B. on what terms he would insure 1 9 Shaw & Dunlop, 190. See ante, N. J. L. (2 Dutch.) 268, 283, that p. 53. See Finucane's Case, 17 W. R. McCulloch v. Eagle Ins. Co. "is 813; In re Constantinople & Alexan- againstthe whole current of authority, dria Hotels Co., Eeidpath's Case, L. both in England and this country," R. 11 Eq. 80. but It is intimated in Lewis v. Brown- 1 Massachusetts doctrine. — The Su- ing, 130 Mass. 175, that the doctrine preme Court of New Jersey say in laid down in that case will be followed Hallock I. Commercial Ins. Co., 26 in Massachusetts whenever a, case 187 *76 FORMATION OF THE CONTRACT. [BOOK I. a vessel. B. wrote on the 1st of January that he would insure at a specified rate, and on the 2d of January wrote a letter retracting his offer. A. had written an acceptance of the offer before receiving the second letter, hut after B. had posted the second letter, and it was held that there was no contract ; but this case is disapproved by the American text- writers, and is in conflict with the decision of the Supreme Court of the United States in Tayloe v. Merchants' Fire Insurance Company, cited ante, p. 71. arises for its application. A contrary Dutch.) 268 ; Vassar v. Camp, 14 doctrine prevails in England. See Barb. (N. Y.) 341; Mactier v. Frith, Byrne v. Van Tienhoven, L. E. 5 C. 6 Wend. (N. Y.) 118 ; ». c. 21 Am. P. Div. 344 ; Stevenson v. McLean, Dec. 262 ; Hamilton v. Lycoming L. R. 5 Q. B. Div. 346. Mut. Ins. Co., 5 Pa. St. 339 ; Tayloe Mailing a letter, it would seem, is v. Merchants' Fire Ins. Co., 50 U. S. generally recognized as such an overt (9 How.) 390, 400; bk. 13, L. ed. 187, act as closes the contract and binds 191 ; Adams v. Lindsell, 1 Barn. & the parties. See Kentucky Mut. Ins. Aid. 681 ; Duncan v. Topham, 8 C. B. Co. u. Jenks, 5 Ind. 96; Hallock v. 225; Dunlop v. Higgins, 1 H. L. C. Commercial Ins. Co., 26 N. J. L. (2 381 ; Potter v. Saunders, 6 Hare Ch. 1. 188 PAKT I.J OF THE THING SOLD, *77 * CHAPTER IV. or THE THING SOLD. [*77] Sale of a thing which has ceased to exist 77 Sale of a thing not yet existing, or not yet acquired by vendor, 78 In America, executory agree- ment becomes executed as soon as vendor acquires title . . 81 Sale of a hope dependent on a chance 81 Venditi spei 81 § 90. As there can be no sale without a thing transferred to the purchaser in consideration of the price received, it follows, that if at the time of the contract the thing has ceased to exist, the sale is void.^ * Accidental destruction of the thing sold. — Where a contract is made for the sale or delivery of a specified arti- cle of personal property, under circum- stances that the title does not vest in the vendee if the property is destroyed by accident without the fault of the vendor, so that delivery becomes im- possible, the latter is not liable to the vendee in damages for the non-de- livery. Dexter v. Norton, 47 N. Y. 62, 64 ; s. c. 7 Am. Hep. 415.; Har- mony V. Bingham, 12 N. Y. 99 ; s. c. 62 Am. Rep. 142 ; Taylor v. Caldwell, 3 Best & S. 826 ; s. c. 113 Eng. C. L. 826; Eugg v. Minett, 11 East, 210; Clark V. Glasgow Assurance Co., 1 McQ. H. L. Cas. 668. Thus where A. agreed with B. to give him the use of a music hall on certain specified days, for the purpose of holding con- certs, with no express stipulation, for the event of the destruction of the music hall by fire or otherwise, and it was destroyed before the time ar- rived, it was held that both parties were excused from the performance of the contract. Taylor v. Caldwell, 3 Best & S. 826; s. c. 113 Eng. C. L. 824; 32 L. J. C. L. 164; 8 L. T. 356 ; 11 W. E. 726. In Young v. Bruce, it was held that where a person hires a slave, and guarantees for his return at the end of a year, if the slave, without any fault of the hirer, dies within that time, he will be excused from his return. See Harris v. Nichols, 5 Munf. (Va.) 483. And where property taken by force or by right of replevin, as a living ani- mal, and there was a judgment of returno habendo in an action on the re- plevin, bound for breach of this condi- tion, it was held a good plea in bar, that before the judgment in the re- plevin suit, the animal died, without the fault of the plaintiff in such suit. School District No. 1 v. Dauchy, 25 Conn. 530; s. c. 68 Am. Dec. 371; School Trustee of Trenton o. Ben- nett, 27 N. J. L. (3 Dutch.) 514; People V. Manning, 8 Cow. (N. Y.) 297 ; s. u. 18 Am. Dec. 451 ; Carpen- ter V. Stevens, 12 Wend. (N. Y.) 589. The court held that an act of God will excuse the non-performance of a duty created by law, but not of one created by contract. In a case where 189 *78 FORMATION OF THE CONTRACT. [book I. In Strickland v. Turner,^ a sale was made of an annuity dependent upon a life. It was afterwards ascertained that the life had already expired at the date of the contract, and not only was the sale held void, but assumpsit by the pur- chaser to recover back the price paid as money had and received was maintained. In Hastie v. Couturier,^ a cargo of corn, loaded on a vessel not yet arrived, was sold on the 15th of JIay. It was after- wards discovered that the corn having become heated had been discharged l)y the master at an intermediate port, and sold on the 21st of the preceding month of April : held, that the sale of the 15th of May was properly repudiated by the purchaser. § 91. These cases are sometimes treated in the decisions as dependent on an implied warranty by the vendor of the existence of the thing sold: and sometimes on the [*78] want of * consideration for the purchaser's agree- A. had undertaken to erect a school- house, and have it completed by the 1st of May, and on the 27th of April it was struck by lightning and burned down ; he was held liable in damages for the non-performance of the con- tract. This was a hardship, but in accordance with that general rule, that where a person absolutely con- tracts to do a certain thing not im- possible or unlawful at the time, he will not be excused from the obligation of the contract, unless the performance is prevented by the other party, or made unlawful by statutory enact- ment, in such case, neither inevitable accident, nor those events termed acts of God, will excuse him, for the reason that he might have provided against it by his contract. See Adams V. Nichols, 36 Mass. (19 Pick.) 275 s. c. 31 Am. Dec. 137 ; Dexter v. Nor- ton, 47 N. Y. 62, 64 ; s. c. 7 Am. Rep 415 ; Tompkins c. Dudley, 25 N. Y. 272 ; Harmony v. Bingham, 12 N. Y, 99,102; s.c. 62 Am. Dec. 142; Beebe I. Johnson, 19 Wend. (N. Y.) 500 s, c. 32 Am. Dec. 518 ; Hand v. Baynes, 4 Whart. (Pa.) 204 ; s. c. 33 Am. Dec. 54 ; Paradine v. Jane, Aleyn, 27 ; Shu- brick V. Salmond, 3 Burr. 1637 ; Had- ley V. Clarke, 8 T. R. 259. But it is not essential to the own- ership of personal property and the consequent right of its disposition that the owner should have manual possession of the property at the time of sale ; because a manual transfer is not requisite to a sale of personal property at common law [_vide ante, p. 3, § 1, note 4] ; the only essentials, aside from the requirements of the Statute of Frauds, being mutual as- sent of parties, an object, and a price, either in money or other property. Nance v. Metcalf, 1 Mo. App. 183 ; s. c. 1 West. Rep. 441 ; vide ante, p. 3, § 1, note 3. 2 7 Ex. 208. See, also, Cochrane V. Willis, 1 Ch. 58 ; 35 L. J. Ch. 36 ; Smith 0. Myers, L. R. 5 Q. B. 429 ; 7 Q. B. 139, in error. 3 9 Ex, 102, and 5 H. L, C. 673, reversing the judgment in 8 Ex. 40. See, also, Barr v. Gibson, 3 M. & W. 390. 190 PART I.j OP THE THING SOLD. *78 ment to pay th'e price. Another, and perhaps the true ground, is rather that there has been no contract at all, for the assent of the parties being founded on a mutual mistake of fact, was really no assent, there was no subject-matter for a contract, and the contract- was therefore never completed.^ This was the principle applied by Lord Kenyon in a case where the leasehold interest which the buyer agreed to pur- chase, turned out to be for six years instead of eight and a half, and where he held the contract void, as founded on a mis- take in the thing sold, the buyer never having agreed to pur- chase a less term than offered by the vendor.^ This is also the opinion of the civilians. Pothier ^ says that : " There must be a thing sold, which forms the subject of the contract. If then, ignorant of the death of my horse, I sell it, there is no sale for want of a thing sold. For the same reason, if when we are together in Paris, I sell you my house at Orleans, both being ignorant that it has been wholly, or in great part, burnt down, the contract is null because the house, which was the subject of it, did not exist : the site and what is left of the house are not the subject of our bargain, but only the re- mainder of it." And the French Civil Code, art. 1109, is in these words, " There is no valid assent, where assent has been given hy mistake, extorted by violence, or surprised by fraud." § 92. In relation to things not yet in existence, or not yet belonging to the vendor, the law considers them as divided into two clases, one of which may be sold, while the other can only be the subject of an agreement to sell, of an executory contract. Things not yet existing which may be sold, are those which are said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor.^ A man may 1 Rice V. Dwight Manuf. Co., 56 ' Contrat de Vente, No. 4. Mass. (2 Cush.) 80, 86 ; Thompson i See Heald v. Builders' Ins. Co., 0. Gould, 37 Mass. (20 Pick.) 139; 111 Mass. 33; Lewis v. Lyman, 39 Allen i: Hammond, 36 U. S. (11 Pet.) Mass. (22 Pick.) 437, 442, 443 ; Smith 63; bk. 9, L. ed. 633; Hitchcock c. v. Atkins, 18 Vt. 461. Giddings, 4 Price, 135; Farrer v. In ventre sa mere. — A valid sale Nightingale, 2 Esp. 639. may be made of the wine a vinej-ard 2 Farrar v. Nightingale, 2 Esp. 139. is expected to produce and grain a 191 "78 FOKMATION OF THE CONTRACT. [book I. sell the crop of hay to be grown on his field,^ the wool to be clipped from his sheep at a future time, the milk that field is expected to grow, and milk the cow may yield, for the future young born of an animal. Screws v. Roach, 22 Ala. 672 ; Hull v. Hull, 48 Conn. 250, 256; s. c. 40 Am. Eep. 165; Sawyer v. Gerrish, 70 Me. 254; s. u. 35 Am. Rep. 323; Pettis v. Kel- logg, 61 Mass. (7 Cush.) 456; Walker V. Russell, 34 Mass. (17 Pick.) 280; Glover v. Austin, 23 Mass. (6 Pick.) 209; Butterfleld c. Baker, 22 Mass. (5 Pick.) 522 ; Bigelow v. Wilson, 18 Mass. (1 Pick.) 493 ; Carter v. Jarris, 9 Johns. (N. Y.) 143; Fonville v. Casey, 1 Murph. (N. C.) 389; s. c. 4 Am. Dec. 559; McCarty v. Blerins, 5 Yerg. (Tenn.) 195 ; s. c. 26 Am. Dec. 262; Smith v. Atkins, 18 Vt. 461; Fowler v. Merrill, 52 U. S. (11 How.) 375 ; bk. 13, L. ed. 736 ; Mitchell v. Winslow, 2 Story C. C. 638 ; Leslie v. Guthrie, 1 Bing. N. C. 697 ; Couturier V. Hastie, 16 Bug. L. &. Eq. 562; Strickland v. Turner, 14 Eng. L. & Eq. 471 ; Congreve t. Everetts, 10 Ex. 208 ; s. c. 26 Eng. L. & Eq. 493 ; Langton u. Horton, 1 Hare, 549; Grantham v. Hawley, Hob. 132 ; Curtis V. Amber, 1 Jac. & W. 526 ; Wood v. Foster, 1 Leon. 42 ; Robinson u. McDonell, 5 Maule & S. 226; 2 Kent Com. 468. But a mere contingent possibility not coupled with an inter- est is not subject of sale. Mitchel v. Winslow, 2 Story C. C. 630, 638; Lunn V. Thornton, 1 C. B. 379 ; Lang- ton V. Horton, 1 Hare, 549, 556; Grantham v. Hawley, Hob. 132 ; Belding v. Read, .3 Hurls. & C. 955, 961 ; Robinson v. McDonell, 5 Maule & S. 229; Carleton v. Leighton, 3 Meriv. 667. 2 A man may sell a crop of grain to be delivered in the future, although the crop has not as yet been planted, provided he owns or has leased the ground wherein it is to be planted. See Hurst 7'. Bell, 72 Ala. 336; Wil- kinson V, Ketler, 69 Ala. 435 ; Arques r. Wasson, 51 Cal. 620; Stephens v. Tucker, 55 Ga. 543 ; Gittings ,,. Nel- son, 86 111. 591 ; Sanborn v. Benedict, 78 111. 309; Hansen v. Dennison, 7 111. App. 73 ; Hendrick o. Brattain, 63 Ind. 438; Heald v. Builders' Ins. Co., Ill Mass. 38; Rowlings r. Hunt, 9 N. C. 270; Cotten u. Willoughby, 83 N. C. 75; Andrew v. Newcomb,32 N. Y. 417; Conderman u. Smith, 41 Barb. (N. Y.) 404; Van Hoozer v. Cory, 34 Barb. (N. Y.) 19; Parker v. Jacobs, 14 S.C. 112; Moore u. Byrum, 10 S. C. 452; Watkins v. Wyatt, 9 Baxt. (Tenn.) 250 ; Bellows v. Wells, 36 Vt. 59; Smith v. Atkins, 18 Vt. 461 ; Butt V. Ellett, 86 U. S. (19 Wall.) 544 ; bk. 22, L. ed. 183. But see Col- lier V. Faulk, 69 Ala. 58; Reed v. Burrus, 58 Ga. 574; Gittings v. Nel- son, 86 111. 591 ; Hutchinson v. Ford, 9 Bush (Ky.) 318; Milliman v. Neher, 20 Barb. (N. Y. ) 38 ; Comstock r. Scales, 7 Wis. 159. Thus in Conderman v. Smith, 41 Barb. (N. Y.) 404, a mortgage of butter and cheese " to be made this season " was held to be valid, the mort- gagor being the owner of the cows from which the butter and cheese is to be made at the time the mortgage is executed. The owner of land may contract for its cultivation and pro- vide that the title to the crops raised shall vest in himself. Andrew u. Newcomb, 32 N. Y. 417. See Touner V. Hills, 48 N. Y. 662 ; Von Hooyer V. Cory, 34 Barb. 9. And in Heald V. Builders' Mut. Fire Ins. Co., Ill Mass. 38, where the tenant agreed not to sell the hay, but to feed it all on the farm, the contract was sus- tained and the tenant held to have no title to the hay. In Gitting i-. Nelson, 86 111. 591, however, where a tenant agreed, before a crop was planted, to give the landlords a lien upon it for the rent of their property, the contract was held invalid. 192 PAE"!? I.j OF THE THING SOLD. *79 Ms cows will yield * in the coming month,^ and the [*79] sale is valid.* But he can only make a valid agree- ment to sell, not an actual sale, where the subject of the con- ' 14 Viner's Ab. tit. Grant, p. 50 ; Shep. Touch. Grant. 241 ; Perk. § 65, 90 ; Grantham v. Hawley, Hob. 132 ; Wood and Foster's Case, 1 Leon. 42 ; Robinson v. Macdonnel, 5 M. & S. 228 ; see Sanborn v. Benedict, 78 III. 309. 4 See Low v. Pew, 108 Mass. 350; s. c. 11 Am. Rep. 357. An assignment of goods at sea ia valid and passes title to their pro- ceeds. Hodges V. Harris, 23 Mass. (6 Pick.) 360. See Gardner v. How- land, 19 Mass. (2 Pick.) 599; Bed- lam V. Tucker, 18 Mass. (1 Pick.) 389; De "Wolf v. Harris, 4 Mason C. C. 515; Howland v. Harris, 4 Mason C. C. 497; Brown u. Heath- cote, 1 Atk. 160; Lempriere v. Pas- ley, 2 T. R. 485; Caldwell o. Ball, 1 T. R. 205. The court say: "The transfer of an invoice of an outward bound cargo, after the sailing of the vessel operates upon the proceeds, so as to make them the property of the purchaser." The sale of an outward bound vessel or cargo passes title to the proceeds, whether they be money or goods. Pratt v. Parkham, 41 Mass. (24 Pick.) 42 ; Hodges o. Harris, 23 Mass. (6 Pick.) 360 ; Gardner v. How- land, 19 Mass. (2 Pick.) 599 ; Bedlam V. Tucker, 18 Mass. (1 Pick.) 389; Lamb v. Durant, 12 Mass. 54 ; s. c. 7 Am. Dec. 31 ; Putnam v. Dutch, 8 Mass. 287. In several cases the court have gone so far as to hold that where it is not in the power of the vendor to deliver a bill of sale or a bill of lading or an invoice of goods at sea, the property will pass without it, provided proper exertion be used to make the earliest practicable de- livery. Pratt V. Parkham, 41 Mass. (24 Pick.) 42, 47 ; Gardner v. How- land, 19 Mass. (2 Pick.) 599 ; Buffinp- ton V. Curtis, 15 Mass. 528; s. c. 8 Am. Dec. 115; Brown w. Heathcote, 1 Atk. 160; Wright r. Campbell, 4 Burr, 2046, 2051; Lempriere o. Pas- ley, 2 T. R. 485. Lease of property. — Where a lessee put furniture and fixtures into the leased premises under an agreement with the lessor that they should be- come the property of the lessor at the expiration of the lease, and dur- ing the term the lessor gave a bill of sale on his interest in them to a third person, it was held that the lessor's right in them passed to such third person by the bill of sale, and that he could maintain an action for their conversion after the expiration of the lease. Thrall u. Hill, 110 Mass. 328; Day v. Bassett, 102 Mass. 445. In Thrall v. Hill the court say that the lessor " had a vested inter- est which would ripen into a perfect title by the lapse of time. It is true that a man cannot sell personal prop- erty in which he has no interest. A mere possibility, coupled with no in- terest, is not the subject of sale, and would not pass by a bill of sale. But if he has a present interest in the property sold, a sale of it is valid." Mortgage of stock of goods in a store to secure debts maturing at a future day, and not only including what was in the store at the time, but all goods which should be added from day to day during the existence of the mort- gage ; purchases which were put into the store to replace that part of the stock which should be displaced, or to increase the part of the stock which was on hand was per se void. Ham- ilton V. Rogers, 8 Md. 310; Phelps D. Murray, 2 Tenn. Ch, 746 ; s. c. 4 Cent. L. J. 583. See Head v. Good- win, 87 Me. 181 ; Wilson v. Wilson, 37 Md. Ill; s. c. 11 Am. Rep. 518; Low V. Pew, 108 Mass. 147 ; s. c. 11 Am. Rep. 357; Rice v. Stone, 83 Mass. (1 Allen) 566; Pettis . Cease, 8 Chicago Leg. N. 340 ; Cassard v. Hinman, 1 Bosw. (N. Y.) 207 ; Kirk- patriok V. Bonsall, 72 Pa. St. 155; In re Green, 7 Biss. C. C. 338 ; Grize- wood V. Blane, 11 C. B. 526 ; s. c. 73 Eng. C. L. 526; 20 Eng. L. & Eq. 290 ; Rourke u. Short, 25 L. J. Q. B. 196 ; Enderby v. Gilpin, 5 J. B. Moore, 571. Sale of stocks, certificates, etc. — The Massachusetts Gen. Stat. c. 105, § 6, was enacted to prohibit gambling in stocks. Bingham v. Mead, 92 Mass. (10 Allen) 245. Under it, an agree- ment for the sale of stock, and cer- tain certificates, and evidences of debt are void where the party con- tracting to sell is not at the time the owner or assignee, or authorized by the owner or assignee, or his agent to sell or transfer the same. See Brown v. Phelps, 103 Mass. 313 ; Bar- rett V. Mead, 92 Mass. (10 Allen) 337; Wyman v. Eiske, 85 Mass. (3 Allen) 238; s. c. 80 Am. Dec. 166; Barrett u. Hyde, 73 Mass. (7 Gray) 160. 1 American rule. — The prevailing doctrine on this subject in America is essentially the same as the Eng- lish. Vide ante, § 94, note 1. See, also, Erazier v. Hillard, 2 Strobh. (S. C.) 309; Blackmore ,■. Shelby, 8 Humph. (Tenn.) 439. But see Head v. Goodwin, 37 Me. 181 ; Jones V. Richardson, 51 Mass. (10 Mete) 481 ; vide ante, § 93, note 2. 204 PART I.] OF THE THING SOLD. *82 where the vendor had no title at the time of sale, but acquired one afterwards, before the time limited for the return ; held, that the buyer who had allowed the time to elapse without returning the thing sold, could not set up the failure of consideration in the original contract, as a defence in an action for the price.^ § 98. The civilians held that an expectation dependent on a chance may be sold, and the illustration usually given is that of the fisherman who agrees to sell a cast of his net for a given price ; ^ and this is adopted by Mr. Story .^ The illustration is perhaps not very well chosen. The case sup- posed is rather one of work and labor done, than of sale. The fisherman owns nothing but the tools of his trade, i.e. his net. What is in the sea is as much the property * of anybody else as of himself. If a third person [*82] gives him money to throw a cast of his net for the benefit of that person, the contract is in its nature an employ- ment of the fisherman for hire. If the contract were, that the fisherman should throw his net for a week or a month, at a certain sum per week or month, and that the catch should belong to him who paid the money, no one would call this a contract by the fisherman for the sale of his catch, but a contract of hire of his labor in fishing for an employer. It is no more a contract of sale when he is paid by the job Sale of expectancy. — As to the sale Powers' Appeal, 63 Pa. St. 443, 445 ; of an expected interest in and to a Fitzgerald v. Vestal, 4 Sneed (Tenn.) parent's estate, see Wheeler v. Whee- 258. ler, 2 Met. (Ky.) 474; Jenkins v. ^ Hotchkiss v. Oliyer, 5 Denio Stetson, 91 Mass. (9 Allen) 128 ; (N. Y.) 314. Trull V. Eastman, 44 Mass. (3 Mete.) ^ Dig. L. 8, § 1, de Contr. empt. 121 ; s. c. 37 Am. Dee. 156 ; Fitch c. Pothier Vente, No. 6. But it is held Fitch, 25 Mass. (8 Pick.) 480 ; Ken- in this country that a sale of fish ney v. Tucker, 8 Mass. 143 ; Boynton hereafter to be caught in the sea does i>. Hubbard, 7 Mass. 112; Quarles f. not pass title to the fish when caught. Quarles, 4 Mass. 680; Field v. Mayor Low v. Pew, 108 Mass. 347; s. c. 11 of New York, 6 N. Y. 179; s. c. 57 Am. Eep. 357; see, also. Rice «. Stone, Am. Dec. 435; Stover v. Eycleshi- 83 Mass. (1 Allen) 566; Mulhall u. mer, 4 Abb. App. Dec. (N. Y.) 309 ; Quinn, 67 Mass. (1 Gray) 105 ; s. c. Munsell v. Lewis, 4 Hill. (N. Y.) 635, 61 Am. Dec. 414 ; Codman v. Free- 642; Mastin v. Marlow, 65 N. C. 695; man, 57 Mass. (8 Gush.) 309; Moody McDonald v. McDonald, 5 Jones (N. v. Wright, 54 Mass. (13 Mete.) 17; C.) Eq. 211; Needles v. Needles, 7 s. c. 46 Am. Dec. 706. Ohio St. 432 ; s. c. 70 Am. Dec. 85 ; ^ gtory on Sales, No. 191. 205 *82 FORMATION OF THE CONTEACT. [BOOK I. or piece, for a single cast, than when he is paid by the month for all his casts.^ But though the illustration may be ques- tioned, the rule itself is correct in principle, and might be exemplified by supposing a sale by a pearl fisherman of any pearls that might be found in oysters already taken by him, and which had thus become his property. Such a contract would not be a bargain and sale at common law, but would be a valid executory contract, binding the purchaser to pay the price, even if no pearls were found; for as was said by Lord Chief Baron Richards, in Hitchcock v. Giddings,* " If a man will make a purchase of a chance, he must abide by the consequences." ^ The rules of law applicable to the sale of things immoral, noxious, or illegal, are discussed post, Book III. Chapter 3, on Illegality. 8 The vexed subject of the true 6 E. & B. 659; 25 L. J. Q. B. 375. test by which to determine whether Sale of business chance and good-will. certain contracts are in their nature — Boon v. Moss, 70 N. Y. 465; Hath- contracts of sale, or contracts for away i'. Bennett, 10 N. Y. 108; s. c. work and labor, and materials fur- 61 Am. Dec. 739 ; see Dayton v. nished, is discussed post. Part. II. Wilkes, 17 How. (N. Y.) Pr. 510; Chapter 1, page 90. Fleming v. Bevan, 2 Pa. St. 408 ; 4 4 Price, 135. Tweed v. Mills, L. R. 1 C. P. 39 ; ^ See, also, observations of Lord Churton v. Douglas, 1 H. E. V. John- Campbell C. J. in Hanks v. Pulling, son, 174. 206 PAET I.] OF THE PRICE. *88 * CHAPTER V. [*83] OF THE PRICE. PAGE Where no price has been fixed . 83 What is meant by " a reasonable price " 84 Price to be fixed by valuers . . 84 Valuation is not arbitration Responsibility of valuers . Civil law as to price . . . PAGE . 84 . 85 . 85 § 99. It has already been stated that the price must con- sist of money, paid or promised.^ The payment of the price in sales for cash or on credit will be the subject of future consid- eration, when the Performance of the Contract is discussed. We are now concerned solely with the agreement to make a contract of sale. Where the price has been expressly agreed on, there can arise no question ; but the price of goods sold may be deter- mined by other means.^ If nothing has been said as to price ^ Price, money or other equivalent. — There can be no sale without a price in money (see Wolf v. Wolf, 12 La. An. 529 ; Williamson v. Berry, 49 U. S. (8 How.) 465, 644 ; bk. 12, L. ed. 1171, 1191 ; Shep. Touch. 241 ; Noyes Maxims, ch. 42 ; 2 Bouv. L. Diet. (15th ed.) 457 ; but it does not necessarily follow that the act is void, because it wants this requisite of sale (Wolf u. Wolf, 12 La. An. 539; Rhodes v. Rhodes, 10 La. 85), because it is well settled that the price may be either in money or in property (Nance v. Metcalf, 19 Mo. App. 183 ; s. c. 1 West. Rep. 441), a. sale being properly a transfer of property for a valuable consideration. Howard v. Harris, 90 Mass. (8 Allen) 297, 299; 2 Kent Com. 468. The word "price" may mean an equivalent or compensation, whether in money or other property. 207 Hudson Iron Co. v. Alger, 54 N. Y. 173, 177. And so may be agreed upon indireetly, such as the market price at a certain day, so much less or so much more than the market price at that time. See Cunningham V. Brown, 44 Wis. 72 ; McConnell c. Hughes, 29 Wis. 537 ; Ames v. Quim- by, 96 U. S. (6 Otto) 324; bk. 24, L. ed. 365 ; McBride v. Silverthome, 11 Up. Can. Q. B. 545. 2 Fixing price. — Where there is a conflict in the evidence as to the price agreed upon, the real value of the article may be shown. Hillem- brand v. Wittkemper, 79 Ind. 180; Johnson v. Harder, 45 Iowa, 677; Norris v. Spofford, 127 Mass. 85; Brewer v. Housatonic R. R. Co., 107 Mass. 277; Saunders u. Clark, 106 Mass. 331; Parker v. Coburn, 92 Mass. (10 Allen) 82 ; Rennell v. Kim- *83 FORMATION OP THE CONTRACT. [book I. when a commodity is sold, the law implies an understanding that it is to be paid for at what it is reasonably worth. In Acebal v. Levy,^ the Court of Common Pleas, while deciding this to be the rule of law in cases of executed contracts, expressly declined to determine whether it was also appli- cable to executorii agreements. But in the subsequent case of Hoadly v. McLaine,* the same Court decided that in an executory contract, where no price had been fixed, the vendor could recover in an action against the buyer, for not accept- ing the goods, the reasonable value of them ; ^ and this is the unquestionable rule of law.^ ball, 87 Mass. (5 Allen) 356; Brad- Joyce v. Swann, 17 C. B. (N. S.) 84; bury V. Dwlght, 44 Mass. (3 Mete.) 31. 3 10 Bing. 376. 4 10 Bing. 482. See, also, McBride v. Silyerthorne, 11 Up. Can, Q. B. 545. ^ Wlicrc no jiyire is fixed by the parties, the law fixes it at what the article is reasonably worth (McEweu V. Morey, 60 111. 32 ; Traft v. Travis, 136 Mass. 95; James v. Muir, 33 Mich. 224; Harrison v. Glover, 72 N .Y. 451 ; Kountz v. Kirkpatrick, 72 Pa. St. 376, 386; s. c. 13 Am. Rep. 687; Blydenburgh v. Welsh, Bald. C. C. 331, 340; Vickers v. Vickers, L. R. 4 Eq. 529 ; Hoadly v. McLaine, 10 Bing. 482; Acebal u. Levy, 10 Bing. 376 ; Joyce v. Swann, 17 C. B. N. S. 84 ; Valpy v. Gibson, 4 C. B. 837; Cooper v. Shuttleworth, 25 L. J. Ex. 114; Thurnell v. Balbirnie, 2 Mees & W. 786; VTilks u. Davis, 3 Meriv. 507 ; Milnes c. Gery, 14 Ves. 400; 2 Black. Com. 443, 445), which is ordinarily the current price at the time and place of sale (McEwen v. Morey, 60 II. 32 ; James v. Muir, 33 Mich. 223; Dickson u. Jordan, 12 Ired. (N. C.) L. 79; s. u. 53 Am. Dec. 403; Fenton v. Braden, 2 Cr. C. C. 550) ; however, this price will not govern whenever it is unnaturally in- flated. Kountz V. Kirkpatrick, 72 Pa. St. 376 ; s. c. 13 Am. Rep. 687 ; James v. Muir, 33 Mich. 223, 227; Valpy V. Gibson, 4 C. B. 837 ; 16 L.J. C. P. 241; 11 Jur. 826. 6 Valpy V. Gibson, 4 C. B. 837; 2 Saund. 121e, n. 2, by V^filliams, Serg. to Webber v. Tivill. See, Callaghan v. Myers, 89 111. 566 ; McEwen ;■. Morey, 60 111. 32 ; Jenkins n. Richardson, 6 J, J. Marsh. (Ky.) 442 ; s. c. 22 Am. Dec. 82 ; James ;;. Muir, 33 Mich. 223 ; Foster v. Lum- berman's Mining Co. (Mich.) 12 West. Rep. 530 ; Cunningham v. Ashbrook, 20 Mo. 553, 559; Brady V. Cassidy, 104 N. Y. 147 ; s. c. 6 Cent. Rep. 73 ; Dickson u. Jordan, 12 Ired. (N. C.) L. 79; s. c. 53 Am. Dec. 403 ; Fenton v. Braden, 2 Cr. C. C. 550. Price to be fixed. — Folhire to agree. — Where the price is to be after- wards fixed and the parties fail to agree upon the price, there is no sale. Wittkowsky v. Wasson, 71 N. C. 451. In this case the court say, a sale is a transfer of the absolute or general property, for a price in money, and the price must be certain, for there can be no executed sale so as to pass the property, where the price is to be fixed by agreement between the parties afterwards, and the parties do not agree. Citing and approving. State V. Vinson, 63 N. C. 336 ; State V. Revels, 1 Busbee (N. C.) L. 200 ; Devane v. Fennell, 2 Ired. (N. C.) L. 36 ; Cobb v. Fogalman, 1 Ired. 208 PART I.] OF THE PEICE. *84 § 100. *Iii Acebal v. Levy, the Court further de- [*84] clared that where the contract is implied to be at a reasonable price, this means, " Such a price as the jury upon the trial of the cause shall, under all the circumstances, decide to be reasonable. This price may or may not agree with the current price of the commodity at the port of ship- ment at the precise time when such shipment is made. The current price of the day may be highly unreasonable from accidental circumstances, as on account of the commodity having been purposely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes." § 101. It is not uncommon for the parties to agree that the price of the goods sold shall be fixed by valuers appointed by them. In such cases they are of course bound by their bargain, and the price when so fixed is as much a part of the contract as if fixed by themselves.^ But it is essential to (N. C.) L. 440; Jordan v. Lissiter, 6 Jones (N. C.) L. 130; Sutton v. Madre, 2 Jones (N. C.) L. 320. Par- ticularly is this true where the prop- erty has not been delivered. Bigley V. Risher, 63 Pa. St. 152. But a con- tract of sale is not invalid because it does not fix the price, if it furnishes a criterion for determining the same. McConnell v. Hughes, 29 Wis. 537; Ames ». Quimby, 96 U. S. (6 Otto) 324; bk. 24, L. ed. 635. See, also, Easterlin v. Ryander, 59 Ga. 292. 1 Newlan v. Dunham, 60 111. 233 ; Nutting V. Dickinson, 90 Mass. (8 Allen) 540; Brown v. Bellows, 21 Mass. (4 Pick.) 178 ; Mason v. Phelps, 48 Mich. 126; Bass v. Veltum, 28 Minn. 512 ; Cunningham v. Ash- brook, 20 Mo. 553; Puller u. Bean, 34 N. H. 301, 304; McCandlish v. Newman, 22 Pa. St. 460. In Georgia, an agreement that in case of failure to agree upon the market value of the goods sold, the parties shall each call in a merchant, and on failure to agree, they shall call in a third, and together fix the price, is a valid contract of sale. Willingham v. Veal, 74 Ga. 755. In Indiana the vendor may deter- mine the quantity and quality for the vendee. Woburn Wheel Co. . Dowse, 66 Mass. (12 Cush.) 227 ; Pike v. Brown, 61 Mass. (7 Cush.) 133; Felch v. Taylor, 30 Mass. (13 Pick.) 133; Stone v. Den- nison, 30 Mass. (13 Pick.) 1 ; s. c. 23 Am. Dec. 654; Goodwin v. Gilbert, 9 Mass. 510; Story v. Hamilton, 86 N. Y. 428 ; Day v. N. Y. Cent. R. R. Co., 51 N. Y. 583 ; affirmed in 89 N. Y. 616 ; Galvin v. Prentice, 45 N. Y. 162 ; *87 FORMATION OF THE CONTRACT. [BOOK I. land and most of our colonies, but exists, with some slight variations, in almost every State of the American Union.^ s. c. 6 Am. Eep. 58 ; Erben t. Loril- lard, 19 N. Y. 299; Baldwin v. Palmer, 10 N. Y. 232 ; s. c. 61 Am. Dec. 743 ; Lisk V. Sherman, 25 Barb. (N. Y.) 435; King w. Brown, 2 Hill. (N. Y.) 485 ; Wheeler v. Spencer, 24 Hun (N. Y.) 29 ; Rosepaugh v. Vreden- burgh, 16 Hun (N. Y.) 60 ; Wood v. Shultis, 4 Hun (N. Y.) 309; Gillet V. Maynard, 5 Johns. (N. Y.) 85 ; s. c. 4 Am. Dec. 329; Royden v. Crane (N. Y, Sup. Ct), 7 Alb. L. J. 203; Towsley v. Moore, 30 Ohio St. 184; s. c. 27 Am. Rep. 434; Randall r. Turner, 17 Ohio St. 262. The memorandum required by the statute is the memorandum of only that of the parties ; the alternative act of the seventeentli section pro- ceeds from only that; they presup- pose a contract and are in affirmance of partial execution of it ; they are not essential to its existence, need not be contemporaneous, and are not prescribed elements in its formation. There is a difference in the phraseol- ogy between the fourth and seven- teenth sections, but in view of tlie policy of the enactment and the necessity of giving consistency to its parts, this difference cannot be held to change the force and effect of the sections. Townsend o. Hargraves, 118 Mass. 325, 3.34. See Chicago Dock Co. .'. Kinzie, 49 111. 289 ; Glen V. Rogers, 3 Md. 312, 320 ; Chase v. Fitz, 132 Mass. 359; Ames v. Jack- son, 115 Mass. 508; Cahill i. Bige- low, 35 Mass. (18 Pick.) 369. When statute not enforced. — The Statute of Frauds will not be enforced where its application would work a fraud. Hidden v. Jordan, 21 Cal. 92 ; Towsley v. Moore, 30 Ohio St. 184; o. c. 27 Am. Rep. 434. For the rule of equity always has been that the statute is not to be allowed as a pro- tection of fraud, or as a means of seducing the unwary into false con- fidences whereby their intentions are thwarted and their confidences be- trayed. Jenkins v. Eldridge, 3 Story C. C. 181, 290; Montacute v. Max- well, 1 P. Wms. 618, 621. See Story's Eq. Jur. sees. 250, 252, 759, 708, 1265. ^ Statute of Frauds. — That part of the Statute of Frauds which especially affects the sale of chattels (§ 17) is modified by the statutes in Califor- nia, Iowa, New York, and perhaps other states, and is not in force in Delaware, Illinois, Kansas, Kentucky, Mississippi, North Carolina, Ohio, Pennsylvania, Rhode Island, Ten- nessee, Texas and Virginia. See Brown on Statute of Frauds. By the statutes in the various states, the price at or above which oral con- tracts are not enforceable, varies from .S30 to $300. In Arkansas, the amount is .^SO ; in California, $200 ; Connecticut, $50. In Florida the pro- vision extends to all sales ; in Indiana, $50 ; Maine, $30 ; Massachusetts, .S50 ; Michigan, §50; Minnesota, $50; Mis- sissippi, $50 ; Missouri, $30; Montana, $200; Nebraska, $50; New Hamp- shire, $33 ; New Jersey, $30 ; New York, .$50; Nevada, $.50; Oregon, $50; Utah, $300; Vermont, $40; and in Wisconsin it is $50. Conflict of provisions of the statute. — The lex loci contractus controls the construction and validity of the con- tract in relation to personal property (Evans v. Kittrell, 33 Ala. 449 ; Laird V. Hodges, 26 Ark. 356 ; Webster v. Howe Machine Co., 54 Conn. 394 : s. c. 3 N. Eng. Rep. 567; 8 Atl. Eep. 482 ; 24 Cent. L. J. 419 ; Gris- wold ,-. Golding (Ky.), 3 S. W. Rep. 535; s. c. 24 Cent. L. J. 419 ; Trasher V. Everhart, 3 Gill. & J. (Md.) 234; Weil V. Golden, 141 Mass. 364; Ivey V. Lalland, 42 Miss. 444; s. c. 2 Am. Rep. 606 ; Brown v. Nevitt, 27 Miss. 801; Gilman i. Stevens, 63 N. H. 214 PART II. 1 CONTRACTS "WITHIN THE STATTJTE, Its history was but imperfectly known till the year 1823, when Lord Eldon gave to Mr. Swanston, the reporter of his decisions, the MSS. of Lord Nottinghaui,^ among which was his Lordship's report of the case of Ash v. Abdy,* in which he said, on the 13th of June, 1678, less than two years after *the passage of the law, that he over- [*88] 342 ; Bliss v. Brainard, 41 N. H. 256 ; Smith V. Godfrey, 28 N. H. (8 Fost.) 379 ; s. i;. 61 Am. Dec. 617 ; Atwater V. Walker, 16 N. J. Eq. (1 C. E. Gr.) 42 ; Walker o. Atwater, 15 N. J. Eq. (2 McCar.) 502; Armour v. Mc- Michael, 36 N. J. L. (7 Vr.) 92, 94 Marvin Safe Co. v. Norton, 48 N. J, L. (19 Vr.) 410; s. c. 5 Cent. Rep, 341 ; 7 Atl. Rep. 418; 24 Cent. L. J, 161 ; Hyde v. Goodnow, 3 N. Y. 266 Crosby v. Berger, 3 Edw. Ch. (N. Y.) 538 ; Scoville v. Canfield, 14 Johns. (N. Y.) 338; s. c. 7 Am. Dec. 467 Thompson u, Ketchani, 8 Johns. (N. Y.) 189; s. c. 5 Am. Dec. 332 Northrup i . Foot, 14 Wend. (N. Y.) 248 ; Touro v. Cassin, 1 Nott & McC (S. C.) 173; s. c. 9 Am. Dec. 680 Shelton u. Marshall, 16 Tex. 344 Pickering v. Fisk, 6 Vt. 102 ; Bain- bridge u. Wilcocks, Bald. C. C. 536 Webster u. Massey, 2 Wash. C. C 157 ; Courtois v. Carpenter, 1 Wash C. C. 376; Camfranque o. Burnell 1 Wash. C. C. 340), unless it appears on the face of the contract that it was made in reference to the laws of some other place ; in which case it would be gOTerned by the law of the place of performance. Lee v. Sel- leck, .32 Barb. (N. Y.) 522; s. c. 20 How. (N. Y.) Pr. 275; Sherrill u. Hopkins, 1 Cow. (N. Y.) 103 ; Pitts- burgh & St. L. R. R. Co. u. Rothschild, (Pa.) 4 Cent. Rep. 109; Andrews v. Pond, 38 U. S. (13 Pet.) 65; bk. 10, L. ed. 61 ; Bank of United States r. Daniel, 37 TJ. S. (12 Pet.) 32 ; bk. 9, L. ed. 989 ; Bank of United States v. Donnally, 33 U. S. (8 Pet.) 361 ; bk. 8, L. ed. 974 ; Cox v. United States, 31 U. S. (6 Pet.) 172 ; bk. 8, L. ed. 359; Armstrong v. Toler, 24 U. S. (11 Wheat.) 258; bk. 6, L. ed. 468; Willings V. Consequa, Pet. C. C. 301 ; Nicolls V. Rodgers, 2 Paine C. C. 437 ; Pope V. Nickerson, 3 Story C. C. 465 ; Golden v. Prince, 3 Wash. C. C. 313 ; Morgan v. New Orleans, M. & T. R. R. Co., 2 Wood. C. C. 244 ; Fitch ,.. Remer, 8 Am. L. Reg. 654. Conse- quently, when a contract is entered into in one state concerning personal property, which property is situated and the contract to be performed in another state, it must be made accord- ing to the law of the state where the property is situated and the contract to be performed. Vandal v. Thomp- son, 11 Martin (La.) 23 ; Houghtaling V. Ball, 20 Mo. 563; Dacosta v. Davis, 24 N. J. L. (4 Zab.) 319 ; Low v. An- drews, 1 Story C. C. 38; Allen v. Schu- chardt (U. S. C. C.) 1 Am. L. Reg. N. S. 13; Green v. Lewis, 26 Up. Can. Q. B. 618. Contra: Leroux u. Brown, 12 C. B. 801 ; s. c. 74 Eng. C. L. 800 ; 14 Eng. L. & Eq. 247. 2 See note to Crowley's Case, 2 Swans. 83. * 3 Swans. 664, Appendix. In North's " Life of Lord Keeper Guild- ford," vol. i. p. 108, he states of his lordship : " He had a great hand in the Statute of Frauds and Perjuries, of which the Lord Nottingham said that every line was worth a subsidy. But at that time the Lord Chief Jus- tice Hale had the pre-eminence, and was chief in the fixing of that law, although the urging party lay upon him, and I have reason to think it had the first spring from his Lordship's notice." Lord Mansfield doubted the statement as to Sir Matthew Hale, who died before the bill was intro- duced. 1 Burr. 418. 215 *88 FOEMATION OP THE CONTEACT. [BOOK I. ruled a demurrer to a bill which " was to execute a parol agreement, before the late act, for prevention of frauds and perjuries, but the bill itself was exhibited since the act." The ground of the decision was, that the statute was intended to be prospective solely, and not retrospective, " and I said, that I had some reason to know the meaning of this law, for it had its first rise from me, who brought in the bill into the Lords' House, though it afterwards received some additions and improvements from the judges and the civilians." ^ § 105. The section of the statute which is specially appli- cable to the subject of this Treatise is the 17th. In the examination of its provisions, and of the rules for its con- struction and application, the arrangement of Lord Black- burn will be followed, as not susceptible of improvement. The language of the 17th section is as follows : " And be it enacted, that from and after the said four-and- twentieth day of June (A.D. 1677), no contract for the sale of any goods, wares, or merchandises, for the price ^ of ten pounds sterling, or upwards,^ shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actu.ally receive the same, or give something in earnest to bind the bargain, or in part-payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." ^ ^ As to the traditions of the aid never in force in Texas, where the old and eo-operation of Lord Hale and Spanish law prevailed (see Rev. Stat. Sir Leoline Jenkins, see Wain u. Tex. 1879, tit. 46, art. 2464; Hobart Warlters, .5 East, 10; Windham v. v. Littlefield, 1.3 E. I. 341), and was Chetwynd, 1 Burr. 419; Wynn's omittedfrom the Rhode Island Digest " Life of Sir Leoline Jenkins," vol. i. of law, 1751, and has not been re- p. 3. enacted since. Hobart u. Littlefield, ^ This word changed to " value," 13 R. I. 341. post, p. 90. 3 Effect of the seventeenth section. — 2 The sum fixed by the different slates. There is an unsettled question of con- — The provisions of the Statute of siderable importance, whether the Frauds in the different states differ seventeenth section of the Statute of from the English statutes and from Frauds, renders void a contract within each other as to the sum necessary to its terms, or merely prevents its en- bring the contract within them. Vide forcement, leaving the contract in ante, § 104, note 2. The seventeenth full force for all other purposes. It section of the Statute of Frauds was has been held in Massachusetts that 216 PAKT 11.] CONTEACTS WITHIN THE STATUTE. *89 § 106. The first question that obviously presents itself under this enactment is, what contracts are embraced under the words "contracts for the sale of any goods, &c." A contract may be perfectly binding between the parties, so as to give either of them a remedy against the person and general estate of *the other in case of default, [*89] but having no effect to transfer the property or right of possession in the goods themselves, and therefore giving to the proposed purchaser none of the rights, and subjecting him to none of the liabilities of an owner; and this is an " Executory Agreement." Or it may be a perfect sale, as already defined, conveying the absolute general property in the thing sold to the pur- chaser, entitling him to the goods themselves, independently of any personal remedj"- against the vendor for breach of contract, and rendering him liable to the risk of loss in case of their destruction ; and this is a " Bargain and Sale of Goods." § 107. The distinction between "these two agreements will be more fully considered hereafter ; but for the present where a contract is partly within the 1 Am. Rep. 109 ; Norton v. Simonds, Statute of Frauds and is severable, 124 Mass. 19, 21 ; Browne on Statute that an action may be maintained on of Frauds, (ed. 1857) p. 140, note 5. so much of it as is not within' the Citing dicta, Reade v. Lamb, 6 Ex. statute. Haynes v. Nice, 100 Mass. (6 "W. H. & G.) 430; Carrington v. 327 ; s. c. 1 Am. Rep. 109 ; Allen v. Roots, 2 Mees. & W. 248. Leonard, 82 Mass. (16 Gray) 202; In all those states where the stat- Rand !•. Mather, 65 Mass. (11 Cush.) ute conforms in substance to the sev- 1 ; 5. u. 59 Am. Dec. 131. That the enteenth section of the English stat- seventeenth section makes the con- ute, such statute affects only the rem- tract void was lield in Houghtaling v. edy and not the contract, and the ob- Ball, 20 Mo. 563; Low v. Andrews, 1 jection that the contract is not valid Story C. C. 38 ; Allen v. Schuchardt, under the statute, is not available to (U. S. C. C.) 1 Am. L. Reg. N. S. 13 ; a party not privy to the contract. Green!'. Lewis, 26 Up. Can. Q.B. 618; Chicago Dock Co. i'. Kinzie, 49 111. Leroux v. Brown, 12 C. B. 801 ; s. c. 289; Cahill v. BigeJow, 35 Mass. (18 74 Eng. C. L. 800 ; 14 Eng. L. & Eq. Pick.) 369 ; Rickards v. Cunningham, 247; Pollock's "Principles of Con- 10 Neb. 417; McCormick v. Drum- tracts," 755, note b. That the seven- mett, 9 Neb. 384; Eiseley i-. Malchow, teenth section affects only the remedy 9 Neb. 174; Uhl v. Robison, 8 Neb. was held in Amsinck v. American Ins. 273 ; Robison i\ Uhl, 6 Neb. 328 ; Co., 129 Mass. 185 ; Townsend v. Davis v. Inscoe, 84 N. C. 396 ; Green Hargraves, 118 Mass. 325, 334 ; v. North Carolina R. R. Co., 77 N. C. Haynes c. Nice, 100 Mass. 327; s. c. 95; Mizell i). Burnett, 4 Jones (N. C.) 217 *89 POEMATION OP THE CONTEACT. [BOOK I. it suffices to remark, tliat until the year 1828, the decisions were somewhat contradictory, and perhaps irreconcilable, on the question whether the words, " contracts for the sale of any goods, &c." in this section, were applicable to agree- ments for future delivery, that is to say, to executory agree- ments, or only to such as were equivalent to the common law contract, known as a bargain and sale.^ The decisions excluding such contracts from the operation of the statute were principally Towers v. Osborne,^ in 1724, Clayton v. Andrews,^ in 1767, and Groves v. Buck,* in 1814. Those which upheld the contrary rule, were Rondeau v. Wyatt,^ in 1792, Cooper v. Elston,^ in 1796, and Garbutt v. Watson,'' in 1822. The question is no longer open, for the Legislature intervened, and in 9 Geo. IV. c. 14, s. 7, known as "Lord Tenterden's Act," recited, that "it had been held that the L. 249; s. c. 69 Am. Dec. 744; Smith V. Smith, 14 Vt. 440, 446. ^ Executory contracts. — The statute applies to executory contracts. At- water v. Hougli, 29 Conn. 513 ; s. c. 79 Am, Dec. 229; Edwards v. Grand Trunk Ey. Co., 48 Me. 379 ; Hight v. Eipley, 19 Me. 137 ; Newman v. Mor- ris, 4 Harr. & McH. (Md.) 221 ; Ben- nett V. Hull, 10 Johns. (N. T.) 364; Jackson v. Covert, 5 Wend. (N. Y.) 139; Finney o. Apgar, 31 N. J. L. (2 Vr.) 270; Carman v. Smick, 15 N. J. L. (3 J. S. Gr.) 252; Ide c. Stanton, 15 Vt. 685; s. c. 40 Am. Dec. 698; Bennett v. Hull, 10 Johns. (N. Y.) 364. See, also, Cason a. Cheely, 6 Ga. 554 ; Edwards v. Grand Trunk R. E., 48 Me. 379 ; Mixer v. Howarth, 38 Mass. (21 Pick.) 207; s. u. 32 Am. Dec. 256; Pitkin v. Noyes, 48 N. H. 297 ; s. c. 2 Am. Eep. 218 ; Einney v. Apgar, 31 N. J. L. (2 Vr.) 270 ; Jackson v. Covert, 5 Wend. (N. Y.) 139 ; Harden r, McClure, 1 Chaud. (Wis.) 279. The Supreme Court of Maine say in Hight v. Eipley, 19 Me. 137, that, " It may be consid- ered as now settled that the Statute of Frauds embraces executory as well as executed contracts for the sale of goods." Cason v. Cheely, 6 Ga. 554; Edwards v. Grand Trunk Ey. Co., 48 Me. 379 ; Mixer v. Howarth, 38 Mass. (21 Pick.) 207; s. c. 32 Am. Dec. 256 ; Pitkin v. Noyes, 48 N. H. 297 ; s. c. 2 Am. Rep. 218; Gilman v. Hill, 36 N. H. 318 ; Sewall v. Pitch, 8 Cow. (N. Y.) 215; Bennett v. Hull, 10 Johns. (N. Y.) 364; Downs v. Ross, 23 Wend. (N. Y.) 270; 2 Kent Com. 511. 2 1 Strange, 506. 3 4 Burr. 2101. « 3 M. & S. 178. Tlie American doctrine. — The Eng- lish doctrine is not followed in Amer- ica, with the possible exception of in New York. Vide infra, § 118, note 6. It is sometimes said that the English doctrine prevails in Maryland as well as in New York, but this is not justi- fied by the decisions. Vide infra, § 123, note 3. In Canada it seems the English doctrine is repudiated. Lane v. Mel- ville, 3 Up. Can. C. P. (0. S.) 127 ; Wegg V. Drake, 16 Up. Can. Q. B. 252. s 2 H. Bl. 63. ^ 7 T, R. 14. ' 5 B. & Aid. 613. 218 PAKT II.] CONTEACTS WITHIN THE STATUTE. *90 said recited enactments " (i.e. the 17th section of the Statute of Frauds) " do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied," and then proceeded to enact that the provisions of the 17th section " shall extend to all contracts for the sale of goods of the value of ten pounds sterling, and upwards, notwithstanding the goods may be intended to be * delivered at some [*90] future time, or may not at the time of such contract be actually made, procured or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for de- livery." It is settled in Scott v. Eastern Counties Railway Com- pany,^ and in Harman v. Reeves,^ that this enactment must be construed as incorporated with the Statute of Frauds, and that its effect is to substitute the word " value " for " price " in the 17th section. § 108. There have been numerous decisions, and much di- versity and even conflict of opinion, in relation to the proper principle by which to test whether certain contracts are " con- tracts for the sale, &c." under the 17th section, or contracts for work and labor done and materials furnished. A re- view of the cases will exhibit the different lights in which the subject has presented itself to the minds of eminent judges. Towers v. Osborne^ was on an agreement to make and furnish a chariot. Held, not within the statute. But the ground of decision in this case was, that the 17th section did not apply to executory agreements, and on this point the case is met by Lord Tenterden's Act. In Clayton v. Andrews,^ a contract for the future delivery of wheat not yet threshed was held not within the statute, under the authority of the preceding case. 8 12 M. & W. 33. 2 4 Burr. 2201. This case is fol- 9 18 C. B. 587, and 25 L. J. C. P. lowed in Maryland. See Eichelber- 257. ger ;-. McCauley, 5 Harr. & J. (Md.) 1 1 Strange, 506. 213 ; s. c. 9 Am. Dec. 514. 219 *91 FORMATION OP THE CONTRACT. [BOOK I. § 109. In Groves v. Buck,^ the agreement was for the pur- chase by defendant of a quantity of oak pins, not then in ex- istence, but that were to be cut by plaintiff out of slabs owned by him, and to be delivered at a future time. This agree- ment was held not to be embraced in the 17th section of the Statute of Frauds. Lord EUenborough put his opinion on the ground that " the subject-matter of this contract did not exist in reruni naturd : it was incapable of delivery and of part ac- ceptance, and where that is the case, the contract has been considered not within the statute." This ground is [*91] again met by the * 9 Geo. IV. c. 14, s. 7, but Dampier J. in declining to apply the case of Rondeau v. Wyatt (presently noticed), said that this last-mentioned case was distinguishable, because in the other cases cited " some work was to be performed." § 110. In Rondeau v. Wyatt,i where an executory contract was held to be within the statute. Lord Loughborough said, that "the case of Towers v. Sir John Osborne was plainly out of the statute, not because it was an executory contract, as has been said, but because it was for work and labor to be done and materials and other necessary things to be found, which is different from a mere contract of sale, to which alone the statute is applicable."^ His Lordship also disposed of the case of Clayton v. Andrews^ (subseqviently overruled in Garbutt v. Watson*), by saying that in that case also "there was some work to be performed, for it was necessary that the corn should be threshed before the delivery." § 111. In Garbutt v. Watson,^ where a sale of flour, to be manufactured out of wheat yet unground, was held to be 1 3 Mees. & S. 178. This case was the reasons for it are rejected as followed in South Carolina, in Gads- erroneous. The chariot bespoken den V. Lance, 1 McMuU. (S. C.) Eq. does not appear to have existed at 87, 91; s. c. 37 Am. Dec. 548; but the time, but to have been manu- that case is not law since Bird i . factured to order." Muhlinbrink, 1 Rich. (S. C.) L. 199 ; ^ 4 Burr. 2101. s. c. 44 Am. Dec. 247. ^ 5 B. & Aid. 618. 1 2 H. Bl. 63. 1 Id. The doctrine of this case 2 The court say in Hightu. Ripley, has been adopted in Wisconsin. See 19 Me. 137, 139, that " The decision Meincke v. Falk, 55 "Wis. 427 ; in the case of Towers v. Osborne is Hardell .•. McClure, 1 Chand. (Wis.) esteemed to have been correct, while 277 ; s. c. 2 Pin. 289. 220 PAKT n.] COKTEACTS WITHIN THE STATUTE. '^91 within the statute, Abbott C. J. said, that in Towers v. Os- borne, "the chariot which was ordered to be made, would never, hut for that order, have had any existence^ ^ This ex- 2 A contract to furnish articles to be manufactured or prepared in a pre- scribed manner is not effected by the Statute of Frauds. Abbott «. Gilchrist, 38 Me. 260; Cummings v. Dennett, 26 Me. 397 ; Right v. Ripley, 19 Me. 137 ; Spencer v. Cone, 42 Mass. (1 Mete.) 283; Mixer v. Howarth, ^8 Mass. (21 Pick.) 205; s. c. 32 Am. Dec. 256; Oilman v. Hill, 36 N. H. 311, 317 ; Cooke v. Millard, 65 N. Y. 352; s. e. 22 Am. Rep. 619; s. c. 5 Lans. 343 ; Parsons v. Loucks, 48 N. Y. 17, 19; s. c. 8 Am. Rep. 517. See Cason u. Cheely, 6 Ga. 554; Rentch V. Long, 27 Md. 188 ; Eichelberger v. McCauley, 5 Harr. & J. (Md.) 213; s. c. 19 Am. Dec. 514; Higgins u. Murray, 73 N. Y. 252 ; Deal v. Max- well, 51 N. Y. 652; Flint v. Corbitt, 5 Daly (N. Y.) 429; Wright v. O'Brien, 5 Daly (N. Y.) 54; Smith V. New York Central R. R., 4 Keyes (N. Y.) 180; Downs o. Ross, 23 Wend. (N. Y.) 270 ; Bates v. Coster, 3 N. Y. Supr. Ct. (T. & C.) 580. See, also, Seymour v. Davis, 2 Sandf . (N. Y.) 239; O'Neil v. New York & S. P. Mining Co., 3 Nev. 141; Cooke v. Millard, 5 Lans. (N. Y.) 243; s. c. 65 N. Y. 352; 22 Am. Rep. 619; Passaic Manuf. Co. v. HofEman, 3 Daly (N. Y.) 495; Bates v. Coster, 1 Hun (N. Y.) 400; Kellogg v. With- erhead, 4 Hun (N. Y.) 273; Smith V. New York Cent. R. R. Co., 4 Keyes (N. Y.) 180 ; Parsons v. Loucks, 48 N. Y. 17 ; s. c. 8 Am. Rep. 518; Deal (/.Maxwell, 51 N. Y. 652; Courtwright V. Stewart, 19 Barb. (N. Y.) 455; Bronson v. Wiman, 10 Barb. (N. Y.) 406; Killmore ^. Hewlett, 48 N. Y. 569; Kellogg v. Witherhead, 4 Hun (N. Y.) 273; s. c. 6 N. Y. Supre. Ct. (T. & C.) 525. See Allen v. Jar- vis, 20 Conn. 38 ; Cason v. Cheely, 6 Ga. 554 ; Brown v. Allen, 35 Iowa, 306; Partridge v. Wilsey, 8 Iowa, 459; Crockett v. Seribner, 04 Me. 447 ; Edwards v. Grand Trunk Ry., 48 Me. 379; Fiokett v. Swift, 41 Me. 68; 3. c. 66 Am. Dec. 214; May v. Ward, 134 Mass. 127; Dowling v. McKenney, 124 Mass. 480 ; Goddard V. Binney, 115 Mass. 450 ; s. c. 15 Am. Rep. 112; Waterman u. Meigs, 58 Mass. (4 Cush.) 499; Lamb v. Crafts, 53 Mass. (12 Mete.) 356 ; Gardner v. Joy, 50 Mass. (9 Mete.) 179 ; Spencer V. Cone, 42 Mass. (1 Mete.) 283; Brown v. Sanborn, 21 Minn. 402; Pliipps !;. McFarlane, 3 Minn. 109; s. c. 74 Am. Dec. 743 ; Pitkin ),'.Noye3, 48 N. H. 298; ». c. 2 Am. Rep. 218; Higgins V. Murray, 73 N. Y. 252; Mead v. Case, 33 Barb. (N. Y.) 202 ; Parker v. Schenck, 28 Barb. (N. Y.) 30; Donovan v. Willson, 26 Barb. (N. Y.) 138 ; Courtwright v. Stewart, 19 Barb. (N. Y.) 455; Bronson v. Wiman, 10 Barb. (N. Y.) 406 ; Sewall u. Fitch, 8 Cow. (N. Y.) 215; Lower V. Winters, 7 Cow. (N. Y.) 263; Don- nell V. Hearn, 12 Daly (N. Y.) 230 ; Crookshank v. Burrell, 18 Johns. (N. Y.) 58 ; s. c. 9 Am. Dec. 187 ; Frear V. Hardenberg, 5 Johns. (N. Y.) 275 ; s. t. 4 Am. Dec. 356 ; Robertson v. Vaughn, 5 Sandf. (N. Y.) 1 ; Hobart V. Littlefleld, 13 R. I. 341 ; Ellison v. Brigham, 38 Vt. 64 ; Gorham v. Fisher, 30 Vt. 428; Hardell v. McClure, 1 Chand. (Wis.) 271; Wolfenden v. Wilson, 33 Up. Can. Q. B. 442 ; Wegg V. Drake, 16 Up. Can. Q. B. 252. But see Prescott o. Locke, 51 N. 11. 94; s. c. 12 Am. Rep. 55. As to sale of articles kept in the ordinary course of business, see Atwater y. Hough, 29 Conn. 509 ; s. c. 79 Am. Dec. 229. See, also, Cason v. Cheely, 6 Ga. 554; Phipps v. McFarlane, 3 Minn. 109 ; s. c. 74 Am. Dec. 743 ; O'Neil u. New York &c. Mining Co., 3 Nev. 141 ; Finney v. Apgar, 31 N. J. L. (2 Vr.) 271; Gasden v. 221 *92 POKMATION OF THE CONTRACT. [BOOK I. pression, as well as the similar one by Lord EUenborough in Groves v. Buck (^ante, p. 90), would imply that the distinc- tion between a " contract for sale " and one for " work, labor, and materials," is tested by the inquiry, whether the thing transferred is one not in existence, and which would never have existed but for the order of the party desiring to ac- quire it, or a thing which would have existed, and been the sub- ject of sale to some other person, even if the order had never been given. Bayley J. however, put his opinion on the ground, that " this was substantially a contract for the sale of flour, and it seems to me immaterial whether the flour was at the time ground or not. The question is, whether this was a contract for goods, or for work and labor and materials found. I think it was the former, and if so, it falls within the Statute of Frauds." ^ [*92] * Holroyd J. concurred " that this was a contract for the sale of goods," but neither of the judges gave a reason for this opinion (undoubtedljr correct), and thus no aid is afforded by their language in furnishing a test for distinguishing the two contracts from each other. § 112. In Smith v. Surman ^ an action was brought to re- cover the value of certain timber, under a verbal contract, by which plaintiff agreed to sell to defendant at so much per Lance, 1 McMull. (S. C.) Eq. 87 ; As to the Massachusetts rule, see s. c. 37 Am. Dec. 548; Bird v. May r. Ward, 134 Mass. 127 ; Clark ■«. Muhlenbrink, 1 Rich. (S. C.) L. 199 ; Nichols, 107 Mass. 547 ; Waterman v. s. c. 44 Am. Dec. 247; Meincke o. Meigs, 58 Mass. (4 Cush.) 497 ; Lamb Falk, 55 Wis. 427 ; s. c. 42 Am. Rep. v. Crafts, 53 Mass. (12 Mete.) 353 ; 722; Harden v. McClure, 1 Chand. Gardner v. Joy, 50 Mass. (9 Meto.) (Wis.) 271. The fact that the article 177. For New Hampshire doctrine, is not made is not necessary to take see Prescott v. Locke, 51 N. H. 94 ; the case out of the statute. Fickett s. t. 12 Am. Rep. 155; Pitkin v. !). Swift, 41 Me. 68 ; s. c. 66 Am. Dec. Noyes, 48 N. H. 294; s. c. 2 Am. 214; Hight v. Ripley, 19 Me. 137. Rep. 219; Oilman v. Hill, 36 N. H. See, also, Clark v. Nichols, 107 Mass. 311. See, also, Gorham v. Fisher, 30 547. The court distinguish Mixer v. Vt. 428. Howarth, 38 Mass. (21 Pick.) 205 ; s See Edwards v. Grand Trunk Ry. s. c. 32 Am. Dec. 251 ; Spencer ,'. Co., 54 Me. 105, 110. Cone, 42 Mass. (1 Mete.) 283, and i 9 Barn. S- Cress. 568. See, also, follow Waterman v. Meigs, 58 Mass. Prescott u. Locke, 51 N. H. 94, 97 ; (4 Cush.) 497; Lamb v. Crafts, 53 s. c. 12 Am. Rep. 55; Pitkin v. Noyes, Mass. (12 Mete.) 353 ; Gardner v. Joy, 48 N. H. 298. 50 Mass. (9 Mete.) 177. 222 PART II.] CONTRACTS "WITHIN THE STATUTE. *93 foot the timber contained in certain trees then growing on plaintiff's land. Bayley J. was of opinion, that " this was a contract for the future sale of the timber when it should be in a state fit for delivery. The vendor, so long as he was felling it and preparing it for delivery, was doing work for himself, and not for the defendant.'^ § 113. In Atkinson v. Bell ^ the whole subject was much discussed. The action was in assumpsit for goods sold and delivered, goods bargained and sold, work and labor done, and materials found and provided. The facts were, that one Kay had patented a certain macliine, and the defendants, thread manufacturers, desiring to try it, wrote him an order to procure to he made for them as soon as possible some spin- ning-frames in the manner he most approved of. Kay em- ployed Sleddon to make them for the defendants, informing Sleddon of the order received by him, and he superintended the work. After the frames were made they lay for a month on Sleddon's premises, while he was doing some other work for the defendants under Kay's superintendence. Kay then ordered Sleddon to make some changes in the frames, and after this was done, the frames were put into boxes by Kay's directions, and remained in the boxes for some time on Sleddon's premises. On the 23d of June, Sleddon wrote to the defendants that the machines had been ready for tliree weeks, and asked how they were to be sent. On the 8th of August, Sleddon became bankrupt, and his assignees required the defendants to take the machines ; but they refused, where- vipon action was brought. The judges were all of opinion that * the property in the goods had not [*93] vested in the defendants,^ and that a count for goods bargained and sold could not be maintained ; but Bayley and Holroyd JJ. expressed the opinion that a count for not accepting would have supported the verdict in the plaintiff's favor. On the count for work and labor and materials, the judges were also unanimous that these had been furnished by Sleddon for his own benefit, and not for the defendant's, that is to say, that the contract was an executory agreement 1 10 Barn. & Cress. 277. ^ On this subject see ;)ost, Book II. 223 *94 FOKMATION OP THE CONTEACT. [BOOK I. for sale, and not one for work, &c. Bayley J. said: " If you employ a man to build a house on j'our land, or to make a chattel with your materials, the party who does the work has no power to appropriate the produce of his labor and your materials to any other person. Having bestowed his labor at your request, on your materials, he may maintain an action against you for work and labor done. But if you employ another to work up his own materials for making a chattel, then he may appropriate the produce of that labor and materials to any other person. No right to maintain any action vests in him during the progress of the work, but when the chattel has assumed the character bargained for, and the employer has accepted it, the party employed may maintain an action for goods sold and delivered ; or if the employer refuses to accept, a special action on the case for such refusal ; but he cannot maintain an action for work and labor, because his labor ivas bestowed on his own materials, and for himself, and not for the person who employed him." The concluding passage of this opinion is no doubt too broadly expressed, for although true generally, it is not uni- versally the case that an action for work and labor will not lie Avhen performed on materials that are the property of the workman. This inaccurate dictum had the effect for a time of weakening the authority of Atkinson v. Bell,^ subjecting it to the criticism of Maule and Erie JJ. in Grafton v. Armitage,* and of Pollock C. B. in Clay v. Yates,* [*94] but * it was fully recognized in the subsequent case of Lee V. Griffin.^ § 114. Grafton v. Armitage ^ was a somewhat singular case. The plaintiff was a working engineer. The defend- ant was the inventor of a life-buoy, in the construction of which curved metal tubes were used. The defendant em- ployed plaintiff to devise some plan for a machine for curv- ing the tubes. The plaintiff made drawings and experi- ments, and ultimately produced a drum or mandi'el, wliich 8 See remarks on another point ^ 25 L. J. Ex. 237 ; 1 H. & N. 73. decided in Atkinson u. Bell, post, « 30 L. J. Q. B. 252; 1 B.& S. 272. Book II. Ch. 5. 1 2 C. B. 336 ; 15 L. J. C. P. 20. *2 C. B. 336; 15 L. J. C. P. 20. 224 PABT II.J CONTRACTS WITHIN THE STATUTE. *95 effected, the object required. His action was debt for work, labor, and materials, and for money due on accounts stated. The particulars were " for scheming and. experimenting for, and making a plan-drawing of, a machine, &c., engaged three days, at one guinea per day, 3Z. 3«. ; for workman's time in making, &c., and experimenting therewith, 11. 5s. ; for use of lathe for one week, 12s. ; for wood and iron to make the drum, and for brass tubing for the experiments, 5s." De- fendant insisted, on the authority of Atkinson v. Bell, that the action should have been case for not accepting the goods, not debt for work and labor, &c., citing the dictum at the close of Bayley J.'s opinion. But Maule J. said : " In order to sustain a count for work and labor, it is not necessary that the work and labor should be performed upon materials that are the property of the plaintiff {sic, plainly meaning defendant^, or that are to be handed over to him." Erie J. said: "Suppose an attorney were employed to prepare a partnership or other deed, the draft would be upon his own paper, and made with his own pen and ink: might he not maintain an action for work and labor in preparing it? " In delivering the decision, Tindal C. J. pointed out as the dis- tinction, that in Atkinson v. Bell, the substance of the con- tract was that the machines to be manufactured were to be sold to the defendant, but that in the case before the Court the substance of the contract was not that the plaintiff should manufacture the article for sale to the defendant, but that he should employ his skill, labor and materials in devising for the use * of defendant a mode of attain- [*95] ing a given object. Coltman J. concurred, and said that the opinion of Bayley J. was on "precisely the same ground as the Lord Chief Justice puts this case. The claim of a tailor or a shoemaker is for the price of goods when delivered, and not for the work or labor bestowed by him in the fabrication of them." § 115. In Clay v. Yates,i the subject was treated by Pol- lock C. B. in 1856, as a matter entirely res nova. The con- tract was that the plaintiff, a printer, should print for the 1 25 L. J. Ex. 237 ; 1 H. & N. 73. 225 *96 FOEMATION OF THE CONTRACT. [BOOK I. defendant a second edition of a work previously published by the defendant, the plaintiff to find the materials, includ- ing the paper. Held, that this was not a contract for the sale of a thing to be delivered at a future time, nor a con- tract for making a thing to be sold when completed, but a contiact to do work and labor, furnishing the materials ; and that the case was not governed by Lord Tenterden's Act. Pollock G. B. said: "As to the first point, whether this is an action for goods sold and delivered, and requiring a memo- randum in writing, within the 17th section of the Statute of Frauds, I am of opinion that this is properly an action for work and labor, and materials found. I believe it is laid down in the commencement of Chitty on Pleading, that that is the count that may be resorted to by farriers, by medical men, by apothecaries, and I think he mentions surveyors dis- tinctly, and that is the form in which they are in the habit of suing. The point made in the case cited, in which Bay- ley J. gave an opinion (Atkinson v. Bell), I think may be answercfl by the opinion of Maule J. in the Court of Com- mon Pleas (Grafton v. Armitage) ; and then we have to decide the matter as if it were now without any authority at all. It may be that in all these cases, part of the materials is found by the party for whom the work is done, and the other part found by the person who is to do the work. There may be the case where the paper is to be found by one, and the printing by the other, and so on ; the ink, no doul it, is always found by the printer. But it seems to me the true rule is this, whether the ivork and labor is of the [*96] essence of the * contract, or whether it is the materials that are found. My impression is, that in a case of work of art, whether it be silver or gold, or marble, or com- mon plaster, that is a case of the application of labor of the highest description, and the material is of no sort of impor- tance as compared with the labor, and therefore that all this would be recoverable as work and labor, and materials found. I do not mean to say the price might not be recovered as goods sold and delivered if the work were completed and sent home. N"o doubt it is a chattel that was bargained for and delivered, and it might be recovered as goods sold and 226 PART II.J ONTEACTS WITHIN THE STATUTE. *97 delivered ; but still it would not prevent the price being recov- ered as work and labor, and materials found. It appears to me, therefore, that this was properly sued for as work and labor, and materials found, and that the Statute of Frauds does not apply ; and I am rather inclined to think that it is only where the bargain is merely for goods thereafter to be made, and not where it is a mixed contract of work and labor, and materials found, that the Act of Lord Tenterden applies ; and one of the reasons why you find no cases on this subject in the books is, that before Lord Tenterden's Act passed, the Stat- ute of Frauds did not apply to the case of a thing begun, whatever it might be." Alderson B. concurred, and Martin B. said: "There are three matters of charge well known in the law — for labor simply, for work and materials, and another for goods sold and delivered. And I apprehend every case must be judged of by itself. What is the present case? The defendant having written a manuscript, takes it to the printer to have it printed for him. What does he intend to be done ? He intends that the printer shall use his types, and that he shall set them up by putting them in a frame ; that he shall print the work on paper, and that the paper shall be submitted to the author; that the author shall correct it and send it back to the printer, and then the latter shall exercise labor again, and make it into a perfect and complete thing, in the shape of a book. I think the plaintiff was employed to do work and labor, and supply materials for it, and he * is to be paid for it ; and it really seems to me that [*97] the true criterion is this : Supposing there was no con- tract as to payment, and the plaintiff had brought an action, and sought to recover the value of that which he had delivered, would that be the value of the book as a book ? I appre- hend not, for the book might not be worth half the value of the paper it was written on. It is clear the printer would be entitled to be paid for his work and labor, and for the materials he had used upon the work ; and, therefore, tliis is a case of work, labor and materials done and provided by the printer for the defendant." The learned Baron also put this case : " Suppose an artist paints a portrait for three hundred 227 *98 FOKMATION OF THE CONTKACT. [BOOK I. guineas, and supplies the canvas for it worth 10s., surely he might recover on a count for work and labor." § 116. In Lee v. Griffin,^ the last reported case, the fore- going opinions of the Chief Baron and Baron Martin were questioned, and not followed, though the decision was ap- proved. This action was brought by a dentist, to recover 211. for two sets of artificial teeth made for a deceased lady, of whom the defendant was executor. When Clay v. Yates was quoted by the plaintiff in support of the position that the skill of the dentist was the thing really contracted for, that the materials were only auxiliary, and that the count for work and labor was therefore maintainable. Hill J. said : " Clay V. Yates is a case sui generis. The printer, the plain- tiff there, in effect does work chiefly on the materials which the defendant supplied; although, to a certain extent, the plaintiff may be said to supply materials, moreover the printer could not sell the book to any one else." Crompton J. said : " When the contract is such that a chattel is ultimately to be delivered by the plaintiff to the defendant, when it has been sent, then the cause of action is goods sold and delivered. The case of Clay v. Yates turned, as my brother Hill pointed out, upon the pecuHar circumstances of the case. I have some doubt upon the propriety of the decision, but we should be bound by it in a case [*98] * precisely similar in its circumstances, which the present is not. I do not agree with the proposition, that luherever skill is to be exercised in carrying out the con- tract, that fact makes it a contract for work and labor, and not for the sale of a chattel. It may be, the cause of action is for work and labor when the materials supplied are merely auxiliary, as in the case put of an attorney or printer. But in the present case, the goods to be furnished, viz., the teeth, are the principal subject-matter ; and the case is nearer that of a tailor, who measures for a garment, and afterwards supplies the article fitted." 1 .30 L. J. Q. B. 252; 1 B. & S.272. 229) ; in Minnesota (Birch v. Bailey, Tlie doctrine of Lee u. Griffin has been 21 Minn. 402); in New Hampshire followed in Connecticut (Atwater v. (Prescott v. Locke, 51 N. H. 94) ; and Hough, 29 Conn. 108 ;s.c. 79 Am. Dec. in the province of Ontario (Wolfen- 228 PAET II.] CONTRACTS WITHIN THE STATUTE. *99 Hill J. said : " I think tlie decision in Clay v. Yates per- fectly correct, according to the particular subject-matter of the contract in that case, which was not a case of a chattel ordered by one of another, thereafter to be made by the one and afterwards to be delivered to the other ; but when the subject-matter of the contract is a chattel to be afterwards de- linered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and labor. In my opinion, Atkinson v. Bell is good law, subject only to the objection to the dictum of Bayley J. which has been repudiated by Maule J. and Earle J. in Grafton v. Armitage." Blackburn J. said: "If the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not accepting. But if the work and labor be bestowed in such a manner as that the result would not be any thing which could properly be said to be the subject of sale, then an action for work and labor is the proper remedy. In Clay v. Yates, the circumstances were peculiar ; but had the contract been completed, it could scarcely perhaps have been said that the result was the sale of a chattel. . . . I do not think that the relative value of the labor and of the materials on which it is bestowed can in any case be the test of what is the cause of action ; and that if Benvenuto Cellini had contracted to execute a work of art for another, much as the value of the skill might exceed that of the ma- terials, the contract would have been nevertheless for the sale of a chattel. § 117. * In reviewing these decisions, it is sur- [*99] prising to find that a rule so satisfactory and appar- ently so obvious as that laid down in Lee v. Griffin, in 1861, should not have been earlier suggested by some of the emi- nent judges who had been called on to consider the subject, beginning with Lord Ellenborough, in 1814, and closing with Pollock C. B. in 1856. From the very definition of a sale, the rule would seem to be at once deducible, that if the con- den V. Wilson, 33 Up. Can. Q. B. (Finney v. Agpar, 31 N. J. L. (2 Vr.) 442) ; but is rejected in New Jersey 229 99* FORMATION OF THE CONTKACT. [BOOK I. tract is intended to result in transferring for a price from B to A a chattel in which A had no previous property, it is a con- tract for the sale of a chattel, and unless that be the case, there can be no sale. In several of the opinions this idea was evidently in the minds of the judges. Especially was this manifest in the decision of Bayley J. in Atkinson v. Bell, and Tindal C. J. in Grafton v. Armitage ; but it was not clearly and distinctly brought into view before the decision in Lee v. Griffin. The same tentative process for arriving at the proper distinctive test between these two contracts has been gone through in America, but without a satisfactory result, as will subsequently appear. § 118. The principles suggested as affording a test on this subject prior to the case of Lee v. Griffin were the following : — 1st. That if the subject-matter of the contract was not in existence, not in reruni naturd, as Lord EUenborough expressed it, the contract was not "for the sale of goods." This was the opinion of Lord EUenborough in Groves v. Buck ; ^ of Abbott C. J. as shown by his comment on Towers V. Osborne, in the opinion delivered in Garbutt v. Watson ; ^ and may be inferred from Rondeau v. Wyatt ^ to have been the opinion of Lord Loughborough. That the decision in Towers v. Osborne was wrons: * if it went upon the ground that Lord Loughborough states, viz., that the order for the chariot was not a contract or agree- ment for the sale of a chattel, is no longer questionable.^ The familiar example put by the judges in several of the cases, of an order to a tailor or shoemaker for a garment or pair of shoes, both of which are treated as undoubted 1 3 M. & S. 178. Mass. (21 Pick.) 205; s. c. 32 Am. 2 5 B. & A. 613. Dec. 256 ; Mead v. Case, 33 Barb. 8 2 H. Bl. 63. (N. Y.) 202 ; Donovan v. Wilson, 26 4 Several well-considered American Barb. (N. Y.) 138; Sewall t>. Fitch, cases are based upon the same ground 8 Cow. (N. Y.) 215; Crookshank v. as Towers v. Osborne. See Abbott v. Burrell, 18 Johns. (N. Y.) 58 ; s. c. 19 Gilchrist, 38 Me. 260; Cummings u. Am. Dec. 187; Robertson y. Vaughn, Dennett, 26 Me. 397 ; Hight v. Ripley, 5 Sandf. (N. Y.) 1. 19 Me. 137 ; Goddard v. Binney, 115 ^ ^g ^^ ^^^ American doctrine on Mass. 450 ; Spencer v. Cone, 42 Mass. this point, vide ante, § 107, note 1. (1 Mete.) 283; Mixer v. Howarth, 38 230 PART II.J CONTRACTS WITHIN THE STATUTE. *100 cases * of contracts for the sale of chattels, is exactly [*100] the same as the order in Towers v. Osborne. The intention of the parties was that the result should be a trans- fer for a price, by Towers to Sir John Osborne, of a chattel in which Sir John had no previous property, and this was clearly a contract for a sale. § 119. 2d. The second principle suggested as the true test was by Bayley J. first in Smith v. Surman,i afterwards more fully developed in Atkinson v. Bell,^ viz., that if the materials be furnished by the employer, the contract is for work and labor, not for a sale ; but if the material be fur- nished by the workman who makes up a chattel, he cannot maintain " work and labor," because his labor Avas bestowed on his own materials and for himself, and not for the person who employed him. The first branch of this rule is undoubt- edly correct, as shown by the principles settled in Lee v. Griffin, because where the materials are furnished by the employer, there can be no transfer to him of the property in the chattel, he being previously possessed of the title to the materials, so that nothing can be due from him save compensation for labor ; and this will be equally true where the employer has furnished only part of the materials, for the contract in such case cannot result in a sale to him of what is already his, and the only other action possible would be for work and labor done, and materials furnished. But the second part of the rule is inaccurate, as pointed out in Grafton v. Armitage and Lee v. Griffin. A man may be responsible for damage done to another's chattel, as, for exam- ple, to a coachmaker's vehicle, and may employ the latter to repair the injury, in which case an action would plainly lie against the employer for the work and labor done, and materials furnished by the coachbuilder, although bestowed on a thing which is his, and is to remain his after being repaired at another's expense. § 120. 3d. The third attempt to supply the true test on this matter, previously to its satisfactory settlement in Lee V.' Griffin, was made by Pollock C. B. in Clay v. Yates.^ 1 9 B. & C. 568. 2 10 B. & C. 277. i 25 L. J. Ex. 237; 1 H. & N. 73. 231 *101 rOEMATION OP THE CONTKACT. [BOOK I. [*101] * The proper rule, in his opinion, is this, " Whether the work and labor is of the essence of the contract, or whether it is the materials' that are found." This test was decisively rejected by Crompton and Blackburn JJ. in Lee v. Griffin. It cannot be supported, even in the ex- treme case put by Martin B., of a portrait worth 300 guineas on a canvas worth 10 s. If the employer owned nothing whatever that went into the composition of the picture — if neither materials, nor skiU, nor labor, were supplied by him, it is obvious that he cannot get title to the picture or any property in it, except through a transfer of the chattel to him by the artist for a price, and this is in law a contract of sale. It cannot make the slightest difference in what pro- portions the elements that compose the chattel, namely, the raw material and the skill, are divided ; it is not the less true, that none of these elements were owned by the employer before the contract, and that the chattel composed of them is by the terms of the contract to be transferred for a price by the former owner to the employer. The test suggested by Martin B. in his opinion as found in the Law Journal Report, is accui-ate as far as it goes, but it does not cover more than the point ui the case before the Court. The learned Baron said : " Suppose the plaintiff had brought an action to recover the value of that which he had dehvered, would that be the value of the book ? I apprehend not, for the book might not be worth half the value of the paper it was written on." Tins is true, and why ? Because a part of the materials of the book -^ its chief materials, indeed — to wit, the composition, had been furnished by the employer, belonged to him already, and therefore could not be sold to him by the printer. The only remedy then remaining was an action for work and labor and materials. § 121. Cases are sometimes put, as a test of principles, that are so extreme as to be best disposed of by the application of the familiar rule, " de minimis non curat lex." Thus the ex- ample of an attorney employed to draw a deed, is dismissed by Blackburn J. in Lee v. Griffin, with the simple remark that it is an abuse of language to say that the paper or 232 PART II.] CONTRACTS WITfllK THE STATUTE. *102 parchment * are goods sold and delivered. So, if a [*102] man send a button or a skein of silk to be used in making a coat, it would be mere trifling to say that he was part owner of the materials, and that an action for goods sold would not therefore lie in favor of the tailor who fur- nished the garment. Such matters cannot be considered as having entered into the contemplation of parties when con- tracting, nor as forming any real part of the consideration for the mutual stipulations. § 122. Where a contract is made for furnishing a machine or a movable thing of any kind and fixing it to the freehold, it is not a contract for the sale of goods. In such contracts the intention is plainly not to make a sale of movables, but to make improvements on the real property, and the consider- ation to be paid to the workman is not for a transfer of chat- . tels, but for work and labor done and materials furnished in adding something to the land.^ [And the same rule applies when the substance of the con- tract is to make improvements to a chattel already in exis- tence, e.g. to make and fix boilers to a ship.^] § 123. In America, as before observed, the same perplexity has been exhibited as marks the history of the subject in our own law, and in Lamb v. Crafts,^ Chief Justice Shaw said: 1 Cotterell v. Apsley, 6 Taunt. 322 ; though susceptible of being removed Tripp u. Armitage, 4 M. & W. 687 ; without any material injury to the Clark V, Bulmer, 11 M. & W. 243; same or the freehold; and whilst, by Courtwright v. Stewart, 19 Barb. the agreement of the parties, the (N. Y.) 455 ; Phipps v. McFarlane, property may be made to present the 3 Minn. 109. character of personalty, yet where it Machinery attached to freehold. — so attached that but for the agree- The Supreme Court of Ohio say in the ment it would be a fixture, such recent case of Case Manufacturing Co. agreement will be of no avail against V. Garven, 45 Ohio St.; s. c. 11 West. a subsequent mortgagee of the realty, Rep. 28-3, that the machinery of a without notice of it; nor will the fil- manufactory which supplies the mo- ing of a mortgage upon it as chattel tive power, — as the engine, boiler, property, duly executed and delivered and their usual attachments, — as con- as such, of itself constitute such notice, tradistinguished from that propelled 2 ^ngiQ.Egyptian Navigation Com- by it, where permanently annexed to pany v. Rennie, L. R. 10 C. P. 271. foundations resting upon the freehold, i 53 Mass. 12 Mete. 356. See, also, is generally held to be a fixture, the case of Smith v. The N. Y. Cen- 233 *103 FORMATION OF THE CONTRACT. [BOOK I. " The distinction, we believe, is now well understood. When a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale and not a contract for labor ; otherwise when the article is made pursuant to the agreement." This opinion seems to have been deduced from some observations of Abbott C. J. in Garbutt v. Wat- son, and rests on no satisfactory principle. Mr. Story, whose treatise in the edition of 1862 contains no reference to the then recent case of Lee v. Griffin, avows his diffi- [*103] culty, *and suggests that it would probably be held " that where the labor and service were the essential considerations, as in the case of the manufacture of a thing not in esse, the contract would not be within the statute ; where the labor and service were only incidental to a sub- ject-matter in esse, the statute would apply." ^ This is the rule suggested by Pollock C. B. in Clay v. Yates, and re- jected in Lee v. Griffin. In Mr. Hilliard's Treatise on Sale, the contradictory decis- ions are given without any attempt on the part of the learned author to reconcile them or deduce any general prin- ciples applicable to the controverted question.^ § 124. [The rules adopted by the Courts of the different states for determining whether a contract is one of sale or for work and labor directly conflict with one another ; and it will suffice to mention that in Massachusetts the established rule is based upon the distinction refei'red to by Shaw C. J. in Lamb v. Crafts (^supra), and in the most recent case on the subject in that state the rule was defended on the ground of its justice and convenience, while the rule laid down in Lee V. Griffin was referred to but not followed.^ On the other hand, in New York and some of the other states of the Union, the distinction is taken between an agreement for the sale and delivery at a future day of articles then existing, and tral Railroad Company, 4 Keyes 8 Hilliard on Sales, pp. 464-7. (N. Y.) 180, in which all the authori- i Goddard v. Binney, 115 Mass. ties are reviewed. 450. 2 Story on Sales, § 260 c. See, however, note to 4th edition (1871). 234 PART U.] CONTEACTS WITHIN THE STATUTE. *104 an agreement to sell and deliver articles not then manufac- tured, but to be made afterwards ; the Courts holding that the latter are contracts for work and labor and materials found, and not within the statute.^ This is the principle which was adopted by some of the English judges in cases prior to Lee V. Griffin, among others by Abbott C. J. in Garbutt v. Watson. In a recent case in the state of New Hampshire,^ the rule of distinction as laid by Blackburn J. in Lee v. Griffin was cited with approval, and apparently followed.] § 125. * It was at one time questioned whether [*104] sales of goods by public auction were embraced with- in the statute. Lord Ellenborough's strong diota in Hinde V. Whitehouse,^ in 1806, seem to have put an end to the doubt, and the authority of that case was recognized in Ken- worthy V. Schofield;^ so that the question suggested on this point, by Lord Mansfield, in Simon v. Motivos,^ has long been at rest.* 2 Pitkin V. Noyes, 48 N. H. 294; nell!;.Leeman,43 Me. 158, 160; s.c.69 s. u. 2 Am. Eep. 218; Crookshank v. Am. Dec. 54; Pike i/. Balch, 38 Me. Burrell, 18 Johns. (N. Y.) 58. See, 302,310; s. c. 61 Am. Dee. 248; Mor- also, authorities cited ante, sec. 110, ton «. Dean, 54 Mass. (13 Mete.) 385; note 2. ■■ Davis v. Rowell, 19 Mass. (2 Pick.) » Prescott V. Locke, 51 N. H. 94 ; 64 ; s. c. 13 Am. Dec. 398 ; Jenness v. s. c. 12 Am. Rep. 55. Wendell, 51 N. H. 63 ; s. c. 12 Am. 1 7 East, 558. Rep. 48; Johnson o. Buck, 35 N. J. 2 B. & C. 945. L. (6 Vr.) 338 ; s. c. 10 Am. Rep. 243 ; 8 2 Burr. 1921, and 1 W. Bl. 599. Baltzen v. Nicolay, 53 N. Y. 467; ■* People V. White, 6 Cal. 75 ; Bozza Tallraan o. Pranklin, 14 N. Y. 584 ; w. Rowe, 30 111. 198 ; Baker w. Jame- Witham u. Smith, 5 Grant (Ont.) son, 2 J. J. Marsh. (Ky.) 547 ; O'Don- 203 ; 2 Kent Com. 539. 235 •^105 FORMATION OF THE CONTEACT. [BOOK I. [*105] * CHAPTER II. WHAT ARE GOODS, WARES AND MERCHANDISE. »AGE 105 If fructus naturales, 4th section PAGE applies 111 106 If fructus industriales, 17th sec- 106 tion applies . ... 111 106 General proposition as to grow- ing crops .... 115 107 Are fructus industriales "goods, &c.*' while growing 1 . . . 117 Intermediate class of crops . . 118 109 Crop not yet sown . . . Crops when mere accessories to 121 111 the land 122 Choses in action are not . . . Interest in land — 4th section of the Statute Stamp laws 4th and 17th sections compared, What is an interest in land under the 4th section First principle. Where growing crop is to be severed before property passes Second principle. Where prop- erty passes before severance . § 126. The ITtli section of the statute applies to con- tracts for the sale of " goods, wares, and merchandise," words which comprehend all corporeal movable property. The statute, therefore, does not apply to shares, stocks, documents of title, choses in action, and other incorporeal rights and property.^ The following cases have been decided on this point : ^ " Goods, wares and merchandise." — The words, " goods, wares and merchandise," are held to include not only visible and tangible, but also incorporeal property, choses in action (Mayor v. Child, 47 Cal. 142; Bibend u Liverpool & L. Insurance Co., 30 Cal. 78 ; North v. Forest, 15 Conn. 400. See Beers v. Crowell, Dudley (Ga.) 29. But in New York the statutes require all contracts for sale of choses in action to be writing. See Truax v. Slater, 86 N. Y. 630; Peabody v. Speyers, 56 N. Y. 2.30; Allen V. Aguirre, 7 N. Y. 543 ; s. c. 10 Barb. (N. Y.) 74 ; Kessel v. Albe- tis, 56 Barb. (N. Y.) 362; Hagar v. King, 38 Barb. (N. Y.) 200 ; Artcher V. Zeh, 5 Hill CN. Y.) 200; R. S. of N. Y., Pt. II., ch. 7, sec. 3, vol. 3, p. 2228 (7th ed.). It is said that a fair construction of the word " goods " is to limit it " to such personal prop- erty, other than wares and merchan- dise, as are usually transferred by sale and delivery ; and whatever else may be included, do not extend to a chose in action, a, right of author- ity to demand or receive money, a security or the evidence of debt "), accounts (Walker v. Supple, 54 Ga. 178), checks (Beers o. Crowell, Dud- ley (Ga.) 28), bank bills (Gooch v. Holmes, 41 Me. 528, 528; Eiggs v. 236 PAET II.j GOODS, WARES AND MERCHANDISE. "105 The statute does not apply to a sale of shares in a joint stock banking company, Humble v. Mitchell ; ^ 2 11 A. & E. 205. Magruder, 2 Cr. C. C. 143), promis- sory notes (Pray v. Mitchell, 60 Me. 430, 435. See Gooch o. Holmes, 41 Me. 623 ; Baldwin v. "Williams, 44 Mass. (3 Mete.) 365 ; Clapp v. Shep- hard, 40 Mass. (23 Pick.) 228; Mills V. Gore, 37 Mass. (20 Pick.) 28; Riggs 0. Magruder, 2 Cr. C. C. 143 ; contra, Hudson v. Weir, 29 Ala. 294, 298 ; Whittemore v. Gibbs, 24 N. H. 485, citing Magee v. Billingsley, 3 Ala. 679; Crawford ■/. Smith, 7 Dana (Ky.) 60; Everit v. Strong, 5 Hill (N. Y.) 163; Ford v. Stuart, 19 Johns. (N. Y.) 342; Dawson u. Coles, 16 Johns. (N. Y.) 51 ; Water- man V. Williamson, 13 Ired. (N. C.) L. 198 ; Murchison v. White, 8 Ired. (N. C.) L. 53; Tucker v. Daly, 7 Gratt. (Va.) 330 ; Mandeville v. Welch, 18 U. S. (5 Wheat.) 277 ; bk. 4, L. ed. 80 ; Masters u. Miller, 4 T. R. 340 ; Bloxam v. Sanders, 4 Barn. & Cress. 941 ; Mogg v. Baker, 3 Mees.- & W. 195. But in those states in which the statute has the word "goods" only promissory notes will not be included. Whittemore v. Gibbs, -M N. H. 485), gold where it is the subject of contract and sale (Peabody V. Speyers, 56 N. Y. 230), and cor- porate stocks (North v. Forest, 15 Conn. 400 ; Southern Life and Trust Co. V. Cole, 4 Fla. 359 ; Pray v. Mitch- ell, 60 Me. 430 ; Colvin v. Williams, 3 Har. & J. (Md.) 38 ; s. c. 5 Am. Dec. 417; Somerby v. Buntin, 118 Mass. 279; s. c. 19 Am. Rep. 459; Thomp- son u. Alger, 53 Mass. (12 Mete.) 428; Baldwin u. Williams, 44 Mass. (3 Mete.) 365 ; Tisdale v. Harris, 37 Mass. ('20 Pick.) 9; Weightman v. Caldwell, 17 U. S. (4 Wheat.) 89; bk. 4, L. ed. 521); but it is held that a contract to sell shares in a company not yet organized is not within the statute. See Green v. Brookins, 23 Mich. 48 ; s. c. 9 Am. Rep. 74;, Gads- den V. Lance, 1 McMuU. (S. C.) Eq. 87; s. c. 37 Am. Dec. 548. In Pray V. Mitchell, supra, the court say that "joint companies hare become so numerous and so large an amount of the property of the community is now invested in them, and as the original indicia of property arising from deliv- ery and possession cannot take place, there seems to be peculiar reasons for extending the provision of the statute to these ; that the words ' goods ' and ' merchandise ' may prop- erly include stock or shares in such companies ; and as contracts for the sale of such stock is clearly within the mischief which the statute was designed to prevent, they ought to be held within its letter and spirit. But there is some conflict in the decisions of the courts upon this point. Board- man V. Cutter, 128 Mass. 388 ; Som- erby V. Buntin, 118 Mass. 279; s. c. 19 Am. Rep. 459. But the words of the statute have never been so ex- tended as to include an incorporeal right or franchise granted by the gov- ernment securing to the inventor and his assigns the exclusive right to make, use and vend the articles pa- tented ; or a share in that right which has no separate or distinct existence at law until created by the instrument of assignment. See Somerby v. Bun- tin, 118 Mass. 279 ; s. c. 19 Am. Rep. 459 ; Blakeney v. Goode, 30 Ohio St. 350; Chanter v Dickinson, 6 Scott, N. R. 182 ; s. c. 5 Man. & Gr. 253. In some states the statute includes only the word "goods" (Vawter i/. Griffin, -40 Ind. 600 ; Whittemore u. Gibbs, 24 N. H. 485), while in others the statute expressly adds "things in action" to the phrase, "goods, wareSj and merchandise." Peabody V. Speyers, 56 N. Y. 230 ; People v. 237 »106 EORMATION OP THE CONTEACT. [book I. Nor to a sale of stock of a foreign state, Heseltine v. Siggers ; ^ Nor to a sale of railway shares, Tempest v. Kilner,* Bowlby V. Bell,^ Bradley v. Holdsworth,^ and Duncrof t v. Albrecht ; " Nor to a sale of shares in a mining company on the cost- book principle, Watson v. Spratley,^ Powell v. Jessop ; ^ [Nor to a sale of tenant's fixtures, Lee v. Gaskell.^"] [*106] § 127. * Most of the foregoing decisions went upon the ground that the sales were of choses in action, not property embraced in the words "goods, wares, and mer- chandise," ^ but some turned upon other enactments, to which it will now be convenient to refer. These are, first, the 4th section of the Statute of Frauds, and secondly, the exemption in the Stamp Act, of agreements relating to the sale of goods, wares, and merchandise. § 128. The 4th section i of the Act of 29 Car. II. c. 3, enacts, " that no action shall be brought whereby to charge Beebe, 1 Barb. (N. Y.) 379; Artcher V. Zeh, 5 Hill (N. Y.) 200; 2 N. Y. Rev. Stat. lo6, sec. 3. English rule. — It is well settled in England that contracts for the sale of shares .and stocks, notes, checks, bonds, and evidences of value, are not within the 17th section of Charles II. See Humble v. Mitchell, 11 Ad. & E. 205 ; s. c. 3 Per. & D. 141 ; Pawle v. Gunn, 4 Bing. N. C. 445 ; Bowlby v. Bell, 3 C. B. 284; Tempest v. Kilner, 3 C. B. 249 ; Heseltine u. Siggers, 1 Ex. 856; Watson v. Spratley, 10 Ex. 222; Canter v. Dickinson, 5 Man. & Gr. 253; Bradley v. Holdsworth, 3 Mees. & W. 422; Mussell u. Cooke, Preced. Ch. 533; Crull o. Dodson, Sel. Cas. Ch. 41 ; Duncufto. Albrecht, 12 Sim. 189. See, also, Vaupell v. Woodward, 2 Sandf. Ch. (N. Y.) 143. 3 1 Ex. 856. 4 3 C. B. 249. 6 3 C. B. 284. 6 3 M. & W. 422. ' 12 Sim. 189. 8 10 Ex. 222, and 24 L. J. Ex. 53. 8 18 C. B. 330, and 25 L. J. C. P. 199. i» 1 Q. B. D. 700. 1 Although the word " goods " alone is used in the seventh section of the Indiana Statute of Frauds, — which corresponds to the seventeenth sec- tion of the English statute, — the legal effect of the statute is said to remain the same. Vawter v. Griffin, 40 Ind. 593. 1 It was held in Leroux v. Brown, 12 C. B. 801, and 22 L. J. C. P. 1, that this section is applicable to a contract made in a foreign country. See re- marks on this case by Willis J. in Gibson v. Holland, L. R. 1 C. P. 1; 36 L. J. C. P. 5; and per eundem in Williams u. Wheeler, 8 C. B. N. S. 299, 316. Transfer of property in another state. — Lex loci rei citiis. — We have seen (ante, sec. 104, note 2) that con-, tracts respecting personal property are governed by the lex loci con- tractus; however, sometimes the citus of the property is an important con- sideration. Ballard v. Winter, 39 Conn. 179; Coote v. Jecks, L. R. 13 238 PART II.J GOODB, WARES AND MERCHANDISE. *106 any executor or administrator upon any special promise to answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; ^ or to Eq. 597. Respecting the effect which will be given in this country to the transfer of personal property of per- sons abroad in another country, see Baltimore & Ohio R. R. Co. u. Glenn, 28 Md. 287, 322, 323; Suit o. Wood- hall, 113 Mass. 391, 394; Kline c. Baker, 99 Mass. 2S3, 254; Finch v. Mansfield, 97 Mass. 89 ; Orcutt v. Nel- son, 67 Mass. (1 Gray) 536; Hill u. Spear, 50 N. H. 253 ; s. c. 9 Am. Rep. 205; Hall v. Costello, 48 N. H. 176; B. 0. 2 Am. Rep. 207. 2 Promise to answer for the debt, de- fault or miscarriage of another person. • — This provision does not prevent one person from buying goods of another and delivering them to a third, but if the person to whom the goods are delivered is responsible to the seller, the transaction will be within the statute. See Clay v. Wal- ton, 9 Cal. 334 ; Doyle o. White, 26 Me. 341 ; s. c. 45 Am. Dec. 110 ; Nel- son V. Boynton, 44 Mass. (3 Mete.) 396; s. c. 37 Am. Dec. 148; Hetfleld V. Dow, 27 N. J. L. (3 Dutch.) 440; Browne on Stat, of Frauds, sec. 197. Respecting a guarantee by a third person to pay the debt of another, see Brown v. Curtiss, 2 N. Y. 234 ; Sea- man 0. Hasbrouck, 35 Barb. (N. Y.) 151 ; Hale v. Broadman, 27 Barb. (N. Y.) 85; Mallory ^. Gillett, 23 Barb. (N. Y.) 616 ; Barnes r. Ferine, 15 Barb. (N. Y.) 253; Kingsley v. Balcome, 4 Barb. (N. Y.) 133 ; Blunt V. Boyd, 3 Barb. (N. Y.) 212 ; State Bank v. Mettler, 2 Bosw. (N. Y.) 398 ; Cleveland a. Farley, 9 Cow. (N. Y.) 639; Farley v. Cleveland, 4 Cow. (N. Y.) 432; s. c. 15 Am. Dec. 387; Barker v. Bucklin, 2 Den. (N. Y.)45; s. c. 43 Am. Dec. 726; Stoddard v. Graham, 23 How. (N. Y.) Pr. 532; New York & E. R. R. Co. v. Gilchrist, 16 How. (N. Y.) Pr. 566 ; Leonard v. Vredenburgh, 8 Johns. (N. Y.) 29; s. c. 5 Am. Dec. 317; Connor v. Wil- liams, 2 Robt. (N. Y.) 49 ; Phillips v. Gray, 3 E. D. Smith (N. Y.) 70; Stern v. Drinker, 2 E. D. Smith (N. Y.) 404 ; Watson r. Randall, 20 Wend. (N.Y.)201; Rogers r.Kneeland, 13 Wend. (N. Y.) 122 ; Marquand u. Hip- per, 12 Wend. (N. Y.) 520 ; Meech v. Smith, 7 Wend. (N.Y.) 318; Ehvoodw. Monk, 5 Wend. (N. Y.) 237 ; Skinner V. Conant, 2 Vt, 453; s. c. 21 Am. Dec. 554. Consequently, where goods are sold to one person, solely on his credit, and at his direction delivered to a third, such purchaser will be liable. Hartley v. Varner, 88 111. 561; Schoenfeld v. Brown, 78 111. 487; Wills o. Ross, 77 Ind. 1; s. c. 40 Am. Rep. 279 ; Johnson v. Hoover, 72 Ind. 395 ; Morrison v. Baker, 81 N. C. 76 ; Oothaut v. Leahy, 23 Wis. 114; Thayer v. Gallup, 13 Wis. 539; Turton v. Burke, 4 Wis. 119. A factor's promise to guarantee sales made under a del credere com- mission is not within the statute. Charge on books of vendor to the person to whom the goods are deliv- ered is but presumptive evidence that the goods were sold to him. Ruggles V. Gatton, 50 111. 412 ; Barrett o. Mc- Hugh, 128 Mass. 165; Heywood o. Stiles, 124 Mass. 275 ; Swift v. Pierce, 95 Mass. (13 Allen) 136 ; Walker v. Richards, 41 N. H. 388; Foster o. Persch, 68 N. Y. 400; Meeker v. Clag- horn, 44 N. Y. 352 ; Hazen v. Bearden, 4 Sneed. (Tenn.) 48 ; Champion u. Doty, 31 Wis. 190. See, also, Larson V. Wyman, 14 Wend. (N. Y.) 246; Keate v. Temple, 1 Bos. & Pul. 158 ; Simpson v. Penton, 2 Cromp. & M. 430; Anderson u. Hayman, 1 H. Bl. 120. 239 n06 FOEMATIOK OF THE CONTKACT. [book I. charge any person upon any agreement made upon consid- eration of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof,^ unless Promise to pay assumed debt. — Barringer v. Warden, 12 Cal. 311 ; Indiana Manuf. Co. v. Porter, 75 Ind. 428 ; Beardslee c. Morgner, 4 Mo. App. 139 ; Whitbeck u. Whitbeck, 9 Cow. (N. Y.) 266; s. c. 18 Am. Dec. 503 ; Leonard v. Vredenburgb, 8 Johns. (N. Y.) 29 ; s. c. 5 Am. Dec. 317 ; Estabrook v. Gebhardt, 32 Ohio St. 415; Townsend i. Long, 77 Pa. St. 143; Landis i: Eoyer, 69 Pa. St. 96. See Uhler v. Farmers' National Bank, 64 Pa. St. 406 ; Whitcomb u. Kephart, 50 Pa. St. 85; Arnold v. Stedman, 45 Pa. St. 186; Stoudt v. Hine, 45 Pa. St. 30; Malone . Lane, 4 E. D. 57 Miss. 705; Gariield v. Paris, 96 Smith (N. Y.) 168, 170. A delivery U. S, (6 Otto) 557, 563 ; bk. 24, L. ed. of samples is a compliance with the 821 ; Bushel a. Wheeler, 15 Ad. & E. statute only when they are treated by (N. S.) 445; Simmonds v. Humble, both parties as a part of the goods 13 C. B. N. S. 261 ; Parker v. Wallis, sold and as diminishing the quantity 5 El. & Bl. 21 ; Lillywhite v. Devereux, or weight thereof to the extent of 15 Mees. & W. 285 ; Chit, on Contr. their bulk. Mnore v. Love, 57 Miss. (10th ed.) 367 ; Addison Contr. (6th 765. See sec. 161, note 4. Por sam- ed.) 169 (Am. L. Series, 269). See pies as such are mere specimens and sec. 162, notes 1 and 3. constitute no part of the goods em- i 2 B. & C. 511. See, also, Klinitz braced in a contract of purchase. v. Surrey, 5 Esp. 267. 274 PART II.] OP ACCEPTANCE AND RECEIPT. n29 must be a delivery of the goods by the vendor, with an in- tention of vesting the right of possession in the vendee; and there must be an actual acceptance bj^ the latter, with an intention of taking to the possession as owner. ^^ ^ § 161. In Gardner v. Grout,i after the sale agreed on, the buyer went to the vendor's warehouse and got samples of the goods sold, which he promised to pay for when he took away the bulk ; and the samples so taken were weighed and entered against him in the vendor's book. The vendor then refused to complete the sale, but held that there had been a part acceptance making the bargain complete. In this case the defendant cited Simonds v. Fisher, not reported, in which Wightman J. had nonsuited the plaintiff, the facts being that plaintiff showed defendant samples of wine which the latter agreed to buy, and after the bargain was concluded,^ the buyer asked for the samples and wrote '^ The act of the vendor alone is not sijfficient. See Young v. Blaisdell, 60 Me. 273; Hewes v. Jordan, 39 Md. 472; B. c. 17 Am. Rep. 578; Jones v. Mechanics' Banlc, 29 Md. 287, 293; Belt V. Marriott, 9. Gill (Md.) 381 ; Remick v. Sandf ord, 120 Mass. .316 ; Safford v. McDonough, 120 Mass. 290; Dole v. Stimpson, 38 Mass. (21 Pick.) 384; Shepherd v. Pressey, 32 N. H. 49, 55 ; Messer v. Woodman, 22 N. H. (2 Fost.) 172, 182 ; Hawley V. Keeler, 83 N. Y. 114; Stone v. Browning, 51 N. Y. 211 ; Marsh v. Rouse, 44 N. Y. 643 ; Gray v. Davis, 10 N. Y. 285 ; Shindler v. Houston, 1 N. Y. 261; s. c. 49 Am. Dec. 316; Brand v. Focht, 3 Keyes (N. Y.) 409 ; Tempest v. Fitzgerald, 3 Barn. & Aid. 680 ; Baldey v. Parker, 2 Barn. & Cress. 37. Vide infra, sec. 162, note 2. j\fere delivery is not sufficient ; there must be an acceptance and re- ceipt by the purchaser. See authori- ties above, and also Edwards v. Grand Trunk R. Co., 54 Me. 105; s. c. 48 Me. 379 ; Maxwell v. Brown, 39 Me. 101; s. c. 63 Am. Dec. 605; Johnson v. Cuttle, 105 Mass. 449 ; s. u. 7 Am. Rep. 545 ; Broadman v. Spooner, 95 Mass. (13 Allen) 357; Denny v. Williams, 87 Mass. (5 Allen) 3; Prescott u. Locke, 51 N. H. 94; s. c. 12 Am. Rep. 55; Caul- kins V. Hellman, 47 N. Y. 449; s. c. 7 Am. Rep. 461 ; Gibbs v. Benjamin, 45 Vt. 124, 130; Phillips v. BistoUi, 2 Barn. & Cress. 513; s. c. 3 Dowl. & Ryl. 822. 1 2 C. B. N. S. 340. See, also, Klinitz V. Surrey, 5 Esp. 267 ; Talver V. West, Holt, 178. 2 Acceptance and receipt must be simultaneous acts ; but they need not be simultaneous with the con- tract of a sale; a delivery and ac- ceptance within a reasonable time being sufficient. Phillips v. Ocmul- gee Mills, 55 Ga. 633; Bush c Holmes, 53 Me. 417 ; Davis v. Moore, 13 Me. 424 ; Hewes v. Jordan, 39 Md. 484; Marsh v. Hyde, 69 Mass. (3 Gray) 331 ; Thompson v. Alger, 53 Mass. (12 Mete.) 435; Damon <.- Osborn, 18 Mass. (1 Pick.) 480 ; s. c. 11 Am. Dec. 229; McCarthy v. Nash, 14 Minn. 127; Pinkham c. Mattox, 275 *130 FORMATION OF THE CONTRACT. [BOOK I. on the labels the prices agreed on ; and this taking of the samples was relied on as a part acceptance, so' as to take the case out of the statute. But the Court, in deciding Gardner V. Grout, distinguished it from Simonds v. Fisher, saying, " There the buyer never saw the bulk : the things handed to him really were mere samples.^ But here the plaintiff receives part of the very things which he has already bought."* r*130] * So in Foster v. Frampton,^ the drawing of samples by a vendee from hogsheads of sugar forwarded to him by the vendor, when the sugar was in the carrier's warehouse at the place of destination, was held to be a tak- ing possession of part of the goods, " a complete act of ownership " Qper Littledale J.), putting an end to the ven- dor's right of stoppage in transitu. In Gilliat v. Roberts,^ the defendant having purchased 100 quarters of wheat, sent his servant for three sacks of it, which were delivered, but the contract was for wheat, "not to weigh less than nine and a half stone neat imperial measure, to be made up eighteen stone neat," and the sacks sent had not been tested according to imperial measure, nor had the wheat received the usual final dressing before de- livery. On these facts, the defendant, who had not returned the three sacks, maintained that he had kept them under a new implied contract to pay for their value, and not as part of the 100 bushels bought, with which the three sacks did not correspond in description. But held that there was but one contract, and that the buyer had actually received and accepted part of the goods sold, so as to take the case out of the statute. 53 N. H. 604 ; McKnight ^i. Dunlop, R. 14, where the sample was not part 5 N. Y. 537; Sale v. Darragh, 2 Hilt. of the bulk. QS. Y.) 184 ; Chapin v. Potter, 1 Hilt. ^ Acceptance of sample when suffi- (N. Y.) 366; Vincent w. Germond, 11 dent. — See sec. 159, note 1, and Johns. (N. Y.) 283 ; Sprague v. Blake, also Atwood u. Lucas, 53 Me. 508 ; 20 Wend. (N. Y.) 61 ; Richardson v. Bush ;;. Holmes, 53 Me. 417, 418 ; Squires, 37 Vt. 640 ; Danforth o. Pratt v. Chase, 40 Me. 269 ; DaTis v. Walker, 37 Vt. 239; Amson v. Eastman, 83 Mass. (1 Allen) 422; :preher, 35 Wis. 615. Danforth v. Walker, 40 Vt. 257. ' See, also, Cooper v. Elston, 7 T. ^^B. &C. 107. « 19 L. J. Ex. 410. 276 PART II.] OP ACCEPTANCE AND RECEIPT. "130 § 162. It is quite well settled that the acceptance of the goods, or part of them, as required by the statute, may be constructive only, and that the question whether the facts proven amount to a constructive acceptance is one " of fact for the juryi not matter of law for the Court." ^ The accept- ance must be clear and unequivocal,^ but "it is question for the jury whether, under all the circumstances, the acts which the buyer does, or forbears to do, amount to an ac- ceptance." ^ All the cases proceed on this principle.* 1 Per Denman C. J. in Eden u. Dudfield, 1 Q. B. 302. See sec. 159 and last part of note 1, and also Frostburg Mining Co. v. New Eng- land Glass Co., 63 Mass. (9 Cush.) 118; Simpson r. Krumdick, 28 Minn. 352 ; Pinkham ;,■. Mattox, 53 N. H. 60.5. 2 See Boynton ;;. Veazie, 24 Me. 286; Denny v. Williams, 87 Mass. (5 Allen) 3; Snow v. Warner, 61 Mass. (10 Mete.) 136; s. c. 43 Am. Dec. 417 ; Dole v. Stimpson, 38 Mass. (21 Pick.) 384 ; Prescott v. Locke, 51 N. H. 94; s. c. 11 Am. Rep. 55; Car- ver V. Lane, 4 E. D. Smith (N. Y.) 168; Gibson y. Stevens, 49 U. S. (8 How.) 384; bk. 12, L. ed. 1123; Remick v. Sandford, 120 Mass. 309, 316; Safford v. McDonough, 120 Mass. 290, 291; Knight v. Mann, 118 Mass. 146; s. c. 120 Mass. 219, 220; Johnson v. Cuttle, 105 Mass. 449; 6. u. 7 Am. Rep. 545; Quintard v. Bacon, 99 Mass. 185; Frostburg Mining Co. v. New England Glass Co., 63 Mass. (9 Cush.) 115; Snow v. Warner, 51 Mass. (10 Mete.) 132; s. c. 43 Am. Dec. 471 ; Barkley v, Rensselaer & S. R. R. Co., 71 N. Y. 205 ; Rogers v. Gould, 6 Hun (N. Y.) 229; Vincent v. Germond, 11 Johns. (N. Y.) 283; Cutwater v. Dodge, 6 Wend. (N. Y.) 400 ; Gibbs v. Benja- min, 45 Vt. 130 ; Spencer, u. Hale, 30 Vt. 314; ». u. 73 Am. Dec. 309; Bar- ney V. Brown, 2 Vt. 374 ; s. i;. 19 Am. Dec. 720 ; sec. 160, note 2. Acceptance hij agent of both parties. — The same person cannot act as an agent for both the seller and the pur- chaser in the delivery and acceptance of the goods sold. New York Cent. Ins. Co. V. National Protection Ins. Co., 14 N. Y. 85; Boetwick v. At- kins, 3 N. Y. 53; Hawley v. Cramer, 4 Cow. (N. Y.) 736 ; Claflin v. Farm- ers' & Citizens' Bank, 24 How. (N. Y.) Pr. 1, 15; Caulkins v. Hellman, 14 Hun (N. Y.) 350 ; s. c. 47 N. Y. 449 ; Torrey v. Bank of Orleans, 9 Paige Ch. (N. Y.) 663; Van Eps v. Van Eps, 9 Paige Ch. (N. Y.) 237 ; Story on Agency, sees. 31, 211. 3 Per Coleridge J. in Bushell v. Wheeler, 15 Q. B. 442, quoted and approved by Campbell C. J. in Mor- ton V. Tibbett, 15 Q. B. 428, and 19 L. J. Q. B. 382. See, also, Parker v. Wallis, 5 E. & B. 21. American authorities. — Sawyer v, Nithols, 40 Me. 212; Wartman v. Breed, 117 Mass. 18; Borrowscale v.- Bosworth, 99 Mass. 381 ; Kirby v. Johnson, 22 Mo. 364; Rappleye v. Adee, 65 Barb. (N. Y.) 589 ; Bailey 280 PART II.J OF ACCEPTANCE AND RECEIPT. *131 § 164. In Beaumont v. Brengeri,i where the defendant' bought a carriage from plaintiff, and ordered certain altera- tions made, and then sent for the carriage and took a drive in it, after telling plaintiff that he intended to take it out a few times so as to make it pass for a second-hand carriage on exportation, held, that the defendant had thereby assumed to deal with it as his own, had accepted it, and could not refuse to take it, although it had been sent back and left in the plaintiff's shop. But in Maberly v. Sheppard,^ the action was for goods sold and delivered, and it was proven that the defendant ordered a wagon to be made for him by plaintiff, and during the process of the work furnished the iron work and sent it to plaintiff, and sent a man to help plaintiff in fitting the iron to the wagon, and afterwards bought a tilt, and sent it to the plaintiff to be put on the wagon. It was insisted by plaintiff that the defendant had thereby exercised such dominion over the goods sold as amounted to acceptance. The Court took time to consider, and Tindal C. J. deliv- ered the decision that the plaintiff had been rightly non- other by verbal contract, to be re- evidence to go to a jury, of an actual moved as soon as possible and the receipt of the goods. This principle purchaser in pursuance of the con- will, I think, be found to be the gov- tract felled some of the trees and sold erning principle in all the decided the tops and stumps to a third person, cases. Thus, for instance, where it was held that this was a sufficient goods are handed over the counter of acceptance to take the case out of the purchaser, where casks, though the Statute of Frauds. The court not taken away, have had their spigots say : '• If the sub-sale stood alone, I cut ofE by the purchaser, and in other should have doubted whether it would similar cases there has been an actual have been evidence of an actual re- possession by the buyer, and some- ceipt, but here he did something to thing actually done to the goods the trees themselves ; I should be in- themselves, by him, which could only clined to say that where there is no properly be done by an absolute actual removal of tlie things sold, the owner; here by cutting down the trees question depends upon this proposi- the defendant actually did something tion, viz., that where there has been to them, which apart from the sale during the existence of the verbal over of the toppings, amounted in contract, for however short a time, my opinion to an actual receipt of an actual possession of the things them. Marshall v. Green, L. R. 1 C. sold, and something has been actually P. Div. 35, 43. done to the things themselves by the i 5 C. B. 301. buyer, which could only properly be ^ 10 Bing. 99. done by an absolute owner, there is 281 *132 FORMATION OF THE CONTRACT. [BOOK I. ["*132] suited, * because the acts of the defendant had not been done after the wagon was fuiished and capable of delivery, but merely while it was in progress ; so that it still remained in plaintiff's yard for further work till it was , finished. " If the wagon had been completed and ready for delivery, and the defendant had then sent a workman of his [ own to perform any additional work upon it, such conduct on the part of the defendant might have amounted to an acceptance."^ § 165. In Parker v. Wallis,^ the defendants received some ^ turnip-seed under a verbal contract of sale, but sent word at J once to plaintiff that it was "out of condition;" this was denied by plaintiff, who refused to receive it back. The defendants then took the seed out of the bags, and laid it out thin, alleging that it was hot and mouldy, and that plain- tiff had given them authority to do so ; both these facts were denied by plaintiff. Plaintiff was nonsuited by Wightman J. and leave reserved to enter a verdict for 140Z., the price of the seed, if the evidence sufficed to show acceptance and actual receipt of any part of the goods. The Court made the rule absolute for a new trial, but refused to enter verdict for plaintiff. Held, that the act of taking the seed out of the bags was susceptible of various constructions. It might have been because the seed was hot, or because the plaintiff had authorized it. But, as the evidence stood, when the nonsuit was ordered, these were not the facts. There re- mained a third construction, namely, that spreading out the seed was an act of ownership, a wrongful act, if the defend- ants had not accepted as owners. This was a question for the jury. In Kent v. Huskisson,^ there was an actual receipt, but no acceptance. The buyer gave an order for sponge, at lis. per pound. On arrival of the package it was examined, and jiidged to be worth not more than 6s. per pound. He at once returned it by the same carrier. Held, no acceptance. 8 See Halterline v. Rice, 62 Barb. i 5 B. & B. 21. (N. YO 593 ; Flintoft ». Elmore, 18 ^ 3 b. & p. 233. Up. Can. C. P. 274. 282 PART II.J OF ACCEPTANCE AJSTD EECBIPT. *133 § 166. A dealing with goods, so as to justify a jury in finding a constructive acceptance, may take place as effectively with * the bill of lading, which represents [*133] the goods, as with the goods themselves.^ § 167. Very deliberate consideration was given to the whole subject by the Queen's Bench, in the important case of Morton v. Tibbett.i The facts were that on the 25th of August, defendant made a verbal agreement with plaintiff for the purchase of fifty quarters of wheat according to sam- ple, each quarter to be of a certain specified weight. De- fendant, by agreement, sent a general carrier next morning to a place named, and the wheat was then and there received on board of one of the carrier's lighters, for conveyance by canal to Wisbeach, where it arrived on the 28th. In the mean- time, on the 26th, the defendant resold the wheat by the same sample, and on the understanding that it was to be of the same weight per quarter as had been agreed with plain- tiff, and the wheat upon arrival was examined and weighed by the second purchaser and rejected, because found to be of short weight. Defendant thereupon wrote to plaintiff on the 30th, also rejecting the wheat for short weight. The wheat remained in possession of the carrier, who had re- ceived it without its being weighed, and neither defendant, nor any one in his behalf had seen it weighed. The action was debt for goods sold and delivered, and goods bargained and sold. Verdict for plaintiff, with leave reserved to move for nonsuit. The judgment of the Court was unanimous after taking time for consideration, the point for decision being whether the verdict was justified by any evidence that defendant had accepted the goods, and actually received the same, so as to render him liable as buyer. Lord Campbell said that it would be very difficult to rec- oncile the cases on the subject, and that the exact words of 1 Currie u. Anderson, 29 L. J. Q. Glass Co., 92 Mass. (9 Cush.) B. 87, and 2 E. & E. 592 ; Mere- 115. dith V. Meigh, 22 t. J. Q. B. 401, i 19 L. J. Q. B. 382, and 15 Q. B. and 2 E. & B. 364. See, also, Quin- 428. See Meredith v. Meigh, 2 E. & tard 1-. Bacon, 90 Mass. 185 ; Frost- B. 354 ; McMaster v. Gordon, 20 Up. burg Mining Co. u. New England Can. C. P. 16. 283 *134 FOKMATION OF THE CONTEACT. [BOOK I. the 17th section had not always been kept in recollection. After referring to the language, he added : " The acceptance is to be something which is to precede, or at any rate to be contemporaneous with, the actual receipt of the [*134] * goods ; and is not to be a subsequent act after the goods have been actually received, weighed, meas- ured, or examined. As the Act of Parliament expressly makes the acceptance and actual receipt of any part of the goods sold sufficient, it must be open to the buyer to object, at all events, to the quantity and quality of the r-esidue ; and even where the sale is by sample, that the residue offered does not correspond with the sample." His lordship then continued, by announcing that : " We are of opinion that there may be an acceptance and receipt within the meaning of the Act without the buyer having examined the goods, or done anything to preclude him from contending that they do not correspond with the contract. The acceptance to let in parol evidence of the contract appears to us to be a different acceptance from that which affords conclusive evidence of the contract having ieen fulfilled." '^ '^ Acceptance without receipt. — Lord Colt. 717. But where the seller Campbell's propositions have found relies on an acceptance by the buyer but partial favor with the judges of to take the sale out of the Statute of Westminster Hall ; and while it may Frauds, he must show some unequiv- be said to be the established con- ocal act of acceptance. If the goods struction of the statute by the Court were sold by sample it is not enough of Queen's Bench, it has failed to for him to show merely that the receive the sanction of the Court of goods came into the possession of the Exchequer, Hewes v. Jordan, 39 buyer and that they corresponded Md. 472 ; s. c. 17 Am. Rep. 578. See with the sample. Eemick ,:. Sand- Coombs V. Bristol & E. R. Co., 3 H. ford, 120 Mass. 309. See Garfield v. & N. 510 ; Hunt r. Hecht, 8 Ex. 814. Paris, 96 U. S. (6 Otto) 657, 502 ; The act of acceptance is not confined bk. 24, L. ed. 821. Very delicate and to any particular order of time in troublesome questions which are to reference to the actual receipt of the be determined by the jury where goods ; it may precede as well as be there is thought to be more than u. contemporaneous with tlie actual re- scintilla of evidence tending to show ceipt of the goods. Hewes u. Jor- an act of ownership from which ac- dan,39Md. 472; s. c. 17 Am. Rep. ceptance could be inferred. See 578. See, also, Simpson u. Krum- Pinkham v. Mattox, 53 N. H. 600; dick, 28 Minn. 352; Cross v. O'Don- Bushel v. Wheeler, 15 Ad. & E. N. S. nell, 44 N. Y. 661 ; s. c. 4 Am. Rep. 445 ; Morton v. Tibbett, 15 Ad. & E. 721; Cusack ,. Robinson, 1 B. & S. N. S. 428; Phillips v. BistoUi, 2 B. & 299; Kershaw v. Ogden, 3 Hurl. & C. 511; Cusack v. Robinson, 1 B. & 284 PART II.] OF ACCEPTANCE AND RECEIPT. *134 § 168. The distinction pointed out in this last clause is important, and should not be lost sight of. The question presented to the Court may be, whether there was a contract, or it may be whether the contract was fulfilled. It is suffi- cient to show an acceptance and actual receipt of a part, however small, of the thing sold (as, for instance, the half- pound of sugar, in Hinde v. Whitehouse),i in order that the contract may " be allowed to be good ; " and yet the pur- chaser may well refuse to accept the delivery of the bulk, not because there is not a valid contract proven, but because the vendor fails to comply with the contract as proven. The decision of Lord Campbell then closed with declar- ing : " We are therefore of opinion that although the defend- ant had done nothing which would have precluded him from objecting that the wheat delivered to the carrier was not according to the contract, there was evidence to justify the jury in finding that the defendant accepted and received it." 2 § 169. There was very plain evidence that the defend- ant received it, but the only proof of acceptance was the S. 299 ; Simmonds v. Humble, 13 C. B. 305 ; Farina v. Home, 16 Mees. & W. N. S. 258; Chaplin v. Rogers, 1 East, 119; Norman ;;. Phillips, 14 Mees. & 192; Marvin v. Wallis, 6 E. & B. W. 277. 726 ; Parker v. Wallis, 5 E. & B. 21 ; i 7 East, 558. Saunders v. Topp, 4 Exch. 390 ; " Formation and performance of Castle V. Sworder, 6 H. & N. 828; contract. — There is a well-defined Lillywhite v. Devereux, 15 Mees. & and broad distinction between the W. 285 ; Blenkinsop v. Clayton, 7 principle applicable to the formation Taunt. 597 ; Elmore v. Stone, 1 Taunt. and performance of a contract. Gar- 458. But where there is no evidence field v. Paris, 96 TJ. S. (6 Otto) 557, from which the jury might legally 562; bk. 24, L. ed. 821. See, also, find an acceptance, the question has Remick v. Sandford. 120 Mass. 309, been treated and determined as one 316. of law, in which case it is for the Mere possession. — Acceptance can- court. Hanson v. Armitage, 5 Barn. not be inferred as a matter of law & Aid. 557 ; Carter v. Toussaint, 5 merely from the circumstances that Barn. & Aid. 855 ; Tempest v. Fitz- the goods have come into the pos- gerald, 3 Barn. & Aid. 680 ; Howe v. session of the purchaser. Remick v. Palmer, 3 Barn. & Aid. 321; Thomp- Sandford, 120 Mass. 309, 316. See son V. Maceroni, 5 Barn. & Cress. 1 ; Tower v. Tudhope, 37 Up. Can. Q. B. Holmes v. Hoskins, 9 Exch. 753; 200, 211; McMaster v. Gordon, 20 Hunt V. Hecht, 8 Exch. 814 ; Coombs Up. Can. C. P. 16 ; Hunt v. Hecht, 8 „. Bristol & E. R. Co., 3 H. & N. 510; Exch. 814 ; Curtis v. Pugh, 10 Q. B. Beaumont v. Brengeri, 3 M. G. & S. 111. 285 *135 FORMATION OP THE CONTRACT. [BOOK I. [*136] fact of the resale * before examination. The decision, therefore, goes no farther, it would seem, than to de- termine that this was such an exercise of dominion over goods bought as is inconsistent with a continuance of the right of property in the vendor, and therefore evidence to justify a jury in finding acceptance as well as actual receipt by the buyer.^ Martin B. in Hunt v. Hecht,^ declared that this was the whole scope of the decision; and again, in Coombs V. Bristol and Exeter Railway Company,^ expressed his dissent from the principles maintained in the opinion pro- nounced by Lord Campbell. In Castle v. Sworder,* Cock- burn C. J. said : " It must not be assumed that I assent to the decision in Morton v. Tibbett." § 170. On the other hand, Blackburn J. in delivering the opinion of the Court in Cusack v. Robinson, ^ on the 25th of May, 1861, just ten days after this observation of the Chief Justice in Castle v. Sworder, cites Morton v. Tibbett as authority for the proposition — " that the acceptance is to be something which is to precede, or at any rate to be con- temporaneous with, the actual receipt of the goods, and is not to be a subsequent act, after the goods have been actually received, weighed, measured, or examined." The Court on this occasion, was composed of only two judges, Blackburn and Hill JJ. In the same Court, in February, 1860, Crompton J. had stated, in the case of Currie v. Anderson,^ that " before the case of Morton v. Tibbett, there was authority for saying that there could have been no acceptance and receipt within the Statute of Frauds until the vendee had been placed in such connection with the goods that he could not object to them on account of their quantity and quality ; and in that case Lord Campbell says, if that is the law, it would be de- iRemick v. Sandford, 120 Mass. Co., 54 Me. 105, 111; s. c. 48 Me. 316. 379; Maxwell v. Brown, 39 Me. 98; 2 8 Ex. 8l4. s. u. 63 Am. Dec. 605 ; Shepherd ^. 8 3 H. & N. 510; 27 L. J. Ex. 401. Pressey, 32 N. H. 49; Shindler' v. 1 6 H. & N. 832; 30 L. J. Ex. 310. Houston, 1 N. Y. 261; s. c. 49 Am. 1 1 B. & S. 299, and 30 L. J. Q. B. Dec. 316; Cutwater v. Dodge, 6 261. "Wend. (N. Y.) 400; Phillips v. Bis- 2 2 E. & E. 592 ; 29 L. J. Q. B. 87. tolli, 2 Barn. & Cress. 513 ; s. c. 3 See, also, Edwards v. Grand Trunk R. Dowl. & Ryl. 822. 286 PART II.] OV ACCEPTANCE AND RECEIPT. *1C6 cisive against the plaintiff, but after a careful review of the cases, the Court came to the conclusion (which, in this Court, must be considered to * be the law of the [*136] land), that in order to make an acceptance and receipt within the Statute of Frauds, it is not necessary that the ven- dee should have done ant/thing to preclude himself from object- ing to the goods? That was the decision in Morton v. Tib- bett, and from the discussion to-day, I have more reason than ever to be satisfied with it." § 171. It is fair to assume from the foregoing review, that, notwithstanding the observation of Cockburn C. J. in Castle v. Sworder, the law is considered to be settled in the Court of the Queen's Bench in conformity with the decision in Morton v. Tibbett, and that the authority of that case remains unshaken in that Court. § 172. In the Exchequer, however, the leaning of the judges is evidently adverse to the construction placed in the Queen's Bench upon this clause of the statute, though in iio case has there been a decided rejection of the authority of Morton v. Tibbett. Hunt V. Hecht ^ was decided in 1853, and, therefore, prior to the more recent cases in which the judges of the Queen's Bench showed what was, in the opinion of that Court, the full extent of the decision in Morton v. Tibbett. The facts were, that a number of bags of bone were sent by defendant's order to his wharfinger, in compliance with a verbal contract with plaintiff. The defendant went to plaintiff's warehouse, and there inspected a heap of ox-bones mixed with others " Eight to reject goods because B. c. 7 Am. Rep. 461 ; Heermance v. they do not correspond with the sam- Taylor, 14 Hun (N. Y.) 149 ; Tower pie or those bargained for is not de- v. Tudhope, 37 Up. Can. Q. B. 200, feated by delivery. See Edwards v. 211 ; Morton v. Tibbett, 15 Ad. & El. Grand Trunk R. Co., 64 Me. 105, 111 ; N. S. 428 ; Curtis v. Pugh, 10 Ad. & Maxwell ^. Brown, 39 Me. 98; s. c. El. N. S. Ill; Smith v. Hudson, 6 B. 63 Am. Dec. 605 ; Hewes v. Jordan, 39 & S. 485 ; Currier u. Anderson, 2 E. Md. 472; s. c. 17 Am. Rep. 678; &E. 592, 600; Lucy ti. Mouflet, 6 H. I'rostburg Mining Co. v. New England & N. 229; Holmes i'. Hoskins, 9 Exch. Glass Co., 63 Mass. (9 Gush.) 116; 763; s. c. 28 Eng. L. & Eq. 664. Stone V. Browning, 51 N. Y. 211; ' 8 Ex. 814 ; 22 L. J. Ex. 293. Caulkins u. Hellman, 47 N. Y. 449; 287 *137 FORMATION" OF THE CONTEACT. [BOOK I. inferior in quality. Defendant objected to tlie latter, but verbally agreed to purchase a quantity of the others, to be separated from the rest, and ordered them to be sent to his wharfinger. The bags were received on the 9th, and ex- amined next day by the defendant, as soon as he heard of their being sent to the wharf, and he at once refused to accept them. Held, no acceptance. All the judges put the case on the ground of the goods sold having been mixed in bulk with others, so that no acceptance was possible till after separation, and there was no pretence that there had [*137] been an acceptance after * separation', otherwise than by the wharfinger's receipt, which was insufficient for that purpose, but Martin B. said: "There are various authorities to show that for the purpose of an acceptance within the statute, the vendee must have had the opportunity of exercising his judgment with respect to the articles sent. Morton v. Tibbett has been cited as an authority to the con- trary, but in reality that case decides no more than this, that where the purchaser of goods takes upon himself to exercise dominion over them, and deal with them in manner incon- sistent with the right of property being in the vendor, that is evidence to justify the jury in finding that the vendee has accepted the goods, and actually received the same. The Court, indeed, there say that there may be an acceptance and receipt within the statute, although the vendee has had no opportunity of examining the goods, and although he has done notliing to preclude himself from objecting that they do not correspond with the contract. But in my opinion, an acceptance, to satisfy the statute, must be something more than a mere receipt ; it means some act done, after the vendee has exercised, or had the means of exercising, his right of rejection." ^ 2 Opportunity for rejection must 98 Mass. 153 ; Chapman v. Searle, 20 always be allowed. See § 170, notes Mass. (3 Pick.) 38; Cusack v. Robin- 1 and 2. Also, Cusack v. Robinson, son, 1 B. & S. 299 ; Bog Lead Mining 1 B. & S. 299; Bog Lead Mining Co. Co. c. Montague, 10 C. B. N. S. 480; u. Montague, 10 C. B. N. S. 481, 489. Coombs v. Bristol & E. R. Co., 3 H. & Specific articles, what sufficient N. 510 ; Farina v. Home, 16 Mees. & evidence of acceptance. Knight o. W. 119. There must be some un- Mann, 118 Mass. 143 ; Weld v. Came, equivocal acts showing acceptance or 288 PART n.] OF ACCEPTAlSrCE AND RECEIPT. *138 § 173. In tlie case of Coombs v. The Bristol and Exeter Railway Company, decided in 1858, the same Court had occasion to review the subject, and Pollock C. B. said that Hunt V. Hecht had decided "that the vendee should have an opportunity of rejecting the goods. The statute requires not only delivery but acceptance." Martin B. said, "No doubt in Morton v. Tibbett the Court of Queen's Bench carried out the principle of constructive acceptance to an extent which in that case was correct: but I adhere to that which I said in Hunt v. Hecht, that much that is there said is doubtful, and that acceptance, to satisfy the statute, must be after the opportunity of exercising an option, or after the doing of some act waiving it." Bramwell B. said without qualification, "The oases establish that there can be no acceptance where there has been no opportunity of reject- ing." Watson B. concurred. * § 174. The subject of acceptance under the stat- [*138] ute again arose in Smith v. Hudson,^ decided in the Queen's Bench in Easter Term, 1865. All the cases were reviewed by able counsel, and commented on by the judges in the course of the argument. The plaintiffs were assignees of Willden, a bankrupt. The defendant, on the 3d of November, 1863, sold to Willden by verbal contract a quantity of barley, according to sample. The bulk was con- veyed by the vendor in lais own wagons to the railway sta- tion, on the 7th of November, and he gave orders to convey and deliver it to the purchaser. It was admitted that by the custom of the trade the purchaser, notwithstanding the delivery of the bulk at the station, had the power of reject- ing the goods if found not equal to sample. On the 9th of November Willden was adjudicated a bankrupt on his own petition, without having given any orders or directions about from which an acceptance may prop- Barnard, 73 Mass. (7 Gray) 554 ; erly be inferred, and they must relate Marsh v. Hyde, 69 Mass. (3 Gray) to some dealing with the property by 331 ; Chaplin v. Rogers, 1 East, 192: the owner or his authorized agent, Currie v. Anderson, 2 E. & E. 692 : after the delivery of the whole or a Morton c/. Tibbett, 15 Q. B. 428 ; part of it. Knight u. Mann, 118 Blenkinsop v. Clayton, 7 Taunt. 597. Mass. 143, 146; Ross ,;. Welch, 77 i 6 B. & S. 431; 34 L. J. Q. B. Mass. (11 Gray) 235; Ullman „. 145. 289 *139 FORMATION OF THE CONTRACT. [BOOK I. the barley, which still remained at the railway station, nor had he examined it, or given any notice whether he accepted or declined it. Nothing had been paid on account of the pi'ice, and on the 11th of November the vendor gave notice to the railway company not to deliver the goods to any one but himself. The corn was given up to the vendor by the Company, and the assignees of Willden claimed it as the property of the bankrupt. On the question whether there had been an acceptance under the Statute of Frauds, held by all the judges, Cockburn C. J., Blackburn, Mellor, and Shee JJ., that the contract could not be allowed to be good. The Chief Justice held Hunt v. Hecht to be binding on the Court as an authority that where the buyer has a right to inspect the articles sold to see whether they are in accordance with the contract, there is no acceptance till he has time to make the inspection. Blackburn J. said, "There must be both acceptance and receipt to bind both purchaser and vendor under the statute." And in all the opinions it was held that the countermand of the vendor before the goods had been delivered according to his order, and before acceptance, put an end to the contract, and deprived the assignees of the power to accept, on behalf of the bankrupt. [*139] * § 175. [The authority of Morton v. Tibbett was fully recognized, and its principle adopted by the Court of Appeal in the case of Kibble v. Go ugh, decided in 1878.-^ The plaintiff verbally agreed to sell barley to the de- fendant, the same to be well dressed and equal to sample. In the defendant's absence his foreman received the barley, which was delivered in several instalments, examined it, and gave a receipt for each instalment, with the words, "not equal to sample." The defendant afterwards personally examined the barley, and rejected it on the ground that it was not properly dressed and not equal to sample. In an action for goods sold and delivered the jury found, in answer to questions left to them by Pollock B. at the 1 .38 L. T. N. S. 204. See, also, 391, where, however, the decision Grimoldby v. Wells, L. R. 10 C. P. turned upon another point. 290 PART II.] OF ACCEPTANCE AND EECEIPT. *140 trial : 1st, that tliere was an acceptance by the defendant of part of the barley: and 2dly, that the barley was equal to sample and properly dressed. Upon the argument of a rule for a new trial, obtained on the ground of misdirection, and that the verdict was against the weight of evidence, it vv^as argued for the defendant that there was misdirection on the part of the judge in holding that there was any evidence to go to the jury of acceptance under the Statute of Frauds, upon the ground apparently^ that the defendant's foreman having given a receipt with the words "not equal to sample " upon it, could not be held to have accepted it within the meaning of the statute, and that the question therefore, whether it was equal to sample or not, never arose, because there was no valid contract between the parties. The authority of Morton v. Tibbett was attacked, but all the Lords Justices (Bramwell, Brett, and Cotton) referred with approval to the principle there laid down, and held that there was evidence for the jury of an acceptance sufficient to satisfy the statute. That being so, the question whether the barley was equal to sample or not was clearly one for the jury to decide, and they had answered it in favor of the plaintiff. Lord Justice Brett refers in these terms to the ac- ceptance necessary under the statute : " There must be an * acceptance and an actual receipt ; no absolute [*140] acceptance hut an acceptance which could not have been made except on admission of the contract, and that the goods were sent under it. I am of opinion there was a sufficient acceptance under the Statute of Frauds, although there was (still) a power of rejection.'' And then, after reviewing the cases, and referring with approval to Morton v. Tibbett, he adds : " The goods then were sold hy valid contract, actually delivered and received, and after this the vendee objects to them. If they have not been equal to the sample, I say that it was not even then too late to object ; but they were equal to sample and they were (properly) dressed." And Cotton L. J. says, " All that is wanted is a receipt, and such an acceptance of the goods as shows that it has '^ The report is somewhat involTed. 291 *141 FORMATION OF THE CONTBAOT. [BOOK I. regard to the contract: but the contract may yet be left open to objection." § 176. In Rickard v. Moore,^ decided in the same year, the plaintiff verbally sold by sample to the defendant six bales of wool. The goods were sent off by the plaintiff, and delivered at a railway station, and were received there and taken home by the defendant, who then unpacked the wool, and wrote the same day to the plaintiff that two bales were inferior to sample, asking what was to be done in the matter. Plaintiff replied denying that the bales were not equal to sample. The defendant was away from home when this letter arrived. Four days afterwards he returned home, and after reading the plaintiff's letter sent the goods back to the railway station, and telegraphed to the plaintiff rejecting them. During these four days the defendant admitted that he had offered the goods for sale in the market, stating, how- ever, that he had not accepted them, and that he would have to make other arrangements before he could sell. In an action for goods sold and delivered the defendant (inter alia?) pleaded, first, that there was no acceptance or actual receipt to take the case out of the Statute of Frauds ; and, secondly, that he had properly rejected the goods as not equal to sam- ple. The jury found at the trial that tivo of the hales [*141] were not equal to * sample, and Hawkins J. there- upon directed a verdict, and gave judgment for the defendant. On appeal, Bramwell L. J. held both points in the defendant's favor, distinguishing Kibble v. Gough upon the question of acceptance within the Statute of Frauds, upon the ground that in that case the jury had found that there was in fact an acceptance of the goods by the defendant, and that there was evidence to justify that finding. In this judg- ment Baggallay L. J. concurred. Thesiger L. J., while not differing from the judgment of Bramwell L. J., preferred to rest his judgment upon the second point taken, viz., that whether or not there was an acceptance to satisf j'' the statute, the defendant had done nothing to waive his right to reject the goods as not equal to sample, and the jury had found as 1 38 L. T. N. S. 841, C. A. 292 PART II.J OF ACCEPTANCE AND RECEIPT. *142 a fact that the goods were not equal to sample. Morton v. Tibbett, though cited in the argument, is not directly referred to in the judgments, but it is quite clear from what was said by Bramwell and Thesiger L. JJ. that both recognized and adopted the distinction between an acceptance such as would satisfy the Statute of Frauds, in other words a conditional ac- ceptance, and an acceptance of the goods as equal to sample.] § 177. The case of Smith v. Hudson,^ already referred to, ante, p. 138, is worthy of note, also, on another ground. It clearly recognizes and maintains the long-established doc- trine that the acceptance and actual receipt are distinct things, both of which are essential to the validity of the con- tract. This would seem sufficiently clear from the language of the statute, but on more than one occasion remarks had been made by eminent judges, suggesting doubt upon the question. Thus, in Castle v. Sworder,^ Crompton J. said, " I have sometimes doubted whether there is much distinction between receipt and acceptance; " and Cockburn C. J. said, " I think those terms (i.e., acceptance and receipt) are equiva- lent." In Marvin v. Wallace,^ also, Erie J. said, according to one report, " 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 [*142] only manual prehension." It is probable, however, both from the context and from the point in dispute, that Iris lordship is more correctly represented in another report, as saying, " I believe that the persons who framed the stat- ute, and inserted the words 'actually received the same,' had no clear idea of their meaning," &c. It may confidently be assumed, however, that the construction which attributes distinct meanings to the two expressions, " acceptance " and " actual receipt," is now too firmly settled to be treated a,s an open question, and this is plainly to be inferred from the opinions delivered in Smith v. Hudson.^ 1 5 B. & S. 431 ; 34 L. J. Q. B. 145. * Pinkham v. Mattox, 53 N. H. 605, 2 6 H. & N. 882 ; 30 L. J. Ex. 310. 606. ' 6 E. & B. 726 ; 25 L. J. Q. B. 369. 5 Referring to the remarks of 293 *143 FORMATION OP THE CONTEACT. [BOOK I. § 178. Acceptance by the vendee may be prior to the actual receipt of the goods, as for instance, when he has inspected and approved the specific goods at or be- fore the time of purchasing. Thus in Cusack v. Robin- son,i vi^here the buyer was shown a lot of 156 fii-kins of butter in the vendor's cellar, and had the opportunity of inspecting as many of them as he pleased, and did in fact open and in- spect six of the firkins, and then agreed to buy them, and the goods were then forwarded to the purchaser by a carrier according to his directions ; it was held that there was suffi- cient evidence to justify the jury in finding an acceptance, and that the acceptance before the bargain was concluded, was a compliance with the statute. This question was raised, but not decided, in Saunders v. Topp,^ which is referred to by Blackburn J. in delivering the opinion of the Court in Cusack V. Robinson. § 179. In deciding Cusack v. Robinson, the Court distin- guished it from Nicholson v. Bower,^ because in the latter case there had been no specific goods selected and fixed on in advance. Bower had made a verbal sale of about 140 quarters of wheat, by sample, to be delivered by rail in Lon- don. The wheat was received at the London depot, and warehoused by the railway company, and the purchasers sent a carman to get a sample, and after inspecting it, told him not to cart the wheat home at present. The pur- [*143] chasers were really * in insolvent circumstances, and immediately after the interview with the car- man determined to stop payment, and they therefore thought it would be chshonest to receive the wheat, although equal to sample, when they knew they could not pay for it. All the judges held, that there had been no acceptance in fact, Crompton J. and Cockburn C. J. in O'Donnell, 44 N. Y. 661; s. c. 4 Am. this case, the New Yori: Court of Rep. 721. Appeals say, in Cook v. Mellard, 65 i 1 B. & S. 299 ; § 30, L. J. Q. B. N. Y. 368, that "these remarks can- 261. See, also, Heermance d. Taylor, not be regarded as of anj' weight, 14 Hun (N. Y.) 149. being contrary to the decided cur- ^ 4 j;,;. 300. rent of authority." See Stone v. ' 1 E. & E. 172; 28 L. J. Q. B. 97. Browning, 68 N. Y. 598; Cross v. 294 PART II.J OP ACCEPTANCE AND RECEIPT. *143 and the assignees of the purchasers were not allowed to retain a verdict in their favor. In Sannders v. Topp,^ the defendant had selected forty-five couple of ewes and lambs at the plaintiff's farm, and ordered them to be sent to his own farm, where they were received by his agent.^ He then ordered them to be sent to another place, where he saw them and counted them over, and said, " it is all right." The Court declined to decide whether the previous selection was equivalent to an acceptance (a point subsequently decided in the affirmative in Cusack v. Robin- son, ut supra), but held that the subsequent action of the defendant was sufficient to justify the jury in finding an acceptance after delivery. § 180. In one case,^ Maule J. seems to have been strongly of opinion that it was sufficient to prove acceptance of part of the goods by the buyer, after action brought, but the Court declined to decide the point without further argument, and the case was settled. All the recent authorities are adverse to this dictum, which rested upon the assumption that the fact of acceptance was a mere question of evidence, whereas the statute makes it essential to the validity of the contract in a court of justice.^ The report of the case shows that the judges had not the language of the statute before them. The point is also ruled adversely to this opinion of Maule J. in Bill V. Bament.^ ^ 4 Ex. 390. that no action shall be brought, there ^ See Snow v. "Warner, 51 Mass. would be no good reason to hold that (10 Mete.) 132 ; o. c. 43 Am. Dec. a memorandum signed, or an act of 411. acceptance proved, at any time before 1 Fricker v. Tomlinson, 1 M. & G. the trial, would not be suflScient." 772. Acceptance need not be contemporane- ^ See Knight v. Mann, 118 Mass. ous with the sale, but may be anterior 143; Johnson v. Cuttle, 105 Mass. or subsequent thereto. Bucking- 447 ; s. c. 7 Am. Eep. 545 ; Denny v. ham v. Osborne, 44 Conn. 133, 139 Williams, 87 Mass. (5 Allen) 1; Phillips v. Ocmulgee Mills, 55 Ga. Davis V. Eastman, 83 Mass. (1 Allen) 633; Bush v. Holmes, 53 Me. 41 422 ; Marsh v. Hyde, 69 Mass. (3 Davis v. Moore, 13 Me. 424 ; Marsh Gray) 331. See, also, §§ 170, note 3, v. Hyde, 69 Mass. (3 Gray) 331 and 178, note 1. Damon r. Osborn, 18 Mass. (1 Pick.) 3 9 M. & "W. 36. It is said in 481 ; s. c. 11 Am. Dec. 229; McCarthy Massachusetts, in the case of Town- u. Nash, 14 Minn. 127, 131 ; Matthies send V. Hargraves, 118 Mass. 325,336, sen & W. R. Co. i: McMahon, 38 N. that " except that the statute provides J. L. (9 Vr.) 536, 538 ; Field v. Rune 295 #144 FORMATION OF THE CONTRACT. [book I. § 181. It is settled that the receipt of goods by a carrier or wharfinger appointed hy the purcliaser does not constitute an acceptance, these agents having authority only to receive, not to accept the goods for their employers.^ [*144] § 182. '^ Among the numerous cases in which the Courts have set aside verdicts on the ground that 22 N. J. L. (2 Zab.) 525, 530 ; Van "Woert V. Albany & S. R. R. Co., 67 N. Y. 538 ; Amson v. Dreher, 35 Wis. 615, 618. See Rickey v. Tenbroecli:, 62 Mo. 563, 569; McKnight o. Dun- lop, 5 N. Y. 544 ; Sale v. Darragh, 2 Hilt. (N. Y.) 184 ; Sprague v. Blake, 20 Wend. (N. Y.) 63. 1 Astey V. Emery, 4 M. & S. 262 ; Hanson v. Armitage, 5 B. & Aid. 557 ; Johnson v. Dodgson, 2 M. & W. 656 ; Norman v. Phillips, 14 M. & W. 276 ; Kunt V. Hecht, 8 Ex. 814 ; Acebal v. Levy, 10 Bing. 376; Meredith v. Meigh, 2 E. & B. 370, and 22 L. J. Q. B. 401, in which Hart v. Sattley, 3 Camp. 528, is overruled; Cusack v, Robinson, 1 B. & S. 299, and 30 L. J. Q. B, 261; Hart <;. Bush, E. B. & E. 494, and 27 L. J. Q. B. 271 ; Smith v. Hudson, 6 B. & S. 431, and 34 L. J. Q. B. 145. Amei-ican authorities. — Denmead v. Glass, 30 Ga. 637 ; Lloyd v. Wright, 25 Ga. 212 ; Hausman v. Nye, 62 Ind. 485; Maxwell v. Brown, 39 Me. 98; Jones !). Mechanics' Bank, 29 Md. 287 ; Atherton v. Newhall, 123 Maes. 141 ; Johnson o. Cuttle, 105 Mass. 447, 449; s. c. 7 Am. Rep. 545; Quintard v. Bacon, 99 Mass. 185, 186; Boardman u. Spooner, 96 Mass. (13 Allen) 853 ; Frostburg Mining Co. v. New England Glass Co., 63 Mass. (9 Cush.) 115; Snow v. Warner, 51 Mass, (10 Mete.) 132; s. c. 43 Am. Dec, 417 ; Grimes v. Van Vechten, 20 Mich 410; Shepherd v. Pressey, 32 N. H, 49, 55, 56 ; Allard v. Greasert, 61 N. Y, 1 ; Cross v. O'Donnell, 44 N. Y. 661 s. c. 4 Am. Rep. 721 ; Rodgers v. Phil lips, 40 N. Y. 519; Spencer i-. Hale 30 Vt. 315; s. c. 73 Am. Dec. 309 Nicholson v. Bower, 1 E. & E. 172 ; Tower v. Tudhope, 37 Up. Can. Q. B. 210. Delivery to carrier. — Receipt. — An acceptance of the goods and a subse- quent delivery to a designated carrier, in pursuance of the contract of sale and an acceptance by the carrier, is a receipt by the purchaser. Wilcox Silver Plate Co. v. Green, 72 N. Y. 17 ; Allard ;•. Greasert, 61 N. Y. 1 ; Cross i: O'Donnell, 44 N. Y. 661; s. c. 4 Am. Rep. 721 ; Hubbard v. O'Brien, 8 Hun (N. Y.) 244; Spencer t'. Hale, 30 Vt. 314; s. c. 73 Am. Dec. 309. See Williams v. Jackman, 82 Mass. (16 Gray) 517 ; Russell v. Car- rington, 42 N. Y. 119; s. c. 1 Am. Rep. 498 ; Terry v. Wheeler, 25 N. Y. 522 ; Andrews v. Durant, 11 N. Y. 35 ; s. c. 62 Am. Dec. 55; Brewer v. Salis- bury, 9 Barb. (N. Y.) 512. In Cross V. O'Donnell, supra, the court say that " while there is not, upon this ques- tion, entire harmonj' in the view of the judges, and while the authorities cannot all be reconciled, the general drift of them is toward the conclusion I have reached," See Maxwell r Brown, 39 Me. 98; s. c. 63 Am. Dec 605; Glen u. Whitaker, 51 Barb (N. Y.) 451; People v. Haynes, 14 Wend. (N. Y.) 546; s. c. 28 Am. Dec, 530; Cutwater v. Dodge, 6 Wend, (N. Y.) 397 ; Spencer v. Hale, .30 Vt, 314; s. c. 73 Am. Dec. 309; Hanson V. Armitage, 5 Barn. & Aid. 557 Morton r. Tibbett, 15 Q. B. 428 ; s. c 69 Eng. C. L. 427 ; Coats r. Chaplin 3 Q. B. 483 ; s. c. 43 Eng. C. L. 831 Acebal v. Levy, 10 Bing. 876 ; s. c, 25 Eng. C. L. 170 ; 2 Pars, on Contr, 326. 296 PART II.] OP ACCEPTANCE AND RECEIPT. *145 the jury had found acceptance by the buyer without suffi- cient evidence, some may be found which are not readily reconcilable with the principle that a dealing with the article in a manner inconsistent with the continuance of the right of property in the vendor is a constructive acceptance. Curtis V. Pugh ^ is an instance of this class. The action was debt, for goods sold and delivered. The purchaser had given a verbal order for three hogsheads of Scotch glue, to be of the description called " Cox's best." The plaintiff, the vendor, sent two hogsheads, all that he was able to deliver at the time, to a wharf in London. Defendant removed them to his own warehouse, and there unpacked the whole of the glue and put it into twenty bags. On examination, the defendant considered the glue inferior to the quality or- dered, and so informed plaintiff's agent on the next day. The plaintiff's brother admitted, on inspection two days later, that part of the glue, but not an unusual proportion, was inferior, and offered to make an allowance, but refused to take it back because it had been unpacked and put into bags, which was not necessary for the purpose of examina- tion, and because the glue, when once unpacked, could not be replaced in the same condition in the hogsheads. Lord Denman C. J. was of opinion that the defendant had not in fact intended to accept the glue, but told the jury that " if the defendant had done any act altering the condition of the article, that was an acceptance, and that the question for them was whether or not the act of putting the glue into the bags had altered its condition." The Lord Chief Justice then left it to the jury to say " whether the glue was ' Cox's best,' and whether the defendant had dealt with it so as to make it his own," or had done no more than was necessary to examine the quality. All these * ques- [*145] tions were decided in plaintiff's favor by the jury, but the Court, on motion, pursuant to leave reserved, directed a nonsuit, Lord Denman saying, "In what I stated I cer- tainly carried the doctrine, as to acceptance, a step further than I ought." Patteson J. said, " My Lord Chief Justice 1 10 Q. B. 111. 297 *145 FORMATION OF THE CONTRACT. [BOOK I. went a step further in his ruling than the authorities war- rant," and Coleridge and Wightman JJ. concurred. This case appears to be identical in principle with Parker V. Wallis (5 E. & B. 21), and the two decisions to be ir- reconcilable. The jury having found the facts in favor of plaintiff, there was ample evidence of a dealing with the goods which was wrongful unless the buyer was owner, and the constructive acceptance was therefore complete, accord- ing to the more recent decisions. § 183. The cases are not entirely consistent on the point whether mere silence and delay of the purchaser in notify- ing refusal of goods forwarded by his order suffice to con- stitute constructive acceptance. The fair deduction from the authorities seems to be that this is a question of degree, that a long and unreasonable delay would afford stringent proof of acceptance, while a shorter time would merely con- stitute some evidence to be taken into consideration with the other circumstances of the case.-' § 184. In Bushel v. Wheeler,^ in the Court of Queen's Bench, defendant ordered certain machinery to be sent to him at Hereford by the Hereford sloop. It was sent on the 2-3d of April, and an invoice for the goods at three months' credit was forwarded in a letter of advice to defendant on the 25th of April. The carrier placed the goods in a ware- house on his own wharf on their arrival at Hereford, and notice was given to defendant. No communication on the subject of the goods was made by defendant till the 7th of October, when they were rejected. The defendant proved, however, that after the arrival of the goods at the ware- house, he had seen them, and informed the warehouseman ^ Rejection of goods. — Whether un- Murray v. Toland, 3 Johns. Ch. reasonable delay in rejecting goods, (N. Y.) 575 ; Corning v. Colt, 5 or negligence in dealing with them Wend. (N. Y.) 256 ; Spencer v. Hale, so that they are lost or damaged, 30 Vt. 314 ; s. c. 73 Am. Dec. 309 ; amounts to an acceptance, is a ques- Willis v. Jernegan, 2 Atk. 252 ; tion for the jury. Downs c. Marsh, Bushell v. Wheeler, 17 Q. B. 442 ; 29 Conn. 409, 414; Borrowscale v. Morton r. Tibbett, 15 Q. B. 428; Bosworth, 99 Mass. 378, 381 ; Gaff v. Tower v. Tudhope, 87 Up. Can. Q. B. Ilomeyer, 59 Mo. 345; Wilcox Silver 200. Plate Co. V. Green, 72 N. Y. 17 ; ' 15 Q. B. 442. 298 PAE.T II. J OP ACCEPTANCE AND RECEIPT. *146 that he did not intend to take them. Erskine J. directed a verdict for defendant, with leave to move to enter a verdict for plaintiff. * The Court refused to enter [*146] a verdict for plaiatiff, but held that there was evidence of acceptance to go to the jury, and ordered a new trial. Lord Denman said that the " lapse of time, connected with the other circumstances, might show an acceptance, and tliis was a question of fact for the jury." Williams J. said that there might be a constructive receipt as well as delivery : and " it being once established that there may be an actual receipt by acquiescence, wherever such a case is set up, it becomes a question for the jury." ^ Coleridge J. said that the goods were carried by vendee's orders within a reason- able time to a particular warehouse. " That comes to the same thing as if they had been ordered to be sent to the vendee's house, and sent accordingly. In such a case, the vendee would have had the right to look at the goods and return them if they did not correspond to order. But here the vendee took no notice of the arrival, and makes no com- munication to the party to whom alone a communication was necessary." § 185. In Norman v. Phillips,^ in the Exchequer, the Court felt bound by Bushel v. Wheeler, but declined to apply it to the case before them. Defendant ordered from plaintiff certain yellow deals, with directions to send them to a specified station of the Great Western Railway, to be forwarded to him as on previous occasions. The order was given on the 17th of April, the deals arrived at the station on the 19th, on which day the defendant was informed of the arrival by the railway clerk, and said he would not take them. An invoice was sent on the 27tli of April, which defendant received and kept, but it did not appear that he had ever seen the deals. On the 28th of May, defendant informed plaintiff that he declined to take the goods. Pol- lock C. B. refused to nonsuit, and directed the jury to find for plaintiff, with leave reserved to defendant to move for 2 See Borrowscale v. Bosworth, 99 Mass. 381. 114 M. & W. 277. 299 *147, *14:8 FORMATION OF THE CONTRACT. [BOOK I. nonsuit or verdict for him. All the judges concurred in making the rule absolute. Alderson B. remarked during the argument that it was difficult to distinguish the case from Bushel v. Wheeler, and it is perceptible, from [*147] the language of all the * judges, that they did not yield entire assent to that case. Bushel v. Wheeler was, however, mentioned as a " well-considered case " in Morton V. Tibbett {ante, p. 133) : and in Parker v. Wallis,^ Lord Campbell said arguendo, that " detention of the goods for a long and unreasonable time by the vendee is evidence that he has accepted them." In Smith v. Hudson (34 L. J. Q. B. 145), Blackburn J. refers to Morton v. Tibbett as establishing that lapse of time is some evidence of accept- ance ; and observations to a similar effect are to be found in the opinion delivered by Parke B. in Cunliffe v. Harrison (6 Ex. 906). § 186. In Nichols v. Plume,^ a quantity of cider was sent to defendant, who had ordered it verbally, but he refused to receive it, and caused it to be lodged in a warehouse in the neighborhood not belonging to him. The cider was not returned to plaintiff, nor did defendant send him any notice of his intention not to use it. Best C. J. held that there had been no acceptance under the statute. The report does not show the length of the delay which elapsed, nor was the question raised whether there had been constructive accept- ance by unreasonable delay. § 187. When goods are marked with the name of the purchaser, by his consent, this constitutes an acceptance of the goods, if all the terms of the contract have been agreed on, but not an actual receipt, and the sale cannot be allowed to be good, without further proof of delivery. [*148] * § 188. The acceptance of part of the goods bought makes the contract good for the whole, even in cases where some of the goods are not yet in existence, but are to be manufactured.^ 2 6 E. & B, 21. Baldey «. Parker, 2 B. & C. 37 1 1 C. & P. 272. Proctor v. Jones, 2 C. & P. 532 1 Bill V Bament, 9 M. & W. 36 ; Hodgson v. Le Bret, 1 Camp. 23.3 300 PART II.J OP ACCEPTA>fCE AND RECEIPT. *148 In Scott V. The Eastern Counties Railway Company,^ the defendants ordered a number of lamps from the plaintiff, a manufacturer, of which one, a triangular lamp, was of a very peculiar construction, and was not ready for delivery until nearly two years after the order. In the meantime, and in the same month when the order was given, all the other lamps were delivered and paid for. The defendants rejected the triangular lamp, and it was objected on action brought that their acceptance of the other lamps two years earlier, and when the triangular lamp was not in existence, could not be considered a part acceptance of that lamp. The Court, how- ever, held the contract entire for all the lamps, and that the acceptance and actual receipt of some of them made the contract good for all.^ § 189. In Elliott v. Thomas,^ there was a joint order for common steel and for cast steel. The common steel was accepted, but there was a dispute about the cast steel, and the question was, whether the acceptance of the former suf- ficed to make the whole contract valid, and it was so held. Parke B., in giving the decision, explained Thompson v. Maceroni,2 in which the language of the opinion seemed ad- verse to the view taken by the Court by showing that this Boulter v. Arnott, 1 C. & M. 334. referring to any contract and a re- See, also, Dyer v. Libby, 61 Me. fusal on the other, to take it for 45 ; Woodford v. Patterson, 32 Barb. want of time to attend to it, with a (N. Y.) 630 ; Bappleye o. Adee, 65 promise, however, to send for it when Barb. (N. Y.) 589 ; s. c. 1 N. Y. it should be needed. Supr. Ct. (1 T. & C.) 126 ; Hodgson Sloan Saw Mill & Lumber Co. v. V. Le Bret, 1 Campb. 235 ; Saunders Gutshall, 3 Colo. 8 ; Phelps v. Cutler, V. Topp, 4 Ex. 390. 70 Mass. (4 Gray) 137 ; Marsh v. In Swigart v. McGee, 19 Ark. Hyde, 69 Mass. (3 Gray) 331, .3.34; 473, it is held that where, on an en- Gault v. Brown, 48 N. H. 183 ; Oilman tire contract for the sale and delivery v. Hill, 36 N. H. 311, 321 ; McKnight of personal property, a part is de- v. Dunlop, 5 N. Y. 537 ; O'Brien c'. livered and paid for, the contract is Credit Valley Ry. Co., 25 Up. Can. taken out of the Statute of Frauds; C. P. 275; Robinson i/. Gordon, 23 but the Supreme Court of Michigan Up. Can. Q. B. 143. say in Scotten v. Sutter, 37 Mich. 2 12 M. & "W. 33. 526, that an acceptance of merchan- ^ See Ross v. Welch, 77 Mass. disc, under a contract that is invalid (11 Gray) 235. . by the Statute of Frauds, cannot be i 3 M. & W. 176. implied, from a tender of such mer- ^ 3 b. & C. 1. See, also, Digg v. chandise made on one side, without Whiskin, 14 C. B. 195. 301 *149 FORMATION OP THE CONTRACT. [BOOK I. last-named case turned entirely on the form of the action, which was for goods sold and delivered, an action clearly not maintainable for such part of the goods as had not been actu- ally delivered to the buyer.^ § 190. So where there was a verbal contract of sale by the terms of which the thing was to be resold to the vendor at a fixed price in a particular event, the acceptance by [*149] the * purchaser in the first instance takes the whole agreement, as an entire contract, out of the statute, and he cannot object, -when afterwards sued on the stipula- tion for the resale, that this contract was not in writing, and that there had been no acceptance nor actual receipt.^ § 191. The effect of the acceptance and actual receipt of the goods, or part of them, is to prove that there was a con- tract of sale,-"- and this effect is produced, although there may be a dispute between the parties as to the terms of the con- ^ Acceptance of part, — Rejection of the defendant. See Dyer v. Libby, part. — A delivery and acceptance by the purchaser of any portion of the goods bargained for will satisfy the Statute of Frauds ; but to authorize the maintenance of a suit for goods sold and delivered, there must be a delivery and acceptance of all the goods sued for. Atwood v. Lucas, 5o Me. 508. An acceptance of a part of the goods must be made with the intention to perform the whole con- tract, to be valid and binding upon the parties. Atherton i . Newhall, 123 Mass. 141 ; s. c. 25 Am. Rep. 47 ; Remick v. Sandford, 120 Mass. 309 ; Townsend v, Hargraves, 118 Mass. 325, 333; Marsh v. Hyde, 69 Mass. (3 Gray) 331 ; Grover v. Cameron, Up. Can. Q. B. (0. S.) 196. See generally on this subject. Dyer v. Libby, 61 Me. 45 ; Ross v. Welch, 77 Mass. (11 Gray) 235. Generally in an action for goods sold and de- livered, if the plaintiff prove a de- livery at the time and place agreed, and that he has performed fully his part of the contract, it is not neces- sary for him to show acceptance by 61 Me. 45; Rodman c. Guilford, 112 Mass. 405, 407; Nichols v. Morse, 100 Mass. 523; Pacific Iron Works v. Long Island R. R. Co., 62 N. Y. 272. 1 AVilliams i'. Burgess, 10 Ad. & E. 499. A condition annexed to the origi- nal contract by which it is annulled is not within the Statute of Frauds. Dickinson v. Dickinson, 29 Conn. 600; Wooster v. Sage, 67 N. Y. 67; White V. Knapp, 47 Barb. (N. Y.) 549-555. An agreement to resell, however, is within the statute. State v. Intoxi- cating Liquors, 61 Me. 520; Quincy V. Tilton, 5 Me. 277; Chapman v. Searle, 20 Mass. (3 Pick.) 38; Blanchard .;. Trim, 38 N. Y. 225; Shindler v. Houston, 1 N. Y. 261 ; s. c. 49 Am. Dec. 316 ; Hagar v. King, 28 Barb. (N. Y.) 300; Bailey v. Ogdens, 3 Johns. (N. Y.) 399; s. c. 3 Am. Dec. 501 ; Page v. Clough (N. Y. Supr. Ct.) 1 Alb. L. J. 162; Miller .-. Smith, 1 Mason C. C. 437. 1 Vide sec. 189, note 3. 302 PART II.] OF ACCEPTANCE AND KECEIPT. *150 tract.^ Such dispute is to be determined on the parol evi- dence, as all other questions of fact are, by the jury. Where the goods have been accepted, litigation may arise on various questions, for instance, as to the price ; whether the sale was for cash or on credit ; whether notes or acceptances were to be given, &c. This point may not only be inferred from the decisions already referred to, especially that in Morton v. Tibbett, but was expressly decided in Tomkinson v. Staight.^ The defendant in that case was alleged to have bought a piano from the plaintiff, which was delivered to him at his house, and payment demanded. He said he would not pay, insisting that the agreement was that he should retain the piano as security for some bills of exchange bought from the plaintiffs. The defendant refused to let the plaintiff take back the piano, and kept it. Jleld, that the acceptance being fully proven, the statute was satisfied, and that the dispute about the terms of the contract thus proven to exist, was matter of fact for decision by the jury on the parol evidence which was properly let in at the trial. § 192. An acceptance by the purchaser can have no effect to satisfy the statute after the vendor has disaffirmed the parol contract. In Taylor v. Wakefield,! there was a verbal agreement between the owner of the goods and his tenant, who had possession of them, that the latter might purchase them at the expiration of his tenancy, but was not to take them *till the money was paid. At the termi- [*150] nation of the tenancy, the buyer tendered the price, but the vendor refused it, and denied the validity of the bargain. The buyer then proceeded to take away the goods, but the vendor prevented him. Trover by the buyer against 2 Atwood V. Lucas, 53 Me. 508 : Van Woert v. Albany & S. R. R Co., 07 N. Y. 538 ; McKnight v. Dun. lop, 5 N. Y. 537 ; s. c. 55 Am. Dec, oTO; Boutwell v. O'Keefe, 32 Barb, ley V. Wheeler, 4 Robt. (N. Y.) 18 ; Mills V. Hunt, 20 Wend. (N. Y.) 431 ; Sprague v. Blake, 20 Wend. (N. Y.) 61 ; Danforth v. Walker, 40 Vt. 257 ; Garfield ;-. Paris, 96 U. S. (6 Otto) I'N. Y.) 434; Schultz j. Bradley, 4 557, 566; bk. 24, L. ed. 821; McMas- Daly (N. Y.) 29 ; Sale v. Darragh, 2 ter v. Gordon, 20 Up. Can. C. P. 16. Hilt. (N. Y.) 184 ; Brock p. Knower, » 25 L. J. C P. 85, and 17 C. B. 37 Hun (N. Y.) 609; Thompson v. 697. Menck, 2 Keyes (N. Y.) 86 ; Brad- i 6 E. & B. 765. 303 *151 FORMATION OP THE CONTRACT. [BOOK I. the vendor. Reld, no evidence for the jury of acceptance and delivery, because the vendor had disaffirmed the contract before the buyer took to the goods. Section II. — what is an actttal receipt. § 193. This question is not free from difficulty, nor have the cases always been consistent. The circumstances in "which the goods happen to be at the time of the contract afford the basis of a convenient arrangement for reviewing the authorities. The goods sold may be in possession — 1. Of the buyer as bailee or agent of the vendor ; 2. Of a third person, whether or not bailee or agent of the vendor ; 3. Of the vendor himself, and this is the most usual case. § 194. 1. When the goods at the time of the contract are already in possession of the purchaser, it may be difficult to prove actual receipt. But wherever it can be shown that the purchaser has done acts inconsistent with the supposition that his former possession has remained unchanged, these acts may be proven by parol, and it is a question of fact for the jury whether the acts were done because the purchaser had taken to the goods as owner.i The principle is illus- trated in the case of Edan v. Dudfield.^ In that case the defendant, agent of plaintiff, had in his possession goods which he had entered at the Custom House in his o^vn name, but which belonged to the plaintiff. He agreed to buy them at a discount on the invoice cost, and afterwards sold them. On action for the price it was stren- uously maintained by Sir Fitzroy Kelly, that where [*151] the * goods exceeding 101. in value, were already in possession of the alleged buyer, there could be no valid sale under the Statute of Frauds, without a writing ; because, although there might be a virtual, there could not possibly be an actual receipt. But the Court, after time 1 See, Beaumont v. Crane, 14 Mass. ^ i q b 3og_ ggg Markham v. 400 ; Brown v. Warren, 43 N. H. 430 ; Jaudon, 41 N. Y. 235, 242. Couillard v. Johnson, 24 Wis. 533. 304 PART n.] OP ACCEPTANCE AND RECEIPT. *152 to consider, held, that there was evidence to justify the jury- in finding an actual receipt, saying, " 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 (receipt?) And the effect of such acts, necessa- rily to be proven by parol evidence, must be submitted to a jury." In Lillywhite v. Devereux,^ the Exchequer Court observed, " No doubt can be entertained after the case of Edan v. Dud- field, which was well decided by the Court of Queen's Bench, that this is a question of fact for the jury : and that, if it appears that the conduct of a defendant in dealing with goods already in his possession, is wholly inconsistent with the supposition that his former possession continues un- changed, he may properly be said to have accepted and actually received such goods under a contract, so as to take the case out of the operation of the Statute of Frauds : as, for instance, if he sells or attempts to sell goods, or if he dis- poses absolutely of the whole or any part of them, or attempts to do so, or alter the nature of the property, or the like." In this case, however, the Court disagreed with the jury, and set aside their verdict, as not justified by the evidence. § 195. 2. When the goods, at the time of the sale, are in possession of a third person, an actual receipt takes place when the vendor, the purchaser, and the third person agree ' together that the latter shall cease to hold the goods for the vendor and shall hold them for the purchaser. They were in possession of an agent for the vendor, and therefore, in contemplation of law, in possession of the vendor himself, and they became in possession of an agent for the purchaser, and therefore in that of the purchaser himself.^ * But it is important to remark that all of the par- [*152] ties must join in this agreement, for the agent of the vendor cannot be converted into an agent for the vendee without his own knowledge and consent. Therefore, if the seller have goods in possession of a warehouseman, a wharf- s 15 M. & W. 285. 1 Blackburn on Sale, 28. 305 •^152 FOKMATIOK OF THE CONTRACT. [book I. inger, carrier, or any other bailee, his order given to the buyer directing the bailee to deliver the goods or to hold them subject to the control of the buyer, will not effect such a change of possession as amounts to actual receipt, unless the bailee accepts the order or recognizes it, or consents to act in accordance with it; and until he has so agreed, he re- mains agent and bailee of the vendor.^ 2 See Boardman v. Spooner, 95 Mass. (13 Allen) 353, 357 ; Burge v. Cone, 88 Mass. (6 Allen) il2; Bui- lard V. Wait, 82 Mass. (16 Gray) 55; Rourke i'. TJuUens, 74 Mass. (8 Gray) 549 ; Appleton v. Bancroft, 51 Mass. (10 Mete.) 231, 236 ; Carter «. Wil- lard, 36 Mass. (19 Pick.) 1 ; Tux- worth V. Moore, 26 Mass. (9 Pick.) .347; s. c. 20 Ara. Dec. 479; Chapman v. Searle, 20 Mass. (3 Pick.) 38 ; Linton V. Butz, 7 Pa. St. 89 ; s. c. 47 Am. Dec. 501 ; Deady v. Goodenough, 5 Up. Can. C. P. 163. Acceptance by bailee. — Where prop- erty is in the hands of a bailee at the time of its sale, and an order is given for delivery to the purchaser after notice to or acceptance by such bailee, this will constitute a valid de- livery under the Statute of Frauds. Chase v. Vf iUard, 57 Me. 157 ; War- ren V. Milliken, 57 Me. 97 ; Town- send V. Hargraves, 118 Mass. 325, 332; Gushing v. Breed, 96 Mass. (14 Allen) 370 ; Boardman v. Spooner, 95 Mass. (13 Allen) 353; Burge v. Cone, 88 Mass. (6 Allen) 412; Hatch V. Lincoln, 66 Mass. (12 Cush.) 31 ; Hatch V. Bayley, 66 Mass. (12 Cush.) 27 ; Carter !•. Willard, .36 Mass. (19 Pick.) 1 ; Tuxworth v. Moore, 26 Mass. (9 Pick.) 348; s. c. 20 Am. Dec. 479 ; Lane v. Sleeper, 18 N. H. 214 ; HoUingsworth v. Napier, 3 Cal. (N. Y.) 186; s. c. 3 Ara. Dec. 479; Wilkes 0. Ferris, 5 Johns. (N. Y.) 335; s. c. 4 Am. Dec. 664; Grove v. Brien, 49 U. S. (8 How.) 429; bk. 12, L. ed. 1142; Gibson v. Stevens, 49 U. S. (8 How.) 384 ; s. c. bk. 12, L. ed. 1123 ; In re Clifford, 2 Sawy. C. C. 428; Evans v. Nichol, 3 Man. & G. 014; Bryans i-. Nix, 4 Mees. & W. 775 ; Browne on Statute of Frauds, §318. But it is said in Boardman v. Spooner, 95 Mass. (13 Allen) 353, that the acceptance in Massachusetts of a bill of goods which are in a warehouse in New York, with an order on the warehouseman after their delivery without notice to him, is not an acceptance or receipt of the goods which will take the sale out of the operation of the Statute of Frauds. And there are some well considered English cases which hold that to constitute an acceptance and receipt under the Statute of Frauds, there must also be an assent, on the party in whose custody the goods are to hold them for the vendee. See Bentall v. Burn, 3 Barn. & Cress. 423 ; Farina v. Home, 16 Mees. & W. 119. On the other hand there are cases which hold that a bill of lading is a symbol of the ownership of the goods covered by it, and that its transmission is such a transfer of the possession of the property described in it, as to meet the requirements of the Statute of Frauds. Walsh !'. Blakely, 6 Mont. Ter. 194. Where the vendor gives an order on the agent to deliver the property to the vendee and the agent accepts the order and agrees with the vendee to store the property for him, all the cases agree that the delivery is complete. See King v. Jarman, 35 Ark. 190; s. c. 37 Am. Rep. 11; Phillips V. Ocmulgee Mills, 55 Ga. 633, 637; Hoffman u. Culver, 7 111. 306 PART II.] OF ACCEPTANCE AND RECEIPT. *152 § 196. In Bentall v. Burn,i the King's Bench held that a delivery order given to the purchaser of wine did not amount to an actual acceptance (receipt?) by him until the ware- housemen accepted the order for delivery, "and thereby assented to hold the wine as agents, of the vendee." A dis- tinction was suggested in the case, because the warehouse- men were the Dock Company, bound by law to transfer goods from buyer to seller, when required to do so, but the Court said : " This maj' be true, and they might render them- selves liable to an action for refusing to do so ; 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 (receipt ?) of them by him until he actually took possession of them." § 197. In Farina v. Home,i the foregoing case was followed by the Exchequer of Pleas. There the wharfinger gave the vendor a delivery warrant making the goods deliverable to him or to his assignee by endorsement on payment of rent and charges. The vendor forthwith endorsed and sent it to the purchaser, who kept it ten months, and refused to pay for the goods or to return the warrant, saying he had sent it to his solicitor and intended to defend the suit, as App. 450, 458 ; Robinson v. Safford, latter is always the possession of his 57 Me. 163; Warren v. Milliken, 57 employer. Fletcher u. Ingram, 46 Me. 97; Townsend v. Hargraves, 118 "Wis. I'Jl. Mass. 325, 332 ; Gushing w. Breed, 96 Acceptance where delivery is im- Mass. (14 Allen) 376, 380 ; Hunter v. possible. — Where an actual delirery Wright, 94 Mass. (12 Allen) 548; is legally impossible, there can be Legg V. Willard, 34 Mass. (17 Pick.) constructive or symbolical delivery 140; s. c. 28 Am. Dec. 282; Tux- of goods. Zachrission o. Poppe, 3 worth V. Moore, 26 Mass. (9 Pick.) Bosw. (N. Y.) 171, 180; Dunham v. 347 ; s. c. 20 Am. Dec. 479; Williams Pettee, 1 Daly (N. Y.) 112 ; s. c. Gil- V. Evans, 39 Mo. 201, 205; Boswell v. lespie v. Durand, 3 E. D. Smith (N. Green, 25 N. J. L. (1 Dutch.) 390, 399. Y.) 531, 538 ; Smith (N. Y.) 500, 505, However, it seems that the case is 4 E. D. different where tlie original vendor 'SB. &C.423. See, also, Lacking- agrees to deliver the property to a ton v. Atherton, 7 M. & G. 360 ; Bill v. person buying from the original ven- Bament, 9 M. & W. 36 ; Lucas !•. dee. Marsh v. Rouse, 44 N. Y. 643. Dorrien, 7 Taunt. 278 ; Woodley c And a distinction is made in some Coventry, 2 H. & C. 164, 32 L. J. Ex. cases between an acceptance by the 185 ; Harman v. Anderson, 2 Camp, bailee of the seller and acceptance 243. by his employee, for possession of tlie i 16 M. & W. 119. 307 *153 FORMATION OF THE CONTKACT. [BOOK I. [*158] * he had never ordered the goods, adding that they would remain for the present in bond. Held, to be no actual receipt, but sufficient evidence of acceptance to go to the jury. § 198. In Godts v. Rose,i the vendor had the goods trans- ferred by his warehouseman, on the books of the latter, to the buyer's order, and took the certificate of transfer, which he sent by his clerk to the buyer with an invoice for the goods. The clerk handed the invoice and warehouseman's certificate together to the buyer and asked for a cheque for the amount of the invoice, which was refused, the buyer alleging that he was entitled to fourteen days' credit. The clerk then asked for the warehouse certificate back again, but the buyer refused to give it up, and the vendor there- upon countermanded the order on the wareliouseman : but the purchaser had already got part of the goods, and the warehouseman thinking that the property had passed, deliv- ered the remainder to the purchaser. The vendor then brought trover against the purchaser, and the Court held that the delivery to the purchaser of the warehouseman's certificate was conditional only, and dependent upon his giving a cheque ; that the actual receipt therefore had not taken place, the tripartite contract not being complete. § 199. But the goods may be lying on the premises of third persons, who are not bailees of them, as timber cut down and lying, at the disposal of the vendor, on the land of the person from whom he bought it, or Ijdng, at his dis- posal, at a free wharf : and in such cases the delivery may be effected by the vendor's putting the goods at the disposal of the vendee and suffering the latter to take actual control of them as in the cases of Transley v. Turner,^ and Cooper V. Bill,2 post. Book II. Ch. 3.3 1 17 C. B. 229, and 25 L. J. C. P. thereof, the law will not require it, fil. and if the goods sold be placed in the ' 2 Bing. N. C. 151. power of the purcliaser, or his author- 2 24 L. J. Ex. 161 ; 3 H. & C. 722. ity as owner is acknowledged by some " Where actual manual delivery is formal act or declaration of the seller, inconvenient, impracticable, or impos- it will amount to a sufficient delivery sible, because of the weight or size and acceptance (Thompson v. Balii- 308 PART II.] OF ACCEPTANCE AND EBCEIPT. *154 § 200. [In Marshall v. Green,^ where the buyer of timber growing on land in the possession of the seller's tenant cut down some of the trees, and agreed to sell the tops and * stumps to a third person, and the seller after- [*154] wards countermanded the sale, before any of the trees had been removed from the land, it was held that there was evidence of actual receipt, as well as of accept- ance of a part of the goods within the meaning of the 17th section. From the judgments of Coleridge C. J. and Brett J. it would appear that they relied solely upon the early Nisi Prius decisions jof Hodgson v. Le Bret and Anderson v. Scott as to marking and acts of ownership which, as we have seen (ante, p. 147, note Q), have been practically overruled by the later authorities of Bill v. Bament and Baldy v. Parker ; and Grove J., at p. 44 of the report, alone, alludes to the true ground upon which it is submitted the decision must rest, viz., that the land was throughout in the possession not of the vendor, but of his tenant.] more & 0. B. K. Co., 28 Md. 396 ; Hall V. Richardson, 16 Md. 396; s. c. 77 Am. Dec. 303; Atwell u. Miller, 6 Md. 10 ; s. c. 61 Am. Dec. 294 ; Van Brunt V. Pike, 4 Gill. (Md.) 270; s. c. 45 Am. Dec. 126; Arnold v. Delano, 58 Mass. (4 Cusli.) 33; s. c. 1 Am. Dec. 754 ; Jewett v. Warren, 12 Mass. 300; s. c. 7 Am. Dec. 74; Brewster v. Leith, 1 Minn. 56; Bass V. Walsh, 39 Mo. 192, 199 ; Glasgow V. Nicholson, 25 Mo. 29 ; Hallenbeck V. Cochran, 20 Hun ,(N. Y.) 416; Yale V. Seely, 15 Vt. 221 ; Cotterill V. Stevens, 10 Wis. 422 ; Leonard v. Davis, 66 TJ. S. (1 Black) 476, 482; bk. 17, L. ed. 222 ; McNeil v. Keleher, 15 Up. Can. C. P. 470), such as pig iron lying in piles at a furnace pointed out to the agent of the ven- dee and charged to the vendee on the books of the vendor (Thompson v. Baltimore & 0. R. R. Co., 28 Md. 396) ; stacks of hay pointed out and accepted by the vendee, who made a part payment of the purchase price (Hallenbeck v. Cochran, 20 Hun (N. Y.) 416) ; trees cut and left upon the I land of the vendor (Yale v. Seely, 15 Vt. 221) ; logs lying loose in a stream | (Cotterill v. Stevens, 10 Wis. 422) ; or in a boom (Brewster v. Leith, 1 Minn. 56; Leonard v. Davis, 66 U. S. (1 Black) 476, 482; bk. 17, L. ed. 222). While logs are floating in the ■water they are only in the construc- tive possession of the owner ; and under such circumstances a symbol- ical delivery is all that can in gen- eral be accepted, and is amply suffi- cient to pass the title. Leonard v. Davis, 66 U. S. (1 Black) 476, 482; bk. 17, L. ed. 222. See, also, Boyn- ton V. Veazie, 24 Me. 288 ; Ludwig v. Puller, 17 Me. 166 ; Macomber v. Parker, 30 Mass. (13 Pick.) 175; Hutchins v. Gilchrist, 23 Vt. 88 ; Gib- son V. Stevens, 49 U. S. (8 How.) 384; bk. 12, L. ed. 1123; 2 Kent Com. 492. 1 1 C. P. D. 35. 309 *155 FORMATION OF THE CONTEACT. [BOOK I. § 201. In America the language of the decisions is, that in such cases there must be "acts of such a cliaracter as to place the property unequivocally within the power and under the exclusive dominion of the buyer, as absolute owner, dis- charged of all lien for the price," in order to take the con- tract out of the operation of the statute. Marsh v. Rouse, 44 N. Y. Rep. 643.1 § 202. 3. Usually at the time of the sale the goods are in possession of the vendor himself, and the dealings of men are so infinitely diversified, circumstances vary so much, and the acts of parties so frequently admit of more than one con- struction, that it is extremely difficult to point out a priori at what precise period the goods sold can properly be said in all cases to have been actually received by the vendee. Of course, if the purchaser remove the goods from the vendor's possession and take them into his own, there is an actual receipt. And it is necessary here to renew the observation that the inquiry is now confined to the validity not the per- formance of the contract, and that the actual removal by the buyer of a part, however small, of the things sold, if taken as part of the bulk and by virtue of his purchase,^ is an actual receipt sufficient to make the contract good, [*155] although a serious * question may and often does arise at a later period, whether there has been an actual receipt of the bulk. § 203. It is well settled that the delivery of goods to a common carrier, a fortiori to one specially designated by the purchaser, for conveyance to him or to a place designated by him, constitutes an actual receipt by the purchaser. In such 1 In Grey v. Gary, 9 Daly (N. Y.) it into the back yard, and in attempt- 363, under an oral agreement for the ing to do so, accidentally caused the purchase of a scale, by the defendant scale to be broken. The court held from the plaintiff, to be paid for on that there had been no receipt of the delivery, it was taken for the pur- scale by the purchaser sufficient to pose of delivery to the office of the take the sale out of the Statute of defendant upon a truck driven by Frauds. See Hungate v. Rankin, 20 plaintiff's carman. He entered the 111. 639 ; Barr v. Logan, 5 Har. (Del.) defendant's office and handing the 52; 2 Kent Com. 491. plaintiff's bill said he had the scale ' Klinitz v. Surry, 6 Esp. 266. pn his truck. He was told to drive 810 PART II.] OF ACCEPTANCE AND RECEIPT. *155 cases the carrier is, in contemplation of law, the bailee of the person to Avhom, not hij whom, the goods are sent, the latter in employing the carrier being considered as an agent of the former for that purpose.^ It must not be forgotten that the carrier only represents the purchaser for the purpose of receiving not accepting, the goods.2 The law in the United States is the same. Cross v. O'Don- nell, 44 N. Y. Rep. 661 ; Caulkins v. Hellmann, 47 N. Y. 449.3 § 204. It is also now finally determined, that the goods may remain in the possession of the vendor, if he assume a changed character, and yet be actually received by the ven- dee. It may be agreed that the vendor shall cease to hold as owner, and shall assume the character of bailee or agent of the purchaser, thus converting the possession of the vendor into that of the vendee through his agent.^ 1 Dawes v. Peck, 8 T. R. 330 ; Waite 0. Baker, 2 Ex. 1 ; Fragano v. Long, 4 B. & C. 219; Dunlop v. Lambert, 6 CI. & Fin. 600 ; Johnson V. Dodgson, 2 M. & W. 653 ; Norman V. Phillips, 14 M. & W. 277 ; Mere- dith V. Meigh, 2 E. & B. 364, and 22 L. J. Q. B. 401 ; Cusack v. Robinson, 1 B. & S. 299, and 30 L. J. Q. B. 261 ; Hart V. Bush, E. B. & E. 494, and 27 L. J. Q. B. 271 ; Smith v. Hudson, 34 L. J. Q. B. 145; 4 B. & S. 431. 2 'Supra, p. 143. 8 Delivery to a carrier designated by the purchaser is equivalent to a delivery to the purchaser himself. Magruder «. Gage, 33 Md. 344 ; s. u. 3 Am. Rep. 177 ; Hall v. Richardson, 16 Md. 396; s. c. 77 Am. Dec. 303; Foster v. Rockwell, 104 Mass. 167, 172; Hunter v. Wright, 94 Mass. (12 Allen) 548, 550; Merchant v. Chap- man, 86 Mass. (4 Allen) 362; Orcutt V. Nelson, 67 Mass. (1 Gray) 536; Wilcox Silver Plate Co. v. Green, 72 N. Y. 16; Allard v. Greasert, 61 N. Y. 1 ; Everett v. Parks, 62 Barb. (N. Y.) 9 ; Strong v. Dodds, 47 Vt. 348, 356; Spencer v. Hale, 30 Vt. 314; s. c. 73 Am. Dec, 309; Cobb v. Arundell, 26 Wis. 553. It is not necessary that the purchaser should employ the carrier personally. Hunt- er V. Wright, 94 Mass. (12 Allen) 548, 550. 1 Vendor as bailee of purchaser. — It is well settled that the vendor may himself become the warehouseman or bailee of the purchaser. Boynton V. Veazie, 24 Me. 286; Arnold v. Delano, 58 Mass. (4 Cush.) 40 ; Rap- pleye v. Adee, 65 Barb. (N. Y.) 589 ; Green v. Merriam, 28 Vt. 801 ; Jan- vrin V. Maxwell, 23 Wis. 51 ; Ex parte Safeord, 2 Low. C. C. 563 ; Cusack v. Robinson, 1 Best & S. 299 ; Beaumont V. Brengeri, 5 C. B. 301; s, c. 57 Eng. C. L. 301 ; Marvin v. Wallis, 6 El. & Bl. 726; s. c. 88 'Eng. C. L. 726; Castle v. Sworder, 6 Hurls. & N. 828; Elmore v. Stone, 1 Taunt. 458. Where personal property is, from its character or situation, at the time of the sale, incapable of actual delivery, the delivery of the bill of sale or other evidence of title is suffi- cient to transfer the property and possession to the vendee ; thus, where Sll ^155 FORMATION OF THE CONTRACT. [BQOK I. The first case was that of Chaplin v. Rogers,^ in 1800, where a stack of hay remaining on the vendor's premises articles of commerce were purchased in tlie state of Indiana, and the ven- dors, in wliose warehouse they were lying, gave a written memorandum of the sale, together with a receipt of the money, and an engagement to deliver them on board of canal boats soon after the canal navigation, opened, these documents transferred the property and the possession of the articles to the purchasers, and being indorsed and delivered to a merchant in New York, in consideration of ad- vances of money in the usual course of trade, transferred to him the legal title and constructive possession of the property. Gibson v. Stevens, 49 U. S. (8 How.) 384; bk. 12, L. ed. 1123. See Beecher v. Mayall, 82 Mass. (KJ Gray) 376; Barrett v. God- dard, 3 Mason C. C. 107. The court say in Gibson v. Stevens, supra, that " this mode of transfer and delivery has been sanctioned in analogous cases by courts and justices in Eng- land and this country, and is abso- lutely necessary for the purpose of commerce. A ship at sea may be transferred to a purchaser by the delivery of a bill of sale ; so also as to the cargo, by the indorsement and delivery of tlie bill of lading. It is hardly necessary to refer to adjudged cases to prove a doctrine so familiar in the courts. But the subject came before tliis court in the case of Con- ard 0. 'Atlantic Ins. Co., 26 U. S. (1 Pet.) 445 ; bk. 7, L. ed. 214, where this symbolical delivery was fully considered and sustained. The same principle w^s decided in the case of Brown v. Heathcote, 1 Atk. 160 Greaves v. Hepke, 2 Barn. & Aid 131 ; Atkinson v. Maling, 2 T. K, 465; Wilkes o. Ferris, 5 Johns. (N Y.) 335 ; s. c. 4 Am. Dec. 364 ; Pleas, ants V. Pendleton, 6 Rand (Va.) 473, s. c. 18 Am. Dec. 726; Ingraham v. Wheeler, 6 Conn, 277; Eicker k 312 Cross, 5 N. H. 571 ; s. c. 22 Am. Dec. 480; Gardner v. Howland, 19 Mass. (2 Pick.) 599; 2 Kent Com. 499; Story on Sales, 311. This rule is not confined to the usage of any particular commerce, but applies to every case where the thing sold is, from its character or its situation at the time, incapable of actual deliv- ery." However there can be no suflUcieut receipt by the vendee so long as the vendor I'.olds as vendor, and insists on his lien for the price. Rodgers v. Jones, 129 Mass. 420 ; Atherton v. Newhall, 123 Mass. 141 ; s. c. 25 Am. Rep. 47 ; Safford v. McDonough, 120 Mass. 290; Shindler v. Houston, 1 N. Y. 205; s. c. 49 Am. Dec. 316; Rappleye v. Adee, 65 Barb. (N. Y.) 589 ; Wylie v. Kelly, 41 Barb. (Jv". Y.) 594, 598 ; ^x parte Safford, 2 Low. C. C. 503 ; Baldey v. Parker, 2 Barn. & Cress. 37. To constitute a valid sale under the statute there must be a delivery by the seller and some unequivocal acts of ownership on the part of the purchaser. Godchaux v. Mulford, 26 Cal. 316; Means v. Wil- liamson, 37 Me. 556; Waldron v. Chase, 37 Me. 414; s. c. 59 Am. Dec. 56 ; Safford v. McDonough, 120 Mass. 290; Knight v. Mann, 118 Mass. 143; Ross V. Welch, 77 Mass. (11 Gray) 235; Ullman u. Barnard, 73 Mass. (7 Gray) 654; Marsh v. Hyde, 69 Mass. (3 Gray) 331; Snow v. War- ner, 61 Mass. (10 Mete.) 132; s. c. 43 Am. Dec. 417 ; Chaplin w. Rogers, 1 East, 192 ; Currie v. Anderson, 2 El. & El. 592 ; Morton v. Tibbitt, 15 Q. B. 428 ; Blenkinsop o. Clayton, 7 Taunt. 697 ; s. c. 1 J. B. Moore, 328. Where the property is so situated ^ that the vendee is entitled to and can rightfully take possession of it at his pleasure, he is considered as having actually received it as the statute requires, although it may be his re- I PART n.] OF ACCEPTANCE AND EECEIPT. *156 was held to have been actually received by the purchaser, on the ground that he had resold part of it to a sub-vendee, who had taken away the part so purchased by him. § 205. But the case usually cited as the leading one on this point is Elmore v. Stone, ^ where the purchaser of horses from a dealer left them with the dealer to be kept at livery for him, * the purchaser. Sir James Mans- [*156] field delivered the judgment of the Common Bench, holding that as soon as the dealer had consented to keep them at livery his possession was changed, and from that time he held not as owner, but as any other livery-stable keeper might have done.^ { quest to have it continued in the ' custody of tlie vendor. iHoudlette v. i Tallraan, 14 Ue. 400 ; Riddle v. Var- Dum, 37 Mass. (20 Pick.) 280 ; Chap- man V. Searle, 20 Mass. (3 Pick.) 38 ; i Means v. Williams, 37 Minn. 556 ; Bar- ' rett I'. Goddard, 3 Mason C. C. 107. What constitutes vendor bailee. — It has been said that where the vendor says to the vendee, "I deliver the goods," and the latter replies, " I accept them, and desire you to store them for me as my bailee," that this is a good contract and constitutes the vendor bailee of the vendee. Jan- vrin V. Maxwell, 23 Wis. 51. But the weight of authority seems to hold that something more is required than mere words. See Malone v. Plato, 22 Cal. 103 ; Bowers v. Anderson, 49 Ga. 143; Kirby v. Johnson, 22 Mo. 354; Shindler v. Houston, 1 N. Y. 261, 265 ; s. u. 49 Am. Dec. 316 ; Stone V. Browning, 13 Abb. (N. Y.) Pr. N. S. 190; Brand v. Brand, 49 Barb. (N. Y.) 348; Ely v. Ormsby, 12 Barb. (N. Y.) 570 ; Hallenbeck v. Cochran, 20 Hun (N. Y.) 416 ; Ham V. Van Ordam, 4 Hun (N. Y.) 710 ; Brand v. Focht, 3 Keyes (N. Y.) 409 ; s. o. 1 Abb. Ct. App. Dec. 185, 187 ; Cook V. Millard, 5 Lans. (N. Y.) 243, 249; s. c. 65 N. Y. 352, 374; Carter v. Toussaint, 6 Barn. & Aid. 855 ; Tempest v. Fitzgerald, 3 Bam. & Aid. 580. See, also, Owens v. Lewis, 46 Ind. 488 ; s. c. 15 Am. Rep. 296 ; Wiley v. Kelly, 41 Barb. (N. Y.) 594 ; Wedford v. Patterson, 32 Barb. (N. Y.) 630 ; Matthiessen & W. R. Co. V. McMahon, 38 N. J. L. (9 Vr.) 536, 538. 2 1 East, 195, referred to with ap- proval by Coleridge C. J. in Mar- shall V. Green, 1 C. P. D. at p. 41. ^ 1 Taunt. 458. See, also, Rap- pleye v. Adee, 65 Barb. (N. Y.) 589; s. c. 1 N. Y. Sup. Ct. 126. 2 In Ex parte SafCord, 2 Low. C. C. 563, in speaking of Elmore r.. Stone, 1 Taunt. 458, cited in the text, Low- ell J. says : "I have seen it stated that this case has been overruled, but that is a mistake ; it was fully proved by Shaw C. J., who states the ex- act case, though he does not cite it by name, in Arnold v. Delano, 58 Mass. (4 Cush.) 40 ; s. c. 50 Am. Dec. 754. It was cited and followed in Beau- mont !). Brengeri, 5 C. B. 301 ; s. c. 57 Eng. C. L. 301, and Marvin c. Wallis, 6 El. & Bl. 726; s. c. 88 Eng. C. L. 726. And this doctrine pre- vails In Cusack v. Robinson, 1 Best & S. 299." But see Malone v. Plato, 22 Cal. 103; Kirby v. Johnson, 22 Mo. 354. 313 *156 FORMATION OP THE CONTRACT. [BOOK I. § 206. Nearly half a century later, in 1856, the case of Marvin v. Wallis,^ on facts almost identical with those in Elmore v. Stone, was decided by the Queen's Bench on the authority of the latter. The facts as found by the jury were that after the completion of the bargain, the vendor bor- rowed the horse for a short time, and, with the purchaser's assent, retained it as a borrowed horse. Held, that there had been an actual receipt by vendee ; and there had been a chaiKje of character in the vendor, from owner to bailee and agent of the purchaser. The Bench on this occasion was composed of Campbell C. J. and Coleridge and Erie JJ. So in Beaumont v. Brengeri,^ the carriage bought by the defendant remained in the shop of the plaintiff the vendor, but the circumstances showed that this was at the request of the defendant, and that plaintiff had changed his character from owner to warehouseman of the carriage for account of the vendee. Held, an actual receipt.^ § 207. Two cases decided in the King's Bench, in 1820 and 1821, may be seen at first sight to trench upon the doc- trine established in Elmore v. Stone and Martin v. Wallis. In the first, Tempest v. Fitzgerald,^ the purchaser of a horse agreed, in August, to give forty-five guineas for it and to take it away in September. The parties understood it to he a ready-money bargain. The purchaser returned on the 20th September, ordered the horse out of the stable, mounted and tried it, had it cleaned by his servant, ordered some change in the harness, and asked plaintiff's son to keep it for an- other week, which was assented to as a favor. The pur- chaser said he would call and pay for the horse about the 26th or 27th. He returned on the 27th with the inten- 1 6 E. & B. 726 ; 25 L. J. Q. B, 369. (N. Y.) 570 ; Olyphant «. Baker, 5 American authorities. — See Bui- Den. (N. Y.) 379 ; Vincent u. Ger- lard V. Wait, 82 Tlass. '.16 Gray) 55 Appleton V. Bancroft, 51 Mass. (10 v. Merriam, 28 Vt. 801 Mete.) 231, 236; Carter r. Willard 36 Mass. (19 Pick.) 1; Whipple v. Thayer, 33 Mass. (16 Pick.) 28 26 Am. Dec. 626; Tuxworth u. Moore, 26 Mass. (9 Pick.) 347 ; s. c. 20 Am. Dec. 479; Ely u. Ormsby, 12 Barb mond, 11 Johns. (N. Y.) 283; Green 2 5 C. B. 301. ^ See for a full discussion of this subject and review of authorities, Matthiessen & W. R. Co. v. McMahon, 38 N. J. L. (9 Vr.) 536, 538. 1 3 B. & Aid. 680. 314 PAET II.] OF ACCEPTANCE AND RECEIPT. *157 tion of taking it, but the horse had died in the * in- [*157] terval, and he refused to pay. Held, that there was no actual receipt. The ground of the decision was that de- fendant had no right of property in the horse until the price was paid ; that if he had gone away with the horse vendor might have maintained trover : and the case was distinguished by the judges from Chaplin v. Rogers,^ and Blenkinsop v. Clayton,^ on this basis. In the second case, Carter v. Tous- saint,* the plaintiffs, who were farriers, sold defendant a racehorse which required firing, and this was done in de- fendant's presence and with his approbation. It was agreed that the horse should be kept by plaintiffs for twenty days without charge. At the end of that time, by defendant's orders, the horse was taken by plaintiffs to a park to be turned out to grass. It was entered in plaintiffs' name, and this was also done by the direction of the defendant, who was anxious that it should not be known that he kept a race- horse. No time was specified in the bargain for the payment of the price. Held, that there had been no actual receipt, because the seller was not bound to deliver the horse with- out payment of the price, and that he had never lost pos- session or control of the horse. If the horse had been put in the park-keeper's books in the name of defendant and by his request, that would have amounted to an actual receipt of it by the purchaser : but on the facts the purchaser could not have maintained trover against the park-keeper on ten- dering the keep. It is apparent, from the reasoning of the judges in both cases, that there is nothing irreconcilable between the prin- ciples on which they were decided and those which had been sanctioned in the cases previously quoted. Both these cases went distinctly upon the ground that in a cash sale the vendor has a right to demand payment of the price concur- rently with delivery of possession ; and that as nothing had been assented to by the vendors which impaired this right, there has been no actual receipt by the vendees.^ 2 1 East, 192. '" See, also, Holmes v. Hoskins, 9 8 7 Taunt. 597. Ex. 753. See SafEord v. McDonough, 4 5 B. & Aid. 855. 120 Mass. 290. 315 *158 FORMATION OF THE CONTRACT. [BOOK I. L*i58] *§ 208. In Cusack v. Robinsoii,i the Court treated the rule as settled that "though the goods remain in the personal possession of the vendor, yet if it is agreed be- tween the vendor and vendee that the possession shall thence- forth 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." The subject was very thoroughly discussed in Castle v. Sworder,^ in which an unanimous decision of the Exchequer of Pleas, composed of Martin, Channell, and Bramwell BB., was reversed by a decision, also unanimous, of the Exchequer Chamber, composed of Cockburn C. J. and Crompton J. of the Queen's Bench, and Willes, Biles, and Keating JJ. of the Common Pleas. This was an action to recover 801. 2s. 2d. the price of some rum and brandy, for which the defendant gave a verbal order at a price agreed on, with six months^ credit. The plaintiffs' clerk wrote off, and transferred into the defendant's name, in the books in plaintiffs' bonded warehouse, two specific puncheons of rum and a hogshead of brandj^, marked, and described in an invoice sent by post to defendant. These packages the plaintiffs had among their goods in their own bonded cellar, of which they kept one key and the Custom- house officers another. This was the usual mode of selling in bond in Bristol, where plaintiffs were carrying on business as spirit merchants. An invoice, describing the marks of the packages, the ships by which they had been imported, and the contents, was enclosed to the defendant in a letter, saying : " The above remain in bond, and which you will find of a very good quality, and hope will merit the con- tinuance of your favors." After the credit had expired, the defendant, when applied to for payment, requested that the goods might continue a further time in bond, and asked plaintiffs' traveller to sell the goods for him. He was referred to plaintiffs, and wrote to them, saying: "You will oblige by informing me of the present value of 130 L. J. Q. B. 264; 1 B. & S. 2 29 L. J. Ex. 235; 30 L. J. Ex. 299. See, also, authorities cited in 310, and 6 H. & N. 832. sec. 204, note 1. 316 PART II.] OF ACCEPTANCE AND RECEIPT. *159 the rum * and brandy, that is to say, what are you [*159] willing to give for it." On these facts, Bramwell B. directed a nonsuit, with leave to plaintiff to move, the defendant having objected that there was no delivery or acceptance to satisfy the Stat- ute of Frauds. Held^ by the Court of Exchequer, that there had been no delivery or actual receipt; that as the goods remained under the control of the vendor, and in his posses- sion till after the credit had expired, his lien had revived; and that in the interval while the credit was running, there had been nothing done to constitute actual receipt by the purchaser. On the appeal to the Exchequer Chamber, Cockburn C. J. in giving his opinion said, that " for six months the buyer was entitled to claim the immediate delivery of the specific goods appropriated to him. The question then arises, whether the possession which actually remained in the sellers, was a possession in the sellers by virtue of their original property in the goods, or whether it had become a possession as agents and bailees of the buyers." The learned Chief Justice then went on to point out that there was sufficient evidence of a change of character in the possession to go to the jury, in the facts proven, that is, that the purchaser " dealt with the goods as his own, first, in the request that the sellers would take back the goods, and failing in the request, in asking the plaintiffs to sell the goods for him." Crompton J. pointed out that the Court did not differ from the Court of Exchequer save on one point, namely, that "there was some evidence that the character of plaintiffs was changed to that of warehousemen," and said that "ac- cording to the authorities there may be such a change of character in the seller as to make him the agent of the buyer, so that the buyer may treat the possession of the seller as his own." ^ 3 See Chase v. Willard, 57 Me. 157 Means v. Williamsou, 37 Me. 556 Houdlette v. Tallman, 14 Me. 400 Moore, 26 Mass. (9 Pick.) 348 ; Chap- man V. Searle, 20 Mass. (3 Pick.) 38 ; Lane v. Sleeper, 18 N. H. 214; Grore Hatch V. Lincoln, 66 Mass. (12 u. Brien,49 U. S, (8How.) 429; bk. 12, Cush.) 31; Riddle v. Barnum, 87 L.ed. 1142; Gibson i'. SteTens,49 U.S. Mass. (20 Pick.) 280 ; Tuxworth u. (8 How.) 384 ; Barrett v. Goddard, 3 31T 1^160 FORMATION OP THE CONTRACT. [book I. § 209. It will already have been perceived that in many of the cases, the test for determining whether there has been an actual receipt by the purchaser, has been to [*160] inquire whether *the vendor has lost his lien.^ Re- ceipt implies delivery,^ and it is plain that so long as vendor has not delivered, there can be no actual receipt by vendee.^ The subject was placed in a very clear light by Hol- royd J. in his decision in Baldey v. Parker : * " Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and, therefore, as long as the seller preserves his control over the goods so as to retain his lien he prevents the vendee from accepting and receiving them as his own within the meaning of the statute." ^ No exception is known in the whole series of decisions to the propositions here enunciated, and it is safe to assume as a general rule, that whenever no fact has been proven showing Mason C. C. 107. See, also, ante, § 204, note 1, "Vendor as bailee." Acceptance may be before actual re- ceipt. — Ex parte Safford, 2 Low. C. C. 563 ; Cusack v. Robinson, 1 Best & S. 299. ' See post. Book V. Part 1, Ch. 4, on Lien of Vendor. ^Per Parke B. in Saunders v. Topp, 4 Ex. 394. 3 Acceptance implies delivery ; be- cause there can be no delivery with- out acceptance. Young v. Blaisdell, 60 Me. 272, 275 ; Maxwell v. Brown, 39 Me. 98; Shindler v. Houston, 1 N. Y. 261, 265; s. c. 49 Am. Dec. 316. See Tempest ;;. Fitzgerald, 3 Barn. & Aid. 680 ; Baldey v. Parker, 2 Barn. & Cres. 37; Holmes v. Hos- kins, 9 Exch. 763 ; s. c. 28 Eng. L. & Eq. 564. * 2 Barn. & Cres. 37. ^ Vesting possessions, — It is well established that " there must be a vesting of the possession of the goods in the vendee as absolute owner, dis- charged of all lien for the price on the part of the vendor." Stone v. Browning, 51 N. Y. 211, 215 ; Shin- dler V. Houston, 1 N. Y. 261, 265; s. c. 49 Am. Dec. 316. See Gardet V. Belknap, 1 Cal. 399; Maxwell v. Brown, 39 Me. 98, 103; s. c. 61 Am. Dee. 605 ; Dodge v. Morse, 129 Mass. 423; Safford v. McDonough, 120 Mass. 290; Knight v. Mann, 118 Mass. 143; Marsh v. Rouse, 44 N. Y. 643; Rathbun v. Rathbun, 6 Barb. (N. Y.) 93; Bailey v. Ogden, 3 Johns. (N. Y.) 394, 399; Brand v. Focht, 3 Keyes (N. Y.) 409 ; Russell v. Minor, 22 Wend. (N. Y.) 659; Cutwater v. Dodge, 6 Wend. (N. Y.) 400; Green V. Merriam, 28 Vt. 801; Ex parte Safford, 2 Low. C. C. 563, 665. See, also. Tempest v. Fitzgerald, 3 Barn. & Aid. 683; Howe v. Palmer, 3 Barn. & A. .321 ; Baldey v. Parker, 2 Barn. & Ores. 37, 44 ; Holmes v. Hoskins, 9 Ex. 752; 2 Kent Com. 500. In Canada, however, it is held that the question whether or not the vendor parted with his lien is not the test by which to determine the sufficiency of the buyer's receipt. Wegg v. Drake, 16 Up. Can. Q. B. 252. 318 PART II.J 0¥ ACCEPTANCE AND KECEIPT. *161 an abandonment by the vendor of his lien, no actual receipt by the purchaser has taken place. This has been as strongly insisted on in the latest as in the earliest cases. The prin- cipal decisions to this effect are referred to in the note.^ § 210. It may be useful here to advert to one case in which the circumstances were very peculiar. In Dodsley v. Varley,^ wool was bought by the defendant from the plaintiff. The price was agreed on, but the wool would have to be weighed. It was sent to the warehouse of a person employed by the defendant, was weighed, and packed up with other wools in sheeting provided by the defendant. It was the usual course for the wool to remain at this warehouse till paid for, and this wool had not been paid for. The defendant insisted that the vendor's lien remained, and that the wool therefore had not been actually * received by him as purchaser. But the [*161] Court held that the property had passed, that the goods had been delivered, and were at the risk of the pur- chaser. In relation to the vendor's right, the Court said: " The plaintiff had not what is called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original owner- ship, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the goods should not be removed to their ultimate place of desti- nation before payment." It is plain that there is nothing in this case which conflicts with the rule, that there can be no actual receipt by purchaser while vendor's lien continues, for the Court held that the lien was gone. It may, however, be marked, that the effect attributed by the Court to the special agreement, that the goods should remain in the « Howe u. Palmer, 3 B. & Aid. " Holmes v. Hoskins, 9 Ex. 753 ; Cu- 321; Tempest o. Fitzgerald, 3 B. & sack v. Robinson, 30 L. J. Q. B. 264; Aid. 680 ; Carter u. Toussaint, 5 B. Castle v. Sworder, 29 L. J. Ex. 235 ; & Aid. 855; Baldey v. Parker, 2 B. & s. c. 30 L. J. Ex. 310, and 6 H. & N. C. 67 ; Smith v. Surman, 9 B. & C. 832 ; Morton v. Tibbett, 15 Q. B. 428, 561 ; Bill V. Bament, 9 M. & W. 37 Phillips o. Bistolli, 2 B. & C. 511 Hawes v. Watson, 2 B. & C. 540 Maberley v. Sheppard, 10 Bing. 101 and 19 L. J. Q. B. 382. 1 12 Ad. & E. 632. See, also, Pinkham v. Mattox, 63 N. H. 600. 319 *161 FOExilATION OP THE CONTRACT. [BOOK I. defendant's warehouse without removal till paid for, is much greater than was accorded to a similar stipulation, in the case of Howes V. Ball,2 where the question was raised in a more direct form than in Dodsley v. Varley. In this last-mentioned case, where the litigation was between the vendor and the administrator of the deceased purchaser, the Court held that the property had passed in the thing sold, and that the special stipulation between the parties might, perhaps, amount to a personal license in favor of the vendor to retake the tiling sold, if not paid for at the expiration of the credit allowed ; but that such license could not be available against a trans- feree of the thing, as a sub-vendee, or the administrator of the vendee. 2 7 Barn. & Cres. 484. See a similar case in Pinkham v. Mattox, 53 N. H. 600. 320 PART II.j OF EAENEST OR PART PAYMEKT. *162 * CHAPTER V. [*162] OP EARNEST OR PART PAYMENT. Earnest and part payment dis- tinct things 162 Either suffices to make the con- tract good ... . 162 Something must be actually given to constitute earnest . . 163 Part payment .... . . 163 Agreement to set off debt due to the buyer 163 PAGE Analogous decisions under Stat- ute of Limitations .... 165 Goods supplied " on account " of a debt 165 Board and lodging supplied in part payment 165 Giving a bill or note on account 165 Civil law doctrines of earnest . 165 Pothier 167 French Code 168 § 211. The giving of earnest,^ however common in an- cient times, has fallen so much into disuse, that the two expressions in this clause of the statute, " giving something in earnest" and "giving something in part payment," are often treated as meaning the same thing, although the lan- guage clearly intimates that the earnest is " something " that "binds the bargain," whereas it is manifest that there can be no 1 Earnest. — The idea of " Ear- nest" in connection with contracts was taken from the civil law (Giiter- bock on Bracton (Am. Trans.) 145 ; Baker on Sales, 297 et sequa), and was adopted by the old common law as a method of binding a bargain, and the Statute of Frauds simply rec- ognized it as in force at that time and perpetuated the custom. See Glamvil, ch. 14. The custom of giv- ing something in " earnest " has fallen into general disuse and seems rather to be suited to the manners of the sim- ple and unlettered ages, before the introduction of writing, than to the more precise and accurate habits of dealing at the present time. As to the purpose of the giving of earnest, see Thompson v. Alger, 53 Mass. (12 Mete.) 428, 436. Some cases hold that the mere payment of earnest does not always transfer title to the specific property for which it is given, but that it simply binds the contract. Jennings v. Flanagan, 5 Dana (Ky.) 217 ; s. c. 30 Am. Dec. 688. " Strihing off a bargain/' — For- merly they had a curious custom , in- stead of paying anything in earnest, to draw the edge of a shilling across the hand of the vendor by the vendee, which was called striking off a bar- gain and was intended to bind the contract. See, Pinkham v. Mattox, 53 N. H. 600, 603; Blenkinsop v. Clayton, 7 Taunt. 597 ; s. c. 1 J. B. Moore, 328 ; Story on Sales, § 273. 321 ^62 FOBMATION OF THE CONTRACT. [BOOK I. part payment till after the bargain has been bound, or closed. Earnest may be money,^ or some gift or token,^ (among the " Combs V. Bateman, 10 Barb. (N. Y.) 573; White v. Drew, 56 How. Pr. (N. Y.) 57 ; Hunter v. Wetsell, 17 Hun (N. Y.) 135; s. c. 84 N. Y. 549; 38 Am. Rep. 544; Dow v. Worthen, 37 Vt. 108. Deposit of money with a third per- son to be paid by him to either in case the other fails to fulfil his part of the contract, is not " earnest" within the meaning of the Statute of Frauds, Howe V. Hayward, 108 Mass. 54 ; s. c. 11 Am. Rep. 306; and the same is true of the deposit of a check for that purpose. Noakes v. Morey, 30 Ind. 103. As used in the Statute of Frauds, "earnest" is regarded as a part payment of the price. Howe v. Hayward, 108 Mass. 54; s. u. 11 Am. Rep. 306 ; Walker v. Nussey, 16 Mees. & W. 302 ; Langfort c. Tiler, 1 Salk. 113; Pordage v. Cole, 1 Saund. 319; Morton v. Tibbett, 15 Q. B. 428; 2 Bl. Com. 247 ; 1 Dane Abr. 235. Payment may be made in money or in property or in the discharge of a debt in whole or in part, due from the vendor to the purchaser. The giving of valuable information or the extinguishment of a promise to pay a promissory note, held by the latter against the former. Payment by note. — Thus it is held in Combs o. Bateman, 10 Barb. (N. Y.) 573, that the delivery of a note of a third person in satisfaction is an absolute payment (see, also, Por- ter V. Talcott, 1 Cow. (N. Y.) 359; Breed v. Cook, 15 Johns. (N. Y.) 241 ; Whitbeck u. Van Ness, 11 Johns. (N. Y.)409; s.c. 6 Am. Dec. 383; Butler ,.. Haight, 8 Wend. (N. Y.) 535), but that the delivery of the purchaser's own note is not a payment. Krohn V. Bantz, 68 Ind. 277. See, also, Scott ('. Bush, 26 Mich. 418 ; s. c. 12 Am. Rep. 311 ; Grimes v. Van Vechten, 20 Mich. 410 ; Smith v. Rowley, 34 N. Y. 367 ; Combs I). Bateman, 10 Barb. (N. Y.) 573; Nichols c. Mitchell, 30 Wis. 329; Hooker v. Knab, 26 Wis. 511. It is a well settled rule in law, that in the absence of a special agreement to the contrary, tha taking of a promissory note for a preexisting debt, or a contemporary consideration, is prima facie, a conditional payment only. McCrary u. Carrington, 35 Ala. 698; Brown v. Cronise, 21 Cal. 386; Smith v. Owens, 21 Cal. 11; Higgins V. Wortell, 18 Cal. 330 ; Bill V. Porter, 9 Conn. 23; Smalley v. Edey, 19 111. 207 ; Phcenix Ins. Co. o. Allen, 11 Mich. 501 ; Morrison v. Welty, 18 Md. 169; Hall v. Richard- son, 16 Md. 396; s. c. 77 Am. Dec. 303 ; Keough v. McNitt, 6 Minn. 513 Devlin u. Chambin, 6 Minn. 468 Howard v. Jones, 33 Mo. 583 ; Citizens' Bank v. Carson, 32 Mo. 191 ; McMur- ray v. Taylor, 30 Mo. 263; s. u. 67 Am. Dec. 611 ; Vancleef v. Theras- son, 20 Mass. (3 Pick.) 12; Elliot v. Sleeper, 2 N. H. 525 ; Smith i'. Smith, 27 N. H. (7 Fost.) 253; Muldon v. Whitlock, 1 Cow. (N. Y.) 290 ; Put- nam V. Lewis, 8 Johns. (N. Y.) 389 ; Murray i\ Gouverneur, 2 Johns. Cas. (N. Y.) 438; s. c. 1 Am. Dec. 177; Holmes v. De Camp, 1 Johns. (N. Y.) 34; s. c. 3 Am. Dec. 293; Sheehy u. Mandeville, 6 Cr. 253, 264 ; Owenson ■u. Morse, 7 T. R, 64 ; Puckf ord v. Max- well, 6 T. R. 52; Bridges i/. Berry, 3 Taunt. 130. See, also, post, §§ 404, 438. However, it would seem that payment by check of the purchaser is a valid payment. See Gould v. Town of Oneonta, 71 N. Y. 307. Discharge of u, preexisting obliga- tion, either in whole or in part, is a valid payment. Matthiesseu & W. R. Co. !>. McMahon, Admr. 38 N. J. L. (9 Vr.) 536 ; Brabin v. Hyde, 32 N. Y. 519, 532 ; Artcher v. Zeh, 5 Hill (N. Y.) 200 ; Dow v. Worthen, 37 Vt. 108, 112; Cleave v. Jones, 6 Ex. 573; Walker v. Nussey, 16 Mees. & W. 322 PART II. J OP EARNEST OK PART PAYMENT. *162 Romans usually a ring,) given by the buyer to the vendor, and accepted by the latter to mark the final conclusive assent of both sides to the bargain ; and this was formerly a preva- lent custom in England.* Examples are found in Bach v. Owen,^ in 1793, and Good- all V. Skelton,^ 1794, in the former of which a half-penny, and in the latter a shilling, was given in earnest of the bargain. § 212. Whether giving earnest has the effect of passing the property in the thing sold from the vendor to vendee 302. It is said in Mattice v. Allen, 3 Keyes (N. Y.) 492, that an agree- ment that the debt of the seller to the purchaser should be applied as a payment upon the price of the goods purchased, is not a payment at the time of making the contract within the meaning of the statute. Part payment. — An agreement to pay part of the purchase price is not such a payment as is contemplated by the Statute of Frauds. Brabin v. Hyde, 32 N. Y. 519 ; Mattice v. Allen, 3 Keyes (N. Y.) 492. And neither is a promise by the buyer to pay over the purchase price to a third person, Artcher v. Zeh, 5 Hill (N. Y.) 200; but if the money should in the latter case be paid to such third person it will thereby render the contract bind- ing. Brady v. Harrahy, 21 Up. Can. Q. B. 340; Turniss u. Sawers, 3 Up. Can. Q. B. 76. However, where such third person accepts the purchaser for the amount of his claim and dis- charges the obligation as against the vendor it would seem that this makes the agreement a valid payment. Cot- terill V. Stevens, 10 Wis. 422. See, also, Crocker v. Higgins, 7 Conn. 342 ; Cabot V. Haskins, 20 Mass. (3 Pick.) 83 ; Arnold u. Lyman, 17 Mass. 400 ; s. c. 9 Am. Dec. 154; Parleys. Cleve- land, 4 Cow. (N. Y.) 432 ; s. c. 15 Am. Dec. 387 ; Barker v. Bucklin, 2 Den. (N. Y.) 45 ; s. c. 43 Am. Dec. 726 ; Paine v. Fulton, 34 Wis. 83; Emerick V. Sanders, 1 Wis. 77. A tender of part payment where not accepted is of course not sufficient. Hawley u. Keeler, 53 N. Y. 114; Hicks V. Cleveland, 48 N. Y. 84; Walrath u. Ingles, 64 Barb. (N. Y.) 265; Edgerton v. Hodge, 41 Vt. 676; Kaitling v. Parkin, 23 Up. Can. C. P. 569. Where accepted of course the payment will be valid. White v. Allen, 9 Ind. 561 ; Furniss u. Sawers, 3 Up. Can. Q. B. 77. Part payment to agent is as valid as part payment to the vendor person- ally, provided the agent was author- ized to accept payment or his receipt ratified by the principal. Hawley v. Keeler, 53 N. Y. 114; Cotterill v. Ste- vens, 10 Wis. 422 ; Brady v. Harrahy, 21 Up. Can. Q. B. 340. ^ Under the Roman law earnest "consisted merely of two kinds, the one (1) relating to agreement made anterior to the contract whereby a sum of money was given as a consid- eration of the right to purchase, should the buyer carry out his bargain, and earnest," was ejected from the price of the article ; if on default, the earnest money was forfeited. (2) As to the second kind, vide infra, section 220. See Parsons on Contracts, Vol. III. 1-60 ; Baker on Sales, 297. 4 Bracton, 1, 2, c. 27. It seems to be agreed that the earnest must be money or money's worth; in other words, something of value, though the amount be immaterial. Browne, Statute of Frauds, § 341. 6 5 T. R. 409. 6 2 H. Bl. 316. 323 *163 rOEMATION OF THE CONTEACT. [BOOK I. will be considered in a subsequent part of this treatise,^ but for the present we are only concerned with the question of its effect in giving validity to a parol contract. The [*163] giving of earnest, *and the part payment of the price, are two facts independent of the bargain, capable of proof by parol, and the framers of the statute have said in effect that either of them, if proven in addition to parol proof of the contract itself, is a sufficient safeguard against fraud and perjury to render the contract good without a writing.^ § 213. The former of these facts, that of giving something in earnest to "bind the bargain," has been the subject of only one reported case, that of Blenkinsop v. Clayton, ^ in which the buyer drew a shilling across the vendor's hand, and which the witness called " striking off the bargain " ac- cording to the custom of the country ; but as the buyer then returned the coin to his own pocket, instead of giving it to 1 Post, Book II. Ch. IV. ^ Omission of an essential.- — Where the parties in making a contract omit to do that whicli the Statute of Frauds require, the consent of both is neces- sary to supply the omitted part. See Edgerton v. Hodge, 41 Vt. 676. When part payment may he made. ■ — As a general rule where a part payment is made on tlie goods pur- chased, it is not necessary that it be made at the time of the sale but may be made at any time thereafter. Davis u. Moore, 1.3 Me. 424 ; Town- send V. Hargraves, 118 Mass. 325 ; Marsh v. Hyde, 69 Mass. (3 Gray) 331 ; Thompson v. Alger, 53 Mass. (12 Mete.) 428 ; Gault v. Brown, 48 N. H. 183, 189 ; Vincent ;;. Gerraond, 11 Johns. (N. Y.) 283; Sprague v. Blake, 20 Wend. (N. Y.) 61 ; Brady ■V. Harrahy, 21 Up. Can. Q. B. 340. However, it is a question whether a subsequent payment will validate a. verbal contract of sale, which is in- valid under the statute. The affirma- tive is maintained in Hunter v. AVet- sell, 84 N. Y. 549; s. c. 38 Am. Rep. 544 ; and Bissell c. Balcom, 39 N. Y. 275. See, also, Allis v. Read, 45 N. Y. 142; Webster v. Zeilly, 52 Barb. (N. Y.) 482 ; and the negative in Hawley i-. Keeler, 53 N. Y. 114, 120. See, also. Van Woert v. Albany & S. Ry. Co., 67 N. Y. 538; Hunter v. Wet- sell, 57 N. Y. 375; s. c. 15 Am. Eep. 508 ; Harteau v. Gardner, 51 N. Y. 678 ; Allis V. Read, 45 N. Y. 142 ; Bissell v. Balcom, 39 N. Y. 275; McKnight v. Dunlop, 5 N. Y. 537 ; s. c. 55 Am. Dec. 370 ; Allan v. Aguira, 5 N. Y. Leg. Obs. 380 ; Eappleye v. Adee, 65 Barb. (N. Y.) 589; Boutwell ... O'Keefe, 32 Barb. (N. Y.) 434; Bus- kirk 1'. Cleveland, 41 Barb. (N. Y.) 610; Ely v. Ormsby, 12 Barb. (N. Y.) 570; Artcher v. Zeh, 5 Hill (N. Y.) 200 ; Sale r. Darragh, 2 Hilt. (N. Y.) 184; Ham v. Van Orden, 4 Hun (N. Y.) 709 ; Walrath v. Richie, 5 Lans. (N.Y.) 362; Hayman v. American Pat. Sponge Co., 6 N. Y. Week. Dig. 357. But where there has been delivery and acceptance of property under a contract otherwise void under the statute, this renders it valid. Sprague V. Blake, 20 Wend. (N. Y.) 61. 1 7 Taunt. 597. 324 PART II. J OP EARNEST OR PART PAYMENT. nes the vendor, the Court necessarily held that the statute had not been satisfied. There is another case,^ in which the plaintiff was non- suited in an action on a contract of sale, where a shilling earnest-money was actually given by the buyer to bind the bargain, but the case turned entirely on the form of action, which was for goods sold and delivered, under circumstances where the Court was of opinion that there had been no delivery. A count for goods bargained and sold would no doubt have been sustained. § 214. On the subject of part payment, there is but one important decision under this clause of the statute ; but the cases which have arisen under analogous clauses in the Stat- utes of Limitations and the Bankruptcy Acts may be consid- ered with advantage in this connection.^ § 215. An agreement for the purchase of goods exceeding 101. in value, was made with the understanding, and as part of the contract, that the vendor should deduct from the price 2 Goodall V. Skelton, 2 H. Bl. 316. 1 Part payment of something of value on the purchase of property is neces- sary to make a valid transfer. Krohn v. Bantz, 68 Ind. 277, overruling Harper i'. Miller, 27 Ind. 277 ; Foster V. Lumberman's Mining Co., (Mich.) 12 West. Rep. 530 ; Bissell v. Balcom, 39 N. Y. 275. See, also, Brady v. Harrahy, -21 Up. Can. Q. B. 340; Furniss v. Sawers, 3 Up. Can. Q. B. 77. To constitute a valid transfer of the property there must be « valid pay- ment of something of value on the purchase price, a mere promise to pay being insufficient under the stat- ute. See Krohn u. Bantz, 68 Ind. 277 ; Foster v. Lumbering Mining Co., ("Mich.) ; 12 West. Rep. 530 ; Bissell >'. Balcom, 39 N. Y. 275; Brabin v. Hyde, 32 N. Y. 519 ; Brand V. Brand, 49 Barb. (N. Y.) 348; Teed v. Teed, 44 Barb. (N. Y.) 96 ; Buskirk v. Cleveland, 41 Barb. (N. Y.) 610; Ely u. Ormsby, 12 Barb. (N. Y.) 571 ; Artcher v. Zeh, 5 Hill. (N. Y.) 200; Mattice v. Allen, 3 Keyes (N. Y.) 492; Walrath v. Richie, 5 Lans. (N. Y.) 362. See, also, § 211, note 2. As to goods taken on account of a debt validating a contract under the statute, see Teed v. Teed, 44 Barb. (N. Y.) 96; Ely v. Ormsby, 12 Barb. (N. Y.) 570 ; Brabin v. Hyde, 32 N. Y. 519; Shindler ;;. Houston, 1 N. Y. 264; s. c. 49 Am. Dec. 316; Artcher V. Zeh, 5 Hill (N. Y.) 200 ; Mattice ^. Allen, 3 Keyes (N. Y.) 492 ; Wal- rath v. Richie, 5 Lans. (N. Y.) 362 ; Clark V. Tucker, 2 Sandf. (N. Y.) 157; Dow V. Worthen, 37 Vt. 108; Walker v. Nussey, 16 Mees. & W. 302. See, also, Pitney v. Glen's Falls Ins. Co., 65 N.Y. 6, 27; Davis w. Spen- cer, 24 N. Y. 386; Brand u. Brand, 49 Barb. (N. Y.) 346 ; Wylie v. Kelly, 41 Barb. (N. Y.) 594; Mattice u. Allen, 3 Keyes (N. Y.) 493. See, also. Brown v. Wade, 42 Iowa, 647, 651; Cotterill v. Stevens, 10 Wis. 422. 325 *164 FORMATION OF THE CONTRACT. [BOOK I. the amount of a debt previously due by him to the purchaser. The vendor then sent tlae goods to the purchaser with an invoice charging him with the price 20Z. 18s. lid., under which was written, "By your account against me, 4Z. 14s. lid." The purchaser returned the goods as inferior [*164] * to sample. It was contended, on behalf of the ven- dor, who brought an action for goods sold and deliv- ered, that this credit of 41. lis. lid. was a part payment of the price of the goods, sufficient to take the case out of the statute. Held not to be so. Piatt B. said, "You rely on part of the contract itself, as being part performance of it." Pollock C. B. said, " Here was nothing but one contract, whereas the statute requires a contract, and if it be not in writing, something besides." Parke B. said, "Had there been a bargain to sell the leather at a certain price, and sub- sequently an agreement that the sum due from the plaintiff was to be wiped off from the amount of that price, or that the goods delivered should be taken in satisfaction of the debt due from the plaintiff, either might have been equiva- lent to part payment, as an agreement to set off one item against another is equivalent to payment of money. But as the stipulation respecting the plaintiff's debt was merely a portion of the contemporaneous contract, it was not a giving something to the plaintiff by way of earnest or in part pay- ment then or subsequently. Alderson B. said: "The 17th section of the Statute of Frauds implies that to bind a buyer of goods of 101. value without writing he must have done tivo things : first, made a contract ; and next, he must have given something as earnest, or in part payment or discharge of his liability. But where one of the terms of an oral bar- gain is for the seller to take something in part payment, that term cannot alone be equivalent to part payment." ^ From this case it may be inferred that an agreement to set off a debt due to the buyer would be held to be a part pay- ment, taking the case out of the statute, if made subsequently to the sale, or by an independent contract at the time of the ' Walker v. Nussey, 16 M. & W. (N. T.) 96; Mattice v. Allen, 3 Keyes 302. See, also, Brabin c. Hyde, 32 (N. Y.) 492. N. Y. 519; Teed v. Teed, 44 Barlj. 32fi PART II.] OF EARNEST OR PART PAYMENT. *165 sale, such as the giving of a receipt by the buyer for the debt previously due to him, but the decision is express on the point that such an agreement, when part of the bargain f6r the purchase, one of the terms of the contract * of [*165] sale itself, is not such a part payment as is required to make a parol sale valid for an amount exceeding 101. § 216. Under the Statute of Limitations, it has been held that where goods are supplied by agreement " on account " of a debt, this is part payment of the debt.^ The decision to this effect given by the Exchequer in Hart v. Nash,^ was fol- lowed by the Queen's Bench in Hooper v. Stephens.^ And the decisions under the Bankruptcy Act have been to the same effect.* So, also, in Blair v. Ormond,^ it was held, under the Stat- ute of Limitations, that an agreement by the debtor to board and lodge the creditor at a fixed price per week in deduction of the debt, was a part payment constituting a sufficient acknowledgment of the debt to take it out of the statute. § 217. There seems, therefore, no reason to doubt that the part payment required by the Statute of Frauds as an act in addition to the parol contract, in order to make a sale good, need not be made in money, but that any thing of value which by mutual agreement is given by the buyer and accepted by the seller " on account " or in part satisfaction of the price will be equivalent to part payment. The trans- fer to the vendor of a bill or note " on account " or in part 1 Goods taken on account. — Where Barb. (N. Y.) 570; Artcher v. Zeh, 5 a sale is made on an agreement that Hill (N. Y.) 200 ; Mattice ... Allen, the price shall be applied on the pay- 3 Keyes (N. Y.) 492 ; s. c. 3 Abb. ment of a precedent debt, such price App. Dec. 248 ; Walrath v. Richie, 5 must be actually applied, by a receipt Lans. (N. Y.) 362 ; Clark a. Tucker, or otherwise, to bring it within the 2 Sandf. (N. Y.) 157 ; Dow v. Wor- exception of the Statute of Frauds then, 37 Vt. 108 ; Cotterill v. Stevens, founded on a payment of all or 10 Wis. 422; Walker v. Nussey, 16 part of the principal. Gaddis u. Mees. & W. 302. Leeson, 55 111. 522 ; Matthiessen 2 Cr. M. & E. 337. Weicher's Refining Co. v. McMahon, ^4 a. & E. 71. 38 N. J. L. (9 Vr.) 536; Brabin v. " Wilkins v. Casey, 7 T. E. 713; Hyde, 32 N. Y. 519 ; Davis v. Spen- Cannan i.'. Wood, 2 M. & W. 465. cer, 24 N. Y. 386 ; Teed u. Teed, 44 * 17 Q, b. 423, and 20 L. J. Q. B. Barb. (N. Y.) 96; Ely i'. Ormsby, 12 444. 327 *166 FORMATION OF THE CONTRACT. [BOOK I. payment, would seem also to suffice to render the bargain Talid.i In Maber v. Maber,^ a gift of tbe interest due was held to be a part payment. § 218. The Roman law on the subject of earnest was very peculiar, and the texts which govern it might readily be mis- understood unless careful discrimination be observed. Ear- nest was of two kinds : one was an independent contract anterior to the agreement of sale ; the other was accessory to the contract of sale after it had been agreed on, and [*166] was, * like the earnest of the common law, a proof that the bargain was concluded, argumentum con- tractus facti. § 219. The independent contract of earnest was an agree- ment by which a man proposed to another to give him a sum of money for what we should term the option of purchase. If the sale afterwards took place, the earnest money was de- ducted from the price. If the purchaser declined completing the purchase, he forfeited the earnest money. If the party who had received earnest did not choose to sell when the option was claimed, he was bound to return the earnest money and an equivalent amount by way of forfeiture for disappointing the other in his option.^ § 220. The other species of earnest of the Roman law was the same as that of the common law. It might consist of a thing, as a ring, annulus, which either party, but gen- erally the buyer, gave to the other as a sign, proof, or sym- bol of the conclusion of the bargain ^ — and when money was given in earnest it was considered as being in part pay 1 Chamberlyn v. Delarive, 2 Wils. (N. Y.) 135; Hawley v. Keeler, 53 N. ■253; Kearslake v. Morgan, 5 T. R. Y. 114; BisseUw. Balcom,39N. Y. 275; 513 ; Griffiths r. Owen, 13 M, & W. 58. Artcher v. Zeh, 5 Hill (N. Y.) 200. Payment by check will be sufficient ^ L. R. 2 Ex. 153. where the check is received in part i L. 17, Cod. de Fid. Instr. ; Pothier, payment; and where honored on pre- Vente, Nos. 497, 8, 9. See, also, Howe sentment, will be considered as pay- v. Hayward, 108 Mass. 54; s. c. 11 ment at the time when it was given. Am. Rep. .306. Hunter v. Wetsell, 84 N. Y. 549, 554 ; i Dig. 19, 1 de Act. Emp. et Vend. s. c. 38 Am. Rep. 544; s. c. 17 Hun 11, §(1, Tip. 328 PART II.J OF EARNEST OR PART PAYMENT. *167 ment of the price. ^ Varro gives this as the etymology of the word; 3 "Arrhabo sic dicta, ut reliquum reddatur. Hoc verbum &, Grseco arrabon, reliquum, ex eo quod debi- tum reliquit ; " — and the Institutes of Gaius * give its true nature, " Quod ssepe arrse nomine pro emptione datur, non eo pertinet quasi sine arra conventio nihil proficiat : sed ut evidentius probari posset convenisse de pretio." § 221. At a latter date, however, the Emperor Justinian made by statute an important change in the law of earnest, by providing that in all cases where it was given, whether the sale was "in writing or not, and whether there was any stipulation to that effect or not, either party might rescind the sale by forfeiting the amount of the earnest money. * The whole text is a remarkable one, giving full rules [*167] as to form of the sale, the assent, the giving of earnest, and the right of rescission. " Emptio et venditio contrahitur simul atque de pretio convenerit, quamvis nondum pretium numeratum sit ac ne arra quidem data fuerit ; nam quod arrae nomine datur argumentum est emptionis et venditionis con- tractse. Sed hsec quidem de emptionibus et venditionibus quae sine scriptura consistunt obtinere oportet, nam nihil a nobis in hujusmodi venditionibus innovatum est. In his autem quae scriptura conficiuntur, non aliter perfectam esse venditionem et emptionem constituimus, nisi et instrumenta emptionis fue- rint conscripta, vel manu propria contrahentium, vel ab alio quidem scripta, a contrahentibus autem subscripta ; et si per tabelliones fiunt, nisi et completiones acoeperint et fuerint par- tibus absoluta. Donee enim aliquid deest ex his, et poeniten- tise locus est, et potest emptor vel venditor, sine poena recedere ab emptione. Ita tamen impune eis recedere concedimus, nisi jam arrarum nomine aliquid fuerit datum. Hoc etenim sub- secuto, sive in scriptis, sive sine scriptis venditio celebrata est, is qui recusat adimplere contractum, si quidem est emptor, per- 2 Dig. 18, 3, de Lege Commissoria, &dbdn, n pledge, Gen. xxxviii. 17. 8 Scaev. See, also, Howe v. Hayward, This word was introduced by the 108 Mass. 55; s. c. 11 Am. Rep. 306. Phoenicians into both Greece and 3 De Lingua Latina, lib. 5, § 175. Italy. See Skeat's Etm. Diet. p. 184. The Greek appa^dp and the Latin arra ■* Com. 3, § 139. are both modifications of the Hebrew 329 *168 FORMATION OP THE CONTRACT. [BOOK I. dit quod dedit : si vero venditor, duplum restituere compellitur, licet super arris nihil expressum est." ^ This text not only changed the antecedent law, by allowing either party to re- scind the bargain by forfeiting the value of the earnest, but it made a further innovation by providing that when the parties had agreed to draw up their sale in writing, either might recede from the bargain until all the forms of a written contract had been finally completed ; in derogation of the ante-Justinian law, which made the contract perfect by mutual assent before the writings were drawn up.^ § 222. Pothier struggles, on the authority of Vinnius, to escape from the apparently plain meaning of this text of the Institutes, and maintains the old distinction, that after earnest given to bind the bargain, neither party can [*168] escape from his * obligations as vendor or purchaser, by the sacrifice of the amount of the earnest.^ Bvit this reasoning is scarcely satisfactory, and later authors consider the language of the text too absolute to be explained away.^ § 223. The French civil code seems to reject Pothier's doctrine, and provides, art. 1590, " Si la promesse de vente a ^t^ faite avec des arrhes, chacun des contractants est maitre de s'en d^partir, celui qui les a donn^es en les perdant, et celui qui les a re§ues en restituant le double." Singularly enough, however, the same discussion has sprung up under this text as under that of Justinian, and the commentators are divided, TouUier, Maleville, Duranton, and some others taking the side of Pothier, while Duvergier, Coulon, Deville- neuve, and Ortolan, are of the contrary opinion.^ 1 Inst. lib. iii. tit. xxiii. 1. 2 Ortolan, Explication Hist, des 2 Dig. 18, 1, de Contrah. Bmpt. 2, Inst. vol. 3, p. 269. § 1, Paul ; Gaius, Comm. 3, § 139. 1 The references are given in Sirey 1 Pothier, Vente, No. 508. & Gilbert, Code AnnotcS, art. 1690. 330 PART II. j OP MEMOEANDUM OE NOTE IN "WEITING. *169 * CHAPTER VI. [n69] OP THE MEMOEANDUM OE NOTE IN WEITIN6. 173 173 . 173 Law of evidence as to written contracts not changed by the statute 170 Common law principles .... 170 Parol evidence, when admissible where there is a written note of the bargain . True theory of the statute Parol evidence admissible to show that the writing is not a note of any bargain at all . Or that it is not a note of the whole bargain 174 Inadmissible to supplement an imperfect note . . . 174 Inadmissible to connect se- parate written papers . . 174 Admissible to identify the subject-matter of the note, 176 Admissible to show the situ- ation, and circumstances, and to explain mercantile language, and show date . 175 Also to show the meaning of words, according to a trade usage 176 Also mistake in omitting goods in bought and sold notes . ... Also to show that writing was intended only to take effect conditionally . And to explain latent ambi- guity As to particular commercial usages. . . . Admissibility of parol evidence to change or annul written note, 177 176 176 176 . 176 Admissible to show buyers order for alterations in chattel to be manufactured Admissible to prove substituted mode of performance . . . Decisions as to postponement of delivery . . General propositions . . . . Parol evidence to show abandon- ment of the contract Rule, where note is signed by agent in his own name . 178 178 179 182 . 183 . 184 SECTION I. WHAT IS A NOTE OR MEMOEANDUM IN WRITING. Must be made before action brought 185 Need not be written at one time nor on one piece of paper Separate papers not to be con- nected by parol . . . Where the reference is ambigu- ous parol evidence admissible to identify document referred to Doctrine now extended . . Separate papers must be con- sistent 4th and 17th sections of statute compared 187 Cases reviewed 187 Note in writing may be ad- dressed to a third person . . 193 Writing in pencil . . ... 193 185 185 185 186 186 331 *170 FORMATION OP THE CONTRACT. [BOOK I. SECTION II. — WHAT IS A SG'Fri- CIENT NOTE OF THE BAROAIN MADE. itli section rigorously construed, 193 17th section more liberally con- strued . . ... 194 Note must contain names or de- scription of the parties . 195 Description suflBces instead of name ... . 197 Where agent signs his own name, 198 Agent for foreign principal 198 Wlien agent is personally bound, 199 Agents for nonexistent princi- pals 210 What terms of the bargain must be contained in the note . . 211 Distinction between " agree- ment " and " bargain "... 212 Price when agreed on must be stated 213 Price need not be stated, when not fixed by the terms agreed on 214 General rule as to stating price in note . 215 Other terms of contract must be so expressed as to be intelli- gible 215 A letter repudiating a contract may be a sufficient note of it . ... . . .217 A mere written proposal is a suf- ficient note, if supplemented by parol proof of acceptance by the party seeking to en- force it 218 Decisions in the United States . 218 § 224. This clause of the statute is as follows : " Except that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto duly authorized." i [*170] * For an accurate notion of the true extent and bearing of this clause, it is indispensable to keep con- stantly in view the leading principles of the law of evidence relating to written contracts. The framers of the statute have in no way interfered with these principles. They have simply said that if the parties to be charged have signed some written note or memorandum of the contract, it shall be allowed to be good. What the legal effect of such a note or memorandum is to be in all other respects, is left entirely as it was at common law. § 225. Now at common law, parties entering into any con- tract, may either reduce its terms to writing, or may refer to some other writing already in existence, as containing the terms of their agreement, and when they do so, they are 1 Mortgages oj personal property. — ute only requires them to be reduced At common law, mortgages of per- to writing and registered as affecting sonal property were not required to creditors and purchasers for value, be reduced to writing, and our stat- Butts v. Screws, 95 N. C. 215. 332 PAST II.] OF MEMORANDUM OR NOTE IN WRITING. »170 bound by what is written, whether signed by them or not ; ^ and they are not allowed to say that there was a mistake in the writing, and that they intended to agree to something different from its contents, for the very object of putting the agreement in writing, is to prevent disputes about what they intended. This rule of law is very inflexible. If, by the agreement, the whole contract is reduced to writing, or by mutual assent is to be taken as embraced in a pre-existing writing, neither party is allowed to offer proof that any ad- ditional terms were agreed to,^ although, of course, when- 1 See Watkins v. Rymill, L. R. 10 Q. B. Div. 178; Bank of British North America v. Simpson, 24 Up. Can. C. P. 354. The writing need not be formal, a simple statement that the parties have agreed and that to which they have agreed, being sufficient. Ran- dall V. Rhodes, 1 Curt. C. C. 92. See McConnell ;■. Brillii.irt, 17 111. 351 ; s. c. 65 Am. Dec. 061. See, also, Nichols V. Johnson, 10 Conn. 192 ; Johnson v- Dodge, 17 111. 433 ; Doty v. Wilder, 15 111. 407 ; s. c. 60 Am. Dec. 756 ; Harrison v. Lane, 4 Bibb (Ky.) 466 ; Allen V. Roberts, 2 Bibb (Ky.) 98; Loomis V. Newhall, 32 Mass. (15 Pick.) 159; Parkhurst v. Van Cort- landt, 1 Johns. Ch. (N. Y.) 273 ; Frith V. Lawrence, 1 Paige Ch. (N. Y.) 434 ; Thayer v. Rock, 13 Wend. (N. Y.) 53 ; Mactier v. Frith, 6 Wend. (N. Y.) 103 ; s. c. 21 Am. Dec. 262; Pipkin v. James, 1 Humph. (Tenn.) 326 ; s. c. 35 Am. Dec. 652 ; Ide v. Stanton, 15 Vt. 685; s. c. 40 Am. Dec. 698 ; Clerk v. Wright, 1 Atk. 12 ; Buckmaster o. Harrop, 7 Ves. 341. But the writing must con- tain enough on its face, or by refer- ence, to fix the names of the parties, the interest or property, to be affected, and the consideration to be given. McConnell u. Brillhart, 17 111. 354; s. c. 65 Am. Dec. 661. See Nichols V. Johnson, 10 Conn. 192 ; Doty u. Wilder, 15 111. 407; ». c. 60 Am. Dec. 756 ; Harrison v. Lane, 4 Bibb (Ky.) 466 ; Allen v. Roberts, 2 Bibb (Ky.) 98 ; Fowler v. Lewis, 3 A. K. Marsh, (Ky.) 443 ; Tharp v. Feltz, 6 B. Mon. (Ky.) 6; Bean u. Burbank, 16 Me. 458 ; s. c. 33 Am. Dec. 681 ; Taney v. Bachtell, 9 Gill (Md.) 205; Dorsey v. Wayman, 6 Gill (Md.) 66; Loomis V. Newhall, 32 Mass. (15 Pick.) 159; Webster v. Ela, 5 N. H. 540; Sher- burne u. Shaw, 1 N. H. 158; s. c. 8 Am. Dec. 47 ; Van Alstine v. Wimple, 5 Cow. (N. Y.) 162 ; Abeel v. Radcliff, 13 Johns. (N. Y.) 297; s. c. 7 Am. Dec. 377 ; Parkhurst v. Van Cort- landt, 1 Johns. Ch. (N. Y.) 273; Frith V. Lawrence, 1 Paige Ch. (N. Y.) 434; Mactier v. Frith, 6 Wend. (N. Y.) 103 ; s. u. 21 Am. Dec. 262 ; Anderson i . Harold, 10 Ohio, 402 ; Dock v. Hart, 7 Watts & S. (Pa.) 172 ; Hill v. Roder- ick, 4 Watts & S. (Pa.) 221 ; Pipkin V. James, 1 Humph. (Tenn.) 326; s. c. 34 Am. Dec. 652; Ide o. Stanton, 15 Vt. 685; s. c. 40 Am. Dec. 698- Barry v. Coombe, 26 U. S. (1 Pet.; 647 ; bk. 7, L. ed. 299 ; Clerk v. Wright, 1 Atk. 12 • Champion c. Plummer, 1 Bos. & Pul. N. E. 252; Clinan v. Cooke, 1 Sch. & Lef . 31 ; Blagden v. Bradbear, 12 Ves. 466. See, also. Sale V. Darragh, 2 Hilt. (N. Y.) 198 ; Peltier v. Collins, 3 Wend. (N. Y.) 459; s. c. 20 Am. Dec. 711; Jeffcott u. No. Br. Oil Co., 8 Ir. R. C. L. 17. 2 Where parties have reduced their contract to writing, such writing will be presumed to contain all their agreement, any previous conversation not merged in the writing being re- 333 *171 F0RMATI02Sr OF THE CONTRACT. [BOOK I. ever a duty or obligation of any sort results by virtue of the law, or of local customs, or the usages of particular trades, from the written stipulations, such duty or obligation may not only be enforced, as though it were expressly included among the written terms, but is as carefully guarded by the rule now under consideration, as if expressed in the written paper, and cannot be contradicted or qualified by parol evi- dence.^ § 226. But the common law does not prohibit parties from making contracts of which only part is in writing A man may agree to build a carriage for another, and the descrip- tion of the vehicle may be put in writing and the price may be agreed on by parol, or vice versd, or the parties f*171] may say in * substance, "we agree to what is con- tained in such a writing, with such additions and exceptions as we now agree upon by Avord of mouth," and there is no legal objection to this. Parol evidence may be jected. Winn v. Cox, 5 Ga. 373 ; JSmall V. Quincy, 4 Me. (4 Greenl.") 497 ; Stoops v. Smith, 100 Mass. 03 65 ; B. u. 63 Am. Rep. 1 ; Eidgway v. Bowman, 61 Mass. (7 Cush.) 268; Pitclier V. Hennessey, 48 N. Y. 415 ; Carter v. Hamilton, 11 Barb. (N. Y.) 147 ; Clark v. New York Life Ins. & Trust Co., 7 Lans. (N. Y.) 322 ; Dag- gett u. Johnson, 49 Vt. 345, 348; Groot V. Story, 44 Vt. 200; Hakes v. Hotchkiss, 23 Vt. 231 ; Tayloe v. Riggs, 20 XT. S. (1 Pet.) 591 ; bk. 7, L. ed. 275 ; Henderson v. Cotter, 15 Up. Can. Q. B. .345 ; Mason v. Brun- skill, 15 Up. Can. Q. B. 300 ; Eden v. Blake, 13 Mees. & W. 614, 617 Lockett V. Nicklin, 2 Exeh. 93, 97 Goss V. Xugent, 5 B. & Ad. 58, 64 Meres v. Ansell, 3 AVils. 275 ; Morley 0. Boothby, 3 Bing. 107, 112; Lewis V. Jones, 4 Barn. & Cress. 506 ; Kain V. Old, 2 Barn. & Cress. 634 : Preston V. Merceau, 2 Wm. Bl. 1249 ; 1 Sug- den V. & P. (8th, Am. ed.) 158. The general rule is that : " Where the parties to a contract have delib- erately put their engagements into writing, in such terms as import a legal obligation, without any un- certainty as to the object or extent of their engagements, it is conclu- sively presumed that every part of their contract was reduced to writing, and all oral evidence, therefore, of what was said during the negotiation of the contract or at the time of its execution, must be excluded on the ground that the parties have made the writing the only repository and memorial of the truth ; and whatever is not found in the writing must be understood to have been waived and abandoned." Van Sycle v. Dalrym- ple, 32 N. J. Eq. (5 Stew.) 233, 826 See also Chapin v. Dobson, 78 N. Y. 74 ; o. u. .34 Am. Rep. 512 ; Wilson V. Been, 74 N. Y. 531, 534. ^ Per Blackburn J., in Burges v. Wickham, 3 B. & S. 669, 33 L. J. Q. B. 17. But see the language of Williams J., in giving the decision of the Exchequer Chamber in Clapham I'. Langton, 34 L. J. Q. B. 46; see, also, Fawkes i;. Lamb, 31 L. J. Q. B. 98, and Leak on Contr. 197. 334 PART II.] OF MBMOEANDTJM OB NOTE IN WEITING. *171 used to show what were the additions and exceptions, and the writing is conclusive as to the rest.^ I 227. When either a part, or the whole of an agreement, is thus made in writing, or by reference to a writing, the agreement in general cannot be proven by any other means than by adducing the writing itself in proof, so that inde- pendently of the statute, the writing is an indispensable part of the case of him who seeks to prove the agreement. ^ But this result only takes place when the writing is by the con- sent of both parties agreed to be that which settles and con- 1 Proving collateral agreement. — A party may prove an oral collateral agreement, where such agreement is not inconsistent with the written con- tract. Fusting's Ex'rs v. Sullivan, 41 Md. 162 ; Basshor v. Forbes, 36 Md. 154 ; Erskine v. Adeane, L. R. 8 Ch. 766. See, also, "Weeks o. Medler, 20 Kan. 57, 64 ; Polk v. Anderson, 16 Kan. 243 ; Babcock v. Deford, 14 Kan. 408 ; Hersoin v. Henderson, 21 N. H. 224; s. c. 53 Am. Dec. 185; Lewis v. Seabury, 74 N. Y. 409 ; s. c. 80 Am. Eep. 811; Duparquet v. Knubel, 24 Hun (N. Y.) 653 ; Malone v. Dough- erty, 79 Pa. St. 46 ; McBride v. Silver- thorn, 11 Up. Can. Q. B. 545. Where a contract is not required by the statute to be in writing, it may be expressed partly in writing and partly in a writ- ten understanding between the par- ties, in which case the understanding may be shown by parol. St. Louis, L. &. W. Ry. Co. V. Maddox, 18 Kan. 546, 551. See, also, Clarke v. Tappin, 32 Conn. 56 ; Morehead v. Murray, 31 Ind. 418 ; Healy v. Young, 21 Minn. 389; Moss v. Green, 41 Ho, .389; Rollins V. Claybrook, 22 Mo. 405; Lewis V. Seabury, 74 N. Y. 409 ; s. c. .30 Am. Rep. 311; Hope v. Balen, 58 N. Y. 380; Barker v. Bradley, 42 N. Y. 316 ; s. c. 1 Am. Rep. 521. An unintelligible contract may be ex- plained by parol, even though the subject-matter of it is within the statute. Moulding v. Prussing, 70 HI. 151. In Pennsylvania. — The English rule excluding parol evidence to vary a written contract, has not been adopted in all its stringency. See Greenawalt V. Kohne, 85 Pa. St. 369, 375 ; Martin V. Berens, 67 Pa. St. 459. It is said in Greenawalt v. Kohne, supra, that from Hurst's Lessees i-. Kirkbride, decided in 1773, reported by V.-C. J. Tilgham in Wallace v. Baker, 1 Binn. (Pa.) 610, down to the present time, this court has uniformly held that where, at the execution of the writ- ing, ii stipulation has been entered into, a condition annexed, or a promise made by the word of mouth, upon faith of which the writing has been executed, that parol evidence is ad- missible, though it may vary and materially change the terms of the contract." See Lippincott c. Whit- man, 83 Pa. St. 244 ; Graver v. Scott, 80 Pa. St. 88, 94; Powelt on Coal Co. V. McShain, 75 Pa. St. 238; Chalfant v. Williams, 35 Pa. St. 212 ; Miller v. Henderson, 10 Serg. & R. (Pa.) 290. In New York, this rule does not prevail, yet in Chapin v. Dobson, 78 N. Y. 74; s. c. 84 Am. Eep. 512, the buyer of chattels under a written contract of sale was allowed to prove a verbal agreement, on the faith of which the contract was executed, that he might return the chattels if he was not satisfied therewith. 1 See Caldwell v. Green, 8 Up. Can. Q. B. 327. 335 *171 FORMATION OP THE CONTEACT. [BOOK I. tains their contract in whole or in part. The case is dif- ferent, if one of the parties chooses to write down for himself, without the concurrence and assent of the other, or if a bystander, without the authority of both, should write Out what they said. The writing of the bystander is not evidence at all in such a case, though he may use it to refresh his memory, if called as a witness ; but if one of the parties had employed him to make the writing, or had admitted its ac- curacy, it would be receivable in evidence against him as an admission, and the same would be the case as to what one party had written down for himself. But such writing, not binding on both, would not be indispensable for legal proof of the contract, nor, although of great weight, would it be conclusive upon him against whom it is evidence, as being his admission. § 228. The Statute of Frauds leaves all this law quite as it was before.-' If the contract be in writing, in whole or in part, it must be proven as containing the only legal evidence of the terms of the agreement, even though not signed or not sufficient under the statute to make the contract good, and though there be sufficient evidence of part payment or of part acceptance and receipt to establish the validity of the contract.^ The writing in such a case is as indispensable in contracts for the sale of goods of less value than 101., as in those above that limit, and is as conclusive in settling what the terms of the bargain are as if the Statute of Frauds 1 See Williams v. Robinson, 73 Me. a specified quantity of the articles 196. See, also. Steel v. Fife, 48 Iowa, sold at a given price, but did not 99; 8. u. 30 Am. Rep. 388; Mason v. specify the time of delirery or of Decker, 72 N. Y. 595 ; s. c. 28 Am. payment, it was held sufficient under Rep. 190. the Statute of Frauds, and that oral As to proof of contract where the evidence could be introduced to show original memorandum has been lost, that there was an agreement as to the see Jelks v. Barrett, 52 Miss. 315 ; time of delivery and payment. Wil- Davis V. Robertson, 1 Mill (S. C.) liams u. Robinson, 73 Me. 186; s. c. Const. 71; s. c. 12 Am. Dec. 611; 40 Am. Rep. 352. See Bird ,-. Mun- Washburn v. Fletcher, 42 Wis. 152 ; roe, 66 Me. 337 ; Townsend r. Har- Ryan 1-. Salt, 3 Up. Can. C. P. 83. graves, 118 Mass. .325; Lerned r. 2 In Maine, where a memorandum Wannemacher, 91 Mass. (9 Allen) was signed by one party alone, and 412. he agreed to furnish the other party 336 PART II. J OP MEMORANDUM OR NOTE IN WRITING. *172 had never been passed. And where a party has * signed a paper which is not a writing agreed upon [*172] between the two, as containing the terms of their agreement, his adversary may use the paper, if he please, as an admission made in his favor, but he is not bound to offer it, any more than he would be bound to prove a verbal ad- mission of his adversary, nor is the effect of a written any greater than that of a verbal admission. In a word, it is always necessary to distinguish whether the writing is the contract of hoth parties, or the admission of one? § 229. The two cases of Ford v. Yates, ^ and Lockett v. Nicklin,^ afford an illustration of the effect of the Statute of Frauds, takeii in connection with the common law rules of evidence on this subject. In Ford v. Yates, the memorandum of the sale made between the parties said nothing as to credit ; it was a sale of two parcels of hops, one of 39 pockets, and the other of 5 pockets, both at 78 shillings. The vendor de- livered the smaller parcel, but refused to deliver the 39 pockets without payment ; and the Court held parol evidence inadmissible to show that the hops were sold at six months' credit, and that this had been the usual course of dealing between the parties. But in Lockett v. Nicklin, where the goods were ordered in a letter containing a reference to a conversation between the parties, and were supplied with an invoice, nothing being said either in the letter or the invoice about the terms of payment, parol evidence was received of an agreement to give six months' credit. The distinction made was, that in Ford v. Yates the action was based on a written contract contained in the memorandum which could not be varied by parol evidence, while in Lockett v. Nicklin the sale was really hy "parol, and the subsequent writings were merely offered in proof of a parol bargain which had become binding by the delivery and acceptance of the goods ; so that the purchaser was at liberty to supplement the proof 8 The foregoing preliminary re- burn. See Williams v. Robinson, 73 marks are chiefly extracted from the Me. 186 ; s. c. 40 Am. Rep. 352. very valuable treatise of Lord Black- ^ 2 M. & G. 549. 2 2 Ex. 93. 337 *173 POEMATIOK OF THE CONTRACT. [BOOK I. of the bargain, by showing that there was an additional stipu- lation ; namely, an agreement for six months' credit. [*173] § 230. * It is of course quite beyond the scope of the present treatise to enter with any minuteness into the law of evidence, but the examination of this clause of the statute would be very incomplete without some reference to the decisions which determine in what cases, for what pur- poses, and to what extent, parol evidence is admissible to affect the rights of the parties, when there exists a note or memorandum in writing of the bargain sufficient to satisfy the 17th section. § 231. It must be steadily borne in mind that the statute was not enacted for cases where the parties, either in person or by agents, have signed a written contract; for in those cases the common law affords by its rules quite a sufficient guarantee against frauds and perjuries as is provided by the statute. The intent of the statute was to prevent the enforce- ment of parol contracts above a certain value, unless the de- fendant could be shown to have executed the alleged con- tract by partial performance, as manifested by part payment, or part acceptance, 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 mem- orandum pre-supposes an antecedent contract by parol, of which the writing is a note or memorandum.^ [It is a simple deduction from this theory of the statute that parol evidence is always admissible to show that the ' See the remarks of Erie J., in mulgee Mills, 55 Ga. 633 ; Williams Sierewright o. Archibald, 17 Q. B. v. Robinson, 73 Me. 186; s. c. 40 Am. 124 ; 20 L. J. Q. B. 529 ; of Williams Eep. 302 ; Bird v. Munroe, 60 Me. J., in Bailey v. Sweeting, 9 C. B. N. S. 337 ; Davis v. Moore, 13 Me. 424 ; 843; .30 L. J. C. P. 150; and of Lord Hunter v. Giddings, 97 Mass. 41, 44; Wensleydale in Eidgway v. Wharton, Gale v. Nixon, 6 Cow. (N. Y.) 445 ; 6 H. L. C. 305. The statement in the Webster v. Zeilly, 52 Barb. (N. Y.) text is to be found passim in the cases 482 ; Thompson v. MencJs, 4 Abb. on this subject. App. Dec. (N. Y.) 400 ; Ide u. Stan- 2 A contract and memorandum are ton, 15 Vt. 690; o. u. 40 Am. Dec. distinct. See Lerned v. Wannemacher, 698 ; Dominion Bank v. Knowlton, 25 91 Mass. (9 Allen) 412; Marsh v. Grant (Ont.) 131; Parton v. Crofts, Hyde, 69 Mass. (3 Gray) -333 ; Wil- 16 C. B. (N. S.) 11, 21 ; Richey v. liams V. Bacon, 68 Mass. (2 Gray) Garvey, 10 Ir. L. R. 544; 1 Sugden 387, 391. See, also, Phillips ^. Oc- V. & P. (8th Am. ed.) 129. 338 PART II.] OF MEMORANDUM OB NOTE IN WRITING. *174 writing which purports to be a note or memorandum of the bargain is not a record of any antecedent parol contract at all,^ for, as was said by Lord Selborne in Jervis v. Berridge,* the Statute of Frauds "is a weapon of defence, not offence, and does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and real intention of the parties.^] § 232. * On the same principle parol evidence is [*174] admissible for the purpose of showing that the writ- ten paper is not a note or memorandum of the antecedent parol agreement, but only of part of it, and the decisions are quite in accordance with this view. Thus, if the writing offered in evidence contains no reference to the price at which the goods were sold, parol evidence is admissible to prove that a price was actually fixed, and the writing is thus shown not to be a note of the agreement, but only of some of its terms.^ So where a sale of wool was made by sample, and one of the terms of the bargain was that the wool should be in good dry condition, parol evidence was admitted to show this fact, and thus to invalidate the sold note signed by the broker, which omitted that stipulation.^ 3 Pym V. Campbell, 6 B. & B. 370 Wake I'. Harrop, 6 H. & N. 768 Clever o. Kirkman, 24 "W". R. 159 When oral evidence excluded. — In order to exclude oral evidence of a contract, it must be first established 33 L. T. N. S. 672 ; Hussey v. Home- that there is a subsisting written con- Payne, 4 App. Cas. 311, per Lord tract between the parties ; and where Cairns, at p. 320. the immediate issue is whether there * 10 Ch. at p. 360. is or was a writing covering the con- 5 Leppoc V. Nat. Union Bank, 32 tract, it is not competent to exclude Md. 136, 144 ; Earle v. Rice, 111 oral testimony bearing on that issue Mass. 17, 20 ; Hildreth v. O'Brien, 92 upon an assumption of such writing. Mass. (10 Allen) 104; Eennell v. To do so is to beg the question. Kimball, 87 Mass. (5 Allen) 366 ; Kalamazoo N. M. Works v. Macalis- James v. Muir, 33 Mich. 223 ; Wem- ter, 40 Mich. 84. pie 1-. Knopf, 15 Minn. 440 ; s. c. 2 i Elmore v. Kingscote, 5 B. & C. Am. Rep. 147; Butler v. Smith, .35 583; Goodman v. Griffiths, 1 H. & Miss. 457, 463; Wright v. McPike, N. 574; s. c. 26 L. J. Ex. 145; Ace- 70 Mo. 175, 179 ; Grierson v. Mason, bal v. Levy, 10 Bing. 376. 60 N. Y. 394 ; Shughart u. Moore, 78 2 pjtts v. Beckett, 13 Mees. & W. Pa. St. 469; McKesson v. Sherman, 743. 61 Wis. 303, 312 ; Blake v. Coleman, A broker's memorandum which is 22 Wis. 415. defective is insufficient to take the 339 ^74 FORMATION OF THE CONTRACT. [BOOK I. [And in a recent Irish case, where the writing offered in evidence was the auctioneer's sales-book which contained no statement that the sale was by sample, parol eyidence was admitted on behalf of the defendant, to prove that the sale was by sample, and that therefore the auctioneer's book was not a memorandum of the whole contract.^] § 233. And the same principle which permits the defend- ant to offer parol evidence, showing that the written note is imperfect, and therefore not such a note as satisfies the stat- ute, forbids him who sets up the writmg for the purpose of binding the other from supplementing the writing by parol proof of terms or stipulations not contained in it ; for it is manifest, that by offering such proof, he admits that the writ- ing does not contain a note of the bargain, but only part of it.^ contract out of the Statute of Frauds. Boardman v. Spooner, 95 Mass. (13 Allen) .35.3. And in such case the vendor can be allowed to prove by usage of trade, that the cases are to be examined within a limited time; otherwise the sale will be admitted to be complete. Boardman v. Spooner, 05 Mass. (13 Allen) 353 ; Coddington i: Goddard, 82 Mass. (16 Gray) 436; Davis V. Shields, 26 Wend. 341. A wan-anty of the qualiti/ of an arti- cle sold is an essential part of the bargain and should be set out in the note or memorandum of sale, and a memorandum omitting it renders tlie contract void, and parol evidence is admissible to take it out of the Stat- ute of Frauds. Peltier v. Collins, 3 Wend. (N. Y.) 459; s. c.20 Am, Bee. 711. See Adams v. Gray, 8 Conn. 11; s. c. 20 Am. Dec. 82 ; Sale v. Darragh, 2 Hilt. (N. Y.) 184, 198 ; Etheridge v. Palin, 72 N. C. 213. See sec. 233, note 1. A contemporaneous agreement of warranty can be ingrafted by parol evidence on to a written contract of sale. Pike v. Fay, 101 Mass. 134; Boardman v, Spooner, 95 Mass. (13 Allen) 353; Howe v. Walker, 70 Mass. (4 Gray) 318 ; Raymond v. Ray- mond, 64 Mass. (10 Cush.) 134 ; But- ton ;;. Gerrish,63 Mass. (9 Cush.) 89 ; s. c. 55 Am. Dec. 45 ; Warren v. Whee- ler, 49 Mass. (8 Mete.) 97 ; Mayer v. Adrian, 77 N. C. 83, 91. 3 McMuUen v. Helburgh, L. R. 4 Ir. 94 ; s. c. on appeal, L. R. 6 Ir. 463. See, also, Remick v. Sandford, 118 Mass. 102; s. c. 120 Mass. 309; Boardman v. Spooner, 95 Mass. (13 Allen) 363. 1 Boydell r. Brummond, 11 East, 142 ; Fitzmaurice u. Bayley, 9 H. L. C. 78; Holmes v. Mitchell, 7 C. B. N. S. 361, and 28 L. J. C. P. 201 ; Har- row V. Groves, 15 C. B. 667 ; 24 L. J. C. P. 53. See Sugden on Vend. & P. 140 note (rf). See, also, Jenness v. Mount Hope Iron Co., 53 Me. 20; O'Bonnell v. Leeman, 43 Me. 158 ; Dana v. Hancock, 30 Vt. 616; Sal- mon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446; bk. 14, L.ed. 493. Supplying omission. — Where a memorandum in the usual form omitted the word sold before the name of the purchaser, it was held that it could not be contended, that such word was omitted by mistake (Lee V. Hills, 66 Ind. 474), for a con- tract required by the Statute of Frauds 340 PAET II.] OF MEMOKANDUM OB NOTE IN WEITING. *174 [And this statement of the law was approved by O'Brien J. in the Irish case of M'MuUen v. Helberg, 4 L. R. Ir. 94, at p. 110.] to be in writing cannot be partly in writing and partly in parol. Marks v. Cass Co. Mill Co., 43 Iowa, 146 ; Ste- vens <,. Haskell, 70 Me. 202 ; Millett V. Marston, 62 Me. 477 ; Jenness v. Mount Hope Iron Co., 53 Me. 20, 24 ; Lazear v. National Union Bank, 52 Md. 78 ; s. c. 36 Am. Rep. 365 ; Frank V. Miller, 38 Md. 450, 460 ; Keller v. Webb, 126 Mass. 393; Spence v Bowen, 41 Mich. 140 ; Lang v. Henry, 64 N. H. 57; Caulkins v. Hellman 14 Hun. (N. Y.) 330 ; Dana v. Han- cock, 30 Vt. 616 ; Randall v. Rhodes 1 Curt. C. C. 90. While parol evi- dence is not admissible to add a war- ranty of quality or quantity to a written contract of sale (Etheridge !;. Palin, 72 N. C. 213 ; see, also, sec. 232, note 2) ; or competent to supply an omission in the memorandum (Lee i;. Hills, 66 Ind. 474, 481 ; Baldwin v. Kerlin, 46 Ind. 426 ; Norris v. Blair, 39 Ind. 90) ; yet the law will supply whatever is necessary or implied from the writing, although it is not expressed. See Butler v. Thomson, 92 U. S. (12 Otto) 412 ; bk. 23, L. ed. 684; Salmon Falls Manuf. Co. v. Goddard, 55 V. S. (14 How.) 446; bk. 14, L. ed. 493. Wht^re part of the price is paid whereby the Statute of Frauds has been satisfied, it would seem that the buyer may show a mistake in the memorandum of sale. Kribs v. Jones, 44 Md. 396, 408; Allen v. Sowerby, 37 Md. 411; Chapin v. Dob- son, 78 N. Y. 74; s. c. 34 Am. Rep, 612 ; Hicks v. Cleveland, 48 N. Y. 84 91 ; Greenawalt v. Kohne, 86 Pa. St, 369. However, see Wiener v. Whip pie, 53 Wis. 298; s. c. 40 Am. Rep, 775. See, also, "Van Syckle v. Dal rymple, 32 N. J. Eq. (5 Stew.) 233 Schultz V. Coon, 61 Wis. 416 ; Hub- bard <•. Marshall, 50 Wis. 322 ; Lovv- ber V. Connit, 36 Wis. 176; Whiting u. Gould, 2 Wis. 552. In the absence of fraud, accident, or mistake, parol evidence is incompe- tent to show a warranty, in the sale of articles by a written contract, con- taining no warranty. Mast v. Pearce, 58 Iowa, 579; s. c. 43 Am. Rep. 126; Mumford «. McPherson, 1 Johns. (N. Y.) 414; s. c. 3 Am. Dec. 339; Van Ostrand v. Reed, 1 Wend. (N. Y.) 424; Powelton Coal Co. v. MrShain, 75 Pa. St. 238; Dutton c. Tilden, 13 Pa. St. 46; Renshaw v. Gans, 7 Pa. St. 117 ; Clark v. Partridge, 2 Pa. St. 13; Campbell v. McClenachan, 6 Serg. & R. (Pa.) 171. Oral evidence is admissible to reform a written instrument, or to subvert or overthrow it entirely, but not to vary or alter it. Thus, where the parties to a contract have deliberately put their engagements into writing in such terms as import a legal obliga- tion, without any uncertainty as to the object and extent of their en- gagements, it is conclusively pre- sumed that every part of their con- tract was reduced to writing, and all oral evidence therefore of what was said during the negotiation of the contract, or at the time of its execu- tion, must be excluded on the ground that the parties have made the writ- ing the only repository and memorial of the truth, and whatever is not found in the writing must be under- stood to have been waived and aban- doned. Van Sykle v. Dalrymple, 32 N. J. Eq. (6 Stew.) 233 ; Locander v. Lounsbery, 24 N. J. Eq. (9 C. E. Gr.) 429 ; French v. Griffin, 18 N. J. Eq. (3 C. E. Gr.) 280; Huffman v. Hum- mer, 17 N. J. Eq. (2 C. E. Gr.) 269; Ohetwood v. Brittan, 2 N. J. Eq. (1 H. W. Gr.) 448; s. c. 4 N. J. Ch. (3 H. W. Gr.) 336 ; on appeal, 1 Hal. Ch. 341 *175 FORMATION OF THE CONTRACT. [book I. § 234. It is also on this principle that when the bargain is to be made out by separate written papers, parol evi- [*175] dance is not * allowed to connect them, but they must either be physically attached together, so as to show that they constitute but one instrument, or they must be connected by reference in the contents of one to the con- tents of the other,! as will be fully seen infra (pp. 185-193). § 235. But where a purchaser agreed to pay by a cheque -^ on his brother, the Court held that this was not one of the terms which need appear in the writing ; and further, that parol 628; Chubb v. Peckham, 13 N. J. Eq. (2 Beas.) 207 ; Dewees v. Manhattan Ins. Co., 35 N. J. L. (6 Vr.) 372. An exception to the rule as above stated is made in favor of parties not connected in any way with the agree- ment, and those persons may show by parol what the real agreement was. McMaster v. Insurance Co. of N. A., 55 N. Y. 222 ; s. c. 14 Am. Rep. 239 ; Coleman v. First Nat. Bank of El- mira, 53 N. Y. 388 ; Brown !■. Thur- ber, 77 N. Y. 613; s. c. 58 How. (N. Y.) Pr. 95. See, also, Talbot v. Wilkins, 31 Ark. 411, 420 ; Hussman V. Wilke, 50 Cal. 250; Smith v. Moynihan, 44 Cal. 53 ; Crowley v. Pendleton, 46 Conn. 62; Badger v. Jones, 29 Mass. (12 Pick.) 371 ; Rey- nolds V. Magness, 2 Ired. (N. C.) L. 26. 1 Hinde t/. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 945; Pierce v. Corf, L. R. 9 Q. B. 210; Rishton v. Whatmore, 8 Ch. D. 467. But see Baumann v. James, 3 Ch. 508 ; Long v. Millar, 4 C. P. D. 450, C. A. ; Cave v. Hastings, 7 Q. B. D. 125. American cases. — Knox v. King, 36 Ala. 367 ; Adams v. McMillan, 7 Port. (Ala.) 73 ; Fowler v. Redican, 52 111. 405; Ridgway v. Ingram, 50 Ind. 145, 148 ; s, c. 19 Am. Rep. 706; O'Donnell v. Leenian, 43 Me. 158 ; s. c. 69 Am. Dec. 54 ; Freeport v. Bartol, 3 Me. (3 Greenl.) 340; Moale v. Buchanan, 11 Gill & J. (Md.) 314; Lerned ii. Wannemacher, 91 Mass. (9 Allen) 417 ; Williams v. Bacon, 68 Mass. (2 Gray), 391; Marton v. Dean, 54 Mass. (13 Mete.) 385 ; John- son t). Buck, 35 N. J. L. (6 Vr.) 344; s. c. 10 Am. Rep. 243 ; Tallman v. Franklin, 14 N. Y. 584; Kurtz v. Cummings, 24 Pa. St. 35; Smith u. Arnold, 5 Mason C. C. 416; Price V. Griffith, 1 De Gex, M. & G. 80 ; Peek V. North Staffordshire Ry. Co., 10 H. L. Cas. 473, 568; Peirce «. Corf, L. R. 9 Q. B. 210 ; Kaitling v. Parkin, 23 Up. Can. C. P. 569. An agreement to do something, which is not expressed on the face of the agreement signed, but is included in some other writing, parol evidence may be admitted to show what that writing is, so that the two, when taken together, constitute a contract within the Statute of Frauds. Ridgway u. Wharton, 6 H. L. Cas. 238. See, also, Beckwith v. Talbot, 2 Colo. 639 ; Lee V, Mahony, 9 Iowa, 344 ; Rhoades V. Castner, 94 Mass. (12 Allen) 1.30 ; Spear v. Hart, 3 Robt. (N. Y.) 420 ; Ide V. Stanton, 15 Vt. 685 ; s. c. 40 Am. Dec. 698; Baumann v. James, L. R. 3 Ch. Ap. 608 ; Jackson u. Og- lander, 2 Hem. & M. 465 ; Boyce v. Greene, Batty (Ir.) 608; Hope u. Dixon, 22 Grant (Ont.) 439; Phippen ^. Hyland, 19 Up. Can. C. P. 416. 1 Such as to payment by a bill, Mahalen v. The Dublin and Chapeli- zod Distillery Co., 11 Ir. R. C. L. 83. 342 PART II.] OF MEMORANDUM OK NOTE IN WRITING. *175 proof that under the contract certain candlesticks were to be made with a gallery to receive a shade, did not affect the sufficiency of the writing which described them as " candle- sticks complete." ^ § 236. Although parol evidence is not admissible to sup- ply omissions or introduce terms, or to contradict, alter, or vary a written instrument, it is admissible for the purpose of identifying the subject-matter to which the writing refers.^ Thus, where the written letter contained an agreement to purchase " your wool," parol evidence was admitted to apply the letter, and to show what was meant by "your wool." ^ § 237. Parol evidence is also admitted to show the situa- tion of the parties at the time the writing was made, and the circumstances ; ^ to explain the language, as for instance, to 2 Sari V. Bourdillon, 26 L. J. C. P. 78 ; s. c. 1 C. B. N. S. 188. See Cod- dington v. Goddard, 82 Mass. (16 Gray) 436. 1 Bateman u. Phillips, 12 East, 472 ; Shortrede v. Cheek, 1 A. & E. 57 ; Mumford v. Gething, 7 C. B. N. S. 305, and 29 L. J. C. P. 105 ; Cham- bers V. Kelly, 7 Ir. R. C. L. 231. See, also, Swett u. Shumway, 102 Mass. 367, 368 ; s. c. 3 Am. Rep. 471 ; Miller V. Stevens, 100 Mass. 518, 522 ; s. c. 1 Am. Rep. 139; Stoops v. Smith, 100 Mass. 63, 66 ; s. c. 1 Am. Rep. 85 ; Caulkins v. Hellman, 14 Hun (N. Y.) 330 ; Waldron v. Jacob, Ir. R. 5 Eq. 131. The declaration of an auctioneer may be admitted to show what the property mentioned in a note or mem- orandum was. Wright v. Ueklyne, 1 Pet. C. C. 199. See, also, Ball v. Benjamin, 73 111. 39 ; Keller r. Webb, 125 Mass. 88 ; s. c. 28 Am. Rep. 209; Swett V. Shumway, 102 Mass. 365; s. c. 3 Am. Rep. 471 ; Sandford v. Newark & H. R. R., 37 N. J. L. (8 Vr.) 1 ; Bickett v. Taylor, 55 How. (N. Y.) Pr. 126 ; Noyes fc. Canfield, 27 Vt. 79 ; Barry v. Coombe, 26 U. S. (1 Pet.) 640; bk. 7, L. ed. 299. 2 Macdonald v. Longbottom, 28 L. Q. B. 293 ; s. c. on appeal, 1 E. & E. 977, and 29 L. J. Q. B. 256 ; and see Shardlow v. Cotterell, 20 Ch. D. 90, C. A. ; reversing s. c. 18 Ch. D. 280, a case of a sale of real estate, where the word " property " was held to be a sufficient description. 1 Per Tindel C. J. in Sweet v. Lee, 3 Man. & G. 466 ; s. c. 4 Scott, N. R. 77; 5 Jur. 1134. Limiting the obligation of u. written contract by parol. — The obligation of a written contract cannot be abridged or modified by, or made conditional upon, another proceeding, or contem- poraneous parol agreement, not re- ferred to in the writing itself. Stoops V. Smith, 100 Mass. 63. See, Small V. Quincy, 4 Me. (4 Greenl.) 497; Prescott Bank v. Caverly, 73 Mass. (7 Gray) 217 ; s. c. 66 Am. Dec. 473 ; Hanchet t;. Birge, 53 Mass. (12 Mete.) 545 ; Underwood v. Simmons, 53 Mass. (12 Mete.) 275; Adams v. Wilson, 53 Mass. (12 Mete.) 138; s. u. 45 Am. Dec. 240; St. Louis Ins. Co. f. Homer, 50 Mass. (9 Mete.) 39; Wake- field V. Stedman, 29 Mass. (12 Pick.) 562; Trustees of Church in Hanson v. Stetson, 22 Mass. (5 Pick.) 506, 343 '175 FORMATION OF THE CONTRACT. [BOOK I. show that the bought and sold note have the same meaning among merchants, though the language seems to vary ; ^ and to show the date when the bargain was made.^ So also may parol testimony be introduced, for the purpose of apply- ing the terms of the written contract to the subject-matter, as well as for removing or explaining any, which arises from such application, for this purpose all the facts and circum- stances of the transaction, at the time the contract arises, including the sit- uation and relation of the parties. Sutton r. Bowker, 71 Mass. (5 Gray) 416; Gerrish v. Towne, 69 Mass. (3 Gray) 82 ; Herring y. Boston Iron Co., 67 Mass. (1 Gray) 134; Bradley V. Washington A. & G. Steam Packet Co., 38 U. S. (13 Pet.) 81, 98; bk. 10, L. ed. 72, 77 ; Price c Mouat, 11 C. B. (N. S.) 508. The subject-matter of the contract may be identified by parol proof of what was before the parties at the time of the negotiation, as samples or other- wise. Haven v. Brown, 7 Me. (7 Greenl.) 421; s. e. 22 Am. Dec. 208; Clark V. Houghton, 78 Mass. (12 Gray) 38 ; Hogins v. Plympton, 28 Mass. (11 Pick.) 97; Bradford v. Manly, lo Mass. 130; s. u. 7 Am. Dec. 124. The terms of the negotiation it- self, and statements made therein, may be resorted to for this purpose. Sargent v. Adams, 69 Mass. (3 Gray) 72; s. c. 63 Am. Dec. 718; Poster It. Woods, 16 Mass. 116 ; Mumford v. Gething, 7 C. B. (N, S.) 805 ; Chadwick v. Burnley, 12 Week- ly Rep. (Q. B.) 1077. See Putnam v. Bond, 100 Mass. 58; Sutton i-. Bow- ker, 7 1 Mass. (5 Gray) 410 ; Woods V. Swain, 70 Mas,s. ( 4 Gray) 322 ; Ger- rish V. Towne, 69 Mass. (3 Gray) 82 ; Sargent v. Adams, 69 Mass. (3 Gray) 72; Hall u. Daris, SC, N. H. 569; Hart V. Hammett, 18 Vt. 127 ; Salmon Palls Manuf . Co. v. Goddard, 55 U. S. (14 How.) 446, 455; bk. 14, L. ed. 497 ; Spicer v. Cooper, 1 Q. B. 424. Jrarol evidence ta identify subject- matter is admissible only when the writing does not distinctly define the article to be delivered, so as to enable the identity to be ascertained from the face of the transaction. Pike v. Fay, 101 Mass. 134, 137 ; Miller v. Stevens, 100 Mass. 518, .522; s. c. 1 Am. Rep. 139; Stoops y. Smith, 100 Mass. 63; s. c. 1 Am. Sep. 85 ; Putnam v. Bond, 100 Mass. 58; s. c. 1 Am. Rep. 82 ; Hill ?'. Rewee, 52 Mass. (11 Mete.) 268; Bradford v. Manly, 13 Mass. 139 ; s. e. 7 Am. Dec. 124 ; Cullum u. Wag- staff, 48 Pa. St. 300 ; Hart v. Plam- mett, 18 Vt. 127 ; Gray v. Harper, 1 Story C. C. 574 ; Smith v. Wilson, 3 Barn. & Ad. 738; Spicer v. Cooper, 1 Gale & Dav. 52 ; s. c. 1 Q. B. 424 ; Clayton v. Gregson, 6 Nev. & Man. 694; s. c. 5 Ad. & El. 302; Noble v. Durell, 3 T. R. 273, 275. 2 Bold V. Rayner, 1 M. & W. 342; and per Erie C. J. in Sievewright v. Archibald, 17 Q. B. 124 ; 20 L. J. Q. B. 529. 3 Edmunds v. Downs, 2 C. & M. 459; Hartley c. Wharton, 11 Ad. & E. 934 ; Lobb c. Stanley, 5 Q. B. 574. Parol evidence to explain or varij u> written contract is not admissible when it is intelligible in its terms or which imposes upon it a sense which its terms do not imph'. Sayre v. Peck, 1 liarb. (N. Y.) 464; Hull o. Adams, 1 Hill (N. Y.) 601; Bayard u. Mal- colm, 1 Johns. (N. Y.) 467; s. c. 3 Am. Dec. 450; Stevens v. Cooper, 1 Johns. Ch. (N. Y.) 425; Parkhurst r. Cortland, 1 Johns. Ch. (N. Y.) 274 ; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Crosier o. Acer, 7 Paige Ch. (N. Y.) 137; Lowber v. LeRoy, 2 Sandf. (N. Y.) 202; Thurston w. Lud- wig, 6 Ohio St. 5; s. c. 67 Am. Dec. 328; Hagey v. Hill, 75 Pa. St. 108; s. c. 15 Am. Rep. 583 ; Ellmaker v. Franklin Fire Ins. Co., 5 Pa. St. 183 ; Reed r. Jones, 8 Wis. 392 ; O'Harra 344 PART II.J OP MEMORAilDUM OR NOTE IN WRITING. *176 [* It is also admissible to show that alterations [*176] which have been made in the document signed by V. Hall, 4 U. S. (4 Dall.) 340; bk. 1, L. ed. 858; Van Ness v. City of Washington, 29 U. S. (4 Pet.) 232 ; bk. 7, L. ed. 842 ; Dunlop v. Munroe, 11 U. S. (7 Cr.) 242 ; bk. 3, L. ed. 329 ; Smallwood v. Worthington, 2 Cr. C. C. 431 ; Preston v. Merceau, 2 Wm. BI. 1249; Goss u. Nugent, 5 Barn. & Ad. 64 ; Coker v. Guy, 2 Bos. & Pul. 565; Adams v. Wordley, 1 Mees. & W. 374. Thus in the case of a contract in writing which provided for the sale of personal property and " lease sat- isfactory security " (the word " lease " having been interlined above the word " satisfactory " before signing) and which further provided that there was no verbal understanding, other than that expressly stated there- in — to prove that the understanding of the parties was that if satisfactory security could not be given for a sale on credit, the property was to be leased. Cooper u. Whitmer (Pa.), 5 Cent. Rep. 197. The exception to the rule, however, has been as well established as the rule itself, since the case of Thomp- son V. White, 1 U. S. (1 Dall.) 424 ; bk. 1, L. ed. 206; s. c. 1 Am. Dec. 252. And see Oliver v. Oliver, 4 Rawle (Pa.) 141 ; s. c. 26 Am. Dec. 123 ; Hurst v. Kirkbride, 1 Binn. (Pa.) 616 ; Hultz V. Wright, 16 Serg. & R. (Pa.) 345 ; s. c. 16 Am. Dec. 575 ; Lyon V. Huntingdon Bank, 14 Serg. & R. (Pa.) 283 ; Thomson v. White, 1 U. S. (1 Dall.) 424; bk. 1, L. ed. 206; s. c. 1 Am. Dec. 252. Parol evidence to explain or vary a written contract. — See Gately v. Ir- vine, 51 <5al. 172 ; Adams v. Gray, 8 Conn. 11; s. e. 20 Am. Dec. 82; Herd v. feissel, 1 Root (Conn.) 260 ; Skinner v. Hendrick, 1 Root (Conn.) 253; ». c. 1 Am. Dec. 43; Polk v. Anderson, 16 Kans. 243; Breckin- ridge f. Duncan, 2 A. K. Marsh. (Ky.) 50; s. c. 12 Am. Dec. 359; Brown d. Cobb, 10 La. 172 ; Bay- ton V. Tricou, 5 Mart. (La.) 1 ; Chamberlain v. Black, 64 Me. 40; Howard v. Rogers, 4 Harr. & J. (Md.) 278 ; Gittings v. Hall, 1 Harr. & J. (Md.) 14; King v. King, 7 Mass. 496; Bank of Hallowell v. Baker, 1 Minn. 261 ; Reynolds v. Insurance Co., 47 N. Y. 605 ; Messmore v. New York Shot & Lead Co., 40 N. Y. 422 ; Pollen V. LeRoy, 30 N. Y. 549; Draper v. Snow, 20 N. Y. 331 ; s. c. 75 Am. Dec. 408; Blossom v. Griffin, 13 N. Y. 569; s. c. 67 Am. Dec. 75; Dana v. Fiedler, 12 N. Y. 40 ; s. c. 62 Am. Dec. 130 ; Moore u. Meacham, 10 N. Y. 207 ; Meads v. Lansingh, 1 Hopk. Ch. (N. Y.) 124; Hagan v. Domestic, &c. Co., 9 Hun (N. Y.) 73 ; Hawes v. Barker, 3 Johns. (N. Y.) 506 ; Parkhurst v. Van Cortlandt, 1 Johns. Ch. (N. Y.) 273; Tymason V. Bates, 14 Wend. (N. Y.) 671; Moser v. Libenguth, 2 Rawle (Pa.) 428; Heagy v. Umberger, 10 Serg. & R. (Pa.) 342 ; Hill v. Ely, 5 Serg. & R. (Pa.) 363; s. e. 9 Am. Dec. 376; McDermott v. United States Ins. Co., 3 Serg. & R. (Pa.) 607 ; Church v. Church, 4 Yeates (Pa.) 281 ; Holmes u. Simons, 3 Desaus. (S. C) Eq. 149; s. c. 4 Am. Dec. 606; Barkley v. Barkley, 3 McC. (S. C.) 269; South Carolina Society v. Johnson, 1 McC. (S. C.) 41 ; Pooser v. Tyler, 1 McC. (S. C.) Eq. 18; McFarlane v. Moore, 1 Tenn. (Overt.) 174; s. c. 3 Am. Dec. 752 ; Cole v. Howe, 50 Vt. 35 ; Forsythe v. Kimball, 91 U. S. (1 Otto) 291; bk. 23, L. ed. 352 ; Selden V. Myers, 61 U. S. (20 How.) 506; bk. 15, L. ed. 543 ; Garrison r. Mem- phis Ins. Co., 60 U. S. (19 How.) 312; bk. 15, L. ed. 656; Salmon Falls Man'f'g Co. v. Goddard, 55 U. S. (14 How.) 446 ; bk. 14, L. ed. 493 ; Phil- lips V. Preston, 46 U. S. (5 How.) 278; bk. 12, L. ed. 152; Sprigg v. 345 niQ rOEMATION OF THE CONTEACT. [book I. one of the parties were assented to by the other party ; the effect of the evidence being not to vary the written instru- Bank of Mt. Pleasant, 39 U. S. (14 Pet.) 201 ; bk. 10, L. ed. 419 ; Brad- ley V. "Washington, A. & S. P. Co., 38 U. S. (13 Pet.) 89; bk. 10, L. ed. 72 Bank of United States c. Dunn, 81 U. S. (6 Pet.) 51 ; bk. 8, L. ed. 316 Shankland v. Mayor, &c. of Wash- ington, 30 U. S. (5 Pet.) 390; bk. 8^ L. ed. 166 ; Brent v. Bank of Metrop- olis, 26 U. S. (1 Pet.) 89; bk. 7, L, ed. 65 ; Renner v. Bank of Columbia, 22 U. S. (9 Wheat.) 581; bk. 6, L, ed. 166 ; Hunt v. Rousraanier, 21 U. S. (8 Wheat.) 174 ; bk. 5, L. ed. 589; Mechanics Bank v. Bank of Columbia, 18 U. S. (5 Wheat.) 326 ; bk. 6, L. ed. 100 ; Paw v. Marsteller, 6 U. S. (2 Cr.) 10; bk. 2, L. ed. 191; The Hermitage, 4 Blatchf . C. C. 474 ; Troy Iron & N. Co. v. Corning, 1 Blatchf. C. C. 467; Tilghman v. Tilghman, Bald. C. C. 464 ; Smith v. Hoffman, 2 Cr. C. C. 651; Ladd V. Wilson, 1 Cr. C. C. 293; Auld v. Hepburn, 1 Cr. C. C. 122; Randall V. Phillips 3 Mason C. C. 378; Peisch V. Dickson, 1 Mason C. C. 9, 11 ; Linville v. Holden, 2 McAr. C. C. 329; Kimble ... Lull, 3 McL. C. C. 272; Pomeroy v. Manin, 2 Paine C. C. 476; Kemmil v. Wilson, 4 Wash. C. C. 308; McCulloch «. Girard, 4 Wash. C. C. 289; The Waldo, Davies (2 Ware) N. S. D. C. 161. Because all previous conversations and verbal agreements are merged in a written agreement, and cannot be shown except for the purpose of construing the terms of a written agreement. Beckley v. Munson, 22 Conn. 299; Mann i,. Smyser, 76 111. 365; Harlow v. Boswell, 15 111. 56; Cincinnatti U. & F. W. Ry. Co. v. Pearce, 28 Ind. 502 ; Mann v. School Dist., 52 Iowa, 130; Pilmer v. State Bank, 16 Iowa, 321 ; Jack v. Naber, 15 Iowa, 450 ; Stevens o. Haskell, 70 Me. 202; McFarland v. Boston & L. Railway Co., 115 Mass. 63 ; Stackpole V. Arnold, 11 Mass. 30; s. c. 6 Am. Dec. 150; Peers u. Davis, 29 Mo. 184; Hill V. Syracuse, B. & N. Y. R. R. Co., 73 N. Y. 351 ; Van Bok- kelen v. Taylor, 62 N. Y. 106 ; Baker V. Higgins, 21 N. Y. 397 ; Bogert v. Cauman, Anth. (N. Y.) 70. Parol evidence to show custom. — Parol evidence is admissible to show the meaning of characters, marks, and technical terms used in tlie partic- ular business, which are unintelligible to persons not acquainted therewith, where they occur in a written con- tract. Barton v. McKelway, 22 N. J. L. (2 Zab.) 165; Nc'lson v. Sun Mut- ual Ins. Co., 71 N. Y. 453 ; Walls ^. Bailey, 49 N. Y. 464; Dana r. Fiedler, 12 N. Y. 40, 45; s. c. 62 Am. Dec. 1.30; Storey v. Salomon, 6 Daly (N. Y.) 531; Wilcox ;,. Wood, 9 Wend. (N. Y.) 310; Lowe v. Leh- man, 15 Ohio St. 179. See, also, Pollmen e. LeRoy, 10 Bosw. (S. Y.) 55. Thus parol evidence has been admitted to show that the word " cash " in a contract, for the sale of goods by custom, means a credit of a few days. Steward v. Scudder, 24 N. J. L. (4 Zab.) 96. But see Foley V. Mason, 6 Md. 37; also "terms cash " upon a bill of parcels. George ( . Joy, 19 N. H. 544 ; to e.vplain " consignee six ms.'' at the bottom of a bill of parcels of goods sold, George V. Joy, supra ; " horn chains," Swett V. Shumway, 102 JIass. 305 ; " their freight," in a contract to transport, Noyes v. Canfield, 27 Vt, 79; "of qualities," Whitney v. Broadman, 118 Mass. 242,247. In a contract for the sale and delivery of a. cargo of coal, " water nine and one-half feet," parol evidence has been held compe- tent to show what number of tons of coal usually constituted the cargo of a vessel drawing nine and one-half feet of water. Rhoades v. Castner, 94 Mass. (12 Allen) 130. The court 346 PART II.J OP MEMORANDUM OR NOTE IN WRITING. *176 meiit but to show what was its condition when it became the memorandum of the contract.*] Parol evidence was likewise admitted to show that a sale of " fourteen pockets of Kent hops, at 100s., meant 100s. per cwt., according to the usage of the hop trade." [But it should be remembered that when the evidence in support of a trade usage seeks to alter the natural meaning and construction of the words as written, it must in every case be clear and consistent.^] Parol evidence is also admissible to show a mistake in drawing up the bought and sold notes (whereby certain goods were omitted), in an action of trover by the vendors against the purchaser for the goods so omitted after they had been paid for, and taken into possession by the purchaser." say in Whitney u. Boardman, 118 Mass. 242, 247, that "It is not nec- essary that terms should be techni- cal, scientific, or ambiguous in them- selves, in order to entitle a party to show by parol evidence the meaning attached to them by the parties to the contract. Whitmarsh v. Conway Ins. Co., 82 Mass. (16 Gray) 359; s. c. 77 Am. Dec. 414. The Supreme Court of the United States say in Bradley v. Washington A. G. S. P. Co., 38 U. S. (13 Pet.) 89, bk. 10, L. ed. 72, that " The rule which admits extrinsic evidence for the pur- pose of applying a written contract to its proper subject-matter, extends be- yond the mere designation of the thing on which the contract operates, and embraces within its scope the cir- cumstances under which the contract concerning that thing was made." Latent ambiguitij in a written in- strument, may be explained by parol evidence. Piper v. True, 36 Cal. 606; Hotchkiss V. Barnes, 34 Conn. 27 ; Williams v. Waters, 36 Ga. 454; School Trustees o. Rodgers, 7 111. App. 33 ; Lovejoy v. Lovett, 124 Mass. 270; Hall v. Davis, 36 N. H. 569 ; Masters v. Freeman, 17 Ohio St. 323; McCullough v. Wainright, 14 Pa. St. 171. But it is a general rule to which, however, tliere are excep- tions, that a patent ambiguity cannot be explained by parol. Panton v. Teflt, 22 111. 366 ; Ely v. Adams, 19 Johns. (N. Y.) 313 ; Fish v. Hubbard, 21 Wend. (N. Y.) 651; Morris ... Edwards, 1 Ohio, 189. Fraud and mistake. — Parol evi- dence may be admitted to show fraud. Pierce v. Wilson, 34 Ala. 596; Hunter v. Bilyeu, 30 111. 228; Hunt V. Carr, 3 Greene (Iowa) 581 ; Baltimore and P. Steamboat Co. o. Brown, 54 Pa. St. 77; Selden v. Myers, 61 U. S. (20 How.) 606; bk. 15, L. ed. 916 ; Hunt v Rousmanier, 21 U. S. (8 Wheat.) 174; bk. 5, L. ed. 589 ; Bottomley i-. United States, 1 Story C. C. 135. And parol evi- dence is admissible to correct mis- take. Pierson v. McCahill, 21 Cal. 122 s. c. 23 Cal. 249; Sutton v. Sutton, 25 Ga. 383 ; Bush v. Tilley, 49 Barb. (N. Y.) 599 ; Keisselbrack v. Living- ston, 4 Johns. Ch. (N. Y.) 144. 4 Stewart v. Eddowes, L. R. 9 C. P. 311. See Hicks v. Cleveland, 48 N. Y. 84, 91. 5 Spicer v. Cooper, 1 Q. B. 424. ^ Bowes V. Sliand, 2 App. Cas. 455. 7 Steele v. Haddock, 10 Ex. 643 ; 24 L. J. Ex. 78. See Hicks v. Cleve- land, 48 N. Y. 84. 347 •*177 FORMATION OF THE CONTEACT. [book I. § 238. Also to show that a written document, purporting to be an agreement, and signed by the parties, was executed, not with the intention of making a present contract, but like an escrow, or writing to take effect only on condition of the happening of a future event ; ^ or was even to be modified upon some future contingency.^ Also to explain a latent ambiguity in a contract of sale, as where a bargain was made for the sale of cotton, " to arrive ex ' Peerless ' from Bombay," parol evidence was held admis- sible to show that there were two ships " Peerless " from Bombay, and that the ship, " Peerless " intended by the vendor was a different ship " Peerless " from that intended by the buyer, so as to establish a mistake defeating the con- tract for want of a consensus ad idem? § 239. The admissibility of parol evidence of particular cotmnercial usages ^ to engraft terms into the bargain, [*177] or even to * introduce conditions apparently at 1 Pyra V. Campbell, 6 E. & B. 370; 25 L. J. Q. B. 277 ; Furness v. Meek, 27 L, J. Ex. 84; Davis v. Jones, 25 L. J. C. P. 91. 2 Rogers v. Hadley, 2 H. & C. 227 ; 32 L. J. Ex. 241. " The rule, which excludes parol testi- mony to contradict or vary a written instrument, has reference to the lan- guage used by the parties. That cannot be qualified or varied from its natural import, but must speak for itself. The rule does not forbid an inquiry into the object of the parties in executing and receiving the in- strument." Brick V. Brick, 98 U. S. (8 Otto) 514, 516; bk, 25, L. ed. 256; Peugh V. Davis, 96 U. S. (6 Otto) 336 ; bk, 24, L. ed. 775. 3 Raffles V. Wichelhaus, 2 H, & C. 906; 33 L. J. Ex. 160. See Hinne- mann w. Rosenback, 39 N. Y. 98; Atlantic T. & 0. P.. R. Co. v. Caro- lina Nat. Bank, 86 U. S. (19 Wall.) .548 ; bk. 22, L. ed, 196 ; Robinson v. United States, 80 U. S. (13 Wall.) 363; bk. 20, L. ed, 653; Thorington V. Smith, 75 U. S. (8 Wall.) 1, 12; bk. 19, L. ed. 361. 1 Usage of trade being a mode of conducting transactions of a partic- ular kind, a coarse of dealing, it is a matter of fact and may be shown by persons familiar with its existence and uniformity, from their knowledge obtained by observation, or from their practice with others in the trade to which it relates. Haskins v. AVarren, 115 Mass. 514. See, also, Polhemus V. Heiman, 50 Cal. 438 ; Hears y. Waples, 4 Houst. (Del.) 62 ; Chicago V. P, & P. Co., 87 111. 547 ; Coffman V. Campbell, 87 111. 98; Corbett v. Underwood, 83 111. .324; s. c. 25 Am. Rep. 392 ; Lyon v. Culbertson, 83 111. 33; s. c. 25 Am. Rep, .349; Doane v. Dunham, 79 111. 131 ; Converse v. Harzfeldt, 11 111. App, 173; Smyth V. Ex'r's of Ward, 46 Iowa, 339; Barker r. Borzone, 48 Md. 474 ; Mar- shall V. Perry, 67 Me. 78 ; Brown v. Foster, 113 Mass. 136 ; s. c. 18 Am. Rep. 463 ; Snelling v. Hall, 107 Mass. 134; Odione v. New Eng. Ins, Co., 101 Mass. 551 ; s. c. 3 Am. Rep. 404; Reed V. Richardson, 98 Mass. 216 ; Carkin v. Savory, 80 Mass. (14 Gray) 528 ; Boardman v. Spooner, 95 Mass. 348 PART n.J OF MEMOEANDTJM OK NOTE IN WRITING. *177 variance with the implication resulting from tlie written stipulations (as was done in Field v. Lelean,^ where evidence was admitted of a usage in the sale of mining shares, not to make delivery before payment, although the written terms were for a price payable in futuro'), is too large a branch of the subject to be here treated in detail, and the reader must be referred to the decisions which are collected and classed in the notes to Wigglesworth v. Dallison, in the first volume of Smith's Leading Cases.^ [Alexander v. Vanderzee, L. R. 7 C. P. 530, and Ashworth V. Redford, L. R. 9 C. P. 20, are recent cases, which illustrate the method of construing particular mercantile terms apart from any trade usage.] (13 Allen) 353 ; Dodd v. Farlow, 93 Mass. (11 Allen) 426; Dickinson v. Gay, 89 Mass. (7 Allen) 29 ; Farmers' & Mechanics' Bank v. Erie R. R. Co., 72 K. Y. 188 ; Read v. President, &c. of H. & D. C. Co., 3 Lans. (N. Y.) 213 ; s. c. 49 N. Y. 652 ; 2 Alb. L. J. 392; Malcomson v. Morton, 11 Ir. L. R. 230 ; Page v. Myers, 6 Ir. Jur. N. S. 364 ; Hayes v. Nesbitt, 25 Up. Can. C. P. 101 ; Brown v. Browne, 9 Up. Can. Q. B. 312. Evidence as to custom. — Parol evi- dence is admissible to establish com- mercial usage or custom. Whitney V. Boardmaii, 118 Mass. 242 ; Has- kins V. Warren, 115 Mass. 514, 536 ; Miller v. Stevens, 100 Mass. 518; s. c. 1 Am. Rep. 139 ; Morse u. Braokett, 98 Mass. 209 ; Boardman v. Spooner, 95 Mass. (13 Allen) 353, 359, .360; Clark v. Baker, 52 Mass. (11 Met.) 186 ; s. c. 45 Am. Deo. 199 ; Steward v. Scudder, 24 N. J. L. (4 Zab.) 96 ; Robinson v. United States, 80 U. S. (13 Wall.) 365 ; bk, 20, L. ed. 363 ; Barnard v. Kellogg, 77 U. S. (10 Wall.) 383 ; bk. 19, L. ed. 987 ; Oelricks v. Ford, 64 U. S. (23 How.) 49 ; bk. 16, L. ed. 451 ; Salmon Falls Manf. Co. v. Goddard, 55 U. S. (14 How.) 446; bk. 14, L. ed. 493. See, also, Bailey u. Bensley, 87 111. 556 ; Harris v. Tumbridge, 83 N. Y. 92; a. c. 38 Am. Rep. 398; White v. Fuller, 67 Barb. (N. Y.) 267 ; Hobart V. Littlefield, 13 R. I. 341; Swift ,,. Gifford, 2 Low. C. C. 110; Haskins t). Warren, 115 Mass. 536; s. c. 18 Am. Rep. 463. Varying express contract by custom. — Evidence of custom cannot be in- troduced to vary the express terms of a written contract. Spears v. Ward, 48 Ind. 541 ; Brown v. Foster, 113 Mass. 136; s. c. 18 Am. Rep. 463, Schenck v. Griffin, 38 N. J. L. (9 Vr.) 462, 471 ; Larrowe v. Lewis, 44 Hun (N. Y.) 226. Thus, parol evidence is not admissible to show that a broker bought and sold note, in terms stat- ing a contract of sale, was by usage a mere proposal which either might reject (Bigelow v. Legg, 102 N. Y. 652 ; s. c. 2 Cent. Rep. 877) ; and it is said that a clean bill of lading imports a contract to stow goods under the deck, and parol evidence cannot be admitted of a different agreement (The Delaware, 81 U. S. (14 Wall.) 579; bk. 20, L. ed. 779); however, see Chalfant o. Williams, 35 Pa. St. 212. 2 6 H. & N. 617 ; 30 L. J. Ex. 168 ; see also Bissell v. Beard, 28 L. T. N. S. 720. 8 Vol. I. 8th ed. p. 602 et seg. ; and see Johnson v. Raylton, 7 Q. B. D. 438, C. A. 849 *177 FOEMATION OF THE CONTRACT. [book I. § 240. After a contract has been proven by the production of a written note or memorandum sufficient to satisfy the statute, the question often arises as to the admissibility of parol proof of a subsequent agreement to change or annul it. At common law it is competent to the parties at any time after an agreement (not under seal) has been reduced to writing and signed, to make a fresh parol agreement, either to waive the written bargain 9.1together, to dissolve and annul it, or to subtract from, vary, or qualify its terms, and thus to make a new contract, to be proven partly by the writ- ten agreement, and partly by the subsequent verbal terms engrafted upon what is left of the written agreement.^ 1 Per Denman C. J. in Goss. v. Lord Nugent, 5 Barn. & Ad. 65. American authorities. ■ — Rhodes v. THomas, 2 Ind. 638; Willey v. Hall, 8 Iowa, 62 ; Wiggin v. Goodwin, 63 Me. 389; Haynes v. Fuller, 40 Me. 162 ; Richardson v. Cooper, 25 Me. 450, 462; Allen ,;. Sowerby, 37 Md. 410 ; Coates v. Sangston, 5 Md. 121 ; Franklin v. Long, 7 Gill & J. (Md.) 407 ; Goodrich v. Longley, 70 Mass. (4 Gray) 383 ; Munroe v. Perkins, 55 Mass. (9 Pick.) 298; s. c. 20 Am. Dec. 475; Cummings u. Arnold, 44 Mass. (3 Mete.) 489; s. c. 37 Am. Dec. 155; Richardson v. Hooper, 30 Mass. (13 Pick.) 446; West- chester Ins. Co. V. Earle, 33 Mich. 143, 153; Seaman o. O'Hara, 29 Mich. 66; Hewitt v. Brown, 21 Minn. 163 ; Miles v. Roberts, 34 N. H. 245; Cummings v. Putnam, 19 N. H. 569; Grafton Bank v. Wood- ward, 5 N. II. 99 ; s. c. 20 Ara. Dec. 566 ; Musselman v. Stoner, 31 Pa. St. 265 ; Miller v. Fichthorn, 31 Pa. St. 252 ; McGrann c. North Lebanon B. R. Co. 29 Pa. St. 82; Vicary v. Moore, 2 Watts (Pa.) 456, 457 ; =. c. 27 Am. Dec. 323; Heatlierly c. Record, 12 Tex. 49; Flanders v. Fay, 40 Vt. 316; Brown v. Everhard, 52 Wis. 207 ; Swain v. Seamens, 70 U. S. (9 Wall.) 254, 271 ; bk. 19, L. ed. 554, 559; Emerson v. Slater, 63 U. S. (22 How.) 28, 41 ; bk. 16, L. ed. 218. Parol evidence of subsequent agree- ment. — In cases not within the Stat- ute of Frauds and which fall within the general rules of the common law, the parties to an agreement which is in writing may at any time before the breach of it by a new contract not in writing, modify, waive, dis- solve, or annul the former agree- ment. Swain v. Seamens, 76 U. S. (9 Wall.) 254, 271 ; bk. 19, L. ed. 554, 559. See, also, Carpenter v. Galloway, 73 Ind. 418; Kribs o. Jones, 44 Md. 396 ; Gault v. Brown, 48 N. H. 183, 186; s. c. 2 Am. Rep. 210; Schultz u. Bradley, 27 N. Y. 646 ; Hasbrouck v. Tappen, 15 Johns. (N. Y.) 182, 200; Steven- u. Cooper, 1 John. Ch. (N. Y.) 429; s. c. 7 Am. Dec. 499; Blood v. Good- rich, 9 Wend. (N. Y.) 68; s. c. 24 Am. Dec 121 ; Musselman u. Stoner, 31 Pa. St. 265, 269; Espy v. Ander- son, 14 Pa. St. 308 ; Vicary v. Moore, 2 Watts (Pa.) 451, 457 ; s. c. 27 Am. Dec. 323 ; Ladd v. King, 1 R. I. 224 ; s. c. 51 Am. Dec. 624; Dana v. Han- cock, 30 Vt. 616; Cooper u. Cleghorn, 50 Wis. 113; Emerson v. Slater, 63 V. S. (22 How.) 42; bk. 16, L. ed. 365; Clarke v. Russel, 3 U. S. (3 Dall.) 415; bk. 1, L. ed. 660; Har- vey V. Grabham, 5 Ad. & E. 73 ; Goss o. Nugent, 5 Barn. & Ad. 64 ; Emmet !>. Dewhurst, 3 Mac. & G. 587; Browne on Statute of Frauds (2d ed.) 350 PART II.] OF MEMORANDUM OR NOTE IN WRITING. *177 But this principle of the common law is not applicable to a contract for the sale of goods under the Statute of Frauds. No verbal agreement to abandon it in part, or to add to, or omit, or modify any of its terms, is admissible. Thus parol evidence is not admissible to change the place sec. 409. But where the contract is within the Statute of Frauds it can- not be varied by any subsequent agreement of the parties, unless sucii new agreenfient is also in writing. Swain V. Seamens, 76 U. S. (9 Wall.) 254, 271; bk. 19, L. ed. 554, 559; Hasbrouck u. Tappen, 15 Johns. (N. Y.) 200 ; Blood v. Goodrich, 9 Wend. (N. Y.) 63; Emerson v. Slater, 63 U. S. (22 How.) 42; bk. 16, L. ed. 365; Clarke v. Russel, 3 U. S. (3 Dall.) 415; bk. 1, L. ed. 660; Har- vey „. Grabham, 6 Ad. & Ell. 61; Goss V. Nugent, 5 Barn. & Ad. 58; Stowell V. Robinson, 3 Bing. N, C. 928 ; Falmouth v. Thomas, 5 C. & M. 109. In England it is now estab- lished that a new verbal contract cannot be substituted for the origi- nal contract, where, by the Statute of Frauds, such original contract must be in writing. Tyers v. Rose- dale Iron Co., L. E. 8 Ex. 315 ; see, also, Plevins o. Downing, L. R. 1 C. P. Div. 220 ; Hickman v. Haynes, L. E. 10 C. P. 598. However a dif- ferent doctrine prevails in some States of the Union. See Richardson V. Cooper, 25 Me. 450; Blood v. Hardy, 15 Me. 61; Kribs v. Jones, 44 Md. 396 ; Franklin v. Long, 7 Gill & J. (Md.) 409; Reed v. Chambers, 6 Gill & J. (Md.) 490; Watkins v. Hodges, 6 Harr. & J. (Md.) 38, 46 ; Norton o. Simonds, 124 Mass. 19; Morse v. Copeland, 68 Mass. (2 Gray) 302; Stearns v. Hall, 63 Mass. (9 Cush.) 31 ; Cummings o. Arnold, 44 Mass. (3 Mete.) 486; s. c. 37 Am. Dec. 155 ; Gault v. Brown, 48 N. H. 183, 196 ; s. c. 2 Am. Rep. 210 ; Buel V. Miller, 4 N. H. 196 ; Long v. Hart- well, 34 N. J. L. (5 Vr.) 127 ; Eeed V. McGrew, 5 Ohio, .376; Bever v. Butler, Wright (Ohio) 367; Negley V. Jeffers, 28 Ohio St. 100 ; Raffens- berger v. Cullison, 28 Pa. St. 426; Lawrence v. Dole, 11 Vt. 549. The Supreme Court of Ohio say in the case of Thurston v. Ludwig, 6 Ohio St. 1, 5, that " it appears to be well settled that subsequent to the exe- cution of a written contract, it is competent for the parties by a new contract, although not in writing, either to abandon, waive or annul the prior contract, or vary or qualify the terms of it in any manner. And where the verbal contract only changes or mod- ifies some of the terms of the original contract, it embraces by reference all the written stipulations of the origi- nal undertaking, and is to be proved by the verbal agreement taken in its connection with the written contract. But where a written contract is thus either totally abandoned and an- nulled, or simply altered or modified in some of its terms, it is done, and can only he done by a distinct and substantive contract between the parties founded on some valid con- sideration." The Wisconsin Supreme Court say in Marsh v. Bellew, 45 Wis. 36, that where an oral extension of time for payment on a written contract has been given, either by parol or otherwise, and the purchaser has acted upon the faith of such extension or waiver, the courts have held the vendor bound by his contract. Every substituted agreement is virtually a new contract, and where it is oral it is within the statute, but is taken out by part per- formance. See Ladd v. King, 1 R. I. 224 ; o. c. 51 Am. Dec. 624 ; see, also, Kribs «. Jones, 44 Md. 396, 408; Hicks V. Cleveland, 48 N. Y. 84, 91. 351 *178 FOKMATION OF THE CONTEACT. [BOOK I. of delivery fixed in the writing,^ nor the time for the [*178] * delivery ; ^ nor to prove a partial vs^aiver of a promise to furnish a good title ; * nor a modification of a stipu- lation for a valuation ; ^ nor a change in any of the terms ; for the Courts can draw no distinctions between stipulations that are material and those that are not.^ § 241. But where there was an executory contract for the building of a landaulet described in the agreement, parol evidence was admitted of alterations and additions ordered by the purchaser from time to time, Gaselee J. saying that " otherwise every building contract would be avoided by every addition." ^ In Brady v. Oastler,^ the action was for damages for breach of contract in not delivering certain goods within the time fixed by a written contract, and the plaintiff offered parol evidence to prove, as an element of consideration for the jury in estimating damages, that the price fixed in the contract was above the market price, and that he had assented to pay this extra price because of the short term allowed for delivery ; but the evidence was rejected by Bramwell B., at Nisi Prius, and his ruling was approved by Pollock C. B. and Channell B. ; a strong dissenting opinion, however, was delivered by Martin B. § 242. [Parol evidence to prove, not a substituted con- tract, but the assent of the defendant to a substituted mode of performing the original contract, ivhen that performance is completed, is admissible.^ Thus, in the Leather Cloth Co. v. 2 Moore o. Campbell, 10 Ex. 323, graph overrule Cuff v. Penn, 1 M. and 23 L. J. Ex. 310 ; Stowell v. & S. 21 ; Warren i-. Stagg, cited in Robinson, 3 Bing. N. C. 928 ; Mar- Littler v. Holland, 3 T. R. 591, and shall r. Lynn, 6 M. & W. 109; Stead Thresh v. Rake, 1 Esp. 53; cf. San- V. Dawber, 10 A. & B. 57. derson v. Graves, L. R. 10 Ex. 234, a 8 Noble V. Ward, L. R. 1 Ex. 117 ; case under the 4th section. 35 L. J, Ex. 81, 1 Hoadley v. M'Lain, 10 Bing. 489 ; * Goss V. Lord Nugent, 5 B. & Ad. but see remarks o£ Bramwell B. 65. upon this dictum, in Sanderson ;;. 5 Harvey v. Grabham, 5 A. & E. 61. Graves, L. E. 10 Ex. at page 237. ^ Per Parke B., in Marshall v. ^ 3 jj, & C. 112; 33 L. J. Ex. 300. Lynn, 6 M. & W. 116. See, also, ^ Subsequent performance, where ex- Emmett v. Dewhirst, 21 L. J. Ch.497. ecuted and accepted will be binding. The cases in the notes to this para- Courtenay v. Puller, 65 Me. 156 ; 352 PAKT n.J OF MEMORANDUM OR NOTE IN WRITING. *179 Hieroniinus,^ the contract was for the sale of goods to be forwarded to the purchaser by Ostend, and the goods were afterwards forwarded by Rotterdam, and evidence was ad- mitted to show that the defendant by Us conduct had assented to the substituted mode of delivery. And so, al- though neither * party to the contract may avail him- [*179] self of a parol agreement to vary or enlarge the time of performance, yet, if the seller has postponed delivery at the verbal request of the buyer, or the buyer has forborne to claim delivery at the verbal request of the seller, neither the seller in the former, nor the buyer in the latter case is precluded from afterwards suing on the original con- tract. In Ogle V. Earl Vane,^ the defendant contracted to sell to the plaintiff 500 tons of iron, delivery to extend to the 25th of July, 1865. Owing to an accident to the defendant's furnaces he had delivered none of the iron hy that date. Afterwards negotiations passed between the parties, but eventually, in February, 1866, the plaintiff went into the market. The price of iron had risen since July, and the plaintiff sought to recover from the defendant the difference between the contract and the market price in February. The defendant paid into Court the difference between the contract and the market price in July. The Judge at the trial left it to the jury to say whether on the evidence they sought that the defendant had held out that he should be able to deliver the iron, and that the plaintiff had waited accordingly, in which case they might return a verdict for damages beyond the amount paid into Court. The jury re- turned a verdict for the full amount claimed. Upon the argument of a rule to enter a verdict for the defendant, on Allen V. Sowerby, 37 Md. 410; Sov- U. S. (9 Wall.) 254; bk. 19, L. ed. ereign v. Ortmann, 47 Mich. 181; 554. Miles V. Roberts, 34 N. H. 245; Long 2 l. R. 10 Q. B. 140. See, also, V. Hartwell, 34 N. J. L. (5 Vr.) Long v. Hartwell, 84 N. J. L. (5 Vr.) 116, 127; McCombs v. McKennan, 2 127; Neil u. Cheves, 1 Bail. (S. C.) Watts. & S. (Pa.) 216 ; s. c. 37 Am. L. 537 ; Swain v. Seamens, 76 U. S. Dec. 505 ; Malone u. Dougherty, 79 (9 Wall.) 254, 271 ; bk. 19, L. ed. 554. Pa. St. 46 ; Swain v. Seamens, 76 = L. R. 3 Q. B. 272, in Ex. Ch. ; affirming s. c. L. R. 2 Q. B. 275. 353 *180 FORMATION OF THE CONTRACT. [BOOK I. the ground that there was no evidence to go to the jury of the plaintiff being entitled to more damages than were repre- sented by the sum paid into Court, it was objected, on behalf of the defendant, that any agreement for postponement ought to have been in writing to satisfy the Statute of Frauds ; but it was held by the Court of Queen's Bench, and affirmed by the Exchequer Chamber, first, that there was evidence from which the jury might infer that the plaintiff's delay in going into the market was at the defendant's request ; and, secondly, that as the evidence went to show, not a new contract, lut simply a forbearance by the plaintiff at the request of the de- fendant^ the Statute of Frauds did not apply. [*180] § 243. * The cases bearing upon this point are considered in the judgment of the Court of Common Pleas in Hickman v. Haynes.-' The contract was for the sale by the plaintiff to the defendants of 100 tons of pig-iron by monthly deliveries of twenty-five tons, in March, April, May, and June, 1873. Seventy-five tons of iron were deliv- ered during the months of March, April, and May respec- tively, in accordance with the contract, but early in June the defendants verballj^ requested the plaintiff, and the plaintiff consented to postpone delivery of the remaining twenty-five tons. Upon the expiration of the contract time the plaintiff tendered the residue of the iron, but the defendants then refused to accept it. In an action for damages for breach of contract the plaintiff was held entitled to succeed. It was contended, on behalf of the defendants, that a new agree- ment for the delivery and acceptance of the remaining twenty-five tons of iron had been substituted for the original written contract, and that this new agreement being verbal could not be enforced ; but the Court held that the original contract still subsisted, and that the plaintiff could maintain an action upon it, that the assent to the defendant's request to give time was not a valid agreement binding the plaintiff, but a voluntary forbearance on his part ; and the same dis- tinction was drawn between a substitution of one agreement for another, and a voluntary forbearance to deliver at the I L. E. 10 C. P. 598. 354 PART II.] OP MEMOEANDTJM OE NOTE IN WEITBSTG. *181 request of another, which had already been recognized in Ogle V. Earl Vane. On the other hand, in Plevins v. Downing,^ the plaintiffs contracted to deliver 100 tons of pig-iron, " 25 tons at once, and 75 tons in July next." By the end of July the plain- tiffs had delivered, and the defendant had accepted, 75 tons in all. There was no evidence that the defendant had requested the plaintiffs, before the end of July, to withhold delivery of the remaining 25 tons, but there was evidence that in October the defendant verbally requested the plain- tiffs to forward 25 tons, which, when forwarded, he declined to accept. Held, that the plaintiffs could not sue on the original contract, inasmuch as they were irnable to prove that they were ready and willing to deliver the 25 tons *at the end of July, and had only withheld [*181] delivery at the defendant's request, neither could they rely upon the request to deliver made to them by the defendant in October, as that would have been to substitute a parol for a written agreement. " It is true," said Brett J. (at p. 225), in delivering the judgment of the Court, " that a distinction has been pointed out and recognized between an alteration of the original contract in such cases, and an arrangement as to the mode of performing it. If the parties have attempted to do the first by words only, the Court cannot give effect in favor of either to such attempt; if the parties make an arrange- ment as to the second, though such arrangement be only made by words, it can be enforced. The question is, what is the test in such an action as the present, whether the case is within the one rule or the other. Where the vendor, being ready to deliver within the agreed time, is shown to have withheld his offer to deliver till after the agreed time, in consequence of a request to him to do so, made by the vendee before the expiration of the agreed time, and where after the expiration of the agreed time, and within a reason- able time, the vendor proposes to deliver, and the vendee refuses to accept, the vendor can recover damages . . ■ 2 1 C. P. D. 220. 355 *182 FORMATION OP THE CONTRACT. [BOOK I. but if the alteration of the period of delivery were made at the request of the vendor, though such request were made during the agreed period for delivery, so that the vendor would be obliged if he sued for a non-acceptance of an offer to deliver after the agreed period, to rely upon the assent of the vendee to his request, he could not aver and prove that he ivas ready and willing to deliver according to the terms of the original contract. The statement shows that he was not. He would be driven to rely on the assent of the vendee to a substituted time of delivery, that is to say, to an altered contract or a new contract. This he cannot do, so as to enforce his claim. This seems to be the result of the cases which are summed up in Hickman v. Haynes." In Tyers v. The Rosedale Iron Co.,^ the defendants were the sellers and the plaintiffs the purchasers of iron, [*182] * deliverable in monthly quantities over 1871. The defendants withheld delivery of various monthly quantities at the plaintiff's request. Afterwards, in Decem- ber, 1871, the last month fixed in the contract for delivery, the plaintiffs demanded immediate delivery of the whole of the residue of the iron deliverable under the contract. The defendants refused to deliver any more than the monthly quantity for December. In an action by the plaintiffs for non-delivery, it was held by the Exchequer Chamber revers- ing the decision of the majority of the Court of Exchequer, that the defendants were not entitled to refuse to deliver more than the monthly quantity. It became unnecessary, in the Exchequer Chamber to decide whether the defendants were bound to dehver in December all that remained to be delivered under the contract, or whether they had a reason- able time within which to deliver, because the plaintiffs agreed to have the damages assessed at the market price of iron in December, and this arrangement, in a rising mar- ket, was more favorable to the defendants. The opinion of the Exchequer Chamber evidently was in favor of their having a reasonable time within which to deliver, but Martin B., in dehvering a dissentient judgment in the Court of " L. E. 10 Ex. 195, Ex. Ch., reversing s. v;. L. R. 8 Ex. 305. 356 PAKT n.J or MEMOEANDUM OB NOTE IN WEITING. *183 Exchequer, which on the main point was upheld by the Exchequer Chamber, took the opposite view. § 244. The following propositions may fairly be deduced from the foregoing authorities where, in contracts for the delivery of goods by instalments, there have been applica- tions for postponement of deliveries by seller or purchaser, and a subsequent tender of or request for delivery : — (A.) Where the tender or request is within the contract time. (1) The defendant is bound to accept or deliver, although there has been postponement at the plaintiff's re- quest. (Tyers v. Rosedale Iron Co.^) (2) It has not yet been decided whether the defendant is bound to accept or deliver all the quantities within the contract time, or only within some reasonable time afterwards, though the latter appears to be the better opinion. (Tyers v. Rosedale Iron Co.^) *(B.) Where the tender or request is after the con- [*183] tract time. (1) If the postponement has taken place at the defendant's request, he is estopped from denying that the plaintiff was ready and willing to deliver or accept within the contract time. (Ogle v. Earl Vane,^ Hickman v. Haynes.^) (2) If the postponement has taken place at the plaintiff's request, he cannot maintain his action on the original contract, because he cannot prove that he was ready and willing to deliver or accept pursuant to the con- tract. (Plevins v. Downing.*) (3) In the last case, if suing on a substituted contract, such contract must have been reduced to writing, in order to satisfy the Statute of Frauds. (Plevins v. Down- ing.*) The contrary dictum of Martin B., in Tyers v. Eosedale Iron Co.^ must, it is submitted, be considered as overruled in Plevins v. Downing.* ® 1 L. K. 10 Ex. 195, in Ex. Ch., re- « L. K. 10 C. P. 598. versing s. o. L. R. 8 Ex. 305. M C. P. D. 220. 2 L. R. 3 Q. B. 272, in Ex. Ch., ^ l. R. 8 Ex. at p. 319. affirming s. c. L. R. 2 Q. B. 275. « See interlocutory remarks ol 357 *184 FORMATION OP THE COIfTEAGT. [BOOK I. Proof of approval, after performance, of a substitu- ted mode of performance is a different thing from proof of a substituted contract, and may be given by parol. (Leather Cloth Co. v. Hieronimus.^)] § 245. Whether or not parol evidence is admissible to show a subsequent agreement for a waiver and abandonment of the whole contract, proven by a written note or memoran- dum under the statute, has not been decided, and the dicta on the subject are uncertain and contradictory.^ Where, how- ever, the agreement to rescind the first contract forms part of or results from a new parol agreement which itself is invalid, and cannot be enforced under the statute, it is held that the new parol agreement cannot have the effect of rescinding the first bargain.^ [*184] * [It is a settled rule of equity that a contract re- quired to be in writing to satisfy the statute may be rescinded by a parol agreement ; and such rescission would be a sufficient defence to an action by either party for specific performance.^] § 246. Parol evidence may be offered to show that a sig- nature to a note or memorandum, though made by A. in his own name, was really made in behalf of B., his principal, when the action is brought for the purpose of charging B. ;i Brett and Grove JJ., 1 C. P. D. at p. Van Syckel o. Dalrymple, 32 N. J. 223. Eq. (5 Stew.) 233 ; Stevens v. Cooper, ' See remarks of Blackburn J., 1 John. Ch. (N. T.) 425 ; s. c. 7 Am. L. E. 10 Q. B. at p. 146. Dec. 499; Phelps v. Seely, 22 Gratt. 1 Dicta of Lord Denman in Goss (Va.) 573, 585; Marsh v. Bellew, 45 V. Lord Nugent, 5 B. & Ad. 65, and Wis. 36. in Harvey v. Grabham, 5 A. & E. 61 ; i Trueman v. Loder, 11 Ad. & E. of Sir Wm. Grant in Price v. Dyer, 589. See, also, Cotliay v. Fennell, 17Ves. 356; and of Lord Hardwicke 10 Barn. & Cress. 671; Piggott v. in Bell i'. Howard, 9 Mod. 305. Thompson, 3 Bos. &. P. 147 ; Norfolk 2 Moore v. Campbell, 10 Ex. 323 ; v. Worthy, 1 Campb. 337 ; Phelps v. and 23 L. J. Ex. 310; Noble t'. Ward, Prothero, 16 C. B. 370; Hornby v. L. R. 1 Ex. 117; L. R. 2 Ex. 135, in Lacy, 6 M. & S. 166; Bickerton error; 35 L. J. Ex. 81. o. Burrell, 5 M. & S. 390, 391; Mor- 8 See Ery on Specific Perform- ris v. Cleasby, 1 M. & S. 576 ; s. c. 4 ance, 2d ed. 1881, p. 445. M. & S. 566; Scrimshire v. Alderton, Regarding admissions of oral evi- Str. 1182. dence to vary or explain a written con- American authorities. — Alston v. irart, see ante, 237, note 3. See, also, Heartman, 2 Ala. 699; Ewing a. 358 PART II.] OF MEMORANDUM OR NOTE IN WRITING. *184 but it is not admissible in behalf of A. in such a contract, for the purpose of showing that he is not personally bound, and had acted only as agent of B.^ Where the paper was Medlock, 5 Port. (Ala.) 82; Potter V. Yale College, 8 Conn. 52, 60; Crawford v. Dean, 6 Blackf. (Ind.) 181; Harper u. Ragan, 2 Blackf. (Ind.j .39; Tharp v. Farquar, 6 B. Mon. (Ky.) 3; Pitts v. Mower, 18 Me. 361 ; s. c. 36 Am. Dec. 727 ; Ed- mond V. Caldwell, 15 Me. 340; Le- vant V. Parks, 10 Me. (1 Fairf .) 441 ; Titcomb v. Seaver, 4 Me. (4 Greenl.) 542 ; York County Bank v. Stein, 24 Md. 447, 463 ; Higdon v. Thomas, 1 H. & Gill. (Md.) 153; Pike v. Fay, 101 Mass. 134; Miller v. Stevens, 100 Mass. 518; s. c. 1 Am. Rep. 139; Stoops V. Smith, 100 Mass. 63; s. c. 1 Am. Rep. 85; Putnam v. Bond, 100 Mass. 58 ; Hurley v. Brown, 98 Mass. 545 ; Winchester v. Howard, 97 Mass. 303, 305; Hunter c. Giddings, 97 Mass. 41 ; Sanborn v. Flagler, 91 Mass. (9 Allen) 477; Lerned v. Johns, 91 Mass. (9 Allen) 419; Eastern R. R. Co. i<. Benedict, 71 Mass. (5 Gray) 561 ; Fuller v. Hooper, 69 Mass. (3 Gray) 341 ; Williams v. Bacon, 68 Mass. (2 Gray) 387,393; Huntington c. Knox, 61 Mass. (7 Cash.) 371, 374; Brown v. Brown, 49 Mass. (8 Mete.) 576 ; Commercial Bank v. French, 38 Mass. (21 Pick.) 486 ; Gilraore v. Pope, 5 Mass. 491 Van Staphorst v. Pearce, 4 Mass. 263 Briggs V. Munchon, 56 Mo. 467, 472 Chandler v. Coe, 54 N. H. 561 ; Briggs V. Partridge, 64 N. Y. 357, 362 ; s. c. 21 Am. Rep. 617; Dykers v. Town- send, 24 N. Y. 57 ; Leverick v. Meigs, 1 Cow. (N. Y.) 646 ; Hogan v. Shorb, 24 Wend. (N. Y.) 461; Sailly v. Cleveland, 10 Wend. (N. Y.) 156; Golden v. Levy, 1 Law. Repos. (N. C.) 528; s. i;. 6 Am. Dec. 555; Girard v. Taggart, 5 Serg. & R. (Pa.) 19; s. c. 9 Am. Dec. 327 ; Hubbert v. Borden, 6 Whart. (Pa.) 79 ; Lapham v. Green, 9 Vt. 407 ; Baldwin r. Bank of New- bury, 68. U. S. (1 Wall.) 234; bk. 17, L. ed. 534 ; Salmon Falls Manuf . Co. V. Goddard, 55 U. S. (14 How.) 446, 455; bk. 14, L. ed. 493; Walter r. Ross, 2 Wash. C. C. 283; Story, Agency, § 161 and note, § 418 et seq.; Dunlap's Paley's Agency, and note 324 ; 1 Chitty PI. and notes *358, *373; 2 Smith's Lead. Cas. 35. Agency may be proved by parol on a suit, for the contract price of an article sold on a memorandum made by his agent, and show the fact of the agency by parol evidence ; York County Bank v. Stein, 24 Md. 447, 464; Hunter v. Giddings, 97 Mass. 41 ; Sanderson ;;. Lamberton, 6 Bin. (Pa.) 129; Hubbert v. Borden, 6 Whart. (Pa.) 79, 92; Stowell v. Eldred, 39 Wis. 614; Ford v. Wil- liams, 62 U. S. (21 How.) 287 ; bk. 16, L. ed. 36 ; Salmon Falls Manuf. Co. V. Goddard, 55 U. S. (14 How.) 446, 455 ; bk. 14, L. ed. 493 ; New Jersey Steam Nav. Co. c. Merchants' Bank, 47 U. S. (6 How.) .344, 381 ; bk. 12, L. ed. 465 ; but see Winchester v. Howard, 97 Mass. 303. " But parol evidence can never be admitted for the purpose of exonerating an agent who has entered into a written con- tract in which he appears as princi- pal, even though he should propose to show, if allowed, that he disclosed the agency and mentioned the name of his principal at the time the contract was executed." Nash v. Towne, 72 U. S. (5 Wall.) 689, 703; bk. 18, L. ed. 527. See, also. Chandler v. Coe, 54 N. H. 561, 575 ; Babbett v. Young, 51 N. Y. 238, 242 ; Mills v. Hunt, 20 Wend. (N. Y.) 431, 434; Titus r. Kyle, 10 Ohio St. 444 ; Smith's Lead. Cas. 358, 373. 2 Higgins V. Senior, 8 M. & W. 834 ; Cropper v. Cook, L. R. 3 C. P. 194 ; Fawkes v. Lamb, 31 L. J. Q. B. 98; Calder ;•. Dobell, L. R. 6 C. P. 486. 359 *185 FORMATION OP THE CONTRACT. [BOOK I. signed " D. M. & Co., Brokers," and purported to be a pur- chase by them for " our principals," not naming the princi- pals, parol evidence was held admissible of a usage in such cases, that the brokers became personally liable.^ [So, in a later case, where the contract was expressed to be made and was signed by the defendants " as agents to merchants," parol evidence was admitted of a usage by which the agent became personally liable, if the principal's name was not disclosed within a reasonable time.*] And in "Wake v. Harrop^ (not under Statute of Frauds), it was held, that parol evidence was admissible to show that by mistaJce the written contract described the agent as principal, contrary to express agree- ment between the parties. § 247. We may now proceed to the examination of this clause of the statiite, dividing the inquiry into two sections : — 1. What is a note or memorandum in writing? 2. When is it a sufficient note of the bargain made ? [*185] * Section I. — what is a note or mbmoeandtjm IN WRITING? § 248. It may be premised that the note or memorandum must be one made and signed before the action brought. To satisfy the statute, there must be a good eont7-aet in existence at the time of action brought.^ § 249. But the statute does not require that the whole of the terms of the contract should be agreed to at one time, 3 Humfrey v. Dale, 7 E. & B. 266 ; « Hutchinson v. Tatham, L. R. 8 and 26 L. J. Q. B. 137 ; B. B. & E. C. B. 482. See, also, Hancock u. 1004; 27 L. J. Q. B. 390; Mollett Fairfield, 30 Me. 299; Huntington v. V. Robinson, L. R. 7 H. L. 802, re- Knox, 61 Mass. (7 Cusli.) 371, 374; versing L. R. 5 C. P. 646 ; L. R. Williams v. Christie, 4 Duer (N. Y.) 7 C. P. 84; Eleet v. Murton, L. R. 29; Chappellu.Dann,21 Barb. (N.Y.) 7 Q. B. 126 ; Southwell r. Bowditch, 17. 1 C. P. D. 374, C. A., reversing ibid. ^ g h. & N. 768 ; 1 H. & C. 202 ; 100; see, also, 2 Sra. L. C. 8th ed. p. 30 L. J. Ex. 273; 31 L. J. Ex. 451. 377, for the authorities on this sub- i Bill o. Bament, 9 M. & W. 36 ject; and see post, p. 201. See South- See remarks of Willes J., in Gibson well V. Bowditch, 1 C. P. Div. 100, v. Holland, L. E. 1 C. P. 1; 35 L. J. 374 ; Gadd v. Houghton, 1 Ex. D. 357. C. P. 5. 360 PART II.J OF MEMORANDUM OR NOTE IN WRITING. *185 nor that they should be written down at one time, nor on one piece of paper ; and accordingly it is settled, that where the memorandum of the bargain between the parties is contained in separate pieces of paper, and where these papers contain the whole bargain, they form together such a memorandum as will satisfy the statute, provided the contents of the signed paper make such reference to the other written paper or papers, as to enable the Court to construe the whole of them together as constituting all the terms of the bargain.^ And ^ What is sufficient note or memoran- dum. — The memorandum required by the statute must contain all the essen- tial terms of the contract, expressed with such degree of certainty as to render it unnecessary to resort to parol evidence to determine the in- tention of the parties thereto. Hagan V. Domestic Sewing Machine Co., 9 Hun (N. Y.) 74; Grafton u. Cum- mings, 99 U. S. (9 Otto) 110; bk. 25, L. ed. 366. See Ellison v. Jackson Water Co., 12 Cal. 542; Edelen v. Gough, 5 Gill (Md.) 103; Elliot o. Giese, 7 Harr. & J. (Md.) 457; Nichols u. Allen, 23 Minn. 542 ; Underwood V. Campbell, 14 N. H. 393 ; Laing v. Lee, 20 N. J. L. (1 Spen.) 337 ; Mal- lory V. Gillett, 21 N. Y. 412 ; Bennett V. Pratt, 4 Den. (N. Y.) 275 ; Leonard V. Vredenburgh, 8 Johns. (N. Y.) 29 ; s. c. 5 Am. Dec. 317 ; Sears v. Brink, 3 Johns. (N. Y.) 210; s. c. 3 Am. Dec. 475 ; Rogers v. Kneeland, 13 Wend. (N. Y.) 114; Peltier v. Col- lins, 3 Wend. (N. Y.) 459; s. u. 20 Am. Dec. 711; Soles v. Hickman, 20 Pa. St. 180 ; Taylor v. Pratt, 3 Wis. 674; Jenkins j). Reynolds, 3 Brod. & B. 14 ; ^.. 1-. 6 J. B. Moore, 86 ; Saun- ders !'. Wakefield, 4 Barn. & Aid. 595 ; Newbury v. Armstrong, 6 Bing. 201; Lees v. Whitcomb, 5 Bing. 34; Morley v. Boothbay, 3 Bing. 107 ; Champion v. Plummer, 4 Bos. & Pul. (1 N. R.) 252 ; Stapp v. Lill, 1 Campb. 242 ; s. c. 9 East, 348 ; Cole u. Dyer, 1 Cromp. & Jerv. 401 ; Egerton v. Mathews, 6 East, 308 ; Wain v. AVarl- ters, 5 East, 10 ; Powers v. Eowler, 4 Ell. & Bl. 511; Wheeler v. Collier 1 Moody & M. 123 ; Bainbridge v. Wade, 16 Q. B. 89. However, the English and New York doctrine has been rejected in Connecticut and elsewhere. See Sage u. Wilcox, 6 Conn. 81 ; Hargroves v. Cooke, 15 Ga. 321 ; Patraor v. Haggard, 78 111. 607 ; Mills v. Ross, 44 Ind. 1 ; Wil- liams V. Robinson, 73 Me. 186 ; Gilli- ghan V. Boardman, 29 Me. 79; Little V. Nabb, 10 Mo. 3; Reed v. Evans, 17 Ohio, 128 ; Adkins v. Watson, 12 Tex. 199; Gregory v. Gleed, 33 Vt. 405; Patchin v. Swift, 21 Vt. 292. The memorandum need not go into details of all the particulars of the contract ; if it contains the substance, that will be sufficient. McConnell v. Brillhart, 17 111. 354 ; Chase v Lowell, 73 Mass. (7 Gray) 33 ; Hawkins v. Chase, 36 Mass. (19 Pick.) 502; Ives V. Hazard, 4 R. I. 14; Salmon Palls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 456 ; bk. 14, L. ed. 493 ; Sari V. Bourdillon, 1 C. B. (N. S.) 188. But it must contain the names of the contracting parties (Nichols o. John- son, 10 Conn. 192 ; Sanborn v. San- born, 73 Mass. (7 Gray) 142 ; Webster V. Ela, 5 N. H. 540; Sherburne v. Shaw, 1 N. H. 157 ; Barry v. Law, 1 Cranch C. C. 77; Graham v. Mus- son, 5 Bing. (N. C.) 607; s. c. 7 Scott, 769, 776; Champion v. Plum- mer, 4 Bos. & Pul. (1 N. R.) 252; Sari V. Bourdillon, 1 C. B. N. S. 188 ; Bateman v. Phillips, 15 East, 272) ; 361 •^185 FORMATION OF THE CON"TEACT. ' [BOOK I. the same result will follow if the other papers were attached or fastened to the signed paper at the time of the signature. and show which the seller and which the buyer. Osborn r. Phelps, 19 Conn. 73; Nichols v. Johnson, 10 Conn. 198; Bailey v. Ogden, 3 Johns. (N. Y.) 399; Salmon Falls Manuf. Co. u. Goddard, 55 U. S. (14 How.) 446; bk. 14, L. ed. 493. It must either expressly or by reference state the contract and describe the subject- matter with reasonable certainty. Nichols V. Johnson, 10 Conn. 192 Kay V. Curd, 6 B. Mon. (Ky.) 100 O'Donnell o. Leeman, 43 Me. 158 s. c. 69 Am. Dec. 54; Waterman v. Meigs, 68 Mass. (4 Cush.) 497 ; Mor- ton V. Dean, 54 Mass. (13 Mete.) 385; Hawkins v. Chace, 36 Mass. (19 Pick.) 502; Bailey v. Ogden, 3 Johns. (N. Y.) 399; s. c. 3 Am. Dec. 609; Tallman V. Franklin, 14 N. Y. 584; Salmon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446; bk. 14, L. ed. 493 DeBeil v. Thomson, 3 Beav. 469 Sari V. Bourdillon, 1 C. B. N. S. 188 Chitt. on Contr. 70, 71, 412 ; Story on Sales, § 257. Where the price is agreed on, it must be stated. The memorandum will be suffi- cient where it shows that there was a consideration, and what it was. Haw- kins LK Chace, 36 Mass. (19 Pick.) 502; Laing v. Lee, 20 N. J. L. (1 Spen.) 337 ; Cooper v. Dedrick, 22 Barb. (N. Y.) 516 ; Waterbury u. Graham, 4 Sandf. (N. Y.) 215; Doug- lass V. Howland, 24 Wend. (N. Y.) 35; Watson v. McLaren, 19 Wend. (N. Y.) 557 ; Marquand v. Hipper, 12 Wend. (N. Y.) 520 ; Day v. Elmore, 4 Wis. 190 ; Newbury ;;. Armstrong, 6 Bing. 201; Jarvis o. Wilkins, 7 Mees. & W. 410 ; Bainbridge v. Wade, 16 Q. B. 89 ; s. c. 1 Eng. L. & E. 236 ; Hoadly v. McLaine, 10 Bing. 482 ; Acebal v. Levy, 10 Bing. 382 ; Valpy ■0. Gibson, 4 C. B. 837, 864. See, also, Adams v. McMillan, 7 Port. (Ala.) 73; Kay v. Curd, 6 B. Mon. (Ky.) 103; Waul v. Kirkman, 27 Miss. 823 ; Soles u. Hickman, 20 Pa. St. 180; Buck o. Pickwell, 27 Vt. 167; Ide v. Stanton, 15 Vt. 691; Smith V. Arnold, 5 Mason C. C. 414 ; Elmore r. Kingscote, 5 Barn. & Cres. 583; Hoadly ,.. McLaine, 10 Bing. 482; Acebal o. Levy, 10 Bing. 376; Story on Sales, sec. 222. Where credit is given the terms must be stated, if agreed on, and if the time of performance is settled, this, also, should be contained in the memorandum. O'Donnell v. Leeman, 43 Me. 158; s. c. 69 Am. Dec. 54; Davis V. Shielas, 26 Wend. (N. Y.) 341 ; Salmon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446; bk. 14, L. ed. 493. Consideration. — According to the English doctrine the consideration must be in writing, and this doctrine prevails in Georgia, Maryland, New Hampshire, New York, and South Carolina. Henderson c. Johnson, 6 Ga. 390 ; Hutton v. Padgett, 26 Md. 228 ; Edelen v. Gough, 5 Gill. (Md.) 103; Elliot V. Giese, 7 Harr. & J. (Md.) 457 ; Neelson v. Sanborne, 2 N. H. 414 ; Bennett v. Pratt, 4 Den. (N. Y.) 275; Leonard v. Vredenburg, 8 Johns. (N. Y.) 29; s. c. 5 Am. Dec. 317 ; Sears v. Brink, 3 Johns. (N. Y.) 210; s. u. 3 Am. Dec. 475; Stephens V. Winn, 2 Nott. & McC. (S. C.) 372. However, under the Virginia statute the consideration need not be in writ- ing. Wren v. Pearce, 4 Smed. & M. (Miss.) 91 ; Taylor v. Ross, 3 Yerg. (Tenn.) 330; Oilman v. Kibler, 5 Humph. (Teun.) 19; Violett v. Fatten, 9 U. S. (5 Cr.) 142 ; bk. 3, L. ed. 01. The rule in Maine, Massachusetts, and New Jersey is the same. Sage v. Wil- cox, 6 Conn. 81 ; Hargroves v. Cooke, 15 Ga. 321; Gillighan ,. Boardman, 29 Me. 79; Levy v. Jlcrrill, 4 Me. (4 Greenl.) 180 ; Packard v. Richardson, 17 Mass. 122; ». c. 9 Am. Dec. 123; Buckley v. Bardslee, 5 N. J. L. (2 362 PART II.] OF MEMOEANDDM OE NOTE IN WRITING. *185 But if it be necessary to adduce parol evidence, in order to connect a signed paper with others unsigned, by reason of the South.) 570 ; s. c. 8 Am. Dec. 620 ; Reed v. Evans, 17 Ohio, 128 ; Adkins V. Watson, 12 Tex. 199; Miller v. Irvine, 1 Dev. & Bat. (S. C.) 103; Tufts V. Tufts, 8 Woodt). & M. C. C. 456. See, also, Henderson v. Johnston, 6 Ga. 390; Edelen i/. Gough, 5 Gill (Md.) 103 ; Wyman v. Gray, 7 Harr. & J. (Md.) 409; Miller v. Cook, 23 N. Y. 495 ; Staats v. Howlett, 4 Den. (N. Y.) 559 ; Bennett v. Pratt, 4 Den. (N. Y.) 275; Bailey o. Freeman, 11 Johns. (N. Y.) 221 ; s. c. 6 Am. Dec. 371 ; Sears v. Brink, 3 Johns. (N. Y.) 210; s. c. 3 Am. Dec. 475; Packer v. Willson, 15 Wend. (N. Y.) 343. Form of memorandum. — A formal written agreement is not necessary; if there is such a writing as imports a contract of sale, signed by the party to be charged, it is sufficient. Sal- mon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446 ; bk. 14, L. ed. 493; s. c. 20 Curtis, 276; Wilkinson v. Evans, L. R. 1 C. P. 407 ; Gibson v. Holland, L. R. 1 C. P. 1 ; Buxton v. Rust, L. R. 7 Ex. 1 ; Leather Cloth Co. V. Hieronimus, L. R. 10 Q. B. 140 ; s. c. 12 Moak Eng. Rep. 211 ; Ken- worthy u. Schofield, 2 Barn. & Cres. 945 ; Jackson v. Lowe, 1 Bing. 9 ; Saunderson v. Jackson, 2 Bos. &, Pul. 238; Hinde u. Whitehouse, 7 East, 558 ; Johnson v. Dodgson, 2 Mees. & W. 653; Allen u. Bennet, 3 Taunt. 169. The memorandum may be in the shape of a letter (see Wood on Fraud, sec. 347); atelegram (Trevor v. Wood, 36 N. Y. 307) ; an acknowledgment of invoice or bill of parcels signed. Wil- kinson V. Evans, L. R. 1 C. P. 407 ; Buxton V. Rust, L. R. 7 Ex. 1, 270; s. i;. 2 Moak Eng. Rep. 675; 1 Moak Eng. Rep. 135; Saunderson V. Jackson, 2 Bos. & Pul. 238; McLean o. Nicoll, 7 Jur. N. S. 999; Langdell Cas. on Sales, 528, 487, 340. However, it has been held that a bill of parcels is not an agreement, and receipt and payment of such bill will not estop the buyer from proving an oral warranty and recovering for its breach. Atwater v. Clancy, 107 Mass. 369, 375. The memorandum may consist of several writings on different slips of paper, made at different times, pro- vided they have a consistent purpose in evincing a concluded bargain. North V. Mendel, 73 Ga. 400 ; s. c. 54 Am. Rep. 879, 881 ; Smith v. Jones, 66 Ga. 339; s. c. 42 Am. Rep. 72; Ridgway v. Ingram, 50 Ind. 148; Lee V. Mahoney, 9 Iowa, 344 ; Freeport v. Bartol, 3 Me. (3 Greenl.) 340 ; Drury V. Young, 58 Md. 546; s. c. 42 Am. Rep. 343; Frank v. Miller, 38 Md. 461 ; Moaler v. Suchanan, 11 Gill & J. (Md.) 322; Rhoades v. Castner, 94 Mass. (12 Allen) 132; Lerned v. Wannemacher, 91 Mass. (9 Allen) 412 ; Morton v. Dean, 54 Mass. (13 Mete.) 388; Fisher v. Kuhn, 54 Miss. 480; Jelks v. Barrett, 52 Miss. 315; Brown v. Whipple, 58 N. H. 229; Johnson v. Buck, 35 N. J. L. (6 Vr.) 339, 344 ; s. u. 10 Am. Rep. 243; Peck ,,. Vandemark, 99 N. Y. 29; Tallman c. Franklin, 14 N. Y. 584 ; Doughty v. Manhattan Brass Co., 101 N. Y. 644; s. c. 4 N. E. Rep. 747; 2 Cent. Rep. 397; Thayer c Luce, 22 Ohio St. 62; Ide a. Stan- ton, 15 Vt. 685; Beckwith v. Talbot, 95 U. S. (5 Otto) 289 ; bk. 24, L. ed. 496 ; Peek i>. North Staffordshire R. R. Co., 10 H. L. 472 ; Ridgway v. Whar- ton, 6 H. L. Cas. 238 ; Caton v. Caton, L. R. 2 H. L. App. Cas. 127; Cave v. Hastings, L. R. 7 Q. B. Div. 12.5 ; s. c. 36 Moak Eng. Rep. 275; Hinde v. Whitehouse, 7 East, 558 ; McLean v. Nicoll, 7 Jur. N. S. 999; Schneider V. Norris, 2 Maule & S. 286; Bill v. Bament, 9 Mees. & W. .36; Browne on Statute of Frauds, sees. 350, 353 ; Long. Cas. on Sales, 1032, 1033, 599, 363 •^185 FOEMATION OF THE CONTKACT. [BOOK I. absence of any internal evidence in the contents of the signed paper to show a reference to, or connection with, the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain so as to satisfy the statute,^ ante, p. 174. 437, 362, 161, 102; Story on Sales, see. 272 ; Wood on Frauds, sec. 364 ; 2 Schouler on Pers. Prop. see. 486. But where the memorandum consists of separate pieces of paper, they must all he signed by the party to be cliarged, or by his duly authorized agent, or those pieces which he has not signed must be so connected either physically or by reference with one that has. Langdell's Sel. Cas. on Sales, 1032. It is not necessary that the writing should liave been intended as such by the party at the time (Ellis v. Dead- man, 4 Bibb (Ky.) 467 ; Justice v. Lang, 42 N. Y. 498 ; s. c. 1 Am. Eep. 576 ; Smith v. Surman, 9 Barn. & C. 561 ; Richards r. Porter, 6 Barn. & C. 437 ; Bailey v. Sweeting, 9 C. B. N. S. 843 ; Wilkinson v. Evans, L. R. 1 C. P. 407; Buxton v. Rust, L. R. 7 Ex. 1, 279; s. c. 1 Moak Eng. Rep. 135; 2 Moak Eng. Rep. 675 ; Leather Cloth Co. 0. Hieronimus, L. R. 10 Q. B. 140; s. c. 12 Moak Eng. Rep. 211 ; Lang. Cas. on Sales, 480, 528, 383, 54 ; Story on Sales, sec. 272a ; Wood on Frauds, sec. 360), because it is simply evi- dence of, and does not go to make the contract (see Townsend v. Har- graves, 118 Mass. 325, 336; Tufts o. Plymouth Gold Mining Co., 96 Mass. (14 Allen) 407 ; Argus Co. v. Albany, 55 Jf. T. 495; Gibson r. Holland, L. R. 1 C. P. 1 ; Buxton v. Rust, L. R. 7 Ex. 1, 279; Allen „. Bennet, 3 Taunt. 169) ; neither need it be actu- ally addressed to the plaintiff. Drury V. Young, 58 Md. 546 ; s. c. 42 Am. Rep. 343; Townsend v. Hargraves, 118 Mass. 335; Peabody v. Speyers, 56 N. Y. 230; Argus Co. r. Albany, 55 N. Y. 495; s. c. 14 Am. Rep. 296; Johnson v. Dodgson, 2 Mees. & W. 364 653 ; Gibson v. Holland, L. R. 1 C. P. 1 ; Lang. Cas. on Sales, 513, 413 ; 2 Schouler on Pers. Prop. sees. 485, 489 ; Sugden on Vendors and Purchasers (14th Eng. ed.) 139, sec. 39; Wood on Frauds, sec. 347. An entry in the defendants' boohs not signed by any one is not a suffi- cient note in writing. Barry v. Law, 1 Cr. C. C. 77. An auctioneer's memorandur/i or entry in his sale books is not a suiScient memorandum, particularly when it does not sufficiently describe the property sold and the terms of sale. 1 Smith V. Jones, 66 Ga. 338; s. c. 42 Am. Rep. 72 ; Ridgway v. Ingram, 50 Ind. 145; s. c. 19 Am. Rep. 706; Williams v. Threlkeld, 2 Cr. C. C. 307; Peirce v. Corf, L. R. 9 Q. B. 210. 2 When memorandum to be signed. — The memorandum of the agreement must be signed before suit is brought (Phillips V. Ocmulgee Mills, 55 Ga. 633, 636 ; Bird v. Munroe, 66 Me. 337, 347 ; Townsend ti. Hargraves, 118 Mass. 325, 836; Philbrook v. Bel- knap, 6 Vt. 388 ; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140) ; be- cause there is no actionable contract before the memorandum is obtained, and the contract cannot be sued upon until it has been legally verified by writing. Until the agreement is re- duced to writing there is no cause of action, although there is a, contract ; because the writing is a condition pre- cedent to the right to sue. Bird u. Munroe, 66 Me. 337, 347. Tt is not necessary that the memoran- dum pass by the parties, or be ad- dressed to the purchaser or his agent, in order to be binding. Williams v. Bacon, 68 Mass. (2 Gray) 887 ; Mor- ton V. Dean, 54 Mass. (18 Mete.) 385, PAKT n.j OF MEMORANDUM OR NOTE IN WRITING. *186 § 250. [But where the reference contained in the signed paper is ambiguous, parol evidence will be admitted to explain the ambiguity and identify the document to which the signed paper must and does refer. Thus, parol evidence was held admissible to identify the documents which were respectively referred to by the following ambiguous expressions: * "instructions," ^ "terms agreed upon," ^ [*186] " purchase," ^ " our arrangement," * " purchased." ^ It is submitted, therefore, that since the decision in Baumann v. James, the principle of which case has been adopted in the most recent cases illustrating this subject, and cited in the notes infra, the rule as laid down by the earlier authorities must be taken to have been enlarged to the following extent : it is no longer necessary for the signed paper to refer to any unsigned paper as such ; it is sufficient to show that a partic- ular unsigned paper and nothing else can be referred to, and parol evidence is admissible for this purpose. In Long v. Mil- ler,^ where the same principle was carried even still further than in Baumann v. James, Thesiger L. J., on the question of the admissibility of parol evidence in these cases, says (at p. 456) : " When it is proposed to prove the existence of a con- tract by several documents, it must appear upon the face of the instrument, signed by the party to be charged, that reference is made to another document, and this omission cannot be supplied by verbal evidence. If, however, it appears from the instrument itself that another document is referred to, that document may be identified by verbal evidence. A simple illustration of this rule is given in Ridgway v. Wharton ; there ' instructions ' were referred to : now instructions may be either written or verbal; but it was held that parol evi- 388 ; Davis v. Shields, 26 Wend. Phippen v. Hyland, 19 Up. Can. C. P. (N. Y.) 341; Soles v. Hickman, 20 416. Pa. St. 180 ; Buck v. Pickwell, 27 Vt. i Eidgway v. Wharton, 6 H. L. C. 167; Elfe v. Gadsden, 2 Eich.(S. C.) 238. L. 373 ; Salmon Falls Co. v. Goddard, ^ Baumann v. James, 3 Ch. 508. 55 U. S. (14 How.) 446, 455 ; bk. 14, » Long u. Millar, 4 C. P. D. 450, L. ed. 493. See Ehoades v. Castner, 94 C. A. Mass. (12 Allen) 130 ; Lerned v. Wan- « Care v. Hastings, 7 Q. B. D. 125. nemacher, 91 Mf ss. (9 Allen) 412 ; * Shardlow v. Cotterell, 18 Ch. D. Johnson v. Buck, 35 N. J. L. (9 Vr.) 280 ; s. c. 20 Ch. D. 90, C. A. 338, 344, 345; s. t. 10 Am. Eep. 243 ; 6 4 c. P. D. 450. 365 *187 rOEMATION OP THE CONTEACT. [BOOK I. dence might be adduced to show that certain instructions in writing Avere intended. This rule of interpretation is merely a particular application of the doctrine as to latent ambig- uity."] § 251. Further, in order to satisfy the statute, when the memorandum relied on consists of separate papers, which it is attempted to connect by showing from their contents that they refer to the same agreement, these separate papers must be consistent and not contradictory in their statement of the terms, for otherwise it would be impossible to [*187] * determine what the bargain was, without the intro- duction of parol testimony to show which of the papers stated it correctly. ^ § 252. The authorities are believed to be quite consistent in maintaining these principles. In citing them, it will be observed, that some of the cases were under the 4th section of the statute, the language of which is, on this subject, al- most identical with that of the 17th. The two clauses are here placed in juxtaposition for comparison. Fourth section. — "Unless the agreement on which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." Seventeenth section. — "Except that some note or memo- randum in writing of the said bargain be made, and signed by the pa7-ties to be charged with such contract, or their agents thereunto lawfully authorized." It will be noticed hereafter that the question, whether there is any distinction in meaning between the respective words quoted in italics, viz., "agreement" and "bargain," on the one hand, and "party" and "parties," on the other hand, has been mooted on several occasions. ^Memorandum on separate pa- Calkins v. Falk, 1 Abb. App. Dec. pers. — Where the note or memoran- (N. Y.) 291 ; Phippen v. Hyland, 19 dum is on separate pieces of paper, Up. Can. C. P. 416^ See ante, § 248, they must be consistent. Jenness v. note (1). Mount Hope Iron Co., 53 Me. 20 ; 366 PART II.J OF MEMOEANDUM OK NOTE IN WRITING. *188 § 253. The leading case in -whicli it was held that the intention of the signer to connect two written papers, not physically joined, and not containing internal evidence of his purpose to connect them, could not be proven by parol, occurred early in the present century. Hinde v. Whitehouse,i in 1806, was the case of a sale by a.uction. The auctioneer, who, as will be shown hereafter (^post, Ch. VIII.), is by law an agent authorized to sign for both parties, had a catalogue, headed " To be sold by auction, for particulars apply to Thomas Hinde," and wrote down opposite to the several lots on the catalogue the name of the purchaser. The auctioneer also had a separate paper con- taining the terms and conditions of the sale, which he read, and placed on his desk. The catalogue contained no refer- ence to the conditions. Held, that the signature to *the catalogue was not sufficient to satisfy the stat- [*188] ute, on the ground that it did not contain the terms of the bargain, nor refer to the other writing containing those terms. Kenworthy v. Schofield,^ in the King's Bench in 1824, was decided in the same way, on circumstances precisely the same. Lord Westbury recently stated the general principle, in a case which arose under a similar clause in the Railway and Canal Traffic Act, in these words, "In order to embody in the letter any other document or memorandum, or instru- ment in writing, so as to make it part of a special contract contained in that letter, the letter must either set out the writing referred to, or so clearly and definitely refer to the writing, that by force of the reference, the writing itself be- comes part of the instrument it refers to." ^ [Which refers to it?] § 254. The first reported case decided in banc, in which a signed paper referring to another writing was deemed suffi- cient to satisfy the statute, was that of Saunderson v. Jack- 1 7 East, 558 ; and see Peirce v. 569. Johnson v. Buck, 35 N. J. L. Corf, L. R. 9 Q.B. 210, post, p. 191. (6 Vr.) 338, 345; s. u. 10 Am. Rep. i* 2 B. & C. 945. 243. See on this point, Peirce v. 8 Peek o: North StafCordshire Corf, L. K. 9 Q. B. 210. Railway Company, 10 H. L. C. 472- 367 *189 FORMATION OF THE CONTRACT. [BOOK I. son,i in 1800 ; but the case does not state how this connec- tion between the two papers was made apparent, and can, therefore, give little aid in construing the clause of the stat- ute, although it has been constantly quoted as authority for the general proposition, that the memorandum may be made up of different pieces of paper. In Allen v. Bennett,^ decided in 1810, the agent of the defendant sold rice to the plaintiff, and entered all the terms of the bargain on the plaintiff's book, but did not mention the plaintiff's name. Subsequently, the defendant wrote to his agent, mentioning the plaintiff's name, and authorizing his agent to give credit according to the memorandum in the plaintiff's book, saying, also, that to prevent dispute he sent a "sample of the rice." Held, that the letter referred to the memorandum of the bargain sufficiently to render the two together a signed note of the bargain. § 255. In 1812, Cooper v. Smith ^ was distin- [*189] guished from the * foregoing case, because the letter offered to prove the contract, as entered on the plain- tiff's books, falsified instead of confirming the entry, by stat- ing that the bargain was for delivery within a specified time, a fact denied by the plaintiff. Le Blanc J., tersely said, " The letter of the defendant referred to a different contract from that proved on the part of the plaintiff, which puts him out of Court, instead of being a recognition of the same con- tract, as in the former case." ^ In Jackson v. Lowe and Lynam,^ the Common Pleas, in 1822, held it perfectly clear that a contract for the sale of flour was fully proven within the statute by two letters, the first from the plaintiff to the defendants, reciting the con- tract, and complaining of the defendants' default in not de- livering flour of proper quality, and the second from the 1 2 B. & p. 238. is for the jury, in case of dispute, to 2 3 Taunt. 169. See, also. Towns- decide whether the signed does or end V. Hargraves, 118 Mass. 325, 336. does not refer to the unsigned docu- 1 15 East, 103. ment. And see on this M'Mullen v. 2 See Haughton u. Morton, 5 Ir. Helberg, 4 L. R. Ir. 94, at p. 104. See C. L. Rep. 329, wliere also it is stated also M'Mullen v. Helberg, 4 L. R. Ir. by Crampton, J., at p. 342, that since 94, 104. the case of Jackson v. Lowe, supra, it ^1 Bing. 9. 368 PABT II.] OF MEMORANDUM OR NOTE IN WRITING. *190 defendants' attorney in reply to it, saying that the defend- ants had "performed their contract as far as it has gone, and are ready to complete the remainder," and threatening action if " the flour " was not paid for within a month. § 256. Richards v. Porter i was decided in the King's Bench in 1827, and on the face of the report it is almost impossible to reconcile it with the other decisions on this point. The facts were, that the plaintiff sent to the defendant, by order of the latter, from Worcester to Derby, on the 25th of Jan- uary, 1826, five pockets of hops, which were delivered to the carriers on that day, and an invoice was forwarded contain- ing the names of the plaintiff as buyer and of the defendant as seller. The defendant was also informed that the hops had been forwarded by the carriers. A month later, on the 27th of February, the defendant wrote to the plaintiff : " The hops (five pockets) which I bought of Mr. Richards on the 23d of last month are not yet arrived, nor have I ever heard of them. I received the invoice. The last was much longer than they ought to have been on the road. However, if they do not arrive in a few days, I *must get some elsewhere, and [*190] consequently cannot accept them." The plaintiff was nonsuited, and the King's Bench held the nonsuit right. Lord Tenterden saying : " I think this letter is not a suffi- cient note or memorandum in writing of the contract to satisfy the Statute of Frauds. Even connecting it with the invoice, it is imperfect. If we were to decide that this was a sufficient note in writing, we should in effect hold that if a man were to write and say,, ' I have received your invoice, but I insist upon it the hops have not been sent in time,' that would be a memorandum in writing of the contract sufficient to satisfy the statute." The facts as reported cer- tainly are not the same as those used in illustration by Lord Tenterden. No doubt, if the defendant had said, " Our bar- gain was that you should send the hops in time, and you de- layed beyond the time agreed on," there would have been no proof of the contract in writing as alleged by the plain- '■eB. &c. 437. 369 *191 FORMATION OF THE CONTRACT. [BOOK I. tiff. But the report shows that the goods were delivered in due time to the carrier, which, in contemplation of law, was a delivery to the purchaser, and the complaint was not that the goods had not been se?it in time, but that they did not arrive in time ; that a previous purchase also was delayed " on the road." The dispute, therefore, does not seem to have turned in the least on the terms of the bargain, which were completely proven by the letter and invoice together, but on the execution of it. In the recent case of Wilkinson V. Evans,^ the judgment in Richards v. Porter is said to be reconcilable with the current of decisions by Erie C. J., on the ground "that the letter stated that the contract con- tained a term, not stated in the invoice ; that the term was that the goods should be delivered within a given time." It is difficult to find in the letter, as quoted in the report, the statement said by the learned Chief Ju^stice to be contained in it. The decision in Richards v. Porter seems to be recon- cilable with settled principles only on the assumption that there was some proof in the case that the carrier was by special agreement the agent of the vendor, not of the vendee.^ [*191] * § 257. The case of Smith v. Surmani followed in the King's Bench, in 1829. The written memoran- dum was contained in two letters, one from the vendor's attorney, who wrote to ask for payment "for the ash timber which you purchased of him. . . . The value, at Is. Qd. per foot, amounts to the sum of 17/. 3s. Qd. I understand your objection to complete your contract is on the ground that the timber is faulty and unsound, but there is sufficient evi- dence to show that the same timber is very kind and superior, &c'. &c." The defendant replied, "I have this moment re- ceived a letter from you respecting Mr. Smith's timber, which I bought of him at Is. &d. per foot, to he sound and good, which I have some doubts whether it is or not, but he prom- 2 L. R. 1 C. P. 407 ; 35 L. J. C. P. the Court as expressed by Erie C. J. 224. in Bailey v. Sweeting, post, p. 217. 3 Richards v. Porter seems also i 9 B. & C. 561. See, also, Archer irreconcilable with the opinion of v. Baynes, 5 Ex. 625 ; 20 L. J. Ex. 54. 370 PAKT II.J OF MEMORANDUM OR NOTE IN WRITING. *192 ised to make it so, and now denies it." Held, that the letters were not consistent, and did not satisfy the statute. Bayley J. said : " What the real terms of the statute were is left in doubt, and must be ascertained by verbal testimony. The object of the statute was that the note in writing should ex- clude all doubt as to the terms of the contract, and that object is not satisfied by defendant's letter." The other judges concurred.^ § 258. [Pierce v. Corf,^ which, like Hinde v. Whitehouse, arose out of a sale by auction, was an action to recover from an auctioneer damages for negligence in not making a bind- ing contract for the sale of the plaintiff's mare. The defend- ant had a sales' ledger, which was headed " Sales by auction 28th March, 1872," in which the plaintiff's mare was num- bered 49. A printed catalogue of the horses to be sold, with conditions of sale annexed, was circulated, and the plaintiff's mare was therein also numbered 49, but neither the catalogue nor the conditions were annexed to the sales' ledger nor referred to therein. The mare was put up for sale and knocked down to one Thomas Macquire for thirty-three guineas. Thereupon the defendant's clerk wrote in the * columns of the sales' ledger, left blank for the [*192] purpose, the name of the purchaser and the price. The purchaser afterwards refused to take the mare. Held that the catalogue and sales' ledger were not sufficiently connected to form a memorandum sufficient to satisfy the statute.^] § 259. The leading case under the fourth section of the Statute of Frauds, usually cited in all disputes as to the con- struction of the words now under consideration, is Boydell v. Drummond,! decided in the King's Bench in 1809. The de- fendant was sued as one of the subscribers for the celebrated Boydell prints of scenes in Shakespeare's plays, and the 2 See Buxton v. Rust, L. E. 1 Ex. ^ gee, also, Rishton c Whatmore, 1 ; Dalton c. McBride, 7 Grant (Ont.) 8 Ch. D. 468. 288. 1 11 East, 142. See, also, Fitz- 1 L. R. 9 Q. B. 210. maurice v. Bailey, 9 H. L. C. 78, and Crane v. Powell, L. E. 4 C. P. 123. 371 *193 FOKMATION OF THE CONTRACT. [BOOK I. terms of the subscription were set out in a prospectus. The proof offered was the defendant's signature in a book entitled " Shakespeare Subscribers, their Signatures." But there was nothing in the book referring to the prospectus, and it was impossible to connect the book with the prospectus showing the terms of the bargain, without parol testimony. Some letters of the defendant were also offered, but equ.ally void of reference to the terms of the bargain. The plaintiff was non- suited at Nisi Prius, and the nonsuit was confirmed by the unanimous opinion of the judges, Lord EUenboTough C. J., Grose, Le Blanc, and Bayley, JJ. In Dobell v. Hutchinson,^ in 1835, the King's Bench held, under the 4th section of the Act, that in a sale at auction where the letters of the defendants, the purchasers, referred distinctly to the conditions of sale signed by the plaintiff, and which they had in their hands, the clause of the statute was completely satisfied, because no parol evidence of any kind was requisite to show the contract, except proof of handwriting, which is necessary in all cases. So in Laythoarp v. Bryant,^ in 1836, the Exchequer of Pleas held that the defendant, who had signed a memoran- dum of his purchase at auction, was bound by it, although imperfect in itself, because it referred to the conditions of sale, and those conditions were on the same paper, [*193] the * agreement having been written on the back of a paper containing the terms and conditions. § 260. It has been held that the note or memorandum required by the statute need not be addressed to or pass between the parties, but may be addressed to a third person. In Gibson v. Holland,^ decided in 1865, one of the pieces of paper relied on as constituting the written note of the bar- gain was a letter written by the defendant to his own agent. Held, to be sufficient by Erie C. J., and Willes and Keating JJ.^ This case was decided principally upon the authority of Sir Edward Sugden's "Treatise on Vendors and Pur- chasers," ^ in which he says: "A note or letter written by 2 3 A. & E, 370. 2 See, also, McMillan v. Bentley, 8 2 Bing. N. C. 735. 16 Grant (Ont.) 387. 1 L. E. 1 C. P. 1 ; 35 L. J. C. P. 5. s At p. 139, par. 39, in 14th Ed. 372 PART II.J OF MEMORANDUM OR NOTE IN WRITING. *193 the vendor to any third person, containing directions to carry the agreement into execution, will (subject to the before- mentioned rules) be a sufficient agreement to take a case out of the statute," and on the authorities in the Chancery Reports there cited.* § 261. No case has arisen under the statute on the ques- tion whether the writing is required to be in ink, but there seems no reason to doubt that the common law rule would apply, and that a writing in pencil would be held sufficient to satisfy the 17th section.^ See, also, 1 Sm. L. C. p. 326, notes to' Birkmyr v. Darnell. * The memorandum will he sufficient if it be only a letter written by the party to his agent or even an entry or record in his own book containing an express revocation of the con- tract. Townsend v. Hargraves, 118 Mass. 325, 336 ; Kleeman r. Collins, 9 Bush. (Ky.) 460, 467 ; Fugate v. Hansford's ExVs, 3 Litt. (Ky.) 262; Tufts V. Plymouth Gold Mining Co., 96 Mass. (14 Allen) 407; Moore u. Mountcastle, 61 Mo. 424 ; Peabody v. Speyers, 56 N. Y. 230 ; Argus Co. v. Albany, 55 N. Y. 495 ; s. c. 14 Am. Rep. 296 ; Clark v. Tucker, 2 Sandf. (N. Y.) 157; Kinloch v. Savage, Speer's (S. C.) Eq. 470; Buck u. Pickwell, 27 Vt. 167; Barry v. Coombe, 26 U. S. (1 Pet.) 640, 651 ; bk. 7, L. ed. 295 ; Gillespie v. Grover, 3 Grant (Ont.) 558; Gibson ^. Hol- land, L. R. 1. C. P. 1 ; Buxton v. Rust, L. R. 7 Ex. 1, 279; Leroux v. Brown, 12 C. B. 801 ; Goodwin v. Fielding, 4 DeG. M. & G. 90 ; Bradford v. Roul- ston, 8 Ir. C. L. R. 473 ; Allen v. Ben- nett, 3 Taunt. 169. A resolution of the common counsel of a city referring to a previous reso- lution, both of which are entered on the minutes and signed by a clerk, are sufficient. Argus Co. v. Albany, 55 N. Y. 495; s. c. 14 Am. Rep. 296; and also of a religious society, John- son f. Trinity Church Society, 91 Jiass. (11 Allen) 123. 1 See Geary „. Physic, 5 B. & C. 234. Writing in pencil. — A memoran- dum of a contract for the purchase of goods, written by the broker em- ployed to purchase, with lead pencil in a book, is a sufficient writing within the Statute of Frauds. Lee v. Maho- ney, 9 Iowa, 344 ; Clason v. Bailey, 14 Johns. (N. Y.) 484, 491 ; Merritt u. Clason, 12 Johns. (N. Y.) 102; s. i;. 7 Am. Dec. 286; 1 Langdell Lead. Cas. 537 ; Draper v. Pattina, 2 Speers (S. C.) 292; McDowell v. Chambers, 1 Strobh. (S. C.) Eq. 347; s. c. 47 Am. Dec. 539 ; Ryan v. Salt, 3 Up. Can. C. P. 83; Geary ;,■. Physic, 5 Barn. & Cress. 213; 3 Par. on Contr. 9. The case of Merritt v. Cla- son was carried to the court of errors and is reported suh nom. Clason v. Bailey, 14 Johns. (N. Y.) 484; s. c. 1 Langdell Lead. Cas. on Contra. 541. Writing is the expression of ideas hy visible letters, and may be on paper, wood, stone, or other material. The ten commandments were written with the ilnger of God on tables of stone : Ex. xxxi. 18. The general rule un- doubtedly is, that wherever a stat- ute or usage requires a writing, it must be made on paper or parchment ; but it is not essentially necessary it be in ink ; it may be in pencil. Myers V. Vanderhalt, 84 Pa. St. 510; s. c. 24 Am. Rep. 227. This view is sus- tained by numerous authorities as ap- plied to contracts generally. Clason 373 *194 FORMATIOK OF THE CONTRACT. [BOOK I. Section II. — what is a sctfficient note oe jiemoran- DTJM OP THE BARGAIN MADE. § 262. After tlie production and proof (by the party seek- ing to enforce the contract) of a written note or memoran- dum, whether contained in one or several pieces of paper, the next inquiry which arises is, whetlier the contents of the writing so proven form a sufficient note "of the bargain made." So far as the 4th section of the statute is concerned, a very rigorous interpretation was placed on it in an early case, and is now the settled rule. In Wain v. Warlters,i which was the case of a promise in writing to pay the debt of a third person, but where the consideration for the [*194] * promise was not stated in the writing, it was held that parol proof of the consideration was inadmissible under the statute, and the promise was therefore held void as nudum pactum. The case turned on the construction of the word "agreement," which was held to include all the stipulations of the contract, showing what both parties were to do, not the mere "promise" of what the party to be charged undertook to do. The consideration was therefore held to be a part of the " agreement," and as the statute required the whole "agreement," or some note or memoran- dum of it, to be in writing, the Court inferred that a memo- randum which showed no consideration must either be the whole agreement, and in that case void as nudum pactum. or part only of the agreement, and in that case insufficient to satisfy the statute. The judges were Lord EUenborough C. J., and Grose, Lawrence, and Le Blanc, JJ. Although tills case was strongly controverted, chiefly in the courts of equity, as will be seen by reference to the V. Bailey, 14 Johns. (N. Y.) 490; ver's Bank, 6 Hill (N. Y.) 443; s. c. Merritt v. Clason, 12 Johns. (N. Y.) 41 Am. Dec. 755; Partridge v. Davis, 102; 8. c. 7 Am. Dec. 286; Geary v. 20 Vt, 499; Closson v. Stearns, 4 Vt. Physic, 5 Barn. & Cress. 213; Jef- 11; s. c. 23 Am. Dec. 245; Geary v. frey v. "Walton, 1 Stark. 267 ; Chitty Physic, 5 Barn. & Cress. 213 ; Story on Contr. 91. on Prom. Notes, sec. 11 ; Byles on The same rule applies to promis- Bills, 134. sory notes : Brown v. Butcher's &Dro- i 5 East, 10, § 262. 374 PART II.] OP MEMORANDUM OR NOTE IN WRITING. *194 argument of Taunton in the ease of Phillips v. Bateman,^ where he sums up all the objections to the decision, it was upheld and followed in subsequent cases,^ and the law now remains settled as it was propounded in Wain v. Warlters, 2 16 East, 356, at p. 374. * Saunders v. Wakefield, 4 B. & Aid. 595 ; Jenkins v. Reynolds, 8 B. & B. 14 ; and Lyon v. Lamb, there cited at p. 22 ; Morley v. Bootliby, 3 Bing. 107 ; Fitzmaurice v. Bayley, 9 H. L. C. 79. And see the authori- ties under the 4th section collected in Sugden's V. & P., p. 1.34, 14th ed. In construing the fourth section of the Statute of Frauds, many of the American states follow the English doctrine, holding. that it is necessary that the consideration of the agree- ment should appear in the memoran- dum. Vide ante, § 248, note 1. This doctrine is held in Alabama. Balling V. Munchus, 65 Ala. 558; Rigby v. Norwood, 34 Ala. 129. These decis- ions are under the Code of 1876, § 212, which require that the con- sideration be in the contract. In Delaware, Weldin c. Porter, 4 Houst. (Del.) 236. In Georgia, Henderson v. Johnson, 6 Ga. 390. In Indiana, Gregory o. Logan, 7 Blackf. (Ind.) 112. But this decision was before the rule was fixed by statute in Rev. Stat. 1852, c. 42, § 2. In Maryland, Edelen v. Gough, 5 Gill (Md.) 103; Elliot v. Giese, 7 Harr. & J. (Md.) 457; Wyman v. Gray, 7 Harr. & J. (Md.) 409. In Michigan, Jones v. Palmer, 1 Doug (Mich.) 379. In Minnesota, Nichols v. Allen, 23 Minn. 542. In New Hampshire, Underwood v. Campbell, 14 N. H. 393 ; Neelson . . Sanborne, 2 N. H. 414. In New Jersey, Buckley v. Beards- lee, 5 N. J. L. (2 South.) 570 ; Laing u. Lee, 20 N. J. L. (1 Spen.) 337. In New York, Stone v. Browning, 68 N. Y. 598; Newbery v. Wall, 65 N. Y. 484; Miller ti. Cook, 23 N. Y. 495; Gates v. MeKee, 13 N. Y. 2.32; s. c. 44 Am. Dec. 545; Bennett v. Pratt, 4 Den. (N. Y.) 278 ; Castle v. Beardsley, 10 Hun (N. Y.) 343; Kerr V. Shaw, 13 Johns. (N. Y.) 236; Leonard v. Vredenburgh, 8 Jolms. (N. Y.) 37; s. c. 5 Am. Dec. 317; Sears u. Brink, 3 Johns. (N. Y.) 210; s. c. 3 Am. Dec. 475 ; Parker v. Will- son, 15 Wend. (N. Y.) 346 ; Rogers v. Kneeland, 10 Wend. (N. Y.) 218, 256. In Pennsylvania, Soles v. Hickman, 20 Pa. St. 180. In South Carolina, Meadows v. Meadows, 3 McC. (S. C.) 458 ; s. c. 15 Am. Dee. 645 ; Stephens v. Winn, 2 Nott & McC. (S. C.) 372. In Wisconsin, Taylor v. Pratt, 3 Wis. 674 ; Reynolds v. Carpenter, 3 Chand. (Wis.) 31. In other states the English doc- trine is repudiated, and where the word " promise " or some like thing is sub- stituted for the word " agreement," or is coupled with it in a statute, it has been held that the statement of the consideration is not necessary. Thompson v. Hall, 16 Ala. 204 ; Dor- man V. Bigelow, 1 Fla. 281; Ratliff V. Trout, 6 J. J. Marsh. (Ky.) 606; Wren v. Pearce, 4 Smed. & M. (Miss.) 91 ; Taylor v. Ross, 3 Yerg. (Tenn.) 330; Gilman v. Kibler, 5 Humph. (Tenn.) 19; Campbell v. Eindley, 3 Humph. (Tenn.) 330 ; Violett v. JPat- ton, 9 N. S. (5 Cr.) 151. The English doctrine is repudiated in the following states : — In Connecticut, Sage f. Wilcox, 6 Conn. 81. In Indiana, the statute of 1852, c. 42, § 2, provides that the consider- ation may be proved by parol. In Maine, Williams r. Robinson, 73 Me. 186 ; =,. c. 40 Am. Rep. 352 . 375 *195 FORMATION OF THE CONTRACT. [.BOOK I. except so far as guarantees are concerned, in relation to which the legislature intervened and made special provision in 19 & 20 Vict. e. 97, s. 3 (Mercantile Law Amendment Act, 1856). § 263. But under the 17th section of the statute the de- cisions have not maintained so rigorous a construction, and the judges have repeatedly referred to the distinction be- tween the word "agreement" in the fourth section and " bargain " in the seventeenth. The cases will now be con- sidered with reference exclusively to the contract of sale under the latter section, and to the inquiry whether, [*195] and to what extent, it is * necessary that the writing should show, 1st, the names of the parties to the sale ; 2dly, the terms and subject-matter of the contract. § 264. On the first point, it is settled to be indispensable that the written memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is charged. The name of the party to be charged is required by the statute to be signed, so that there can be no question of the necessity of liis name in the writing. But the authorities have equally established that the name or a suffi- cient description of the other party is indispensable, because without it no contract is shown, inasmuch as a stipulation or promise by A. does not bind him, save to the person to whom the promise was made, and until that person's name is shown it is impossible to say that the writing contains a memorandum of the bargain.^ Gilligan v. Boardman, 29 Me. 81 ; In Ohio, Reed v. Evans, 17 Ohio, Cummings ;;. Dennett, 26 Me. 399, 128. 400 ; Levy «. Merrill, 4 Me. (4 Greenl.) In Teras, Fulton v. Robinson, 55 189. Tex. 401 ; Adkins v. Watson, 12 Tex. In Massachtsetts, Wetherbee v. 199. Potter, 99 Mass. 362 ; Packard v. ^ ilemorandum must show who the Richardson, 17 Mass. 122 ; s. c. 9 parties are. — See ante, § 248, note 1. Am. Dec. 12.3; Pub. Stats, c. 78, § 2. Also, Osborn v. Phelps, 19 Conn. 73; In Missouri, Halsa v. Halsa, 8 Mo. s. c. 48 Am, Dec. 138 ; Nichols u. 308. Johnson, 10 Conn. 198; Wood v. In Xorth Carolina, MiUeTv.lTv'me, Davis, 82 111. 311; McConnell v. 1 Dev. & Bat. (N. C.) 103; Ashford Brillhart, 17 111. .'354, 360; s. c. 65 V. Robinson, 8 Ired. (N. C.) 114. Am. Dec. 661; Williams v. Robinson, 376 PART II.] OF JIEMORANDUM OR NOTE IN WRITING. *195 § 265. In Champion v. Plummer,-' the plaintiff, by his agent, wrote down in a memorandum-book the terms of a verbal sale to him by the defendant, and the defendant signed the writing, but the words were simply " Bought of W. Plummer, &c.," with no name of the person who bought. Sir James Mansfield C. J. said, " How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties ? By tliis note it does not at all appear to whom the goods were sold. It ivould prove a sale to any other person as well as to the plaintiffs.'''' In Allen v. Bennett,^ the agreement was written in a book belonging to the plaintiff, and was signed by the defendant's agent. But the plaintiff's name was not in the book, and was not mentioned in the wi'itten memorandum. This was consid- ered insufficient, but the defect was afterwards supplied by other writings showing the plaintiff to be the person with whom the bargain was made. In Williams v. Lake,^ which was under the 4th section, 73 Me. 186, 195; s. c. 40 Am. Rep. 3-52 ; Lincoln v. Erie Preserving Co., 132 Mass. 129 ; Sanborn v. Flagler, 91 Mass. (9 Allen) 476; Coddington v. Goddard, 82 Mass. (16 Gray) 442, 443 ; Waterman r. Meigs, 58 Mass. (4 Gush.) 497; Brown u. Whipple, 58 N. H. 229 ; Webster v. Ela, 5 N. H. 540 ; Johnson v. Buck, 35 N. J. L. (6 Vr.) 338, .343 ; s. c. 10 Am. Rep. 243 ; Bailey !•, Ogden, 3 Johns. (N. Y.) 399; 5. u. 3 Am. Dec. 509 ; Harvey v. Ste- vens, 43 Vt. 653; Grafton c. Cum- mings, 99 U. S. (9 Otto) 100, 107 ; bk. 25, L. ed. 336 ; Beckwith v. Talbot, 95 U. S. (5 Otto) 289 ; bk. 24, L. ed. 496 ; Salmon Falls Manuf. Co. u. Goddard, 55 U. S. (14 How.) 446 ; bk. 14, L. ed. 493 ; Barry v. Law, 1 Cr. C. C. 77; Hope v. Dixon, 22 Grant (Ont.) 439 ; Clipperton v. Spettigue, 15 Grant (Ont.) 269. Should distinguish the parties. — It has generally been held that the memorandum should also distinguish the parties in such a manner as to indicate which is'the buyer and which the seller. See Osborn v. Phelps, 19 Conn. 73; s. c. 48 Am. Dec. 133; Nichols I'. Johnson, 10 Conn. 198 ; Lincoln v. Erie Preserving Co., 132 Mass. 129; Sanborn v. Flagler, 91 Mass. (9 Allen) 474 ; Calkins v. Falk, 1 Abb. (N. Y.) App. Dec. 291 ; s. c. 38 How. (N. Y.) Pr. 62 ; Grafton v. Cummings, 99 U. S. (9 Otto) 100; bk. 25, L. ed. 336; Salmon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446 ; bk. 14, L. ed. 493 ; Coate V. Terry, 24 Up. Can. C. P. 571; Flintoft V. Elmore, 18 Up. Can. C. P. 274 ; Sale v. Lambert, L, R. 18 Eq. 1 ; Cameron v. Spiking, 25 Grant (Ont.) 116.' However, there is a distinction drawn in Salmon Manuf. Co. ('. God- dard, 55 U. S. (14 How.) 446; bk. 14, L. ed. 493. 1 3 B. & P. 252. 2 3 Taunt. 169. See, also, Cooper i\ Smith, 15 East, 103, and Jacob v. Kirke, 2 M. & R. 222. 3 29 L. J. Q. B. 1 ; 2 E. & E. 349. 177 *196 FORMATION OF THE CONTEACT. [BOOK I. the defendant wrote a note binding himself as guar- [*196] antor, * and gave it to a third person for delivery. But the name of the person to whom the note was addressed was not written in the note. Held, by all the judges, insufficient to satisfy the statute, and this decision was approved and followed in Williams v. Byrnes (1 Moo. P. C. C, N. S. 154). In Sari v. Bourdillon,* under the 17th section, the de- fendant signed an order for goods in the plaintiff's order- book, and the plaintiff's name was on the fly-leaf of his order- book in the visual way, and this was held sufficient under the statute.® § 266. Vandenburgh v. Spooner ^ was a case in which the facts were peculiar. The plaintiff had purchased a quantity of marble at the sale of a wreck. He sold it to the defend- ant, the amount being more than 101. The defendant signed this memorandum, "D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenburgh, now lying at the Lyme Cobb, at Is. per foot." After the defendant had signed this .document, he wrote out what he alleged to be a copy of it, which, at his request, the plaintiff, supposing it to be a genuine copy, signed. This was in the following words : "Mr. J. Vandenburgh agrees to sell to W. D. Spooner the several lots of marble purchased by him, now lying at Lyme, at one shilling the cubic foot, and a bill at one month." Held, that the note signed by the purchaser, al- though it contained the plaintiff's name, only mentioned it as a part of the description of the goods, so as to identify them, but did not mention the plaintiff as sellei' of the goods, and that the memorandum was therefore insufficient. Newell V. Radford^ was in the Common Pleas on these facts. The defendant was a flour-dealer, and the plaintiff a * 26 L. J. C. P. 78 ; 1 C. B. N. S. tion book," which was held to be a 201, 188. sufficient memorandum of the con- ^ This same doctrine prevails in tract. See, also. Sari v. Bourdillon, Vermont. Harvey v. Stevens, 43 1 C. B. N. S. 188 ; s. c. 37 Eng. L. & Vt. 653. In this case the buyer's E.415; 2 Jur. K, S. 1208; 26 L. J. C. name was entered by the auctioneer's P. 78. clerk, with the terms of the sale in ^ L. R. 1 Ex. 316 ; 35 L. J. Ex. a book, marked "John Harvey's auc- 2 l. R. 3 C. P. 52 ; 37 L. J. C. P. 1. 378 PART II.] OP MEMOEAKDXJM OE KOTE IN WRITING. *197 baker. The defendant's agent entered in the plaintiff's book the following words : — " Mr. Newhell, 32 sacks, culasses, at 39s. 280 lbs. To await orders. John Williams." The defendant insisted, on the authority of Vandenburgh V. Spooner, that as it was impossible to tell from this * memorandum which was buyer and which was [*197] seller, the memorandum was insufficient, but the Court held that parol evidence had been properly admitted to show the trade of each party, and thus to create the inference from the circumstances of the case that the baker was the buyer of the flour. There was also some corre- spondence referred to, showing who was the buyer and who the seller.^ § 267. But although the authorities are consistent in requiring that the memorandum should show who are the parties to the contract, it suffices if this appear by de- scription instead of name. If one party is not designated at all, plainly the whole contract is not in writing, for " it takes two to make a bargain." In such a case the common law would permit parol testimony to show who the other is, but this is forbidden by the statute. But if the writing shows by description with whom the bargain was made, then the statute is satisfied, and parol evidence is admissible to apply the description: that is, not to show with whom the bargain is made, but who is the person described, so as to enable the Court to understand the description. This is no infringement of the statute, for in all cases where written evidence is required by law there must be a parol evidence to apply the document to the subject-matter in controversy. § 268. [The difficulty arises in determining upon the sufficiency of the description given in each particular case. There have been numerous decisions on this point. Thus, it was held by the present Master of the Rolls, in a case under the 4th section, that a vendor was sufficiently described by the term " proprietor," there being but one.i On the other 8 Vide ante, sec. 264, note 1. TJ. S. (9 Otto) 100, 110; bk. 25, L. 1 Sale V. Lambert, 18 Eq. 1, [dis- ed. 366] ; and Eossiter i. Miller, 46 tinguished in Grafton D.Cummings, 99 L. J. Ch. 228; 5 Ch. D. 648, C. A.; 379 *198 FOKMATION OF THE CONTRACT. [BOOK I. hand, the description "vendor " was held by the same learned judge to be insufficient.^ Again, when it appeared from conditions of sale that the vendors were a company in pos- session of the property, they were held to be suffi- [*198] ciently * described ; ^ and so when the vendor was stated to be "a trustee selling under a trust for sale." * In every case there must be sufficient evidence to identify from the description, and, to use the language of the present Master of the Rolls, in Commins v. Scott,^ " the Court ought to be careful not to manufacture descriptions, or to be astute to discover descriptions which a jury would not identify."] § 269. The cases in which this principle has been most clearly illustrated are those which arise in a very common course of mercantile dealing, where an agent signs a contract in his own name and without mentioning his principal. It is settled that though in dealings of this kind it is not competent for the agent thus contracting to introduce parol proof to show that he did not intend to bind himself, because this would be to contradict what he had written, it is com- petent for the other party to show that the contract was really made with the principal who had chosen to describe himself by the name of his agent, just as it would be admis- sible to show his identity if he had used a feigned name.-* s. c. .3 App. Cas. 1124, reversing the senting the principals is sufficient. C. A. upon another point. Browne on Statute of Frauds (.3rd '' Potter V. DuflHeld, 18 Eq. 4. See ed.) Appendix. The memorandum the dicta of the judges in Thomas may therefore be signed by or on c. Brown, 1 Q, B. D. 714, and the behalf of both seller or buyer, and remarks of Jessel M. R., dissenting will be binding, although the person therefrom in Rossiter v. Miller, re- should sign in his own name, if it be ported in 46 L. J. Ch. 228, at p. 2.32. mutually understood at the time that * Commins v. Scott, 20 Eq. 11. he sign as the agent of one of the con- * Catling i\ King, 5 Ch. D. 660, tracting parties. Sanborn v. Flager, C. A. See, also, as to suflEiciency of 91 Mass. (9 Allen) 477 ; Williams v. description of iAe ;j7'o;9e)-^/ soW, Shard- Bacon, 68 Mass. (2 Gray) 387, 393; low c. Cotterell, 20 Ch. D. 90, C. A.; Wiener u. Whipple, 53 Wis. 298; s. c. reversing s. c. 18 Ch. D. 280 ; Beer v. 40 Am. Rep. 775. See Huntington v. London and Paris Hotel Co., 20 Eq. Knox, OlMass. (7 Cush.) 371 ; Taintor 412; Thomas v. Brown, 1 Q. B. D. v. Prendergast, 3 Hill (N. Y.) 72; 714; Williams ... Jordan, 6 Ch. D. Stowell v. Eldred, 39 Wis. 615; True- 517. man v. Loder, 11 Ad. & El. 589, 594; 5 20 Eq. at p. 16. Higgins !■. Senior, 8 Mees. & W. 840; 1 Signature bij agent legally repre- Story on Agency, sec. 410. 380 PAET n.J OF MEMORANDUM OR NOTE IN WRITING. *198 [But a commission agent acting here for a foreign princi- pal is not, in the absence of express authority, entitled to pledge the foreign principal's credit. In such a case the agent renders himself personally liable, and the foreign prin- cipal cannot sue or be sued upon the contracts entered into by the agent.^ This apparent exception to the rule arises from the real character of the relationship existing between the commission agent and his foreign constituent, a relation- ship which in its nature and effects is one of vendor and vendee, and not one of principal and agent.^ Thus it is that A contract made hy an agent in the name of his principal may be en- forced by the principal the same as though made by himself (Barry v. Page, 76 Mass. (10 Gray) 398 ; Ilsley u. Merriam, 61 Mass. (7 Cush.) 242 ; a. c. 54 Am. Dec. 721 ; Dykers v. Townsend, 24 N. Y. 57, 61; Bassett V. Lederer, 1 Hun (N. Y.) 274; Small V. Attwood, Young, 407) ; even though the name of the principal be not dis- closed (Woodruff V. McGehee, 30 Ga. 158 ; Graham u. Duckwall, 8 Bush. (Ky.) 12; Foster v. Smith, 2 Coldw. (Tenn.) 474 ; Culver v. Bige- low, 43 Vt. 249 ; Weiner v. Whipple, 53 Wis. 298; s. c. 40 Am. Eep. 775. See, also, Brainard v. Turner, 4 111. App. 61; Perth Amboy Manuf. Co. V. Condit, 21 N. J. L. (1 Zab.) 659, 664; Hill o. Miller, 76 N. Y. 32; Jessup „. Steurer, 75 N. Y. 613; Meeker v. Claghorn, 44 N. Y. 349. However, a distinction as to the lia- bility of the principal is to be made between those cases where the agency is known and those where it is not known. See Mahoney v. McLean, 26 Minn. 415; Chandler v. Coe, 54 N. H. 561, 575 ; s. c. 22 Am. Rep. 437. 2 Armstrong v. Stokes, L. R. 7 Q. B. 598, per Cur., at p. 605; El- binger Co. v. Claye, L. R. 8 Q. B. 313 ; Hutton V. Bullock, ibid. 331, affirmed in Ex. Ch., L. R. 9 Q. B. 572. ' See the opinion of Blackburn J. in Ireland v. Livingston, L. R. 5 H. L. at p. 408. Personal liability hy agent of foreign principal. — Where an agent of a for- eign principal discloses his contract made for and in his behalf is not personally liable. See Kirkpatrick V. Stainer, 22 Wend. (N. Y.) 244. The Supreme Court of the United States, in Oedricks v. Ford, 64 U. S. (23 How.) 49 ; bk. 16, L. ed. 534, say that where the name of the principal is disclosed in the contract, and the place of his residence given, he is re- garded as the person making the con- tract, through his agent. This fixes the duty of performance on the prin- cipal and exonerates the agent. But the 'agent will be personally liable where he does not disclose his prin- cipal, although he describes himself as " agent." Hancock v. Fairfield, 30 Me. 299; Forster v. Fuller, 6 Mass. 53; s. c. 4 Am. Dec. 87; Tippets v. Walker, 4 Mass. 595 ; DeWitt v. Wal- ton, 9 N. Y. 571 ; Moss ;;. Livingston, 4 N. Y. 208; Hills v. Bannister, 3 Cow. (N. Y.) 31; Stone v. Wood, 7 Cow. (N. Y.) 453; s. c. 17 Am. Dec. 529; Dean v. Roesler, 1 Hill (N. Y.) 420; White u. Skinner, 13 Johns. (N. Y.) 307 ; s. c, 7 Am. Dec. 381 ; Taft v. Brewster, 9 Johns. (N. Y.) 334 ; s. c. 6 Am. Dec. 280 ; Bolles V. Walton, 2 B. D. Smith (N. Y.) 164 ; Lincoln v. Crandell, 21 Wend. (N. Y.) 101 ; Pentz i: Stanton, 10 Wend. (N. Y.) 271 ; s. c. 25 Am. Dec. 558; Rossiter v. Rossiter, 8 Wend. (N. Y.) 494; s. c. 24 Am. 381 *199 FORMATION OF THE CONTBACT. [BOOK I. the commission agent may exercise the right of stop- [*199] page *in transitu upon the insolvency of his foreign constituent. See post, Book V. Part I. Ch. 5, sec. 1, Stoppage in Transitu.] In Trueman v. Loder,"* the clef endent was sued on a broker's sold note in these words: "London, 28th April, 1835. Sold for Mr. Edward Higginbotham, &c., &c." The proof was, that in 1832 the defendant, a merchant of St. Petersburgh, had established Higginbotham to conduct the defendant's business in London in the name of Higginbotham, which was painted outside the counting-house and employed in all the contracts. The agent had no business, capital, nor credit of his own, but did everything with the defendant's money and for his benefit under his instructions. The case was argued by very able counsel in Michaelmas Term, 1838, and the judges took time to consider till the ensuing term, when Lord Denman delivered the opinion of the Court, composed of himself, and Patterson, Williams, and Coleridge, JJ. On the question made, that the name of the defendant was not in the written contract, the Court said: "Among the ingen- ious arguments pressed by the defendant's counsel, there was one which it may be fit to notice ; the supposition that parol evidence was introduced to vary the contract, showing it not to have been made by Higginbotham, but by the defendant, who gave him the authority. Parol evidence is always neces- sary to show that the party sued is the person making the contract and bound by it. Whether- he does so in his own name, or in that of another, or in a feigned name, and whether the contract be signed by his own hand, or by that of an agent, are inquiries not different in their nature from the question who is the person who has just ordered goods in a shop. If he is sued for the price, and his identity made out, the con- Dec 62; Minard v. Mead, 7 Wend. East, 148; Tanner v. Christian, 29 (N. Y.) 28 ; Guyon v. Lewis, 7 Wend. Eng. L. & E. 103 ; Chadwick v. Maden, (N. Y.) 26; Barker v. Mechanics' E. 12 Eng. L. & E. 180; Higgins v. Ins. Co., .3 Wend. (N. Y.) 94 ; s. c. 20 Senior, 8 Mees. & W. 834 ; Magee u. Am, Dec. 664; Duvall v. Craig, 15 Atkinson, 2 Mees. & W. 440 ; see sec. U. S. (2 Wheat.) 45, 56 ; bk. 4, L. 270, note 3. ed. 180, 183; Appleton ^. Sinks, 5 * 11 A. & E. 587. 382 PART n.] OP MBMOEANDUM OR NOTE IN WRITING. *200 tract is not varied by appearing to have been made by him in a name not his own.^ § 270. The leading case for the converse proposition, namely, that the agent who has contracted in his own name will not be allowed to offer parol evidence for the purpose of proving * that he did not intend to bind [*200] himself, but only his principal, is Higgins v. Senior,^ decided in the Exchequer in 1841, in which also the judges took time to consider until the ensuing term, when Parke B. delivered the judgment of the Court, composed of himself and Alderson, Gurney, and Rolfe, BB. The opinion states the question submitted to be, " Whether in an action or an agreement in writing, purporting on the face of it to be made by the defendant, and to be subscribed by him, for the sale and delivery by him of goods above the value of 101., it is competent for the defendant to discharge himself on an issue on the plea of non assumpsit, by proving that the agreement was really made by him by the authority of, and as agent for, a third person, and that the plaintiff knew those facts at the time when this agreement was made and signed." Held, in the negative. The learned Baron then proceeded to lay down the principles on which this conclusion was reached, as follows : " There is no doubt that where such an agree- ment is made, it is competent to show that one or both of the contracting parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on the other, the un-named principals ; and this, whether the agreement be or be not required to be in writing, by the Statute of Frauds,^ and this evidence in no way con- tradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to. bind; 5 See also 2 Sm. L. Cas. (ed. 1879), Mass. (5 Gray) 561 ; s. u. 66 Am. in notes to Thompson v. Davenport, Dec. 384; Fuller v. Hooper, 69 Mass. p. 407 et seq. ; and Calder v. Dobell, (3 Gray) 341 ; Williams v. Bacon, L. R. 6 C. P. 486, 499. 68 Mass. (2 Gray) 387, 393 ; Bank 1 8 M. & W. 834. V. Raymond, 57 N. H. 144; Dykers 2 See ante, sec. 246, note 1. Also v. Townsend, 24 N. Y. 57. Eastern R. R. Co. v. Benedict, 71 383 *201 rORMATION OF THE CONTRACT. [BOOK I. but shows that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his autliority, is in law the act of the principal. "But, on the other hand, to allow evidence to be given, that the party who appears on the face of the instrument to be personally a contracting party, is not such, would be to allow parol evidence to contradict the written agreement, which cannot be done." ^ [*201] * § 271. Where the broker bought expressly for his principals but without disclosing their names in the sold note he was held liable to the vendor on evidence of usage that the broker was liable personally when the name of the principal was not disclosed at the time of the con- tract.i In Fleet v. Murton,^ the contract note was, "We have this day sold for your account to our principal," (Signed) M. & W., Brokers ; and the brokers were held personally liable on proof of usage of the trade to the same effect as that given in Humfrey v. Dale.^ § 272. [And in Hutchinson v. Tatham,i where the defend- ants acting as agents for one Lyons had chartered a ship, and the charter-party was expressed to be made, and was signed by them as " agents to merchants," without disclosing ' See 2 Sm. L. Cas. p. 404, in notes s. c. 22 Am. Rep. 437 ; Knapp c. to Thompson i'. Davenport, where Simon, 86 N. Y. 311; Cobb u. Knapp, the whole subject is more fully 71 N. Y.348; Coleman w. First Nat. treated than comports witli the de- Bank of Elmira, 53 N. Y. 388 ; sign of the present treatise. See, Meeker v. Claghorn, 44 N. Y. 349, also, Indianapolis, Peru & Chicago 351 ; Quigley i\ DeHaas, 82 Pa. St. Ry. Co. V. Tyng, 63 N. Y. 653, 665. 267, 273 ; Beymer v. Bonsall, 79 Pa. Liabiliti/ of agent. — An agent who St. 298 ; Foster v. Smith, 2 Coldw. contracts in writing as principal with- (Tenn.) 474; Weston v. McMillan, out disclosing his agency, cannot 42 "Wis. 567 ; Ford v. Williams, 62 afterwards relieve himself of liability, U. S. ("21 How.) 287 ; bk. 16, L. ed. 36. by proving his agency. Wheeler v. See § 269, note 3. Reed, 36111. 81,89; Nixon;.. Downey, i Humphrey v. Dale, 7 E. & B. 4!> Iowa, 166 ; Rushine v. Sebree, 12 266 ; E. B. & E. 1004 ; 26 L. J. Bush (Ky.) 198 ; Welch ,-. Goodwin, Q. B. 137 ; 27 L. J. Q. B. 390. 123 Mass. 71 ; s. u. 25 Am. Rep. 23 ; See, also, Tetley v. Shand, 20 W. R. Schell V. Stephens, 50 Mo. 37:i ; 206 ; 25 L. T. N. S. 658. McClellan v. Parker, 27 Mo 1G2 ; ^ l -r 7 q g j26. Chandler <■. Coe, 54 N. H. 561, 576 ; ■■ L. R. 8 C. P. 482. 384 PART II.] OF MEMORANDUM OR NOTE IN WRITING. *202 the name of their principal. It was held, in an action by the shipowners on the authority of Humfrey v. Dale and Fleet V. Murton, that evidence was admissible of a custom whereby the broker became personally liable when the prin- cipal's name was not disclosed within a reasonable time. According to the custom of the London Dry Goods Market, a broker, who contracts for the sale of goods without disclosing the name of his principal, becomes personally liable on his principal's default.^] In MoUett v. Iiobinson,^ the circumstances were these : The plaintiffs, tallow brokers, were employed by the defend- ant to purchase 50 tons of tallow in the London market; and had like orders from other purchasers. The plaintiffs bought in their own names, without disclosing their prin- cipals, tallow enough for all the orders which they had received, and divided it among the principals who had employed them, — sending to the defendant a bought note, signed by themselves as "sworn brokers," stating 50 tons of * tallow to have been bought "for his [*202] account," with quality, price, &c., but no vendor's name given. There was no corresponding sold note delivered to any one, and no such purchase as was represented in the bought note. Proof was given that the execution of the defendant's order in this manner was in accordance with the usage of the London market : but the defendant was not aware of the usage, and refused to accept the tallow when he learned how the business had been conducted. Held, in the Common Pleas, by Bovill C. J. and Montague Smith J., that the defendant was bound to accept: by Willes and Keating JJ., that usage could not be invoked to change the character of the contract, and that the broker could not make himself the principal in the sale to the de- fendant without the latter's consent, and there was no other principal than the plaintiffs. In the Exchequer Chamber, Kelly C. B., Channell B., and Blackburn J., agreed in opinion with Bovill C. J. and Smith J., while Mellor 2 Imperial Bank v. London and s l. r, 7 H. L. 802, reversing St. Katharine's Dock Co., 5 Ch. D. s. c. L. K. 7 C. P. 84 ; and L. E. 5 C. P. 195. 648. 385 *203 FORMATION OF THE CONTRACT. [BOOK I. and Hannen JJ., and Cleasby B., were of the opposite opinion. [The judgments of the Court of Common Pleas and of the Exchequer Chamber were unanimously reversed by the House of Lords.* It is now, therefore, settled law that when the visage of trade set up is such as goes to alter the intrinsic character of the contract as e.g., in MoUett v. Robin- son, by converting a broker, employed to buy for his em- ployer, into a principal to sell to him,^ such usage will .not bind a principal who, ignorant of its existence, employs a broker to transact business for him on the particular market where it prevails.^] § 273. Where a broker gives a contract note describing himself as acting for a named principal he cannot [*203] sue personally on the * contract.^ And semble, not even if principal was undisclosed.^ But if the broker contract in his own name, even though he is known to be an agent, he may sue or be sued on the contract.^ And the same rules apply to auctioneers.* «L. R. 7 H. L. 802, sub nom. 486; Eeid t>. Draper, 6 H. & N. 813; Robinson v. MoUett. Of the judges 30 L. J. Ex. 268. summoned by the House, who had As to right of agent to sue for his not previously expressed an opinion principal, see Seller v. Block, 19 Ark. on the case, Brett and Grove JJ. 566; Grover u. Warfield, 60 Ga. 644; dissented from, and Amphlett J. Graham v. Duckwall, 8 Bush (Ky.) supported the judgments of the Court 12 ; Kent v. Bernstein, 94 Mass. below. The opinion of Brett J. will (12 Allen) 842 ; Minturn v. Main, 7 well repay perusal. N. Y. 220 ; White v. Chouteau, 10 ' As to which see Waddell v. Barb. (N. Y.) 202, 208 ; Buckbee v. Blockey, 4 Q. B. T>. 678, C. A., Brown, 21 Wend. (N. Y.) 110; and per cur. in De Bussche v. Alt, Dugan v. United States, 16 U. S. (3 8 Ch. D. 286, C. A. Wheat.) 172; bk. 4, L. ed. 362; ^ See per Lord Chelmsford in Roosevelt v. Doherty, 129 Mass. 301 ; L. R. 7 H. L. at p. 836. Guernsey v. Cook, 117 Mass. 548; 1 Fawkes v. Lamb, 31 L. J. Q. B. Taber v. Cannon, 49 Mass. (8 Mete.) 98; Fisher <-. Marsh, 6 B. & S. 416, 466, 460; Bedford, &c. Ins. Co. u. per Blackburn J., 34 L. J. Q. B. 178; Covell,49 Mass. (8 Mete.) 442 ; Ray- Bramwell v. Spiller, 21 L. T. N. S. mond v. Crown & Eagle Mills, 43 672; Fairlie «. Fenton, L. R. 5 Ex. Mass. (2 Mete.) 39; Blakely z'. Ben- 169. necke, 59 Mo. 193 ; Schell v. Stephens, 2 Sharman v. Brandt, L. R. 6 Q. B. 60 Mo. 375 ; Cobb v. Knapp, 71 N. Y. 720, in Ex. Ch. 348 ; Mills v. Hunt, 20 Wend. (N. Y.) s Short V. Spakeman, 2 B. & Ad. 433. 962 ; Jones v. Littledale, 6 A. & E. < Franklyn v. Lamond, 4 C. B. 386 PAKT II.] OF MEMORANDUM OE NOTE IN WKITING. *203 And if the broker, though signing as broker, be really the principal, his signature will not bind the opposite party ,^ and he cannot sue on the contract.^ Where a person describes himself as agent in the body of the contract but signs his own name, he is personally liable on the contract.^ G37 ; Fisher v. Marsh, 6 B. & S. 411 ; 34 L. J. Q. B. 177; Woolfe v. Home, 2 Q. B. D. 365. See Woolfe .,. Home, 2 Q. B. Div. 355. * Paice V. Walker, L. R. 5 Ex. 173, and cases there cited; but see Thomson v. Davenport, notes to 2 Sm. L. C. p. 398, ed. 1879. See, also, Torry y. Holmes, 10 Conn. 500; Mer- rill V. Wilson, 6 Ind. 426 ; Wilkins v. Duncan, 2 Litt. (Ky.) 168 ; Scott v. Messick, 4 B. Mon. (Ky.) 535; Keen V. Sprague, 3 Me. (3 Greenl.) 77, 80 ; Wilder v. Cowles, 100 Mass. 487; Cabot Bank v. Morton, 70 Mass. (4 Gray) 156; Raymond v. Crown & Eagle Mills, 43 Mass. (2 Mete.) 319; Sumner v. Williams, 8 Mass. 198; Taintor v. Prendergast, 3 Hill (N. Y.) 72 ; Canal Bank v. Bank of Albany, 1 Hill (N. Y.) 287 ; Mauri o. Heffer- nan, 13 Johns. (N. Y.) 58 ; McComb V. Wright, 4 Johns. Ch. (N. Y.) 659, 669; Mills v. Hunt, 20 Wend. (N.Y.) 434; Waring v. Mason, 18 Wend. (N. Y.) 425; Beebe v. Robert, 12 Wend. (N. Y.) 413; Cunningham v. Soules, 7 Wend. (N. Y.) 106; Allen V. Rostain, 11 Serg. & R. (Pa.) 362; Bacon v. Sondley, 3 Strobh. (S. C.) 403 ; s. c. 61 Am. Deo. 646 ; Royce c. Allen, 28 Vt. 234; Gadd v. Houghton, 1 Ex. D. 357. It is held in some states that an agent is liable where he enters into a contract in his name, and he can not relieve himself from any responsi- bility, by showing that at the time of entering into the contract, the other party knew of such agency. An- drews V. Allen, 4 Harr. (Del.) 452; Newhall v. Dunlap, 14 Me. 180 ; s. c. 31 Am. Dec. 45 ; Taber v. Cannon, 49 Mass. (8 Mete.) 460 ; Hastings v. Lovering, 19 Mass. (2 Pick.) 221, 222 ; Hovey v. Pitcher, 13 Mo. 191 ; Brown u. Rundlett, 15 N. H. 360; Savage v. Rix, 9 N. H. 263 ; Taintor V. Prendergast, 3 Hill (N. Y.) 72; Rathbon v. Budlong, 15 Johns. (N. Y.) 1 ; Kirkpatrick v. Stainer, 22 Wend. (N. Y.) 244; Waring i,. Mason, 18 Wend. (N. Y.) 425; Meyer w. Barker, 6 Binn. (Pa.) 234; Austin k. Roberts, 2 Miles (Pa.) 254; Harper ,;. Wil- liams, 4 Ad. & E. N. S. 232; Amos V. Temperly, 8 Mees. & W. 798; Byles' Bills (6th Bng. ed.) 29 ; Dun- lap's Paley's Agency, 371. Vide ante, § 269, note 3. The court say in Taber v. Cannon, 49 Mass. (8 Mete.) 460, that it is settled by the authorities where it is known that a person is acting as agent, if he acts in his own name he is personally liable, and his principal will not be liable. See Huntington v. Knox, 61 Mass. (7 Cush.) 374 ; Bed- ford Cora. Ins. Co. v. Covell, 49 Mass. (8 Mete.) 442; Beckham r. Drake, 9 Mees. & W. 78; s. c. 11 Mees. & W. 315 ; Higgins v. Senior, 8 Mees. & W. 834. An agent contracting without author- itj) is liable as principal. Johnson v. Smith, 21 Conn. 637; Duncan o. Niles, 32 111. 532; Noyes o. Loring, 55 Me. 408 ; Bartlett v. Tucker, 104 Mass. 336; s. o. 6 Am. Rep. 240; Sheffield o. Ladue, 16 Minn. 388; CofEman v. Harrison, 24 Mo. 524; Byars v. Doore's Adm'r, 20 Mo. 284 ; Weare v. Gove, 44 N. H. 196; Bay v. Cook, 22 N. J. L. (2 Zab.) 343, 352 ; Baltzen v. Nicolay, 53 N. Y. 467; Dung V. Parker, 52 N. Y. 494, 500 ; White V. Madison, 26 N. Y. 117 ; Walker v. Bank of New York, 9 N. Y. 582, 585; Foster v. Smith, 2 Caldw. 387 •^204 FORMATION OP THE CONTEACT. [book I. § 274. [This is the effect of the decision in Paice v. Walker,! where the sellers describe themselves in the body of the contract " as agents for " named principals, but sign their own names, and were held to be personally liable on the contract.^ But in Gadd v. Houghton,* where brokers had given the purchaser a sold-note in the following terms : " We have this day sold to you on account of John Morand & Co., Valencia, 2,000 cases Valencia oranges, &c.," and signed it without any qualification, the Court of Appeal held that they were not liable. Paice v. Walker was distin- guished on the ground that the ratio decidendi there was that the words " as agents " were words of description only, and were not equivalent to a declaration by the defendants that they were making a bargain on another's account, but James L. J., in commenting upon Paice v. Walker, said, " If that case were now before us, I should hold that the [*204] words ' as agents ' * in that case had the same effect (Tenn.) 474, 479. Where a party contracts with an agent, knowing he has authority to act as such, if the contract exceeds the authority of the agent, he cannot hold such agent personally liable on the contract. See Ogden v. Raymond, 22 Conn. 384 ; Mann v. Richardson, 66 111. 481 ; New- man u. Sylvester, 42 Ind. 106, 112; Watson V. Rickard, 25 Kan. 662 ; Abeles v. Cochran, 22 Kan. 405, 414 ; Murray v. Carothers, 1 Met. (Ky.) 71 ; Sanborn v. Neal, 4 Minn. 126; s. c. 77 Am. Dec. 502; Walker v. Bank of New York, 9 N. Y. 582, 587 ; Aspin- wall V. Torrance, 1 Lans. (N. Y.) 381 ; McCurdy v. Rogers, 21 Wis. 199. Vide ante, § 269, note 1. An agent is not personally liable as such, unless credit is given to him ex- pressly. Torry v. Holmes, 10 Conn. 600; Fleming ;.. Hill, 62 Ga. 751; Gill V. Tison, 61 Ga. 161 ; Merrill V. Wilson, 6 Ind. 426; Watson v. Rickard, 25 Kan. 662; Wilkins v. Duncan, 2 Litt. (Ky.) 168; Scott v. Messick, 4 B. Mon. (Ky.) 535 ; Keen V. Sprague, 3 Me. (3 Greenl.) 77, 80 ; Wilder v. Cowles, 100 Mass. 487; Cabot Bank v. Morton, 70 Mass. (4 Gray) 156; Raymond v. Crown &, Eagle Mills, 43 Mass. (2 Mete.) 319 ; Sumner v. Williams, 8 Mass. 198 ; s. c. 5 Am. Dec. 83 ; Taintor v. Pren- dergast, 3 Hill (N. Y.) 72; Canal Bank v. Bank of Albany, 1 Hill (N. Y.) 287; Mauri o. Heffernam, 13 Johns. (N. Y.) 58; McComb v. AVright, 4 Johns. Ch. (N. Y.) 659, 669 ; Mills v. Hunt, 20 Wend. (N. Y.) 434; Waring v. Mason, 18 Wend. (N. Y.) 425; Beebee v. Robert, 12 Wend. (N. Y.) 413; Cunningham u. Soules, 7 Wend. (N. Y.) 106; Allen v. Rostain, 11 Serg. & R. (Pa.) 362; Bacon v. Sondley, 3 Strobh. (S. C.) 403 ; s. c. 51 Am. Dec. 646 ; Royee v. Allen, 28 Vt. 234 ; Whitney v. Wy- nian, 101 U. S. (11 Otto) 392; bk. 25, L. ed. 1050. 1 L. R. 5 Ex. 173, and see Adams u. Hall, 37 L. T. N. S. 70 ; and Weid- ner v. Hoggett, 1 C. P. D. 533. 2 As to the principal's liability in such a case, see The Concordia Chemical Co. v. Squire, 34 L. T. N. S. 824, C. A. 3 1 Ex. D. 357, C. A. 388 PABT n.] OF MEMORANDUM OR NOTE IN WRITING. *205 as the words ' on account of ' in the present case, and that the decision in that case ought not to stand."* In Ogden v. Hall^ the words used were "ow behalf o/," and it was held by the Exchequer Division (diss. Kelly C. B.), that the case was governed by Gadd v. Houghton, on the ground that the import of the expressions " on account of" and "on behalf of" was identical. In Hough V. Manzanos® Pollock B. followed Paice v. Walker, stating that he was unable to appreciate the distinc- tion drawn by James L. J. in Gadd v. Houghton, between the expressions " as agent for" and "on account of" princi- pals, but that that distinction left Paice v. Walker an author- ity binding upon him. The correctness, however, of the decision in Paice v. Walker remains questionable. In Southwell v. Bowditch,^ it was held that a broker who had signed and sent to the plaintiff a contract note in the following terms : " I have this day sold by your order and for your account, to my principals, 5 tons of anthracene (Signed) W. H. Bowditch," was not, in the absence of usage, personally liable on the contract.] § 275. An extremely able discussion of the subject of a broker's responsibility is found in the remarkable case of Fowler v. Hollins.^ The facts were that the plaintiffs, after refusing to sell to a broker personally, sold thirteen bales of cotton to him on his stating that he was acting for a principal, and the sale note was made to the principal. This was a fraud of the broker who had no authority from the principal, and the broker immediately resold the cotton for cash to the defendants who were also brokers, and were really acting for principals,'^ but who took a purchase note in their own names, addressed to themselves as follows: " We sell you, &c." The defendants * on the same [*205] day sent a delivery order for the cotton in favor of 4 1 Ex. D. at p. 359. i L. R. 7 Q. B. 616. 5 40 L. T. N. S. 751. ^ This is not quite correct. At ° 4 Ex. D. 104. the time of the sale by Bayley, the 7 1 C. P. D. 374, C. A., reversing fraudulent broker, to them, the de- the decision of the Divisional Court, fendants had no principals, see post, ib. p. 100. P- 209. 389 *206 FORMATION OP THE CONTRACT. [BOOK I. their principals, whom they named in the order, and paid for it. They were reimbursed in the price by their princi- pals, together with their commissions and charges. All these transactions took place on the 23d of December, 1869. The cotton was at once sent by the defendants to the rail- way station, whence it was taken to the mills of the princi- pals at Stockport, and there manufactured into yarn. On the 10th of January, 1870, the defendants received a letter from the plaintiffs stating the fraud that had been committed on them, and demanding delivery back to them- selves of the cotton. This was 'the first intimation to the defendants that any fraud had been committed on the plaintiffs, and they replied to the jjlaintiff's demand, saying : " The cotton was bought by one of our spinners, Messrs. MichoUs, Lucas & Co., for cash, and has been made into yarn long ago, and as everything is settled up, we regret we can- not render your clients any assistance." The plaintiffs thereupon brought trover, and it was left to the jury by Willes J. to say whether the defendants had acted only as agents in the course of the business, and whether they had dealt with the goods only as agents for their principals. The jury found these facts in favor of the defendants, and a verdict was entered for them with leave reserved to the plaintiffs to move to enter a verdict for the value of the thirteen bales. The rule was made absolute in the Queen's Bench (Mellor, Lush, and Hannen, JJ.) ; and in the Exchequer Chamber, the judgment was affirmed by Martin, Channell, and Cleasby, BB. (diss. Kelly C. B. and Byles and Brett JJ.). The reason given for affirming the judgment was, that although the defendants had acted as brokers, they had assumed the responsibility of principals by dealing in their own names for an undisclosed principal, Martin and Chan- nell BB. being also of opinion that the plaintiffs were en- titled to recover whether the defendants had acted as prin- cipal or agents, and that the " facts found by the jury are immaterial. The plaintiffs were strangers to the [*206] sale by * Bayley [the fraudulent broker], whether it was to the defendants or to Micholls. I think they 390 PART II.J OP MEMORANDUM OK NOTE IN WRITING. *207 are entitled to treat the defendants as wrongdoers, wrong- fully intermeddling with their cotton, which they had no legal right to touch : and that when they removed the cotton from the warehouse where it was deposited to the railway station, to be forwarded to Stockport to be spun into yarn, and received the price of it, they committed a conversion." Per Martin B., pp. 634-5. Brett J., on the other hand, delivered a powerful judg- ment, which the Chief Baron characterized as " logical and exhaustive," and in which both he and Byles J. concurred. The following passages are extracted as a very instructive exposition of the subject under consideration : " The true definition of a broker seems to be that he is an agent em- ployed to make bargains and contracts between other per- sons in matters of trade, commerce, or navigation. Properly speaking, a broker is a mere negotiator between the other parties. If the contract which the broker makes between the parties be a contract of purchase and sale, the property in the goods, even if they belong to the supposed seller, may or may not pass by the contract. The property may pass by the contract at once, or may not pass till a subsequent appro- priation of goods has been made by the seller, and has been assented to by the buyer. Whatever may be the effect of the contract as between the principals, in either case no effect goes out of the broker. If he sign the contract, his signature has no effect as Ms, but only because it is in con- templation of law the signature of one or hath of the principals. No effect passes out of the broker to change the property in the goods. The property changes either by a contract which is not his, or by an appropriation and assent, neither of which is his. In modern times in England, the broker has under- taken a further duty with regard to the contract of the pur- chase and sale of goods. If the goods be in existence, the broker frequently passes a delivery order to the vendor to be signed, and on its being signed, he passes it to the vendee. In so doing, he still *does no more than act [*207] as a mere intervener between the principals. He himself, considered as only a broker, has no possession of the goods ; no power, actual or legal, of determining the des- 391 *208 FORMATION OF THE CONTRACT. [BOOK I. tination of the goods ; no power or authority to determine whether the goods belong to buyer or seller, or either ; no power, legal or actual, to determine whether the goods shall be delivered to the one or kept by the other. He is through- out merely the negotiator between the parties ; and, there- fore, by the civil law, brokers were not treated as ordinarily incurring any personal responsibility by their intervention, unless there was some fraud on their part (Story on Agency, sec. 30). And if all a broker has done be what I have hitherto described, I apprehend it to be clear that he would have incurred no personal liability to any one according to English law. He could not be sued by either party to the contract for any breach of it. He could not sue any one in any action in which it was necessary to assert that he was the owner of the goods. He is dealing only with the making of a contract which may or may not be fuliilled, and making himself the intermediary passer on or carrier of a document- [i.e., the delivery order], without any liability thereby attach- ing to him towards either party to the contract. He is, so long as he acts only as a broker in the way described, claiming no property in or use of the goods, or even possession of them, either on his own behalf, or on behalf of any one else. Obe- dience or disobedience to the contract, and its effects upon the goods, are matters entirely dependent upon the will and conduct of one or both of the principals, and is no way within his cognizance. Under such circumstances, and so far as it seems to me clear, that a broker cannot be sued with effect by any one. If goods have been delivered under a contract so made and a delivery order so passed, still he has had no power, actual or legal, of control either as to the delivery or non-delivery, and probably no knowledge of the delivery, and he has not had possession of the goods. It seems to me impossible to say, that for such a delivery he could be held liable by the real owner of the goods [*208] for a * wrongful conversion. But then in some cases, a broker, though acting as agent for a principal, makes a contract of sale and purchase in his own name. In such case he may be sued by the party with Avhom he has made such contract for a non-fulfilment of it. But so, also, may 392 PART II.J or MEMORANDUM OR NOTE IN WRITING. *209 his undisclosed principal; and, although the agent may he liable upon the contract, yet I apprehend nothing passes to him ly the contract. The goods do not become his. He could not hold them even if they were delivered to him, as against his principal. He could not, as it seems to me, in the absence of anything to give him a special property in them, maintain any action in which it was necessary to assert that he was the owner of the goods. The goods would be the property of his principal. And although two persons, it is said, may be liable on the same contract, yet it is impossible that two persons can each be the sole owner of the same goods. Although the agent may be held liable as a contractor on the contract, he still is only an agent, and has acted only as agent. He could not be sued, as it seems to me, merely because he had made the contract of purchase and sale in his own name with the vendor — even though the contract should be in a form which passes property in goods by the contract itself — by a third person, as if he, the broker, were the owner of the goods ; as if, for instance, the goods were a nuisance or an obstruction, or as it were trespassing, he would successfully answer such an action by alleging that he was not the owner of the goods, and by proving that they were the goods of his principal till then undisclosed. If he could not be sued, for any other tort, merely on the ground that he had made the contract in his own name with the vendor, it seems to me that he cannot be successfully sued merely on that ground by the real owner of the goods as for a wrongful conversion of the goods to his own use." The learned judge then, after a review of the authorities upon the subject of conversion,* further held that the mere asportation of the goods through the agency of * the defendants hefore knowl- [*209] edge of the plaintiff's claim or rights was not sufficient to constitute a conversion, because unaccompanied with any intention to deprive the plaintiff of the goods, though that asportation would have been a conversion if made after notice of the plaintiff's claim. 8 See on Conversion, Stephens v. Elwall, 4 M. & S. 259; Hardman v. Booth, 1 H. & C. 103 ; both of which cases were approved and followed by the House of Lords in HoUins v. Fowler, supra ; and see England v. Cowley, L. R. 8 Ex. 126. 393 *210 POEMATION OP THE CONTRACT. [BOOK I. § 276. [This case was carried on appeal to the Plouse of Lords,! and the judges were summoned. Of the learned judges who attended, the majority (Blackburn, Mellor, and Grove, JJ., and Cleasby B.) were in favor of affirming the decision of the Courts below, while Brett J. again delivered a dissentient opinion, in which Amphlett B. concurred. Their lordships unanimously affirmed the judgments of the Court of Queen's Bench and of the Exchequer Chamber. Some difficulty arose in considering the effect which ought to be given to the findings of the jury at the trial. The jury had found, as we have already seen, that the cotton was bought by the defendants as agents in the cowse of their busi- ness as brokers, and that they had dealt with it only as agents to their principals. In point of fact the defendants had no principals at the time when they purchased the goods, although they intended them for MichoUs & Co.; but.it was only after the completion of the contract that MichoUs & Co. adopted it. There was evidence at the trial that in the course of their business, as brokers, the defendants purchased cotton in the expectation of being able to find a client to take it off their hands, although they never intended to retain the goods as principals, but to pass them on to the purchaser when found, receiving their brokers' commission on the sale. All their lordships explained the findings of the jury with re- gard to this course of dealing,^ and held that as the defend- ants had at the time of the sale assumed the responsibility of principals, they had by the transfer of the goods to MichoUs & Co., exercised an act of dominion over them which was inconsistent with the right of the plaintiiSs, the true owners, to whom therefore they were liable for conver- sion.^ [*210] * Lord Cairns says (at p. 797), " I agree with what is said by Mr. Justice Grove, that the jurors appear to have meant that the appellants never bought intending iL. R. 7 H. L. 757; reported Hatherley, at p. 798; per Lord sub nom. Hollins v. Fowler. O'Hagan, at p. 800. 2 Fer Lord Chelmsford, at p. 794 ; 3 ggg Koch v. Branch, 44 Mo. 542 ; per Lord Cairns, at p. 796 ; per Lord Pease v. Smith, 01 N. Y. 477 ; Hoff- man V. Carow, 22 Wend. (N. Y.) 285. 394 PART II.] OF MEMOEANDUM OR NOTE IN "WRITING. *211 to hold or to make a profit, but with a view to pass the goods over to MichoUs & Co., or, if Micholls & Co. did not accept them, to some other customer, and that therefore, in one sense, they acted as agents to principals, only intending to receive their commission as brokers, and never thinking of retaining the goods, or dealing with them as buyers and sellers. But, as Mr. Justice Grove continues, 'this would leave the question untouched, whether they did not exercise a volition with respect to the dominion over the goods, and whether, although they intended to act and did act, in one respect, as brokers, not making a profit by re-sale, but only getting brokers' commission, they did not intend to act and did not act, in relation to the sellers, in a character beyond mere intermediates, and not as mere conduit pipes.' In my opinion they did act, in relation to the sellers, in a character beyond that of mere agents ; they exercised a volition in favor of Micholls & Co., the result of which was that they transferred the dominion over and property in the goods to Micholls, in order that Micholls might dispose of them as their own ; and this, as I think, within all the authorities, amounted to a conversion." It should be remarked, in regard to the judgment of Brett J., delivered in the Exchequer Chamber, that although their lordships differed from that learned judge in the inter- pretation which they put upon the findings of the jury, the effect of their decisions in no way goes to detract from the value of that judgment as an exposition of the law as to brokers' liabilities.] § 277. Where a party contracts in writing as agent for a non-existent principal he will be personally bound, and no subsequent ratification by the principal afterwards coming into existence can change this liability, nor is evidence admissible to show that a personal liability was not in- tended. Thus in Kelner v. Baxter,^ the plaintiff wrote to the three * defendants, addressing them "on [*211] behalf of the proposed Gravesend Royal Alexandra Hotel Company Limited," proposing to sell certain goods 1 L. R. 2 C. P. 174. See also Scott v. Lord Ebury, L. E. 2 C. P. 255. 395 *211 FORMATION OF THE CONTRACT. [BOOK I. for 9001., which offer the defendants accepted by a letter signed by themselves, " on behalf of the Gravesend Royal Alexandra Hotel Company Limited," and the goods were thereupon delivered and consumed by the company, which was not incorporated till after the date of the contract, and which ratified the purchase made on its behalf. It was held that the defendants were personally liable because there was no principal existing at the date of the contract, for whom they could by possibility be agents, and that for the same reason no ratification was possible : that the company might have bound itself by a new contract to buy and pay for the goods, but such new contract would require the assent of the vendor, who could not be deprived of his recourse against those who dealt with him by any action of the company to which he was no party: and that parol evidence was not admissible to affect the inferences legally resulting from the written contract.^ § 278. We now come to the second point of the inquiry, and must consider to what extent it is necessary that the writing should contain the terms and subject-matter of the contract, in order to be deemed a sufficient note or memo- randum " of the bargain." ^ ^ An agent contracting in the name ^ The memorandum need not he in of a non-existent or fictitious principal any particular form to make it valid. will be personally liable on his con- Vide ante, § 248, note 4. See, also, tract. New York & N. H. R. R. v. Ellis v. Deadman, 4 Bibb. (Ky.) 467; Ketchum, 27 Conn. 170; Rockford, R. Hurley v. Brown, 98 Mass. 546 ; Cod- I. & St. L. R. R. V. Sage, 85 111. 328 ; dington v. Goddard, 82 Mass. (16 Woodbury v. Wolff, 18 Iowa, 572; Gray) 443, 444 ; Tallman u. Franklin, Allen V. Pegram, 16 Iowa, 163, 171 ; 14 N. Y. 584; Drake v. Seaman, 27 Booth V. Wonderly, 36 N. J. L. (7 Hun (N. Y.) 63; Bailey v. Ogdens, Vr.) 250, 255. 3 John. (N. Y.) 399 ; s. c. 3 Am. Dec. However, where an agent made a 509 ; Salmon Falls Manuf. Co. v. contract for a corporation which at Goddard, 55 U. S. (14 How.) 446 ; the date of the contract had not filed bk, 14, L. ed. 493; Harry ■!). Coombei its articles of corporation as required 26 U. S. (1 Pet.) 651 ; bk. 7, L. ed! by the statute but subsequently rati- 300; Reeves v. Pye, 1 Cr. C.'c. 219; fied the contract by recognizing and Smith v. Arnold, 5 Mason C. C. 416; treating it as valid, held that the Frazier b. Howe, Chicago Leg. News, agent would not be personally liable 188.3, p. 296; DeBeil v. Thomson, 3 on the contract thus made. Whitney Beav. 469; 1 Sugden V. & P. 140, V. Wyman, 101 U. S. (11 Otto) 392; note {d) ; provided only it shows the bk. 25, L. ed. 105. parties to the transaction and the 396 PART II. J OP MEMORANDUM OK NOTE IN WRITING. *212 [In Mahalen v. Dublin and Chapelizod Distillery Com- pany,2 there was a parol agreement for the purchase of whiskey, the purchaser to have the option of paying in cash or by his acceptance at four months, and the exact quantity of the whiskey was to be ascertained by redip. Invoices were made out which represented the sale to be for "net cash," and of an ascertained quantity of whiskey. It was held, by the Court of Queen's Bench in Ireland, that the invoices did not contain the substantial and material terms of the bargain within the meaning of the statute.^] § 279. * It has already been seen that the decisions [*212] establish the necessity under the fourth section of proving the whole "agreement" in writing, in order to sat- isfy the statute. Independently of authority, one would think that "bargain" and "agreement" are words so iden- tical in meaning, when applied to a contract for the sale of goods, as to admit of no possible distinction ; but the author- ities do nevertheless distinguish them in a manner too plain to permit a doubt as to the law.^ § 280. In Egerton v. Mathews,^ the plaintiff had been non- suited at Guildhall, by Lord EUenborough, on the authority of Wain v. Warlters.^ The writing was " We agree to give terms to the sale. McConnell v. Distillery Co., 11 Ir. C. L. 83 ; Brillhart, 17 111. 354 ; Ridgway ... McClean v. Nicolle, 4 L. T. (N. S.) Ingram, 50 Ind. 145; s. c. 19 Am. 863. Rep. 706 ; Norris u. Blair, 39 Ind. 90, ^ n ly. c. L. 83. 94 ; s. c. 10 Am. Rep. 135 ; Barick- ' The 13th section of the Irish man v. Kuykendall, 6 Blackf. (Ind.) Statute of Frauds (7 Will. 3, c. 12) 21 ; Kay v. Curd, 6 B. Mon. (Ky.) is similar in its terms to the 17th 100 ; Sanborn v. Flagler, 91 Mass. (9 section of the English act. Allen) 476, 477 ; Coddington v. God- ^ There is a recognized distinction dard, 82 Mass. (16 Gray) 442-444; between an "agreement" and "bar- Chase V. Lowell, 73 Mass. (7 Gray) gain." Williams v. Robmson 73 .S3; Atwood V. Cobb, 33 Mass. (16 Me. 186; s. c. 40 Am. Rep. 352; Pick.) 230; Packard v. Richardson, Packard v. Richardson, 17 Mass. 17 Mass. 122, 1,30, 131; s. c. 9 Am. 143; s. c, 9 Am. Dec. 123; Hunt o Dec. 123; Johnson v. Buck, 35 Adams, 5 Mass. 358, 361 ; Leonard N. J. L. (6 Vr.) 343; s. o. 10 Am. v. Vredenburg, 8 Johns. (N. Y.) 29; Rep. 243 ; Davis v. Shields, 26 Wend. s. c. 5 Am. Dec. 317 ; Sears v. Bnnk, (N. Y.) 341 ; Ires v. Hazard, 4 R. I. 3 Johns. (N. Y.) 211 ; s. c. 3 Am. 14 ; s. c. 67 Am. Dec. 500 ; Mingaye Dec. 475. V. Corbett, 14 Up. Can. C. P. 557 ; i 6 East, 307. Mahalen v. Dublin & Chapelizod ^ 5 East, 10. 397 *213 FORMATION OF THE CONTRACT. [BOOK I. Mr. Egerton 19c?. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent., as soon as our certificate is complete." It was signed and dated. Lord Ellenborough is reported, when granting a rule nisi, to have assented to a distinction between the two cases, and to have said on cause shown, " This was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signature to it is all that the statute requires." This last expression would seem to indicate that the difficulty in his lordship's mind was, that the bargain was not complete because the plaintiff had not signed (a point not fully settled by author- ity, till 1836, in Laythoarp v. Bryant,^ as mil be seen here- after*). But Lawrence J. said "The case of Wain v. Warl- ters proceeded on this, that in order to charge one man with the debt of another, the agreement must be in writing, which word agreement we considered as properly including the consideration moving to, as well as the promise made by, the party to be so charged." The learned judge, however, did not explain why the word " bargain " does not also in- clude the terms on both sides, as was observed by Holroyd J. when he said : " It appears to me that you cannot call that a memorandum of a bargain, which does not contain [*213] the terms of it ; " and by Bayley J. when he * held in the same case ^ that the language of the two sec- tions of the statute was in substance the same, and that the word '■'■bargain" means "the terms upon which parties contract." ^ In Hinde v. Whitehouse,' the memorandum consisted of the auctioneer's catalogue, signed by him as agent of both parties, showing the goods sold, their marks, weight, and price ; but the Court held this insufficient, because there was another paper containing the conditions of the sale, which had been read, but was not made a part of the writ- 3 2 Bing. N. C. 735. Goddard, U. S. (14 How.) 446, 454; « Post, p. 219. bk. 14, L. ed. 493. ^ Kenworthy u. Schofield, 2 B. & ' East, 558 ; see also Peirce v. C. 948. Corf, L. R. 9 Q. B. 210, ante, p. 191 ; « Salmon Falls Manuf. Co. v. Bishton v. Whatmore, 8 Ch. D, 407. 398 PAKT ir.] OF MEMORANDtJM OR NOTE IN WEITING. *214 ten note of the bargain by internal evidence contained in the signed paper. In Laj'thoarp v. Bryant,^ in 1836, which was on the 4th section, Tindal C. J. said : " "Wain v. Warlters was decided on the express ground that an agreement under the 4th section imports more than a bargain under the 17th." Park J. said : " The cases on the 17th section of the statute might very much be put out of question, because the language of that section is different from the language of the 4th." In Sari v. Bourdillon,^ the written note was for the sale of " candlesticks, complete." It was proven that the parol bargain was that the candlesticks should be furnished with a gallery to carry a shade, and defendant insisted that the written note was insufficient; but after time to consider, the decision of the Court was delivered by Cresswell J., who said : " We do not feel obliged to yield to this argument. The memorandum states all that was to be done hy the person charged, viz. the defendant, and according to the case of Egerton v. Mathews,^" that is sufficient to satisfy the \lth section of the Statute of Frauds, though not to make a valid agreement in cases within the ith section." § 281. In Elmore v. Kingscote,i there had been a verbal sale of a horse for 200 guineas, but the only writing was a letter from defendant to plaintiff in the follow- [*214] ing words : " Mr. Kingscote begs to inform Mr. El- more that if the horse can be proved to be five years old on the 13th of this month in a perfectly satisfactory manner, of course he shall be most happy to take him : and if not most clearly proved Mr. K. will most decidedly have nothing to do with him." The Court held this insufficient, saying, " The price agreed to be paid constituted a material part of the bargain." In Ashcroft v. Morrin,^ defendant ordered certain goods to be sent him, saying "Let the quality be fresh and good, and on moderate terms." On objection made that the price 8 2 Bing. N. C. 735. m 6 East, 307. 9 26 L. J. C. P. 78; 1 C. B. N. S. i 5 B. & C. 583. 188. 2 4 M. & G. 450. 399 *215 FORMATION OF THE CONTRACT. [BOOK I. was not stated, the Court said : " The order is to send certain quantities of porter and other malt liquor, on moderate terms. Why is not that sufficient? That is the contract between the parties : " and set aside the nonsuit according to leave reserved. In Acebal v. Levy,^ there was a special count alleging an agreement for the sale of a cargo of "nuts, at the then shipping price at Gijon, in Spain," and the parol evidence was to that effect. Plaintiff not being successful in estab- lishing the validity of the contract by satisfactory proof of delivery and acceptance, then attempted to support his case by a letter which did not state the price, and by insisting that a contract of sale was valid without statement of price, because the law would imply a promise to pay a reasonable price. But the Court, declining to determine how this would be if no price had really been agreed on, held that where there had been an actual agreement as to price shown by parol, the written paper, which did not contain that part of the bargain, was insufficient to satisfy the statute.* § 282. In Hoadly v. M'Laine,^ the same Court was called on to decide, in the ensuing term, the very point which had been left undetermined in Acebal v. Levy. The defendant gave plaintiff an order in these words: "Sir Archibald M'Laine orders Mr. Hoadly to build a new, fashionable, and handsome landaulet, with the following appoint- [*215] ments, &c. . . . *the whole to be ready by the 1st of March, 1833." Nothing was said about price. The judges were all of opinion that as the writing contained all that was agreed on, it was a sufficient note of the bargain. Tindal C. J. said : " This is a contract which is silent as to price, and the parties therefore leave it to the law to ascer- tain what the commodity contracted for is reasonably worth." Park J. said: "It is only necessary that price should be mentioned, when price is one of the ingredients of the bargain . . . and it is admitted on all hands that if a specific 3 10 Bing. 376 ; and see Jeffoott Mahalen v. Dublin & C. D. Co., 11 Ir. V. North British Oil Company, 8 Ir. C. L. 83 ; Jeffcott v. No. Br. Oil Co., R- C. L. 17. 8 Ir. C. L. 17. * James v. Muir, 33 Mich. 223 ; i 10 Bing. 482. 400 PART II.] OF MEMOKANDUM OE NOTE IN WRITING. *215 price be agreed on, and that price is omitted in the memo- randum, the memorandum is insufficient." In Goodman v. Griffiths,^ the plaintiff showed defendant an invoice of his prices, and then agreed verbally to sell to him at a deduction of twenty-five per cent, on those prices for cash, whereupon defendant wrote an order : " Please to put to my account four mechanical binders," and signed it. Held, that as there had been a parol agreement as to price, which was not included in the note of the bargain, the statute was not satisfied. § 283. It is plainly deducible from the foregoing decisions, that so far as price is concerned, the rule of law is, that where there is no actual agreement as to price, the note of the bargain is sufficient, even though silent as to the price, because the law supplies the deficiency by importing into the bargain a promise by the buyer to pay a reasonable price. But the law only does this in the absence of an agreement, and therefore, where the price is fixed by mutual consent, that price is part of the bargain, and must be shown in writing in order to satisfy the statute ; and, finally, that parol evidence is admissible to show that a price was actually agreed on, in order to establish the insufficiency of a memo- randum which is silent as to price.-' 2 i 2 26 L. J. Ex. 145, and 1 H. & N. Sale v. Darragh, 2 Hilt. (N. Y.) 184; 574. Bailey v. Ogdens, 3 Johns. (N. Y.) 1 The memorandum should contain 399 ; s. c. 3 Am. Dec. 509 ; Soles «. the terms of the contract and give the Hickman, 20 Pa. St. 180, 183; Har- price for which the property was vey v. Stevens, 43 Vt. 656 ; Buck v. sold. Vide ante, sec. 248, note 1. Pickwell, 27 Vt. 167 ; Salmon Falls See also Nichols v. Johnson, 10 Conn. Manuf. Co. o. Goddard, 55 U. S. (14 192; Norris a. Blair, 39 Ind. 90; How.) 446, 455; bk. 14, L. ed. 493; s c'lO Am. Rep. 135; Kay o. Curd, 2 Kent Com. 511. A contract pro- 6 B Mon (Ky.) 100 ; Washington viding that the price shall be fixed Ice Co. V. Webster, 62 Me. 341 ; s. c. by appraisers or other method will 16 Am. Rep. 462; O'Donnell u. Lee- be sufficient to satisfy the statute, man, 43 Me. 158, 160 ; s. c. 69 Am. Norton v. Gale, 95 111. 533, 538 ; s. c. Dec. 54 ; Sanborn t;. Flagler, 91 Mass. 35 Am. Rep. 173 ; Kay v. Curd, 6 B. (9 Allen) 474; Waterman v. Meigs, Mon. (Ky.) 100, 103; Atwood i-. 58 Mass. (4 Cush.) 497; Morton v. Cobb, 33 Mass. (16 Pick.) 227; Dean, 54 Mass. (13 Mete.) 385; Whipple v. Parker, 29 Mich. 369, Johnson u. Buck, 35 N. J. L. (6 Vr.) 373 : Carr v. Passaic, L. I. & B. Co., 338 343; s. v;. 10 Am. Rep. 243; 19 N. J. Eq, (4 C. E. Gr.) 424 ; Stone Tal'lman o. Franklin, 14 N. Y. 584; v. Browning, 68 N. Y. 598; Newbery 401 *216 FORMATION OF THE CONTRACT. [BOOK I. § 284. As to the other terms of the contract, it is neces- sary that they should so appear by the written papers as to enable the Court to understand what they actually were, in order to satisfy the statute. [*216] § 285. * It has already been shown that where these terms are contained in different pieces of paper, the several writings which are offered as constituting the bargain must be consistent, and not contradictory. ^ In Jackson v. Lowe,^ and Allen v. Bennett,^ the different writings were held consistent, so as to form a sufficient memorandum while the reverse was held as to the written evidence offered in Cooper V. Smith,* Richards v. Porter,^ Smith v. Surman,^ and Archer V. Baynes.' In Thornton v. Kempster,^ the broker's bought note de- scribed the article bought as " sound and merchantable Riga Rhine hemp," and the sold note as " St. Petersburg clean hemp," the former description being of an article materially different in quality and value from the latter. Held, that the substance of the contract was not shown by the written bargain evidenced by two papers that materially varied from each other. In Archer v. Baynes,'' the Court held the correspondence between the parties an insufficient note of the bargain, be- cause not containing all the terms of the contract. The V. Wall, 65 N. T. 484 ; Soles v. Hick- Stanton, 15 Vt. 685 ; s. c. 40 Am. man, 20 Pa. St. 180; Thomas u. Dec. 698; Johnson v. Ronald, 4 Hammond, 47 Tex. 42; Parry v. Munf. (Va.) 77 ; Salmon Falls Manuf. Spikes, 49 Wis. 384. But the price Co. ^. Goddard, 55 U. S. (14 How.) must be stated in such a manner as 446 ; bk. 14, L. ed. 493 ; Smith v. to be certain, and it will be suflBcient Arnold, 5 Mason C. C. 414; Spioer if stated in figures or letters, pro- v. Cooper, 1 Q. B. 424; see ante, vided only it is intelligible and § 248, note 1. clearly indicates the price or consid- ^ Ante, p. 186. oration. Adams v. McMillan, 7 ^ i Bj^g 9, Port. (Ala.) 73; Gowen v. Klous, 101 3 3 Taunt. 169. Mass. 449, 4.54; Atwood v. Cobb, 33 ^ 15 East, 103. Mass. (16 Pick.) 227 ; Bird v. Rich- 5 6 B. & C. 437. ardson, 25 Mass. (8 Pick.) 252 ; Carr ^ 9 B. & C. 561. !•. Passaic L. I. & B. Co., 19 N, ,T. Eq. '5 Ex. 625; 20 L. J. Ex. 54; (4 C. E. Gr.) 424; Langston v. Haughton v. Morton, 5 Ir. C. L. Nicholson, 25 Brewst. (Pa.) 16; 329. Meadows v. Meadows, 3 McC. (S. C.) « 5 Taunt. 786. L. 4-58; ». c. 15 Am. Dec. 645; Ide r, 402 PART II.J OF MEMORANDUM OR NOTE IN WRITING. *217 Court say of the defendant : " It is clear, from the letters, that he had bought the flour from the plaintiff upon some contract or other, but whether he had bought it on a contract that he should take the particular barrels of flour which he had seen at the warehouse, or whether he had bought them on a sample which had been delivered to him on the con- dition that they should agree with that sample, does not appear ; and that which is in truth the dispute between the parties does not appear to be settled by the contract in writ- ing." In Valpy v. Gibson,^ in which the Statute of Frauds was not in question, it was contended on behalf of the plaintiffs that the terms of the contract did not appear, because the mode and time of payment had not been specified. * But the Court said : " The omission of the partic- [*217] ular mode or time of payment, or even of the price itself, does not necessarily invalidate a contract of sale. Goods may be sold and frequently are sold, when it is the intention of the parties to bind themselves by a contract which does not specify the price or the mode of payment, leaving them to be settled by some future agreement, or to be determined by what is reasonable under the circum- stances." ^^ And the Court held, in the case before it, that the contract between the parties was one of the nature above described, and was vahd. § 286. It was decided in the Common Pleas in opposition to the intimation of opinion in Blackburn on Sales,^ that a 9 4 C. B. 835. How.) 446, 455, bk. 14, L. ed. 493 ; 1" When no time or place is named Cocker v. Franklin, H. & F. M. Co., in a contract for the delivery, the goods 3 Sumn. C. C. 530; Greaves v. Ash- are to be delivered in a reasonable lin, 3 Camp. 426. time after the sale at the buyer's i Page 66. In Buxton v. Rust, place of business or at his usual (in Ex. Ch.) L. R. 7 Ex. at p. 282, place of delivery. Adams v. Adams, Blackburn J. stated that the point in 26 Ala. 272; Atkinson ». Brown, 20 question had been settled by the de- Me. 67 ; Sawyer v. Hammatt, 15 Me. cisions of the Common Pleas in Bailey 350; Warren e. Wheeler, 49 Mass. tj. Sweeting, and Wilkinson ^. Evans, (8 Mete.) 97; Atwood v. Cobb, 33 supra, and assented to the rule as Mass. (16 Pick.) 231; Cameron v. there laid down, as being, in his Wells, 30 Vt. 633 ; Salmon Falls opinion, as logical and more conven- Manuf. Co. v. Goddard, 55 U. S. (14 ient than that suggested by himself. 403 *218 rOKJIATION OF THE CONTRACT. [BOOK I. letter repudiating a contract may be so worded as to furnish a sufficient note of the bargain to satisfy the 17th section.^ In Bailey v. Sweeting,^ the letter produced was as follows : " 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. 6J., which goods I have never received, and have long since declined to have, for reasons made known by you at the time, &c., &c." Erie C. J., in his opinion, said the letter " in effect says this to the plaintiff : ' I made a bargain with you for the purchase of chimney-glasses at the sum of 38L 10s. 6cZ., but I decline to have them because the carrier broke them.' Now the first part of the letter is unquestionably a note or memorandum of the bargain. It contains the price and all the substance of the contract, and there could be no dispute that if it had stopped there, it would have been a good memorandum of the contract within the meaning of the statute." The learned Chief Justice then referred to the passage from Blackburn on Sales, and declared his inability to assent to it, and in this the other judges, Williams, Willes, and Keating, con- curred.* [*218] * In Wilkinson v. Evans,^ the defendant also re- fused the goods, writing on the back of the invoice : " The cheese came to-day, but I did not take them in, for they were very badly crushed ; so the candles and the cheese is returned." Held, that this was evidence for the jury that the invoice contained all the stipulations of the contract, and that defendant's objection was not to the plaintiff's state- ment of the contract, but related to the performance of it. Nonsuit set aside. 2 Townsend c. Hargrares, 118 the latter not. Caulkins v. Hellman, Mass. 326, 335; Johnson v. Trinity 47 K Y. 449, 456; s. ^. 7 Am. Rep. Clmrch, 93 Mass. (11 Allen) 123; 461. Stone V. Browning, 68 N. Y. 598, 604 ; 8 30 L. J. C. P. 150 ; 9 C. B. N. S. Newbury v. Wall, 65 N. Y. 484. 843. Letter admitting and one denying i See ante, p. 190, remarks on contract. — A distinction is made in Richards v. Porter, the decisions between a letter admit- ^ L. R. 1 C. P. 408 • 35 L. J. C. P. ting A contract and one denying its 224. See Leather Cloth Co. v .Hie- existence ; in the former case the let- ronimus, L. R. 10 Q. B. 140; Buxton ter is evidence of the contract, and v. Rust, L. R. 7 Ex. 279. 404 PART II.] OF MEMORANDUM OR NOTE IN WRITING. *218 [In the Leather Cloth Company v. Hieronimus,® the de- fendant wrote a letter admitting the purchase, and referred to the plaintiff's letter containing the invoice, but repudiated any liability because the goods had been sent by a wrong route, and it was held that there was a sufficient note of the bargain to satisfy the 17th section.] § 287. A note or memorandum of the bargain is suffi- cient, although it contain a mere proposal, if supplemented by parol proof of acceptance.^ This had been held, by Kinders- ley V.-C, in Warner v. Willington,^ and that case was fol- lowed by the Court of Common Pleas, in Smith v. Neale,^ and by the Exchequer, in Liverpool Borough Bank ■;;. Eccles.* The question came before the Exchequer Chamber in Reuss V. Picksley,^ and after full argument, the judges, six in number, unanimously confirmed the cases just cited, and expressed their approval of the reasoning of the Vice-Chan- cellor in Warner v. Willington.^ § 288. In the United States it has been held that if terms of credit have been agreed on, or a time for performance 6 L. E. 10 Q. B. 140. ^ Where u, person makes a written proposition to sell or purchase, he 'will be bound by an oral acceptance of such proposition. See Williams u. Robinson, 73 Me. 186; s. c. 40 Am, Rep. 352; Sanborn v. Plagler, 91 Mass. (9 Allen) 474; Lang u. MC' Laughlin, 14 Minn. 72; Mason u. Decker, 72 N. Y. 595, 598; Justice V. Lang, 42 N. Y. 493; s. c. 1 Am Rep. 576 ; Napier v. French, 40 N. Y, Super. Ct. (8 J. & S.) 122 ; Thomp- son u. Menck, 2 Keyes (N. Y.) 86 Ives V. Hazard, 4 R. I. 14 ; s. c. 67 Am. Dec. 500. An oral acceptance of a written offer may be shown by parol evidence. Lincoln v. Erie Preserving Co., 132 Mass. 130; Sanborn v. Flagler, 91 Mass. (9 Allen) 566; Smith o. Gowdy, 90 Mass. (8 Allen) 566. But see contra, Washington Ice Co. v. Webster, 62 Me. 341; s. c. 16 Am. Rep. 462. 2 3 Drew. 523, and 25 L. J. Ch. 662 ; and see Clarke v. Gardiner, 12 Ir. C. L. R. 472. 3 2 C. B. N. S. 67, and 26 L. J. C. P. 143. 44 H. & N. 139; 28 L. J. Ex. 123. 5 L. E. 1 Ex. 342 ; 35 L. J. Ex. 218. « Norris v. Blair, 39 Ind. 90 ; s. c. 10 Am. Rep. 135; Boardman v. Spooner, 95 Mass. (13 Allen) 353; Coddington v. Goddard, 82 Mass. (16 Gray) 436; McElroy v. Buck, 35 Mich. 434; O'Niel u. Grain, 67 Mo 250; Fisher v. Kuhn, 54 Miss. 480 McFarson's Appeal, 11 Pa. St. 503 Johnson v. Granger, 57 Tex. 42 Mingaye v. Corbett, 14 Up. Can. C P. 557. 405 *218 FORMATION OF THE CONTRACT. [BOOK I. fixed by the bargain, the memorandum will be insufficient if these parts of the bargain be omitted.^ 1 Davis V. Shields, 26 Wend. 54 Mass. (13 Mete.) 388 ; Soles v. (N. Y.) 341 ; Salmon Falls Company Hickman, 20 Pa. St. 180 ; Buck v. V. Goddard, 55 U. S. (14 How.) 446 ; Pickwell, 27 Vt. 167 ; Elfe v. Gadsden, bk. 14, L. ed. 493; Morton u. Dean, 2 Eich. (S. C.) 373. 406 PART 11.] OF THE SIGNATURE OP THE PARTY. *219 * CHAPTER VII. [*219] OF THE SIGNATURE OF THE PARTY. Only signature required is that of the party to be charged . . 219 Contract good or not at election of the party who has not signed 219 Signature not confined to actual subscription 220 Mark suflBcient, or pen held by a third person 220 Description of himself by the writer of the note insufficient . 220 Signature by initials .... 220 Signature may be in print, or by stamping the name, and in any part of the writing . . . 221 When not subscribed, a question of fact whether it was in- tended as a signature . . . 221 Signature may be referred from what is signed in one part of a paper to what is unsigned, not reversely 227 Signature affixed alio intuitu . . 227 § 289. The 17th section requires the writing to be " signed by the parties to be charged," &c., and the 4th section, "by the party to be charged," &c. Under both sections it is well settled that the only signature required is that of the party against whom the contract is to be enforced. The contract, by the effect of the decisions, is good or not at the election of the party who has not signed.^ ^ Signature to the memorandum. — The statute requires the signature of the party to be charged as distin- guished from the party seeking to enforce the contract. Adams v. Mc- Millan, 7 Port. (Ala.) 73 ; Perkins v. Hadsell, 50 111. 217 ; Newby w. Rogers, 40 Ind. 9, 11, 12; Cook v. Anderson, 20 Ind. 15 ; Smith v. Smith, 8 Blackf. (Ind.) 208; Shirley v. Shirley, 7 Blackf. (Ind.) 152; Higdon v. Thomas, 1 Harr. & G. (Md.) 139 ; Williams v. Robinson, 7.3 Me. 186; s. c. 40 Am. Rep. 352; Barstow v. Gray, 3 Me. (3 Greenl.) 409; Getchell c. Jewett, 4 Me. (4 Greenl.) 350; Dresel v. Jor- dan, 104 Mass. 412 ; Hunter r. Gid- dings, 97 Mass. 41 ; Old Colony R. R. Co. V. Evans, 72 Mass. (6 Gray) 31 ; s. c. 66 Am. Dec. 394; Penniman o. Hartshorn, 13 Mass. 87 ; Lent o. Padelford, 10 Mass. 236 ; s. c. 6 Am. Dec. 119 ; Hawkins v. Chace, 36 Mass. (19 Pick.) 502; Old Colony R. R. Co. V. Evans, 72 Mass. (6 Gray) 25; s. c. 66 Am. Dec. 394; Sanborn v. Flag- ler, 91 Mass. (9 Allen) 474 ; Ivory v. Murphy, 36 Mo. 534; Gartrell r. Stafford, 12 Neb. 545; Laning v. Cole, 4 N. J. Eq. (3 C. E. Gr.) 229; Young r. Paul, 10 N. J. Eq. (2 Stockt.) 402 ; s. u. 64 Am. Dec. 455 ; Mason v. Decker, 72 N. Y. 595 ; Jus- tice V. Lang, 52 N. Y. 323; s. c. 42 N. Y. 493; 1 Am. Rep. 576; Worrall <■. Munn, 5 N. Y. 229 ; s. i;. 15 Am. 407 *220 POEMATION OP THE CONTRACT. [book In Allen v. Bennett,^ in 1810, the Court of Common Pleas considered the question as already settled under the 17th section by authority and practice. And in Thornton v. Kempster,^ the same Court declared that contracts may sub- sist which, by reason of the Statute of Frauds, could be en- forced by one party, though not by the other. In Laythoarp v. Bryant,* the point was decided under the 4th section, after full argument. The foregoing decisions have never since been questioned, and the law on the subject is settled not only by them, but by the more recent case of Reuss v. Picksley,^ in the Ex- chequer Chamber, and the decisions quoted ante, p. 218, in which it was held that a writteia proposal, signed by [*220] the party *to be charged, was a sufficient note of the bargain, if supplemented by parol proof of ac- ceptance by .the other party .^ Dec. 330; Clascn v. Bailey, 14 .Johns. (N. Y.) 484; Ballard v. Walker, 3 John. Cas. (N. Y.) 60 ; Fenly v. Stew- art, 5 Sandf. (N. Y.) 101 ; Davis v. Shields, 26 Wend. (N. Y.) 341; Smith's Appeal, 69 Pa. St. 480 ; Tripp V. Bishop, 56 Pa. St. 428 ; Parson's Appeal, 11 Pa. St. 503; Lowry v. McMehafify, 19 Watts. (Pa.) 387; Douglass r. Spears, 2 Nott. & McC. (S. C.) 207; s. c. 10 Am. Dec. 588; DeCordova v. Smith, 9 Tex. 129 ; Ide V. Stanton, 15 Vt. 687; s. c. 40 Am. Dec. 698 ; Lovvber ;;. Connit, .36 Wis. 176; Allen v. Bennet, 3 Taunt. 169; 2 Kent Com. 510 ; Story on Sales, § 266; Lang. Cas. on Sales, 350, 493; 2 Stark. Ev. 614 ; Newmarket on Sales, § 291. However, some of the authorities hold that where the memo- randum is signed by one party only it is not sufficient because of a want of mutuality. Stiles 71. McClellan, 6 Colo. 89 ; Krohn v. Bantz, 68 Ind. 277 ; Lees v. Whitcomb, 3 Car. & P. 289 ; Sykes v. Dixon, 9 Ad. & El. 693 ; s. c. 36 Eng. C. L. 244. And see also as bearing upon the question, Wil- kinson V. Heavenrlck, 58 Mich. 574 ; McDonald v. Bewick, 51 Jlich. 79 ; 408 Liddle v. Needham, 39 Mich. 147 ; s. c. 33 Am. Rep. 359 ; Scott v. Bush, 26 Mich. 418; s. c. 12 Am. Rep. 311; Hall V. Soule, 11 Mich. 496. The cases above cited are not intended to be exhaustive on either side of the proposition. 2 3 Taunt. 169. » 5 Taunt. 786. * 2 Bing. N. C. 735, and 3 Scott, 238. 5 L. R. 1 Ex. 312 ; 35 L. J. Ex. 218. ^ See Rutenberg v. Main, 47 Cal. 213; Groover c. Warfield, 50 Ga. 644, 653; Newby v. Rogers, 40 Ind. 9 ; Hunter v. Giddings, 97 Mass. 41 ; Dresel c . Jordan, 104 Mass. 407 ; Morin v. Martz, 13 Minn. 191 ; Wemple ;■. Knopf, 15 Minn. 440; S. c. 2 Am. Rep. 147 ; Marqueze u. Caldwell, 48 Miss. 23 ; Ivory v. Mur- phy, 36 Mo. 534; Cartzell v. Staf- ford, 12 Neb. 545, 552; Mason u. Decker, 72 N. Y. 595, 598; Dykers V. Townsend, 24 N. Y. 57; Steele v. Taft, 22 Hun (N. Y.) 453 ; Clason v. Bailey, 14 Johns. (N. Y.) 484, 487 ; Thayer ,;. Luce, 22 Ohio St. 62; McFarson's Appeal, 11 Pa. St, 503; PART 11.] OF THE SIGNATURE OF THE PARTY. *220 § 290. The signature required by the statute is not con- fined to the actual subscription of his name by the party to be charged. Thus, a mark made by a party as his signature is sufficient, if so intended. And in Baker v. Dening,i where the ques- tion arose under the 5th section of the statute, which relates to wills and devises, the Court held, that it was not necessary to show that the party signing by a mark was unable to write his name : and the judges expressed the opinion, that a mark would be a good signature even if the party signing was able to write his name. In Helshaw v. Langley,^ the signature of a party was decided to be sufficient, when he, being unable to write, held the top of the pen, while another person wrote his signature. § 291. But still there must be a signature, or a mark in- tended as such; and a description of the signer, though written by himself at the foot of the paper, is insufficient. Thus, a letter by a mother to her son, beginning, " My dear Robert," and ending, "Your affectionate mother," with a full direction containing the son's name and address, was held not a sufficient signature by the mother.^ Lowber v. Connit, 36 Wm. 176, 182; Pet.) 640; bk. 7, L. ed. 295; Philli- Weightman v. Caldwell, 17 U. S. (4 more v. Barry, 1 Campb. 513. And Wheat.) 85 ; bk. 4, L. ed. 520. where a duly authorized agent signs 1 8 A. & E. 94. See, also, Harri- by his initials merely, it will be son V. Elving, 3 Q. B. 117. sufficient to take the case out of the 2 11 L. J. Ch. 17. Statute of Frauds. Salmon Falls 1 Selby V. Selby, 3 Meriv. 2. Manuf. Co. i-. Goddard, 55 U. S. (14 Signature by agent is sufficient. How.) 446; bk. 14, L. ed. 497. Palmer v. Stephens, 1 Den. (N. Y.) An omission of the middle name or 471; The Merchant's Bank y. Spicer, initial of the party signing is not 6 Wend. (N. Y.) 443 ; Schouler on fatally defective, if the defendant is Pers. Prop. sec. 560 ; Wood on reaUy the party intended. See Gill Frauds, sec. 425. v. Bicknell, 56 Mass. (2 Cush.) 355; Signature with initial, with inten- Morton v. Dean, 54 Mass. (13 Mete.) tion thereby to be bound, is as effect- 385. ual as writing the name in full. San- Signing a wrong name. — Where born V. Flagler, 91 Mass. (9 Allen) the note has been delivered to the 474 ; Palmer v. Stephens, 1 Den. payee for a valuable consideration, (N. Y.) 471 ; The Merchant's Bank it will be presumed that the party t: Spicer, 6 Wend. (N. Y.) 443 ; signing intended to bind himself, and Salmon Falls Manuf. Co. v. Goddard, will be liable in an action against 55 U. S. (14 How.) 446 ; bk. 14, L. ed. him in his true name, on a note upon 497 ; Barry v. Coombe, 26 U. S. (1 a count alleging that he made the 409 *221 FORMATION OF THE CONTKACT. [BOOK I. § 292. Whether a signature by initials would suffice seems not to have been decided expressly. In Hubert v. Moreau,i the question was raised under the act 6 Geo. IV. c. 16, s. 131, which made void a promise by a bankrupt to pay a debt from which he had been discharged, unless the promise was made in writing, "signed by the bankrupt." The report states, that the letter had no name attached to it, but something that looked like an M. Best C. J. said, on looking at it : " It may be an M., or it may be a waving line ; but if it be an M., I am of opinion that it is not sufficient, as the statute requires that the promise should be signed. It is not the signature of a man's name. I have no doubt upon the subject." His lordship refused [*221] * the plaintiff permission to prove by parol that the defendant usually signed in that way. Afterwards a witness was called, who stated as his opinion that the mark which was taken to be an M. was nothing but a flourish, and the plaintiff was thereupon nonsuited. The Court in banc afterwards refused a rule to set aside the nonsuit, the rule being taken on the ground that the M. was a sufficient sign- ing, because it was the sign used by the party to denote that the instrument was his. note in the name by which it was liable on the note. See Ballou v. signed. Grafton Banls; u. Flanders, Talbot, 16 Mass. 461; Long v. Col- 4 N. H. 239. burn, 11 Mass. 97. Signing u fictitious name or charac- Figures or marks may be used in lieu ters, where the party intends to bind of a proper name, and where either himself, will be effective to all intent of them is substituted by a party and purposes. Fuller v. Hooper, 69 intending thereby to bind hinlself, Mass. (3 Gray) 3-34; Grafton Bank the signature will be binding. Mid- u. Flanders, 4 N. H. 2.39, 247 ; Palmer dleton v. Findla, 25 Cal. 81 ; Eeiehart V. Stephens, 1 Den. (N. Y.) 471, 479; i,. Felps, 33 111. 433; State v. Rich- Brown V. Butchers' and Drovers' ards, 30 N. J. L. (1 Vr.) 266 ; Kean Bank, 6 Hill (N. Y.) 443; Merchants' v. Davis, 21 N. J. L. (1 Zab.) 683; Bank v. Spicer, 6 Wend. (N. Y.) 443 ; s. c. 47 Am. Dec. 182 ; Bank v. Flan- Williamson 0. Johnson, 1 Barn. & ders, 4 N. H. 239, 247 ; Webber v. Cres. 146 ; s. c. 2 D. & R. 281 ; George Davis, 87 Mass. (5 Allen) 393, 397 ; V. Surrey, Moo. & Mai. 516; Gould Palmer v. Stephens, 1 Den. (X. Y.) r. Barnes, 3 Taunt. 504. But it was 471 ; Brown v. Butchers' and Drovers' held in Bartlett v. Tucker, 104 Mass. Bank, 6 Hill (N. Y.) 443; William- 336 ; s. c. 6 Am. Rep. 240, that where son v. Johnson, 1 Barn. & C. 146. a person signs a fictitious name to a i 2 C. & P. 528 ; 2 Kent Com. 511. promissory note, or the name of a See Bickley v. Keenan, 60 Ala. 293. real person, without authority, is not 410 PART ir.] OP THE SIGiS'ATUEE OP THE PARTY. *221 In the report of the same case, as given in 12 Moore, C. P. 216, the language of the Court, in refusing the new trial, would indicate that as a question oifact there was no mark appended to the writing, and pla-ced there by the writer with the intention of making it his signature. The Chief Justice put the case as follows : " Undoubtedly the signing by a mark would satisfy the meaning of the statute, lut here there is nothing intended to denote a signature, nor does the name of the defendant appear in any part of the letter." § 293. In Sweet v. Lee,^ the writing was signed with the initials T. L., but in the writing were the words, " Mr. Lee," in the handwriting of the defendant, and nothing was de- cided as to the sufficiency of the signature. And the same observations apply to the Nisi Prius cases of Phillimore v. Barry, 1 Campb. 513, and Jacob v. Kirk, 2 Mood. & Eob. 221. There seems to be no doubt that if the initials are intended as a signature by the party who writes them, this shall suffice, but not otherwise. 2 § 294. The signature may be in writing or in print,^ (and the writing may be in pencil,^ Geary v. Physic, 5 B. & C. 234 ; * or by stamping the name, Bennett v. Brumfitt, L. K. 3 1 3 M. & G. 452. (12 Pet.) 151, 162 ; bk. 9, L. ed. 1035. 2 See remarks of Lord Westbury But where a name is printed or in Caton v. Caton, L. R. 2 H. L. 127, stamped, some evidence is necessary 143 ; Chichester ;;. Cobb, 14 L. T. N. to show that it was authorized by S. 433; Sugden V. & P. 144 (ed. the party as and for his signature. 1862). Boardman v. Spooner, 95 Mass. (13 FiWe an(«, § 290, note. See, also, Allen) 353; Brayley v. Kelly, 25 Sanborn v. Plagler, 91 Mass. (9 Minn. 160. Vide infra, note 4. Allen) 474, 478; Palmer v. Steph- ^ A signature to the memorandum ens, 1 Den. (N. Y.) 478; Salmon made with a lead pencil is sufficient. Falls Manuf. Co. v. Goddard, 55 U. S. Clason v. Bailey, 14 Johns. (N. Y.) (14 How.) 446; bk. 14, L. ed. 493; 484; Merritt u. Clason, 12 Johns. Barry v. Coombe, 26 U. S. (1 Pet.) (N. Y.) 102; s. c. 7 Am. Dec. 286; 640 ; bk. 7, L. ed. 295. Draper u. Pattina, 2 Speers (S. C.) 1 A mark or cross intended as a 292. See, also, ante, § 261, note 1. signature is a sufficient signing under ^ See Brown v. Butchers' & the Statute of Frauds, the same as in Drovers' Bank, 6 Hill (N. Y.) 443 ; other contracts. Bickley v. Keenan, Clason v. Bailey, 14 Johns. (N. Y.) 60 Ala. 293; Madison w. Zabriskie, 11 484; Merritt v. Clason, 12 Johns. La. 251; Tagiasco v. Molinari, 9 La. (N. Y.) 102; s. c. 7 Am. Dec. 286; 512 ; Zacharie v. Franklin, 37 U. S. Hicks v. Whitmore, 12 Wend. (N. Y.) 411 ssoon FORMATION OP THE CONTRACT. [book I. C. P. 28;* and it may be in the body of the writing, or at the beginning or end of it.^ But when the signature is not placed in the usual way at the foot of the written or printed paper, it becomes a question of intention, a question of fact to be determined by the other circumstances of the [*222] case, * whether the name so written or printed in the body of the instrument was appropriated by the party to the recognition of the contract. § 295. In Saunderson v. Jackson,^ the plaintiff, on giving to the defendants an order for goods, received from them a bill of parcels. The heading of the bill was printed as fol- lows : " London : Bought of Jackson and Hanson, distillers. No. 8, Oxford Street," and then followed in writing, "1000 gallons of gin, 1 in 5 gin, 7s., £350.'' There was also a letter, signed by the defendants, in which they wrote to plaintiff, about a month later, " We wish to know what time 548, 554; McDowell v. Chambers, 1 Strobh. (S. C.) Eq. 347; s. c. 47 Am. Dec. 537 ; Draper v. Pattina, 2 Speers (S. C.) 292. ' Signature by stamping, — The sig- nature to a memorandum may be by printing or stamping. If the circum- stances are such as to give it a sig- nificance beyond that of an unused blank and render it equivalent to a memorandum in actual use with the name as part of it. Hawkins u. Chase, .36 Mass. (19 Pick.) 502 ; s. c. Langdells Cas. on Sales, 5-54; Schnei- der V. Norris, 2 Maule & S. 286; Wood on Frauds, sec. 412. Vide supra, note 1. Boardman v. Spooner, 95 Jfass. (13 Allen), .353; Brayley v. Kelly, 25 Minn. 160 ; Crooks v. Davis, Grant (Ont.) 317. » Location of signature. — The loca- tion of the name and the method of signature are not material. It is suf- ficient if the name appear either at the top or the bottom or in the body of the instrument where the statutes simply require a " signing." Drury r. Young, 58 Md. 546 ; ». c. 42 Am. Rep. 343 ; Coddington v. Goddard, 82 Mass. (16 Gray) 414; Hawkins v. Chase, 36 Mass. (19 Pick.) 502; Pen- niman u. Hartshorn, 13 Mass. 87 ; Clason u. Bailey, 14 Johns. (N. Y.) 484; s. 0. Langdells Cas. on Sales, 541 ; Harvey v. Stevens, 43 Vt. 653 ; Johnson v. Dodgson, 2 Mees. & W. 653; s. c. Langdells Cas. on Sales, 413 ; Allen v. Bennet, 3 Taunt. 169 ; s. c. Langdells Cas. on Sales, 350 ; Browne on Statutes of Frauds, sees. 353, 358. However, the signature must be at the end of the memoran- dum where the statute, as in some States, departs from the usual phrase- ology and requires that the writing be " subscribed " instead of " signing." James v. Patten, 6 N. Y. 9 ; ». c. 55 Am. Dec. 376; Vielie v. Osgood, 8 Barb. (N. Y.) 130 ; Davis c. Shields, 26 Wend. (N. Y.) 341 ; s. c. Lang- dells Cas. on Sales, 558 ; Knight v. Crockf ord, 1 Esp. 190 ; Lobb v. Stan- ley, 5 Q. B. 574 ; Browne on Statute of Frauds (4th ed.). 1 2 B. & P. 138 ; Salmon Falls Manuf. Co. v. Goddard, 55 U. S. (14 How.) 446, 456; bk. 14, L. ed. 493, 496. 412 PART II.J OF THE SIGNATURE OF THE PARTY. *223 we shall send you a part of your order, and shall be obliged for a little time in delivery of the remainder. Must re- quest you to return our pipes." Lord Eldon said: "The single question is, whether, if a man be in the habit of print- ing instead of writing his name, he may not be said to sign by his printed name, as well as his written name ? At all events, connecting this bill of parcels with the subsequent letter of the defendants, I think the case is clearly taken out of the Statute of Frauds." Thus far the case would not amount to much as an authority on the point under discus- sion. His lordship went on to say : " It has been decided,^ that if a man draw up an agreement in his own handwriting, beginning 'I, A. B., agree,' and leave a place for signature at the bottom, but never sign it, it may be considered as a note or memorandum in writing within the statute.^ And yet it is impossible not to see that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until further signed. This last case is stronger than the one now before us, and affords an answer to the argument, that this bill of parcels was not delivered as a note or memorandum of the contract." This last sentence refers to the argument of Lens, Serjt., who admitted that the printed name might have amounted to a signature, if the bill of parcels had been * intended to express the contract, qua con- [*223] tract, but contended that this was not the intention. § 296. In Schneider v. Norris,^ the circumstances were exactly the same as in the preceding case, except that the name of the plaintiff as buyer was written in the bill of parcels rendered to him in the defendant's OAvn handwriting, and all the judges were of opinion that this was an adoption or appropriation by the defendant of the name, printed on the bill of parcels, as his signature to the contract. Lord EUenborough said : " If this case had rested merely on the 2 The case referred to by his lord- ' See Hawkins v. Chase, 36 Mass. ship is Knight v. Cockford, Esp. N. P. (19 Pick.) 505, 506. 190. See, also, Lobb o. Stanley, 5 i 2 M. & S. 286. Q. B. 574, and Durrell v. Evans, 1 H. & C. 174, and 31 L. J. Ex. 337. 413 *224 FORMATION OF THE CONTEACT. [BOOK I. printed name, unrecognized by and not brouglit home to tlie party, as liaving been printed by him or by his authority, so that the printed name had been unappropriated to the particular contract, it might have afforded some doubt, wliether it would not have been intrenching upon the statute to have admitted it. But here there is a signing by the party to be charged, by words recognizing the printed name as much as if he had subscribed his mark to it, which is strictly the meaning of signing, and by that the party has incorporated and avowed the thing printed to be his : and it is the same in substance as if he had written 'Norris & Co.' with his own hand. He has, by his handwriting, in effect, said, I acknowledge what I have written to be for the pur- pose of exhibiting my recognition of the within contract." Le Blanc J. compared the case to one, where a party should stamp his name on a bill of parcels. Bayley J. put his opinion on the ground that the defendant had signed the plaintiff's names as purchasers, and therebj^ recognized his own printed name as tliat of the seller. And Dampier J., on much the same idea, that is, that the defendant by writing the name of the buyer on a paper in which he himself was named as the seller, recognized his name sufficiently to make it a signature. § 297. In Johnson v. Dodgson,i the defendant wrote the terms of the bargain in his own book, beginning with the words : " Sold John Dodgson," and required the ven- [*224] dor to sign the * entry. Tlie Court held this to be a signature by Dodgson, Lord Abinger saying that: " The cases have decided that though the signature be in the beginning or middle of the instrument, it is as binding as if at the foot; the question being always open to the jury whether the party not having signed it regularly at the foot meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it." Parke B. con- curred, on the authority of Saunderson v. Jackson, and Schneider v. Norris, which he recognized and approved. In Durrell v. Evans, in the Exchequer Chamber,^ (^post, p. 1 2 M. &. W. 653. 2 1 H. & C. 174; .31 L. J. Ex. 337. 414 PART II.] OF THE SIGNATURE OP THE PARTY. *225 230) the cases of Saunderson v. Jackson, Schneider v. Nonis, and Johnson v. Dodgson were approved and followed.^ [In Tourret v. Cripps,* under the 4th section, a letter con- taining proposed terms of a contract between the defendant and the plaintiff, written out by the defendant upon paper bearing a printed heading, "Memorandum from Richard L. Cripps," and sent hy Mm to the plaintiff, was held to be a sufficient note in writing to charge the defendant.] § 298. In Hubert v. Treherne,^ which arose under the 4th section, it appeared that an unincorporated company, called The Equitable Gas Light Company, accepted a tender from the plaintiff for conveying coals. A draft of agreement was prepared by the order of the directors, and a minute entered as follows : " The agreement between the company and Mr. Thomas Hubert for carrying our coals, &c., was read and approved, and a fair copy thereof directed to be forwarded to Mr. Hubert." The -articles began by reciting the names of the parties, Thomas Hubert of the one part, and Treherne and others, trustees and directors, &c., of the other part ; and closed, " As witness our hands." The articles were not signed by anybody, but the paper was maintained by the plaintiff to be sufficiently signed by the defendants, because the names of the defendants were written in the document by their authority. On motion to enter nonsuit, all the judges held that the instrument on its face, by the concluding words, * showed that the intention [*225] was that it should be subscribed, and that it was not the meaning of the parties that their names written in the body of the paper should operate as their signatures. Maule J. said : " The articles of agreement do not seem to me to be a memorandum signed by anybody. Before the Statute of Frauds, no one could have entertained a doubt upon that point. Since the statute, the Courts, anxious to relieve par- ties against injustice, have not unfrequently stretched the language of the Act. ... If a party writes, 'I, A. B., agree, &c,' with no such conclusion as is found here, ' as wit- 8 See Beckwith v. Talbot, 95 TJ. S. * 48 L. J. Ch. 567. (5 Otto) 289 ; bk. 24, L. ed. 496. i 3 M. & G. 74.3. 415 *226 rOEMATION OF THE CONTRACT. [BOOK I. ness our hands,' it may be that this is a sufficient signature within the statute to bind A. B. . . . But it would be going a great deal further than any of the cases have hitherto gone to hold that this was an agreement signed by the party to be charged. This is no more than if it had been said by A. B. that he would sign a particular paper." § 299. The most full and authoritative exposition of the law on this subject is to be found in Caton v. Caton,^ decided in the House of Lords in May, 1867. The paper there relied on was a memorandum of the terms of a marriage settlement, drawn Txp in the handwriting of the future husband, and taken to a solicitor's for execution, but the settlement was waived by the parties, and the memorandum was subse- quently set up as containing the agreement. There were numerous clauses, in some of which the name " Mr. Caton " ■ was written in the body of the paper, and in others the initials "Rev. R. B. C," and some contained neither name nor initials. It was held that although to satisfy the Statute of Frauds it is not necessary that the signature of a party should be placed in any particular part of a written instru- ment, it is necessary that it should be so introduced as to govern or authenticate every material part of the instru- ment ; and that where, as in the case before the Court, the name of the party, when found in the instrument, appeared in such a way that it referred in each instance only [*226] to the particular part where * it was found, and not to the whole instrument, it Avas insufficient. The language of Lord Westbury, whose opinion on this particular point was the most comprehensive of those delivered in the case, was as follows : " What constitutes a sufficient signa- ture has been described by different judges in. different words. In the original case upon this subject, though not quite the original case, but the case most frequently referred to as of the earhest date, that of Stokes v. Moore (1 Cox, 219), the language of the learned judge is that the signature must authenticate every part of the instrument ; or, again, that it must give authenticity to every part of the instru- 1 L. E. 2 H. L. 127. 416 PART II.] OP THE SIGNATURE OF THE PARTY. *227 ment. Probably the phrases ' authentic,' and ' authenticity,' are not quite felicitous, but their meaning is plainly this, that the signature must be so placed as to show that it was in- tended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. The language of Sir William Grant, in Ogilvie v. Foljambe (3 Mer. 53), is (as his method was) much more felicitous. He says it must govern every part of the instrument. It must show that every part of the instrument emanates from the individual so signing, and that the signature was intended to have tliat effect. It follows, therefore, that if a signature be found in an instrument incidentally only, or having relation and ref- erence only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum." His lordship then criti- cised the different clauses of the memorandum for the pur- pose of showing the insufficiency of the signature when tested by these rules, and proceeded: "Now an ingenious attempt has been made at the bar to supply that defect by fastening on the antecedent words, ' In the event of marriage the undernamed parties,' and by the force of these words of reference to bring up the signature subsequently found and treat it as if it were found with the words of reference. My lords, if we adopted that device, we should entirely defeat the statute. You cannot by words of reference bring *up a signature and give it a different signification [*227] and effect from that which the signature has in the original place in which it is found. What is contended for by this argument differs very much from the process of in- corporating into a letter or memorandum signed by a party another document which is specifically referred to by the terms of the memorandum so signed, and which, by virtue of that reference, is incorporated into the body of the memo- randum. There you do not alter the signature, but you apply the signature not only to the thing (writing ?) origi- nally given, but also to that which, by force of the reference, is, by the very context of the original, made a part of the original memorandum. But here you would be taking a sig- 417 *228 FORMATION OP THE CONTEACT. [BOOK I. nature intended only to have a limited and particular effect, and by force of the reference to a part of that document, you would be making it applicable to the whole of the docu- ment to which the signature in its original condition was not intended to apply, and could not, by any fair construc- tion, be made to apply." The effect of these principles seems to be substantially that the reference to connect two papers or two clauses so as to make one signature apply to both, must be from what is signed to what is unsigned, not the reverse.^ § 300. [Signatures of directors to articles of association which contained a clause, in which it was stated that the plaintiff should be solicitor to the company, and should transact all the legal business of the company, were held in Eley V. The Positive Assurance Company,^ not to be signa- tures to a memorandum of the contract within the Statute of Frauds, on the ground that they had been affixed alio intuitu. But in Jones v. The Victoria Graving Dock Com- pany^ the signature of the chairman of a company to the minutes was held to be a sufficient signature, although put alio intuitu, viz., to notify the proceedings of the Board under the Companies Act, 1862 (25 & 26 Vict. c. 89, s. 67). In this case, Eley v. The Positive Assurance Company was not cited, and the two decisions appear to be irreconcilable. Both these cases were under the 4th section, and the [*228] reasoning upon * which the later case proceeds, viz., that the requirements of the 4th section of the stat- ute relate only to the evidence of the contract,^ is undoubtedly sound. But the same reasoning would not be applicable in the case of a signature to a memorandum of a contract under the 17th section, which, as distinguished from the 4th, seems to affect the intrinsic validity of the class of contracts to which it refers.*] 2 Thayer v. Luce, 22 Ohio St. 62. for this, hut the distinction between 1 1 Ex. D. 20. the two sections was drawn in Lay- 2 2 Q. B. D. .314. thoarp v. Bryant, 2 Bing. N. C. 743 ; 8 Per Lush J., in delivering the 3 Scott, 238, and in Leroux v. Brown, judgment of the Court, at p. 323. 12 C. B. 801 ; 22 L. J. C. P. 1, a de- ^ There is no conclusive authority cision which, although meeting with 418 PART II.J or THE SIGNATUEE OF THE PARTY. *228 some disapproval, until it is over- ruled, settles the law that the 4th section applies only to procedure, and therefore forms a part of the lex fori. Massachusetts doctrine. — It is held by the Massachusetts Courts that the Statute of Frauds affects the remedy only, and not the validity of the con- tract, so that the oral agreement which is within the 17th, as well as within the 4th section will he valid. See Townsend v. Hargraves, 118 Mass. 325 ; the same doctrine seems to prevail in Maine. See Bird v. Munroe, 66 Me. 337; s. c. 22 Am. Rep. 571. 419 »229 FORMATION OF THE CONTRACT. [book [*229] * CHAPTER VIIL AGENTS DULY AUTHORIZED TO SIGN. Agent must be a third person, not the other contracting party 230 What evidence sufficient to prove authority 230 Auctioneer is agent of both parties to sign the contract at public sale . . But is the agent of vendor alone at a private sale Parol evidence admissible to re- but presumption of auctioneer's agency for the buyer . Auctioneer's agency for the buyer only begins when goods are knocked down to him as last bidder . . . . Signature, clerk of auctioneer , " " Telegraph Co Signature of agent as a witness is not a signature of the party Brokers — their general authority 236 Brokers in city of London . . . 237 Contract notes . . . 238 Brokers in London bound by customs of trade . . Bought and sold notes, their form and purport . . Signed entry in broker's book — conflict of authority as to its real effect — cases reviewed General propositions deduced from the autliorities Broker's signed entry constitutes the contract 255 . 234 235 235 235 236 236 236 238 239 240 255 The bought and sold notes do not 255 But they suffice to satisfy the statute when complete and not inconsistent . 255 Either note will suffice, unless variance shown . . . 256 If plaintiff offers only one note, defendant may offer the other to show variance .... 256 Where there is variance between signed entry and bought and sold notes 256 Variance between written corre- spondence and bought and sold notes ... 257 Where there is variance between bought and sold notes, and there is no signed entry . . 257 Where note signed by party him- self varies from that signed by his broker . .... 257 Where sale is made by broker on credit, vendor may retract, if dissatisfied with buyer's sol- vency 257 Where sold note is delivered by broker employed by buyer only 258 No variance between bought and sold notes if meaning is the same, although language differs 258 Revocation of broker's authority 259 Alteration of bought or sold note after delivery 259 Broker's clerk 259 § 301. It is not witliiii the scope of this treatise to enter into the general subject of the law of agency, which is in no way altered by the statute. The agency may be proven by 420 PART ri.] AGENTS DULY AUTHORIZED TO SIGN. *230 parol as at common law,i and may be shown by subsequent ratification as well as by antecedent delegation of authority .2 * But such ratification is only possible in [*230] the case of a principal in existence when the contract was made (ante, p. 210). It is necessary that the agent be a third person, and not the other contracting party .^ § 302. The decisions as to the sufficiency of the evidence to prove authority for the agent's signature have not been numerous under the 17th section. In Graham v. Musson,i the plaintiff's traveller, Dyson, sold sugar to the defendant, and in the defendant's presence, and at his request, entered the contract in the defendant's book in these words : " Of North & Co., thirty mats Maurs. at 71s. ; cash, two months. Fenning's Wharf. (Signed) Joseph Dyson." It was contended that this was a note signed by the de- fendant, and that Joseph Dyson was his agent for signing ; but the Court held on the evidence that Dyson was the agent of the vendor, and that the request by the purchaser that the vendor's agent should sign a memorandum of the bargain was no proof of agency to sign the purchaser's name ; lYourt V. Hopkins, 24 III. 326; 769; Harrison v. Jackaon, 7 T. R. Johnson V. Dodge, 17 111. 433 ; Doty 207 ; 1 Sugden, V. & P. (8th Am. ed.) V. Wilder, 15 111. 407; s. c. 60 Am. 145, note (a). Dec. 756; Blood ei. Hardy, 15 Me. 61 ; 2 Maclean u. Dunn, 4 Bing. 722; Alna V. Plummer, 4 Me. (4 Greenl.) Gosbell v. Archer, 2 A. & B. 500 ; 258 ; Hawkins v. Chase, 36 Mass. Acebal u. Levy, 10 Bing. 378 ; Fitz- (19 Pick.) 502, 506; Shaw v. Nudd, maurice v. Bayley, 6 E. & B. 868; 25 Mass. (8 Pick.) 9; Eggleston u. afterwards reversed, 9 H. L. C. 78, Wagner, 46 Mich. 610 ; Long v. Hart- but not on the point stated in the well, 34 N. J. L. (5 Vr.) 116 ; Worrall text. Sugd. V. & B. 145, ed. 1862. V. Munn, 5 N. Y. 229 ; Lawrence v. = Bent v. Cobb, 75 Mass. (9 Gray) Taylor, 5 Hill (N. Y.) 107, 112; 397; s. c. 69 Am. Deo. 295; Shaw Champlin v. Parish, 11 Paige Ch. c. Finney, 54 Mass. (13 Mete.) 453 ; (N. Y.) 405; Whorton v. McMahan, XuU v. David, 45 Mo. 444; John- 10 Paige Ch. (N.Y.) 386; Tomlinson son o. Buck, 36 N. J. L. (6 Vr.) V. Miller, Sheld. (N. Y.) Super. Ct. 338, 342 ; s. c. 10 Am. Rep. 243 ; 197 ; Blacknall v. Parish, 6 Jones Smith v. Arnold, 5 Mason C. C. 414 ; (N. C.) Bq. 70; s. c. 78 Am. Dec. Sharman v. Brandt, L. R. 6 Q. B. 239; Heard v. Pilley, L. R. 4 Ch. 720. App. 548; Rucker v. Cammeyer, 1 ^ 5 Bing. N. C. 603. Esp. 105 ; Graham v. Musson, 7 Scott, 421 *231 FORMATION OF THE CONTRACT. [BOOK I. that the purpose of the buyer was probably to fix the seller, not to appoint an agent to sign his own name. This case was decided by Tindal C. J., Vaughan, Coltman, and Erskine, JJ., in 1839, and was followed by the same Court in 1841, in Graham v. Fretwell,^ with the concurrence of Maule J., who had succeeded Vaughan J. on the bench. § 303. The whole subject was fully discussed in Durrell V. Evans, decided in the Exchequer by Pollock C. B., and Bramwell and Wilde BB. in 1861,^ and reversed by the unanimous opinions of Crompton, Willes, Byles, Blackburn, Keating, and Mellor, JJ., in the Exchequer Chamber in 1862.2 The facts were these : The plaintiff, Durrell, had hops for sale, in the hands of his factor, Noakes, and the [*231] defendant * failed in an attempt to bargain for them with Noakes. Afterwards, the plaintiff and the defendant went together to Noakes's premises, and there concluded a bargain in his presence. Noakes made a mem- orandum of the bargain in his book, which contained a counterfoil, on which he also made an entry. He then tore out the memorandum and delivered it to the defendant, who kept it and carried it away. Before taking away the mem- orandum, the defendant requested that the date might be altered from the 19tli to the 20th of October (the effect of this alteration, according to the custom of the trade, being to give to the defendant an additional week's credit), and the plaintiff and Noakes assented to this, and the alteration was accordingly made. The memorandum was in the following words : — " Messrs. Evans. " Bought of J. T. & W. Noakes. "Bags. Pockets. T. Durrell. ) -iai -ia 66 Ryarsh & Addmgton. ) " Oct. 20th, 1860." = 3M. &G. 368. 2 81 L. J. Ex. 337; 1 H. & C. 1 30 L. J. Ex. 254 ; s. c. nom. Bar- 174. rell V. Evans, 6 H. & N. 660. 422 PART II.] AGENTS DULY AUTHORIZED TO SIGN. *232 The entry on the counterfoil was as follows : ^ " Sold to Messrs. Evans. " Bags. Pockets. T. Durrell. ) 1 fi7 1 fi 33 Ryarsh & Addington. j " Oct. 20th, 1860." On the trial, before Pollock C. B. the defendant contended that he had never signed or authorized the signature of his name as required by the 17th section to bind the bargain. The plaintiff contended that the name " Messrs. Evans " written on the counterfoil was so written by Noakes as the defendant's agent ; that if written by himself, it would have been a sufficient signature according to the authority of John- son V. Dodgson (^ante, p. 223), and that he was as much bound by the act of his agent in placing the signature there as if done by himself. The Court of Exchequer were unanimously of opinion that Noakes throughout had acted solely in behalf of the ven- dor, and that the request of the defendant that the * memorandum should be changed from the 19th to [*232] the 20th, was to obtain an advantage from the ven- dor, but in no sense to make Noakes the agent of the pur- chaser. They therefore made absolute a rule for a nonsuit, for which leave had been reserved at the trial. The Court of Exchequer Chamber, with equal unanimity, distinguished the case from Graham v. Musson {ante, p. 280), and held, that there was evidence to go to the jury that Noakes was the agent of the defendant, as well as of the plaintiff, in making the entries ; and, if so, that the writing of the defendant's name on the counterfoil was a sufficient signature according to the whole current of authority. The grounds for distinguishing the case from Graham v. Musson were stated by the different judges : — Crompton J. : "I cannot agree with my brother Wilde and Mr. Lush that the document in question was merely an in- voice, and that all the defendant did was simply taking an invoice and asking to have it altered : and if the jury had found that, a nonsuit would have been right. But, on the contrary, I think that there was plenty of evidence to go to 423 *233 FORMATION OF THE CONTRACT. [BOOK I. the jury on the question whether Noakes the agent was to make a record of a binding contract between the parties, and that there was at least some evidence from wliicli tlie jury might have found in the affirmative." The learned judge then pointed out that the memorandum was in duplicate, one "sold," the other "bought," made in the defendant's presence ; that the latter took it, read it, had it altered, and adopted it, all of which facts he considered as evidence for the jury that Noakes was the agent of both parties. Byles J. : " What does the defendant do ? First of all, he sees a duplicate written by the hand of the agent, and he knows it is a counterpart of that which was binding on the plaintiff. He knew what was delivered out to him was a sale-note in duplicate, and accepts and keeps it. The evi- dence of what the defendant did, both before and after Noakes had written the memorandum, shows that Noakes was authorized by the defendant." Blackburn J. : " The case in the Court below pro- [*233] ceeded * on what was thrown out by my brother Wilde, and I agree with the decision of that Court, if this document were a bill of parcels, or an invoice in the strict sense, viz., a document which the vendor writes out, not on the account of both parties, but as being the account of the vendor, and not a mutual account. But in the present instance, I cannot as a matter of course look at this instru- ment as an invoice, a bill of parcels ; as intended only on the vendor's account. Perhaps, I should draw the inference that it was, but it is impossible to deny that there was plenty of evidence that the instrument was written out as the mem- orandum by which, and by nothing else, both parties were to be bound. There certainly was evidence, I may say a good deal of evidence, that Noakes was to alter this writing, not merely as the seller's account, but as a document binding both sides. . . In Graham v. Musson, the name of the defendant, the buyer, did not appear on the document. The signature was that of Dyson, the agent of the seller, put there at the request of Musson, the buyer, in order to bind the seller ; and unless the name of Dyson was used as equivalent to Musson, there was no signature by the defend- 424 PAKT II.J AGENTS DULY AUTHOEIZED TO SIGN. *234 ant : but in point of fact, ' J. Dyson ' was equivalent to ' for or per pro. North & Co., J. Dyson.' " § 304. [In Murphy v. Boese,i before the Court of Exche- quer, in 1875, the plaintiff sought to recover the price of goods sold to the defendant. It appeared that the plaintiff's traveller wrote out the order for the goods in duplicate upon printed headings in the defendant's presence, handed to him the duplicate memorandum and retained the original. Held, that there was no evidence that the traveller had authority to sign the memoranda as the defendant's agent, so as to bind him within the 17th section. The Court, bound of course by the decision of the Exchequer Chamber in Durrell V. Evans, distinguished it upon the ground that in that case there was some evidence of the factor's authority to sign on the defendant's behalf ; at the same time Bramwell B., who was a * party to the judgment of the Court [*234] of Exchequer in Durrell v. Evans, which was after- wards reversed by the Exchequer Chamber, and Pollock B., expressed their doubts as to the correctness of that de- cision. The latter learned judge said : ^ " I think Durrell v. Evans can only be supported if it decides that the agency did not commence till after the memorandum was written out, and that will distinguish it from the facts before us. It might be said that the direction given by the defendant to Noakes the factor to alter the instrument, was an adop- tion of liis act in preparing it, or a recognition ab initio of the whole document as containing the contract. Or one might go further and say that, from the nature of the trans- action and the meeting of the parties at the office, it might be thought that there was evidence that it was meant that Noakes should act as the scribe of both parties, in drawing up a note of the contract. But here, there is an entire absence of any act of recognition by the defendant of the traveller as his agent."] § 805. It will have been observed, that in some of the cases already referred to, it is taken for granted that an 1 L. E. 10 Ex. 126. 2 At page 131. 425 *234 FORMATION OF THE CONTRACT. [BOOK I. auctioneer is an agent for both parties at a public sale, for the purpose of signing. This has long been established law.^ Sir James Mansfield, in Emmerson v. Heelis, thus gave the reason for the decisions : " By what authority does he write down the purchaser's name ? By the authority of the pur- chaser. These persons bid, and announce their biddings loudly and particularly enough to be heard by the auctioneer. For what purpose do they do this? That he may write down their names opposite to the lots. Therefore, he writes the name by the authority of the purchaser, and he is an agent for the purchaser."^ 1 Hinde v. Whitehouse, 7 East, 558 ; Emmerson u. Heelis, 2 Taunt, 38 ; White V. Proctor, 4 Taunt. 209 ; Ken- worthy o. Schofield, 2 B. & C. 945; Walker v. Constable, 1 B. & P. 306 ; Earebrother t'. Simmons, 6 B. & Aid. 333; Durrellw. Evans, 31 L. J. Ex. 337; 1 H. &C. 174. 2 Auctioneer is agent for both parties, and an entry made by him in his sale book, at the time of sale, con- taining a description of the property sold, the names of the parties, and the price and terms of sale, is a sufficient memorandum. Adams v. McMillan, 7 Port. (Ala.) 73 ; Craig l,. Godfroy, 1 Cal 415; s. u. 54 Am, Dec, 299; White V. Crew, 16 Ga. 416 ; Linn Boyd Tobacco Warehouse Co, v. Ter- rill, 13 Bush (Ky,) 463; Lake v. Campbell, 18 111. 109 ; Doty v. Wil- der, 15 111, 407 ; s, c. 60 Am. Dec, 756 ; Burke v. Haley, 7 111. (2 Gilm,) 614 ; Hart v. Woods, 7 Blackf . (Ind.) 568; Pike v. Balch, 38 Me. 302; s. c. 61 Am. Dec, 248 ; Cleaves v. Eoss, 4 Me. (4 Greenl.) 1 ; Singstack v. Hard- ing, 4 Harr, & J. (Md,) 186; s. c, 7 Am, Dec. 669 ; Bent v. Cobb, 75 Mass. (9 Gray) 397; s. c. 59 Am. Dec, 295; Morton v. Dean, 54 Mass. (13 Mete) 388; Davis u. Rowell, 19 Mass, (2 Pick.) 64; s. c. 13 Am, Dec. 398; Johnson v. Buck, 35 N. J. L. (6 Vr.) 338, 342; s. c. 10 Am. Eep. 243; McComb V. Wright, 4 Johns. Ch, (N. Y,) 659; Pugh o. Chesseldine, 11 Ohio, 109; s. c. 37 Am, Dec. 414; Anderson v. Chick, 1 Bail, (S, C) Eq, 118; Episcopal Church of Macon V. Wiley, 2 Hill. (S, C) Eq. 584; s. c. 1 Riley (S. C.) Eq, 166 ; 30 Am. Dec. 386; Meadows u. Meadows, 3 McC. (S, C) 457; ». c. 15 Am, Dec, 645; Gordon v. Sims, 2 McC. (S, C) Eq. 164; Davis v. Robertson, 1 Mill (S. C.) Const, 71 ; ». c, 12 Am, Dec, 611 ; Jenkins w, Hogg, 2 Tread, (S,C.) Const. 821 ; Dawson v. Miller's Admr,, 20 Tex. 171; 0, c, 70 Am, Dec, 380; Brock v. Jones, 8 Tex, 78 ; Harvey v. Stevens, 43 Vt, 655, 656; Smith v. Jones, ? Leigh (Va.) 165 ; s, c, 30 Am, Dec. 498; Brent v. Green, 6 Leigh (Va.) 16, See post, § 310, note 1, Signature of memorandum by cleric of the auctioneer, under the direction of tlie auctioneer, in the latter's sale- book, at the time of the sale, will be sufficient, if it contains the other requisites of a memorandum. Doty V. Wilder, 15 111, 407; s, c, 60 Am, Dec. 756; Norris v. Blair, 39 Ind. 90; s, c, 10 Am. Eep, 135; Johnson «, Buck, 35 N, J. L, (6 Vr,) 338; s, c. 10 Am. Rep, 243 ; Baptist Church v. Bigelow, 16 Wend. (N, Y,) 28 ; Erost v. Hill, 3 Wend, (N, Y,) 386; Browne on Statute of Frauds, § 369 ; Chitty on Contr, 354, However, there are other courts which hold that an auctioneer's clerk is not authorized to make the memorandum, required to take the case out of the Statute of Frauds ; 426 PART II.] AGENTS DULY AUTHORIZED TO SIGN. ^234 (Meadows v. Meadows, 3 McC. (S. C.) 458; s. c. 15 Am. Dec. 645; see post, 307, note 3 ;) notwithstanding any usage of trade to the contrary. Colesby v. Trecothick, 9 Ves. 251. Auctioneer's memorandum. — Tobind the purchaser, the auctioneer's memo- randum must be made at the time of the sale. Craig v. Godfrey, 1 Cal. 415 ; s. i;. 54 Am. Dec. 299 ; Horton V. McCarty, 53 Me. 394; O'Donnell V. Leeman, 43 Me. 158, 160 ; Alna v. Plummer, 4 Me. (4 Greenl.) 258 ; Gill V. Bicknell, 56 Mass. (2 Gush.) 355; Smith V. Arnold, 5 Mason C. C. 414 ; Plintoft V. Elmore, 18 Up. Can. C. P. 274. An auctioneer must act as the agent of both parties, or neither will be bound. See Smith v. Neefus, 63 Barb. (N. Y.) 63. It is said while an auctioneeris theseller's agent through- out, he becomes also the buyer's agent from the time the hammer falls. See Craig V. Godfrey, 1 Cal. 415 ; s. c. 54 Am. Dec. 299 ; Burke v. Haley, 7 111. (2 Gilm.) 614; Norris u. Blair, 39 Ind. 90 ; s. c. 10 Am. Rep. 135 ; Hor- ton V. McCarty, 53 Me. 394 ; Alna v. Plummer, 4 Me. (1 Greenl.) 258; Gill V. Bicknell, 56 Mass. (2 Cush.) 355 ; Morton v. Dean, 54 Mass. (13 Mete.) 385 ; Johnson v. Buck, 35 N. J. L. (6 Vr.) 338 ; s. c. 10 Am. Rep. 243; Baltzeu v. Nicolay, 53 N. Y. 467; Coles V. Bowne, 10 Paige Ch. (N. Y.) 526; Hicks o. Whitmore, 12 Wend. (N. Y.) 548 ; Cathcart v. Kiernaghan, 5 Strobh. (S. C.) L. 129; Harvey w. Stevens, 43 Vt. 653 ; Bamber v. Sav- age, 52 Wis. 110; Smith v. Arnold, 5 Mason C. C. 414; Pierce v. Corf, L. R. 9 Q. B. 210 ; s. c. 8 Moak Eng. Rep. 316; Warlow v. Harrison, 28 L. J. Q. B. 18; s. c. 1 El. & El. 295; Bartlett V. Purnell, 4 Ad. & E, 792; Bird v. Boulter, 2 Barn. & Ad. 443 ; Hmde v. Whitehouse, 7 East, 558 ; Mews u. Carr, 1 Hurl. & N. 484 ; Clarkson v. Noble, 2 Up. Can. Q. B. 361; Hen- derson V. Barnewall, 1 Younge & J. 387; Blackburn on Sales, 78; Browne on Statute of Frauds (4th ed.) Appx. ; Campbell on Sales, 223, 224; Lang. Cas. on Sales, 1034, 475, 395, 384, 102; Wood on Frauds, §§ 422, 424, 427. The Supreme Court of Maine say in Horton v. McCarty, 53 Me. 394, that : " The auctioneer is the agent for both parties to a certain extent. He is the agent of the seller in selling, and the agent of the purchaser to perfect the bargain by signing a proper memorandum at the proper time." A similar doctrine is held in Linn Boyd Tobacco Warehouse Co. v. Terrill, 13 Bush (Ky.) 463; Gill ■/. Hewett, 7 Bush (Ky.) 10; Morton v. Dean, 54 Mass. (13 Mete.) 885 ; John- son V. Buck, 35 N. J. L. (6 Vr.) 238 ; s. c. 10 Am. Rep. 243; Price v. Durin, 56 Barb. (N. Y.) 647; Townsend v. Van Tassel, 8 Daly (N. Y.) 261; Mills V. Hunt, 20 Wend. (N. Y.) 431 ; Harvey v. Stevens, 43 Vt. 653. In an action by either against the other, the signature of the defendant's name made by the auctioneer at the time of the sale, is a sufficient signing within the statute. Johnson v. Buck, 35 N. J. L. (6 Vr.) 338; s. c. 10 Am. Rep. 243. See, also, Morton v. Dean, 64 Mass. (13 Mete.) 385 ; Davis v. Rowell, 19 Mass. (2 Pick.) 64 ; s. c. 13 Am. Dec. 398 ; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659; The First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28 ; Mews v. Carr, 1 Hurl. & N. 484; White v. Proctor, 4 Taunt. 209 ; Emraerson v. Heelis, 2 Taunt. 38 ; Kemeys v. Proctor, 3 Ves. & B. 57. Requisites of auctioneer's memoran- dum. — The auctioneer's memorandum must contain the terms of the con- tract, and show on its face or in con- nection with some other writing, the whole of such contract, so that there need not be any resort to parol evi- dence, to ascertain the terms of the sale or intention of the parties. Ellis V. Deadman's Heirs, 4 Bibb (Ky.) 466 ; Parker's Heirs v. Bodley, 4 Bibb (Ky.) 102; McConnell ii. Brillhart, 17 III. 354 ; s. c. 65 Am. Dec. 661 ; Doty V. Wilder, 15 HI. 407 ; s. c. 60 427 *235 FORMATION OP THE CONTEACT. [BOOK I. [It would seem that a contract signed by an auctioneer on behalf of an undisclosed proprietor is a valid contract under the statute.^] [*235] * It follows from this reasoning that the rule does not apply in a case where the auctioneer sells the goods of his principal at private sale, for then he is the agent of the vendor alone, and in no sense that of the purchaser. And such was accordingly the decision of the Exchequer Court in Mews v. Carr.* § 306. And on the same principle it has been held, that the circumstances of the case may be used to rebut the general inference that the auctioneer is agent to sign the name of the highest bidder as purchaser, according to the conditions of the sale. Thus, in Bartlett v. Purnell,^ the defendant bought goods at public auction, under an agree- ment with the plaintiff, who was the executor of the defend- ant's deceased husband, that the defendant should be at liberty to buy, and that the price should go towards pay- ment of a legacy of 2001., to which the defendant was en- titled under the will of the deceased. The conditions of the sale were, that the purchasers were to pay a certain percent- age at the sale, and the rest on delivery. The auctioneer put the defendant's name, like that of all other purchasers, on his catalogue as the highest bidder, and it was contended that he was her agent for that purpose, and that she was therefore bound by the written conditions of the sale. But the Court held, that the real purchase was not a purchase at auction : that the sale was made before the auction, and that the public bidding was only used for the purpose of settling the price at which the purchaser was to take the goods under the antecedent bargam ; and that the auctioneer Am. Dec. 756; Norris v. Blair, 39 ley, 9 H. L. Caa. 78; Nicholson v. Ind. 90 ; s. c. 10 Am. Rep. 135 ; Mor- Fields, 7 Hurl. & N. 810. ton r. Dean, 54 Mass. (13 Mete.) s See per Malins V.-C. in Beer v. 285 ; Johnson v. Buck, 35 N. J. L. (6 London and Paris Hotel Company, Vr.) 338; s. c. 10 Am. Dec. 243; 20 Eq. 412, 426, and per Jessel, Soles V. Hickman, 20 Pa. St. 180 ; s. c. M. R. in Rossiter v. Miller, 46 L. J. 72 Am. Dec. 635 ; Farson's Appeal, Ch. 228, 231. 11 Pa. St. 503; Potter v. Duffield, L. * 26 L. J. Ex. 39; 1 H. & C. 484. R. 18 Ex. Cas. 4 ; Fitzraaurice v. Bay- i 4 A. & E. 792. 428 PART n.] AGENTS DULY AUTHORIZED TO SIGN. •^236 was not the agent of the purchaser. Denman C. J. saying " We do not overrule the former cases, but we consider them inapplicable." § 307. But the agency of the auctioneer for the purchaser only begins where the contract is completed by knocking down the hammer. Up to that moment he is the agent of the * vendor exclusively. It is only when [*236] the bidder has become the purchaser, that the agency arises ; and until then the bidder may retract, and the auc- tioneer may do the same in behalf of the vendor. i In Bird v. Boulter,^ the person who signed the purchaser's name was not the auctioneer, but his clerk. Held to be suf- ficient. [But in that case there were special circumstances from which the clerk's authority to sign was inferred ; under ordinary circumstances the auctioneer's clerk is not the pur- chaser's agent.^] 1 VTarlow V. Harrison, 28 L. J. Q. B. 4 Me. (4 Greenl.) 258 ; Ijams v. Hoff- 18; IE. &B. 295. As to auctioneer's authority to sign for the seller^ vide ante, § 306, note 2. 2 4 B. & Ad. 443. American authorities. — Norris v. Blair, 39 Ind. 90 ; s. c. 10 Am. Rep. 135; Alna v. Plummer, 4 Me. (4 Greenl.) 258; Gill v. Bicknell, 56 Mass. (2 Gush.) 355; Fiske ;,. Mc- Gregory, 34 N. H. 414, 418, 419; Johnson v. Buck, 35 N. J. L. (6 Vr.) 338, 342, 343 ; s. e. 10 Am. Rep. 243; Meadows v. Meadows, 3 McC. (S. C.) 458 ; s. c. 15 Am. Dee. 645*; Catiicart V. Keirnaghan,5 Strobh. (S. C.) 129; Smith V. Jones, 7 Leigh (Va.) 165; s. c. 30 Am. Dec. 498 ; Coate v. Terry, 24 XJp. Can. C. P. 571. 8 Pierce v. Corf, L. R. 9 Q. B. 210, per Blackburn J. at p. 215. See, also, M'Mullen v. Helberg, 4 L. R. Ir. 94, per O'Brien J. at p. 105. Signature of memoi-andum by auc- tioneer's clerk is a sufficient note in writing to bind the vendee. Carmack V. Masterson, 3 Stew. & P. (Ala.) 411 ; Norris v. Blair, 39 Ind. 90; s. c. 10 Am. Rep. 135; Hart u. Woods, 7 Blackf. (Ind.) 568; Alna «. Plummer, man, 1 Md. 423, 425 ; Gill v. Bicknel 56 Mass. (2 Gush.) 355; Morton c. Dean, 54 Mass. (13 Mete.) 385; John- son V. Buck, 35 N. J. L. (6 Vr.) 338 ; s. c. 10 Am. Rep. 243; Coles r. Bowne, 10 Paige Ch. (N. Y.) 520; Frost u. Hill, 3 Wend. (N. Y.) 386 ; Entz V. Mills, 1 McMull. (S. C.) 453 ; Cathcart f. Keirnaghan, 5 Strob. (S. C.) 129; Harvey v. Stevens, 43 Vt. 653; Bird v. Bolter, 4 Barn. & Ad. 443 ; s. c. Lang. Cas. on Sales, 395 ; Hinde ;;. Whitehouse, 7 East, 558 ; s. u. Lang. Cas. on Sales, 102 ; Henderson v. Barnewall, 1 Young & J. 387; s. c. Lang. Cas. on Sales, 384; Crooks c. Davis, 6 Grant (Ont.) 317 ; Pierce v. Corf, L. R. 9 Q.B. 210 ; s. c. 8 Moak's Eng. Rep. 316. See an(e, § 305, note 2.. It has been held that an entry by the clerk of an auctioneer was not by an authorized agent so as to bind the pur- chaser. Meadows v. Meadows, 3 Mc- Cord (S. C.) 458 ; s. c. 15 Am. Dec. 645. See, also, Norris v. Blair, 39 Ind. 90; Alna v. Plummer, 4 Me. (4 Greenl.) 258; Gill r. Bicknell, 56 Mass. (2 Cush.) 355; Smith v. Jones, 7 Leigh (Va.) 165 ; s. u. 30 Am. Dec. 429 *236 FORMATION OP THE CONTBACT. [BOOK I. § 308. The signature of a clerk or of a telegraph company to a despatch was held to be sufScient where the original in- structions had been signed by the party, in Godwin v. Fran- cis, L. R. 5 C. P. 295. § 309. The signature required by the statute is that of the party to be charged, or his agent. If, therefore, the signa- ture be not that of the agent, qvd agent, but only in the capacity of witness to the writing, it will not suffice.^ In Gosbell v. Archer,^ the clerk of the auctioneer, who had authority to act for his master, signed a memorandum of the sale, as witness to the signature of the buyer, and an attempt was made to set up the clerk's signature as that of a duly authorized agent of the vendor. The attempt was unsuccess- ful, and a dictum of Lord Eldon ^ to the " contrary was said by Denman C. J. to be open to much observation. The dictum of Lord Eldon was, that " where a party or principal or person to be bound signs as, what he cannot he, a witness, he cannot be understood to sign otherwise than as princi- pal." [As to the personal liability of the auctioneer for the de- livery of goods sold by Mm, see Woolfe v. Home, 2 Q. B. D. 355.*] § 310. There is a class of persons who make it their busi- ness to act as agents for others in the purchase and sale of 498 ; Bamber v. Savage, 52 Wis. 110 ; 251 ; and see the observations of Lord s. c. 38 Am. Rep. 723; Coate v. Terry, St. Leonards, Sugd. V. & P. p. 143, 24 Up. Can. C. P. 571 ; Flint v. El- ed. 1862. more, 18 Up. Can. C. P. 274; Clark- * Personal liability of auctioneer. — son V. Noble, 2 Up. Can. Q. B. 361. An auctioneer acting as agent of an- See ante, § 305, note 2. The court inti- other in the sale of property is per- mates the same doctrine in Pierce v. sonally responsible as vendor, unless Corf, L. R. 9 Q. B. 210 ; o. c. 8 Moak's at the time of the sale he discloses Eng. Rep. 316. See ante, § 305, the name of his principal. Mills v. note 2. Hunt, 20 Wend. (N. Y.) 431. And if 1 A memorandum made by an agent the auctioneer alone was trusted, and of both parties has been held sufiB- he expressly agreed for himself to cient to take the contract out of the warrant the title, then the promise is Statute of Frauds, although the agent not collateral and will be binding, made the memorandum for his own although not in writing. Schell v. benefit. Noakes a. Morey, 30 Ind. Stephens, 50 Mo. 375. See, also 103. Sherwood v. Stone, 14 N. Y. 267 2 2 A. & E. 500. Wolff V. Koppel, 5 Hill (N. Y.) 458 8 In Coles V. Trecothick, 9 Ves. Browne on Frauds, sec. 213. 430 PART II. J AGENTS DULY AUTHORIZED TO SIGN. *237 goods, known to the common law as brokers. These persons, as a * general rule, are agents for both par- [*237] ties,^ and their signature to the memorandum or note of the agreement is binding on both principals, if the memo- randum be otherwise sufficient under the statute.^ The authority of a broker to bind his principals may by special agreement be carried to any extent that the principal may choose, but the customary authority of brokers is for the most part so well settled, as to be no longer a question of fact dependent upon evidence of usage, but a constituent part of that branch of the common law known as the law- merchant, or the custom of merchants. There are still, however, some points on which the limits of their authority are not fully determined, and on which evidence of usage would have a controlling influence in deciding on the rights of the parties.^ ' Thompson v. Gardiner, L. E. 1 C. P. D. 777. Broker may sign for both parties. — Brokers are agents for both parties, and duly empowered by virtue of their employment to make a memo- randum which shall bind both parties. Hinckley v. Arey, 27 Me. 362 ; Cod- dington v. Goddard, 82 Mass. (18 Gray) 442 ; Clason v. Bailey, 14 Johns. (N. Y.) 484 ; Merritt u. Clason, 12 Johns. (N. Y.) 102 ; s. c. 7 Am. Dec. 286; Fowler v. HoUins, L. R. 7 Q. B. 616 ; s. c. 3 Moak's Eng. Rep. 282; 14 Moak's Eng. Rep. 138; af- firmed in L. R. 7 H. L. 767 ; Heyman V. Neale, 2 Camp. 337 ; Langdell Cas. on Sales, 348, 541, 614. See ante, § .305, note 2. As to brokers contracting without principal, see Fleet v. Murton, 7 Q. B. 127; s. c. 1 Moak's Eng. Rep. 32; Sharman v. Brandt, L. R. 6 Q. B. 720; MoUett o. Robinson, L. R. 7 C. P. 84 ; s. c. 1 Moak's Eng. Rep. 335; Humfrey v. Dale, 7 El. & B. 266. Seeon(e,§305,note2. However, the decisions are not uniform on this question, and there are cases which restrict the broker's authority to sign for one party. Coddington v. God- dard, 82 Mass. (16 Gray) 436; Davis V. Shields, 26 Wend. (N. Y.) 341 McMuUen v. Helburg, L. R. 4 Ir. 94 Moore v. Campbell, 10 E.x. .323 Langdell Cas. on Sales, 465, 558, 614. Brokers^ memorandum hook-entries are held by the courts as a compliance with the Statute of Frauds, no matter how concise they may be, provided they may not materially vary from the oral contract. Hinckley v. Arey, 27 Me. 363 ; Boardman v. Spooner, 95 Mass. (13 Allen) 353 ; Coddington v. Goddard, 82 Mass. (16 Gray) 436; Clason v. Bailey, 14 Johns. (N. Y.) 484 ; Langdell Cas. on Sales, 514, 610, 614, 1035. See infra, § 334, note 5. 2 See Coddington v. Goddard, 82 Mass. (16 Gray) 442 ; Shaw v. Finney, 54 Mass. (13 Mete.) 453,456; Hinck- ley V. Arey, 27 Me. 362 ; Lawrence v. Gallagher, 42 N. Y. Supr. Ct. (10 Jones & S.) 309 ; Story Agency, §§ 28, 31. See Butler v. Thomson, 92 U. S. (2 Otto) 412; bk. 23, L. ed. 684 ; Newberry v. Wall, 84 N. Y. 576. ' See, for example, Dickinson u. Lilwall, 4 Campb. 279; Baines v. 431 *238 FORMATION OF THE CONTRACT. [BOOK I. § 311. Before entering into an examination of the author- ities, it will be convenient to give a short summary of the statutes in relation to brokers in the City of London, as many of tlie cases turn upon their dealings. Until the year 1870, the brokers of London had from very early times been under the control of the corporation of the city. The statutes of 6 Anne, c. 16, 10 Anne, c. 19, s. 121, and 57 G-eo. III. c. 60,^ contain provisions for the regulation of brokers, and for defining the power of the corjjoration. Under these acts the city formerly required a bond and an oath, the form of which, prior to the j^ear 1818, may be found given in Kemble v. Atkins, 7 Taunt. 260 ; s. c. Holt, N. P. 431. The regulations imposed, and the form of the bond as altered in 1818, are printed at length in the appendix to " Russell on Factors and Brokers." It is imposed as a duty on the broker, that he shall " keep a book or register, intituled 'The Broker's Book,' and therein truly and fairly enter all such contracts, bargains, and agreements, on the day of the making thereof, together with the chris- [*238] tian and * surname at full length of both the buyer and seller, and the quantity and quality of the arti- cles sold or bought, and the price of the same, and the terms of credit agreed upon, and deliver a contract-note to both buyer and seller, or either of them, upon being requested so to do, within twenty-four hours after such request, respec- tively containing therein a true copy of such entry; and shall upon demand made by any or either of the parties, buyer or seller, concerned therein, produce and show such entry to them or either of them, to manifest and prove the truth and certainty of such contracts and agreements." But by the London Brokers Relief Act, 1870,^ most of these powers were taken away, the bonds are no longer re- quired, the rules and regulations are no longer to be enforced by the corporation, and now brokers are only required to be Bwing, L. E. 1 Ex. 320; s. c. 35 L. J. 2 33 & 34 Vict. c. 60. The reasons Ex. 194. for passing this act are given in the 1 These statutes will be found at note at p. 452 of Chitty's Statutes, p. 450 of vol. i. of Chitty's Collection vol. 1., ed. 1880. of Statutes, ed. 1880. 432 PART II.] AGENTS DULY AUTHOEIZED TO SIGN. *239 admitted by the corporation, and a List of Brokers is kept, from which any broker may be removed for fraud or other offences in the manner specified in the act. § 312. Lord Blackburn ^ warns his readers not to con- found the contract notes here mentioned, which are a copy of the entry, with the bought and sold notes which are or ought to be made out at the time of making the contract, and generally as soon as, or before it is entered in the book, and he remarks that no mention is made of the bought and sold notes in the bonds or regulations. But Lord EUenborough expressly says, in Hinde v. Whitehouse,^ and Heyman v. Neale,^ that the bought and sold notes are " transcribed from the book," are " copies of the entry," and this may be found repeated passim in the reported cases, although no doubt these notes are very frequently made in the manner stated by Lord Blackburn, as is also apparent in the reported cases. The brokers in London are bound by the customs of trade just as all other brokers are, and such customs are vahd in spite of anything to the contrary in the bonds and regula- tions which are purely municipal.* § 313 * When a broker has succeeded in making a [*239] contract, he reduces it to writing, and delivers to each party a copy of the terms as reduced to writing by him. He also ought to enter therii in his book, and sign the entry. What he delivers to the seller is called the sold note : to the buyer the bought note. No particular form is required, and from the cases it seems that there are four varieties used in practice. The first is where on the face of the notes the broker pro- fesses to act for both the parties -whose names are disclosed in the note. The sold note then, in substance, says, " sold for A. B. to C. D.," and sets out the terms of the bargain: the bought note begins, "Bought for C. D. of A. B.," or equivalent language, and sets out the same terms as the sold note, and both are signed by the broker. 1 Blackburn on Sale, p. 98. " 2 Camp. 337. 2 7 East, 559. * Ex parte Dyster, 2 Rose, 348. 433 *24:0 FORMATION OF THE CONTFvACT. [BOOK I. The second form is where the broker does not disclose in the bought note the name of the vendor, nor in the sold note the name of the purchaser, but still shows that he is acting as broker, not principal. The form then is simply, "Bought for C. D.," and " Sold for A. B." The third form is where the broker, on the face of the note, appears to be the principal, though he is really only an agent. Instead of giving to the buyer a note, " Bought for you by me," he gives it in this form, " Sold to you by me." By so doing he assumes the obligation of a principal, and cannot escape responsibility by parol proof, that he was only acting as broker for another, although the party to whom he gives such a note is at liberty to show that there Avas an un-named principal, and to make this principal responsible (^ante, pp. 199-202). The fourth form is where the broker professes to sign as a broker, but is really a principal, as in the cases of Shar- man v. Brandt, and MoUett v. Robinson, ante, pp. 201-2, in which case his signature does not bind the other party, and he cannot sue on the contract. § 314. According to either of the first two forms, the party who receives and keeps a note, in which the broker tells him in effect, "I have bought for you," or "I have sold for you," plainly admits that the broker acted by his authority, [*240] and as * his agent, and the signature of the broker is therefore the signature of the party accepting and retaining such a note ; ^ but according to the third form, the broker says, in effect, " I myself sell to you " and the accept- ance of a paper describing the broker as the principal who sells, plainly repels any inference that he is acting as agent for the party who buys, and in the absence of other evidence, the broker's signature would not be that of an agent of the party retaining the note : and by the fourth form, the language of the written contract is at variance with the real truth of the matter. These observations (many of which are extracted from " Blackburn on Sale ") have a direct bearing on points long 1 Thompson v. Gardiner, L. R. 1 C. P. D. 777. 434 PAET n.] AGENTS DULY AUTHOEIZED TO SIGN. *241 in dispute, and some of which are yet vexed questions, as will abundantly appear on a review of the authorities. § 315. Where the bought and sold notes and the entry in the broker's books all correspond, no dispute can arise as to the real terms of the bargain ; but it sometimes happens that the bought and sold notes differ from each other, and even that neither corresponds with the entry in the book. It then becomes necessary to determine the legal effect of the variance, and there has not only been great conflict in the decisions of the courts, but sometimes great change in the opinions of the same judge. As regards the signed entry in the broker's book, it has been held at different times that it did, and that it did not, constitute the contract between the parties ;^ and it has also been held that it was not even admissible in evidence, or, at all events, not without proof, that the entry was either seen by the parties when they con- tracted, or was assented to by them. The most convenient method of reviewing the decisions will be to follow the lead- ing cases in order of time, and then deduce the propositions fairly embraced in them. § 316. In 1806 there was this dictum of Lord Ellen- borough in Hinde v. Whitehouse^ on the subject: "In all sales made by brokers acting between the parties buying and selling, * the memorandum in the broker^s [*241] book and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, have been holden a sufficient compliance with the statute." His Lordship here speaks of bought and sold notes as mere copies of the book, and the inference would be that he considered the book, as the original, to be of more weight than copies from it. § 317. In 1807, he gave this opinion expressly in Heyman V. Neale ^ saying : " After the broker has entered the contract in his book, I am of opinion that neither party can recede from it. The bought and sold note is not sent on approbation, 1 See Eemick v. Sanford, 118 Mass. i 7 East, 509. 106, 107 ; CoddingtoD v. Goddard, 82 i 2 Camp. 337. Mass. (16 Gray) 442. 435 *242 FORMATION OF THE CONTRACT. [BOOK I. nor does it constitute the contract. The entry made and signed by the broker who is the agent of both parties is alone the binding contract. What is called the bought and sold note is only a copy of the other, which would be valid and binding, although no bought or sold note was ever sent to the vendor and purchaser." In this case the bought and sold notes were sworn by the broker to be copies of the entry in his book, and the buyer had, soon after receiving the bought note, objected and said he would not be bound by it. § 318. In 1810, in Hodgson v. Davies,i the sale was through a broker, who rendered bought and sold notes, showing that payment was to be by bills at two and four months. Five days afterwards the defendant, being called on for delivery of the goods sold, objected to the sufficiency of the plaintiff, and refused to perform the contract. Lord EUenborough thought at first that the contract concluded by the broker was absolute, unless his authority ivas limited hy writing of which the j^urchaser had notice. But the gentle- men of the special jury said that unless the name of the pur- chaser has been previously communicated to the seller, if the payment is to be by bill, the seller is always understood to reserve to himself the power of disapproving of the suffi- ciency of the purchaser, and annulling the contract. Lord EUenborough allowed this to be a valid and reasonable usage, but left it to the jury whether the delay of five [*242] days in objecting was *not unreasonable according to the usual commercial practice, and the jury found that it was. § 319. In 1814, the Court of Common Pleas decided the case of Thornton v. Kempster^ (^ante, p. 216), where the broker's sold note described a sale of St. Petersburg hemp, and the bought note described the goods as Riga Rhine hemp, a different and superior article. The Court consid- ered the case as though no broker had intervened, and the parties had personally exchanged the notes, holding that there never had been any agreement as to the subject-matter of the contract, and therefore no contract at all between the parties. 1 2 Camp. 530. ' 5 Taunt. 786. 436 PABT II.] AGENTS DULY AUTHOEIZBD TO SIGN. *243 In 1816, Gumming v. Roebuck^ was tried before Gibbs C. J. at Nisi Prius, and it appeared that the bought and sold notes differed. The learned Chief Justice said : " If the broker deliver a different note of the contract to each party contracting, there is no valid contract. There is, I believe, a case which states the entry in the broker's book to be the original contract, but it has been since contra- dicted." It has been surmised that the case alluded to was that of Heyman v. Neale,^ but no case has been found in the Reports justifying the assertion of the Chief Justice that Heyman V. Neale had been contradicted. § 320. In 1826, the subject first came before the full Court in the Queen's Bench in two cases. In the fu-st. Grant v. Fletcher,^ there was a material vari- ance between the bought and sold notes, and the broker had made an unsigned entry in his " memorandum-book," which entry was incomplete, not naming the vendor. The plain- tiff was non-suited at the assizes on the ground that there was no valid contract between the parties. Abbott C. J. delivered the opinion of the Court on the motion for a new trial. "The broker is the agent of both parties, and, as such, may bind them by signing the same contract on behalf of buyer and seller; but if he does not sign the * same contract for both parties, neither will be bound. [*243] . . . The entry in the broker's book is, prop- erly speaking, the original, and ought to he signed hy him. The bought and sold notes delivered to the parties ought to he copies of it. A valid contract may probably be made by perfect notes signed by the broker, and delivered to the parties, although the book be not signed ; but if the notes are imperfect, an unsigned entry in the book will not supply the defect." § 321. In Groom v. Aflalo,i the other case, the decision was express that the bought and sold notes suffice to satisfy the statute, if otherwise unobjectionable, even though the ' Holt, 172. 1 5 B. & C. 436. 3 2 Camp. 337. i 6 B. & C. 117. 487 *244 rORMATION OF THE CONTEACT. [BOOK I. entry in the broker's book be unsigned. The broker in this case made his entry complete in its terms on the 23d of February as soon as he had concluded the contract, but did not sign it. On the same evening he sent to the parties bought and sold notes signed by him, copied from the entry in his books. Nest morning the defendant objected to, and returned the sold note, and refused to deliver the goods. The Court held the contract binding, notwithstanding the absence of signature to the entry in the book, Abbott C. J. saying, " 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 entry he unsigned. . . . We have no doubt that a broker ought to sign his book, and that every punctual broker will do so. But if we were to hold such a signature essential to the validity of a contract, ive should go further than the Courts have hitherto gone, and might possibly lay down a rule that would be followed by serious inconvenience, 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 he informed, and thereby place it in the power of a negligent or fraudulent man to render the engagements of parties valid or invalid at his pleasure." § 322. In Thornton v. Meux,i in 1827, tried before Chief Justice Abbott, at Guildhall, there was a variance [*244] between the * bought and sold notes, and plaintiff offered in evidence the entry in the broker's book to show which of tlie two was correct, but on objection, the evidence was excluded, the Chief Justice saying : " I used to think at one time that the broker's book was the proper evidence of the contract ; but I afterwards changed my opin- ion, and held, conformably to the rest of the Court, that the copies delivered to the parties were the evidence of the con- tract they enter into, still feeling it to be a duty in the broker to take care that the copies should correspond. I think I must still act upon that opinion, and refuse the evidence." 1 Moo. & M. 43. 438 PAKT II.] AGENTS DULY AUTHORIZED TO SIGN. *245 § 323. It will be apparent from the foregoing cases how completely the opinion of the learned Chief Justice had been changed ; his view being, first, in Grant v. Fletcher, that the book was the original, though prolahly, if the bought and sold notes were perfect, the book might be dispensed with ; secondly, in Groom v. Aflalo, that the broker's signature in his book was not essential to the validity of the contract; and thirdly, in Thornton v. Meux, that the signed entry was not even admissible in evidence, and that the bought and sold notes were the sole evidence of the contract between the parties. § 324. Hawes v. Forster^ was twice tried; first in 1882, and again in 1884. On the first trial, the plaintiff put in the bought note, and proved by the broker that he had made the contract, entered it in his book, signed the entry, and sent the bought and sold notes to the parties on the same evening ; but the broker could not tell which was first written, the entry or the notes. Plaintiff closed his evidence without calling for the sold note, and thereupon the defendant moved for non-suit, but Lord Denman held that the plaintiff was not bound to give any evidence of the sold note. The defendant then offered to prove by the broker's book a variance from the bought note put in, contending that the entry was the original contract ; but this was objected to on the authority of Thornton v. Meux (supra, p. 243), and the * evidence was rejected. Lord Denman say- [*245] ing: "I am of opinion that the plaintiffs have proved a contract by producing the bought note. . . . It is not shown that the sold note delivered to the defendants differed from the bought note delivered to the plaintiffs; had that been the case, it would have been very material. But in the absence of all proof of that nature, I am clearly of opinion that I must look to the bought note, and to that alone, as the evidence of the terms of the contract." The defendants afterwards moved for a non-suit before the Court in Banc, on the ground of the non-production of the sold note, but failed. They also moved for a new trial, on 1 1 Moo. & Rob. 368. 439 *246 FORMATION OP THE CONTEACT. [BOOK I. the ground of the exclusion of the broker's book, and suc- ceeded, the Lord Chief Justice saying, "that the Court doubted whether the case involved any point of law at all, and Avhether it did not rather turn upon the custom, viz., how the broker's book was treated by those who dealt with him." On the second trial, the sold note was produced, and corresponded with the bought note, and proof was given by merchants that the broker's book was never referred to, and that they always looked to the bought and sold notes as the contract. The broker's book showed a material variance from the bought and sold notes, and Lord Denman put the question to the jury, " Whether the bought and sold notes constituted the contract, or whether the entry in the broker's book, which in this instance differed from the bought and sold notes, constituted it ? " His Lordship intimated his own opinion to be that in law the note delivered by the broker was the real contract ; '^ but said that it had been thought better to take the opinion of the jury as to the usage of trade as a matter of fact, and told them : "• If the evidence has satisfied you that, according to the usage of trade, the bought and sold notes are the contract, then you will find a verdict for the plaintiifs." The jury found for the plaintiffs, and the defendants at first indicated the intention of carry- ing the case to a higher Court, but afterwards submitted to the verdict. [*246] § 325. *Li 1842, the Exchequer Court had the subject, together with the decision in Hawes v. Fors- ter, under consideration, in the case of Thornton v. Charles.^ Parke B. and Lord Abinger held opposite opinions. Parke B. said : " I apprehend it has never been decided that the note entered by the broker in his book, and signed by him, would not be good evidence of the contract so as to satisfy the Statute of Frauds, there being no other. The case of Hawes V. Forster underwent much discussion in the Court of King's Bench when I was a member of that Court, and there was some difference of opinion among the judges ; but ultimately 2 See dictum of Denman C. J. also, ^ 9 M. & W. 802. in Trueman v. Loder, 11 A. & E. 589. 440 PART II.] AGENTS DULY AUTHORIZED TO SIGN. *247 it went down to a new trial, in order to ascertain whether there was any usage or custom of trade which makes the broker's note evidence of the contract. . . . i Certainly it was the impression of part of the Court that the contract en- tered in the hook was the original contract, and that the bought and sold notes did not constitute the contract. The jury found that the bought and sold notes were evidence of the con- tract ; but, on the ground that these documents having been delivered to each of the parties after signing the entry in the book, constituted evidence of a new contract, made between the parties on the footing of those notes.^ That case may be perfectly correct, but it does not decide that if the bought and sold notes disagree, or (and?) there be a memorandum in the book made according to the intention of the parties, that memorandum signed by the broker would not be good evidence to satisfy the Statute of Frauds." Lord Abinger said: "I desire it to be understood that I adhere to the opinion given by me, that when the bought and sold notes differ materially from each other, there is no contract, un- less it be shown that the broker's book was known to the parties." § 326. In Pitts v. Beckett,^ in 1845, the plaintiff, who had wool for sale in the hands of a wool-broker, took the defend- ant to the broker's office, and there sold the wool by sample in the broker's presence, it being part of the bargain that the wool * was to be in good dry condition. In [*247] the afternoon of the same day the broker wrote to the plaintiff : " Dear Sir, — We have this day sold on your account, Messrs. Beckett & Brothers " (here followed a de- scription of the terms) "brokerage, 1 per cent. Hughes and Ronald." A machine copy of this communication was made in the broker's book. The broker did not Avrite at all to the purchasers, nor send them any note of the contract. The note to the plaintiff said nothing about the stipulation that the bulk should be in good dry condition. The defendants rejected the wool when sent to them, on the ground that it 2 See statement of Patteson J. to i 13 M. & "W. 743. same effect, infra, p. 250. 441 *248 POEMATION OF THE CONTRACT. [BOOK I. was not in good condition, and the jury found this to be true. The evidence offered was the note written to the plaintiff, and the machine copy of it as being the entry in the broker's book. Held, that the authority given to the broker by the defendant was, not to make a bargain for him, but to reduce to writing and sign the bargain actually made ; that the broker, therefore, was without authority from the defendant to sig:n a bargain which omitted one of the mate- rial stipulations, viz., that the wool should be in good drj- condition ; and that the paper offered in evidence against defendants was therefore not signed by them or their agent. The judges also intimated very strongly the opinion, that the broker's signature was not intended by him to represent the buyer's signature, and that the paper was a mere letter of advice, written in his character of agent of the plaintiff, copied by machine into his letter-book, and not intended as one of the bought and sold notes usually delivered by brokers. § 327. In 1851, the subject was elaborately considered in the Queen's Bench, in the case of Sievewright v. Archibald,^ before Lord Campbell C J. and Erie, Patteson, and Wight- man, JJ. The case was tried at Guildhall before the Chief Justice, and there was a verdict for the plaintiff, with leave reserved to move to set it aside, and enter a verdict for the defendant. The declaration set out an alleged " sold note," and contained a count for goods bargained and sold. A vari- ance was afterwards discovered between the bought [*248] and sold notes, and an amendment * alleging the bought note was allowed, on its being stated to the learned Chief Justice that the plaintiff could give evidence of a subsequent ratification of the bought note by the de- fendant. The sold note was for a sale to the defendant of "500 tons Messrs. Dunlop, Wilson ^ Co.'s pig iron." The bought note was for " 500 tons of Scotch pig iron." The broker proved an order from the plaintiff to sell 500 tons of Dunlop, Wilson & Co.'s iron: that their iron was Scotch 1 20 L. J. Q. B, 529 ; 17 Q. B. 116. See Jefecott v. No. Br. Oil Co., 8 Ir. C. L. 17; see, also, ante, § 310, note 1. 442 PART II.] AGENTS DULY ATJTHOKIZED TO SIGN. *249 iron, and that they were manufacturers of iron in Scotland ; and that the agreement with the defendant was, that he pur- chased from the broker 500 tons of Bunlop, Wilson ^ Co.'s iron. The name of the sellers was given to the purchaser. The bought and sold notes were complete in every respect, and corresponded, save in the variance between the words "Scotch iron" and "Dunlop, Wilson & Co.'s iron." There was no entry in the broker's books signed by him. § 328. The views of the judges differed so widely, and their observations on every branch of this vexed subject are so important, that it is necessary to transcribe them at con- siderable length. Lord Campbell's judgment was concurred in entirely by Wightman J., who heard the argument in April, but was unable to be present at the decision in the following June. His lordship first held, that there was not sufficient evi- dence to justify the verdict of the jury that the defendant had ratified the contract expressed in the bought note. Next, that there was no parol agreement shown by the evi- dence, antecedent to the bought note, and of which that bought note could properly be said to be a memorandum, but that the agreement itself was intended to he in writing, and was understood by the parties to have been reduced to writing when made : and his lordship then continued his reasoning on the supposition that this view was erroneous, and that there had been an antecedent parol agreement, in these words: "Can this (the bought note) be said to be a true memorandum of the agreement? We are here again met by the question of the variance, which is as strong * between the parol agreement and the bought note, [*249] as between the bought note and the sold note. If the bought note can be considered a memorandum of the parol agreement, so may the sold note, and which of them is to prevail ? It seems to me, therefore, that we get back to the same point at which we were when the variance was first objected to, and the declaration was amended. I by no means say that where there are bought and sold notes, they must necessarily be the only evidence of the contract : 443 *250 FORMATION OF THE CONTEACT. [BOOK I. circumstances may be imagined in wMch they might be used as a memorandum of a parol agreement. Where there has been an entry of the contract by the broker in his book, signed by him, I should hold without hesitation, notwith- standing some dicta and a supposed ruling by Lord Ten- terden, in Thornton v. Meux, to the contrary, that this entry is the binding oonh-act between the parties, and that a mis- take made by him when sending a copy of it in the shape of a bought or sold note would not affect its validity. Being aiithorized by the one to sell and the other to buy in the terms of the contract, when he has reduced it into writing, and signed it as their common agent, it binds them both according to the Statute of Frauds, as if both had signed it with their own hands. The duty of the broker requires him to do so, and until recent times, this duty was scrupulously performed by every broker. What are called the bought and sold notes are sent by him to his principals by way of information that he has acted upon their instructions, but not as the actual contract which was to be binding on them. This clearly appears from the practice still followed, of sending the bought note to the buyer and the sold note to the seller, whereas, if these notes had been meant to con- stitute the contract, the bought note would be put into the hands of the seller, and the sold note into the hands of the buyer, that each might have the engagement of the other party, and not his own. But the broker, to save himself trouble, now omits to enter and sign any contract in his book, and still sends the bought and sold notes as [*250] before. If these agree, they are held to constitute *a binding contract; if there be any material variance between them, they are both nullities, and there is no binding contract. This last proposition, though combated by the plaintiff's counsel, has been laid down and acted upon in such a long series of cases, that I could not venture to con- travene it if I did not assent to it. . . . In the present case, there being a material variance between the bought and sold notes, they do not constitute a binding contract ; there is no entry in the broker's book signed by him ; and if there were a parol agreement, there being no sufficient 444 PART II.J AGENTS DULY AUTHORIZED TO SIGN. *251 mention of it in writing, nor any part acceptance or part payment, the Statute of Frauds has not been compKed with, and I agree with my brother Patteson in thinking that the defendant is entitled to our verdict." § 329. Patteson J. said that the sole question was whether there was a note or memorandum in writing of the bargain signed by the defendant or his agent, it being quite immaterial whether there was one signed by the plain- tiff ; that the memorandum need not be the contract itself, but that a contract might be by parol, and if a memorandum were afterwards made, embodying the contract, and signed by one party or his agent, he being the party to be charged, the statute was satisfied. Still, if the original contract was in writing, signed by both parties, that would be the binding instrument, and no subsequent memorandum signed by one party could have any effect. The learned judge considered that in the case before the Court the contract was not in writing ; that it was made by the broker, acting for both parties, but was not signed by him or them, and that the statute therefore could not be satisfied unless there was some subsequent memorandum, signed by the defendant or his agent. His Lordship then continued : " There are sub- sequent memoranda signed by the broker, namely, the bought and sold notes. Which of these, if either, is the memorandum in writing signed by the defendant or his agent? The bought note is delivered to the buyer, the de- fendant : the sold note to the seller, the plaintiff. Each of them in the language used purports to be a represen- tation by the broker to the * person to whom it is de- [*251] livered of what he, the broker, has done as agent for that person. Surely the bought note delivered to the buyer cannot be said to be the memorandum of the contract, signed by the buyer's agent, in order that he might be bound thereby, for then it would have been delivered to the seller, not to the buyer, and vice versd as to the sold note. Can, then, the sold note delivered to the seller be treated as the memo- randum signed by the agent of the buyer, and binding him, the buyer, thereby ? The very language shows that it can- 445 *252 FORMATION OP THE CONTRACT. [BOOK I. not. In the Cit}^ of London, where this contract was made, the broker is bound to enter in his books and sign all con- tracts made by him ; and if the broker had made such signed entry, I cannot doubt, notwithstanding the cases and dicta apparently to the cojitrary, that such memorandum would be the binding contract on both parties." The learned judge then went on to say that he had been one of the judges of the Court that granted the new trial in Hawes v. Forster, and he confirmed the account given of that case by Parke B., in Thornton v. Charles (supra, p. 246). He then continued: " However, in the present case there was no signed memo- randum in the broker's book. Therefore, the bought and sold notes together, or one of them, must be the memoran- dum in writing signed by the defendant's agent, or there is none at all, and the statute will not be satisfied. If the bought and sold notes together be the memorandum, and they differ materially, it is plain that there is no memoran- dum. The Court cannot possibly say, nor can a jury say, which of them is to prevail over the other. Read together, they are inconsistent ; assuming the variance between them to be material, and if one prevails over the other, that one will be the memorandum, and not the two together. If, on the other hand, one only of these notes is to be considered as the memorandum in writing signed by the defendant's agent, and binding the defendant, which of them is to be so considered, the bought note delivered to the defendant, himself, or the sold note delivered to the plaintiff? I have already stated that I cannot think either of them by [*252] itself can be so treated. ... If this were * res integra,. I am strongly disposed to say that I should hold the bought and sold notes together not to be a memo- randum to satisfy the Statute of Frauds, but I consider the point to be too well settled to admit of discussion. Yet there is no case in which they have varied, in which the Court has upheld the contract, plainly showing that the two together have been considered to be the memorandum bind- ing both parties, the reason of which is, I confess, to my mind, quite unsatisfactory, but I yield to authority." 446 PART n.j AGENTS DULY AUTHOKIZED TO SIGN. *253 § 330. Erie J. stated the question raised in the case as follows : " The defendant contends, first, that in cases where a contract is made by a broker, and bought and sold notes have been delivered, they alone constitute the contract, that all other evidence of the contract is excluded, and that if they vary a contract is disproved." The learned judge held, that the defendant had failed to establish this proposition, and then observed : " The question of the effect either of an entry in a broker's book signed by him, or of the acceptance of bought and sold notes, which agree, is not touched by the present case. I assume that sufficient parol evidence of a contract in the terms of the bought note delivered to the defendant has been tendered, and that the point is whether such evidence is inadmissible, because a sold note was delivered to the plaintiff; in other words, whether bought and sold notes, without, other evidence of intention, are hy presumption of law a contract in writing. I think they are not. If bought and sold notes, which agree, are delivered and accepted without objec- tion, such acceptance, without objection, is evidence for the jury of mutual assent to the terms of the notes, but the assent is to be inferred by the jury, from their acceptance of the notes without objection, not from the signature to the writing, which would be the proof, if they constituted a con- tract in writing. . . . The form of the instrument is strong to show that they are not intended to constitute a con- tract in writing, but to give information from the agent to the principal of that which has been done in his behalf. . . . No person acquainted with legal consequences would intend to make a written contract depend on separate * instruments, sent at separate times, in va- [*258] rious forms, neither party having seen both instru- ments. Such a process is contrary to the nature of contract- ing, of which the essence is interchange of consent at a certain time. ... It seems to me, therefore, that upon principle, the mere delivery of bought and sold notes does not prove an intention to contract in writing, and does not exclude other evidence of the contract in case they disagree.'''' The learned judge then pointed out the distinction between proof of a contract, and proof of a compliance with the statute, 447 *254 POEMATION OF THE CONTKACT. [BOOK I. saying: "The question of a compliance with the statute does not arise till the contract is in proof. In case of a writ- ten contract, the statute has no application. In case of other contracts, the compliance may be proved by part pay- ment or part delivery, or memorandum in writing of the bargain. Where a memorandum in writing is to be proved as a compliance with the statute, it differs from a contract in writing ; in that it may be made at any time after the con- tract, if before the action commenced, and any number of memoranda may be made, all being equally originals ; and it is svifficient if signed by one of the parties only, or his agent, and if the terms of the bargain can be collected from it, although it be not expressed in the usual form of an agree- ment." His lordship then held, that upon a review of the evidence in the case, there was sufficient parol proof to show that the bought note was a correct statement of the terms of the bargain, and that defendant had acquiesced in and was satisfied with it. § 331. The" next case was Parton v. Crofts,^ in 1864, where the contract note delivered to the purchaser was alone pro- duced in evidence, and it was held that it sufficed to prove the contract between the two parties, and that the presump- tion was that the bought and sold notes did not vary ; if they did, it was for the defendant to prove the variance by giving in evidence the note sent to the seller. In Heyworth v. Knight,^ the same Court decided in [*254] the * same year that where the contract appears in a correspondence to have been completed between the brokers, and the bought and sold notes show a variance from that contract, the parties are bound by the agreement con- tained in the correspondence ; that the bought and sold notes are to be disregarded; and that the purchaser was bound by the agreement made in the correspondence in ac- cordance with the authority given to his broker, although the broker had signed without authority a different contract in 1 16 C. B. N. S. 11 ; 33 L. J. C. P. 2 17 c. B. N. S. 298; 33 L. J. 189. C. P. 298. 448 PART n.] AGENTS DULY AUTHORIZED TO SIGN. *255 the bought and sold notes. In this case the decision of the Privy Council in Cowie v. Remfry, 5 Moore P. C. C. 232, was very strongly disapproved by Willes J. § 332. The next case, in 1868, was Cropper v. Cook.^ It decides that it is not a variance between the bought and sold notes that the bought note shows the names of the two prin- cipals, and the sold notes states, " Sold to our principals, &c.," without naming the buyers. It was proven in the case that a special usage exists in the wool trade, in Liverpool, that the buyer's broker may contract in the name of the principal, or at his discretion, without disclosing the principal's name, thus making^ himself personally responsible, if requested to do so by the vendor ; and that the broker may do this, with- out communicating the fact to the buyer. The Court held this usage reasonable and valid. § 333. [The last case was Thompson v. Gardiner,^ in 1876. A broker who acted only for the plaintiff, the seller, entered into a contract for the sale of butter to the defendant, send- ing a contract note to each party, but only signing the note sent to the plaintiff. He, however, duly entered and signed both notes in his broker's book. The defendant kept the bought note, but when called upon to accept the butter de- clined to do so on the ground that the bought note was un- signed. The Court held — first (Grove J., dubitante), that the defendant by his conduct in retaining the note had acknowledged the broker's authority to sign the contract on his behalf; and, secondly, that even if the defendant were not bound by the broker's signature to the sold note, the signature in the * broker's book was sufficient to [*255] satisfy the statute. " The broker being a broker au- thorized to make a memorandum of the contract on the defend- ant's behalf, the entry in his book was sufficient evidence of a memorandum of the bargain signed by a duly-authorized agent within the meaning of the Statute of Frauds to bind the de- fendant." Per Cur. at p. 780.] § 334. The following propositions are submitted as fairly deducible from the authorities just reviewed, and others 1 L. R. 3 C. P. 194. i.lC. P. D. 777. 449 ■*255 FORMATION OP THE CONTRACT. [book I. quoted in the notes, though some of these points cannot be considered as finally settled. First. — The broker's signed entry in his book constitutes the contract between the parties, and is binding on both.^ This proposition rests on the authority of Lord EUenborough in Heyman v. Neale,^ of Parke B., in Thornton v. Charles,^ and of Lord Campbell C. J., and Wightman and Patteson J J., in Sieve Wright v. Archibald,* [and of the Court in Thompson v. Gardiner.^] Gibbs C. J., in Gumming v. Roebuck ; ^ Abbott C. J., in Thornton v. Meux ; " Denman C. J., in Townend v. Drake- ford ; ^ and Lord Abinger, in Thornton v. Charles',^ are authorities to the contrary, but they seem to have been overruled in Sievewright v. Archibald.* § 335. Secondly. — The bought and sold notes do not cotv- stitute the contract. This is the opinion of Parke B., in Thorn- ton V. Charles ; ^ of Lord EUenborough, in Heyman v. Neale,^ ^Broker's authority. — Where the broker exceeds his authority, the principal is not bound. Coddington V. Goddard, 82 Mass. (16 Gray) 4.36 ; Davis V. Shields, 20 Wend. (N. Y.) 341 ; Peltier i'. Collins, 3 Wend. (N. Y.) 467; s. c. 20 Am. Dec. 711; McMuUan r. Helburgh, L. R. 4 I. R. 94; Megaw r. MoUoy, L. R. 2 Ir. 530. See, also, Remick v. Sandford, 118 Mass. 102, 106 ; Dodd v. Farlow, 93 Mass. (11 Allen) 426. 2 2 Campb. 337. » 9 M. & W. 802. 4 20 L.J. Q. B. 529; 17 Q. B. 115. 6 1 C. P. D. 777. Broker's memorandum book. — The memorandum required by the Statute of Frauds may be made by the broker in his book. Williams o. Woods, 16 Md. 220, 250 ; Coddington r. Goddard, 82 Mass. (16 Gray) 436, 442 ; Sale v. Darragh, 2 Hilt. (N. Y.) 184, 197; Clason V. Bailey, 14 Johns. (N. Y.) 484 ; Sievewright i^. Archibald, 17 Q. B. 102, 109; Goom v. Aflalo, 6 Barn. & Cress. 117. But the writing to be designed to evidence, the con- tract of the parties must clearly show what they agreed to; it must show a valid and binding contract entered into, which can be enfgrced ; and in that respect it cannot be aided, as- sisted, or helped out by parol proof. Sale V. Darragh, 2 Hilt. (N. Y.) 184, 198; Bailey v. Ogdens, 3 Johns. (N. Y.) 418 ; ... c. 3 Am. Dec. 509 ; Peltier V. Collins, 3 Wend. (N. Y.) 465; s. c. 20 Am. Dec. 711; Weightman v. Caldwell, 17 U. S. (4 Wheat.) 85; bk. 4, L. ed. 520; Elmore v. Kings- cote, 5 Barn. & Cress. 583 ; Ken- worthy V. Schofield, 2 Barn. & Cress. 948 ; Ormond v. Anderson, 2 Ball & B. 368 ; Acebal v. Levy, 10 Bing. 376 ; Boydcll ;■. Drummond, 11 East, 142 ; Hinde v. Whitehouse, 7 East, 558 ; Seagood c. Meale, Prec. in Ch. 560; Clinani-. Cooke, 1 Sch. & Lef. 22 ; Rose v. Cunynghame, 11 Ves. 550. See § 310, note 1. « Holt, 172. ' M. & M. 4.3. « 1 Car. & K. 20. 1 9 M. & W. 802. 2 2 Camp. 337. 450 PART II.] AGENTS DULY AITTHORIZBD TO SIGN. *256 and was the unanimous opinion of the four judges in Sieve- wright V. Archibald.^ The decision to the contrary, in the Nisi Prius case of Thornton v. Meux,* and the dicta in Groom V. Aflalo,^ and Trueman v. Loder,^ are pointedly disapproved in the case of Sievewright v. Archibald.^ § 336. Thirdly. — But the bought and sold notes, when they correspond and state all the terms of the bargain, are complete * and sufficient evidence to satisfy the [*256] statute ; even though there be no entry in the broker's book, or, what is equivalent, only an unsigned entry. This was first settled by Groom v. Aflalo,i and reluctantly admitted to be no longer questionable in Sievewright v. Archibald.^ § 387. Fourthly. — Either the bought or sold note alone will satisfy the statute, provided no variance be shown be- tween it and the other note, or between it and the signed entry in the book. This was the decision in Hawes v. Forster,! of the Common Pleas in Parton v. Crofts,^ [and of the Common Pleas Division in Thompson v. Gardiner^.] § 338. Fifthly. — Where one note only is oifered in evi- dence, the defendant has the right to offer the other note or the signed entry in the book to prove a variance. Hawes v. Forster ^ is direct authority in relation to the entry in the book, and in all the cases on variance, particularly in Parton V. Crofts, supra, it is taken for granted that the defendant may produce his own bought or sold note to show that it does not correspond with the plaintiff's. § 339. Sixthly. — As to variance. This may occur be- tween the bought and sold notes where there is a signed s 20 L. J. Q. B. 529 ; 17 Q. B. 115. ^ i C. P. D. 777. See Remick u. * M. & M. 4.S. Sandford, 118 Mass. 102 ; Dodd v. 6 6 B. & C. 117. Farlow, 93 Mass. (11 Allen) 426 ; 6 11 A. & E. 509. Cabot v. Winsor, 83 Mass. (1 Allen) 1 6 B. & C. 117. 546 ; Coddington i-. Goddard, 82 Mass. 2 20 L. J. Q. B. 529 ; 17 Q. B. (16 Gray) 486 ; Newberry v. Wall, 115. See, also, Cleuv. McPherson, 1 84 N. Y. 576; Dike ». Reitlinger, 23 Bosw. (N. Y.) 480. Hun (N. Y.) 241 ; Butler v. Thomp- 1 1 Mood. & Rob. 368. son, 92 U. S. (2 Otto) 412 ; bk. 23, L. 2 16 C. B. N. S. 11 ; 33 L. J. ed. 684. C. P. 189. 1 1 Mood. & Rob. 368. 451 *257 FORMATION OF THE CONTRACT. [BOOK I. entry, or where there is none. It may also occur when the bought and sold notes correspond, but the signed entry differs from them. If there be a signed entry, it follows from the authorities under the first of these propositions, that this entry will in general control the case, because it constitutes the contract, of which the bought and sold notes are merely secondary evidence, and any variance between them could not affect the validity of the original written bargain. If, however, the bought and sold notes correspond, but there be a variance between them taken collectively and the entry in the book, it becomes a question of fact for the jury whether the acceptance by the parties of the bought and sold notes constitutes evidence of a new contract [*257] modifying that which * was entered in the book. This is the point established by Hawes v. Forster ^ according to the explanation of that case first given by Parke B., in Thornton v. Charles,^ afterwards by Patteson J., in Sievewright v. Archibald,^ and adopted by the other judges in this last-named case.* § 340. Seventhly. — If the bargain is made by correspond- ence, and there is a variance between the agreement thus concluded, and the bought and sold notes, the principles are the same as those just stated which govern variance between a signed entry, and the bought and sold notes, as decided in Heyworth v. Knight.^ § 341. Ijighthly. — If the bought and sold notes vary, and there is no signed entry in the broker's book nor other writ- ing showing the terais of the bargain, there is no valid con- tract.^ This is settled by Thornton v. Kempster,^ Gumming 1 Mood. & R. 368. and partli/ in writing and there is a ^ 9 M. cSb W. 802. conflict between the printing and ^17 Q. B. 115; 20 L. J. Q. B. writing, the written matter must pre- 529. vail over the printed. Hill v. Miller, * Coddington v. Goddard, 82 Mass. 76 N. Y. 32. (16 Gray) 436, 442 ; Peltier v. Col- ' Bought and sold notes. — Where lins, 3 Wend. (N. Y.) 459 ; ». c. 20 the same broker acts for both parties, Am. Dec. 711. the bought and sold notes delivered 1 17 C. B. N. S. 298 ; 33 L. J. by him must correspond with each C. P. 298. other, or there will be no binding Where a contract is partly printed contract, Suydam u. Clark, 2 Sandf. 452 PART II.] AGENTS DULY AUTHORIZED TO SIGN. "257 V. Roebuck,^ Thornton v. Meux,* Grant v. Fletcher,^ Gregson v. Rucks,^ and Sievewright v. Archibald.^ The only opinion to the contrary is that of Erie J., in the last-named case. In one case, however, at Nisi Prius, Rowe v. Osborne,'^ Lord EUenborough held the defendant bound by Ms own sig- nature to a bought note delivered to the vendor which did not correspond with the note signed by the broker and sent to the defendant. § 342. Lastly. — If a sale be made by a broker on credit, and the name of the purchaser has not been previously com- municated to the vendor, evidence of usage is admissible to show that the vendor is not finally bound to the bargain until he has had a reasonable time, after receiving the sold note, to inquire into the sufficiency of the purchaser, and to withdraw if he disapproves. This was decided in Hodg- son V. Davies,! and as the special jury spontaneously inter- vened in that case, and the usage was held good without (N. Y.) 1.33. See Grant v. Fletcher, 5 Barn. & Cress. 436 ; Moore v. Camp- bell, 10 Ex. 323, 330; Cummlng v. Roebuck, Holt, N. P. C. 172 ; Cowie V. Remfry, 10 Jur. 789 ; Sievewright V. Archibald, 17 Q. B. 103; Gregson V. Ruck, 4 Q. B. 747; Butters v. Glass, 31 Up. Can. Q. B. 379 ; 1 Chitty Contr. (11th Am. ed.) 651. See, also, Coddington v. Goddard, 82 Mass. (16 Gray) 436 ; s. c. Lang. Cas. on Sales, 614 ; Newbery v. Wall, 65 N. Y. 484 ; s. c. 84 N. Y. 576 ; Suydam V. Clark, 2 Sandf. (N. Y.) 133 ; s. c. Lang. Cas. on Sales, 581 ; Davis v. Shields, 26 Wend. (N. Y.) 341 ; s. u. Langd. Cas. on Sales, 558 ; Peltier V. Collins, 3 Wend. (N. Y.) 459 ; s. c. 20 Am. Dec. 711 ; Butler v. Thomp- son, 11 Blatchf. C. C. 533 ; s. c. 92 U. S. (2 Otto) 412 ; bk.23, L. ed. 684 Newell V. Radford, L. R. 3 C. P. 52 Thompson v. Gardiner, L. R. 1 C. P, Div. 777; s. c. 18 Moak Eng. Rep 328 ; Maclean i'. Dunn, 4 Bing. 722 ; s. c. Lang. Cas. on Sales, 390 ; Hodg- son V. Davis, 2 Campb. 531 ; Heymau V. Neale, 2 Campb. 337; s. c. Lang. Cas. on Sales, 348 ; Heyworth v. Knight, 17 C. B. N. S. 298 ; Parton v. Crofts, 16 C. B. N. S. 11 ; s. c. Lang. Cas. on Sales, 508 ; Kempson v. Boyle, 3 Hurl. & C. 763; Thornton v. Charles, 9 Mees. & W. 802; s. c. Lang. Cas. on Sales, 436 ; Bold v. Rayner, 1 Mees. & W. 342 ; Hawes v. Forstei>, 1 Moo. & R. 368 ; ». c. Lang. Cas. on Sales, 410; Thornton v. Kemps ter, 5 Taunt. 786 ; s. c. Lang. Cas. on Sales, .364; Sievewright v. Archibald, 17 Q. B. 115; s. c. Lang. Cas. on Sales, 452; Gregson v. Ruck, 4 Q. B. 747 ; Black- burn on Sales, 88, 89 ; Campbell on Sales, 427, 438; Story on Sales, § 269 ; Wood on Frauds, §§ 430, 434, 436. However, a contrary doctrine seems to be maintained in Adams v. Gray, 8 Conn. 11 ; o. c. 20 Am. Dec. 82. 2 5 Taunt. 786. 3 Holt, 172. 4 1 M. & M. 43. 6 5 B. & C. 436. 6 4 Q. B. 747. ' 1 Stark. 140. 1 2 Camp. 531. 453 *258 FOKMATION OF THE CONTKACT. [BOOK I. [*258] proof of *it, it is not improbable that the custom might now be considered as judicially recognized by that decision, and as requiring no proof,^ but it would certainly be more prudent to offer evidence of the usage. § 343. A singular point was decided in Moore v. Camp- bell.i A broker employed by the plaintiff to purchase hemp made a contract with the defendant, and sent him a sold note. The defendant replied in writing, "I have this day sold through you to Mr. Moore, &c., &c." The terms stated in this letter varied from those in the sold note sent to the defendant. The Court held that these were not bought and sold notes by a broker of both parties, and that the broker was acting for the plaintiff alone. The plaintiif's counsel contended that the defendant's letter was sufficient proof of the contract to bind him, and must be taken to be his own correction of the sold note made by the broker, and binding on him. But the Court held that although this was true if the intention of the parties was that this letter should consti- tute the contract, yet if the defendant never intended to be bound as seller unless the plaintiff was also bound as buyer, and meant that the plaintiff should also sign a note to bind himself, there would be no valid contract. The case was therefore remanded for the trial'- of this question of fact by the jury .2 § 344. A mere difference in the language of the bought and sold notes will not constitute a variance, if the mea?iing be the same, and evidence of mercantile usage is admissible .to explain the language and to show that the meanings of ^ See Brandao o. Barnett, 3 C. B. dence of the contract. Aguirre v. 519, on appeal to H. of L. ; s. c. 12 Allen, 10 Barb. (N. Y.) 74 ; affirmed, CI. & ITin. 787, as to the necessity for 7 ST. Y. 54.3, As to the power of a proving mercantile usages. Also, 1 broker to bind the parties by a raem- Sm. L. C. 602, ed. 1879. orandum in his books, see Lawrence 1 23 L. J. Ex. 310; 10 E.x. 323. «. Gallagher, 42 N. Y. Sup. Ct. (10 J. 2 Where a broker simply brings & S.) 309, 319; Haydock v. Stowe, the parties together, after which the 40 N. Y. 368; Bush v. Cole, 28 N. Y. parties negotiate with each other 269; Dykers v. Townsend, 24 N. Y. directly, the broker cannot make an 59; Pringle v. Spaulding, 53 Barb, entry of such sale in his books, so as (N. Y.) 21 ; Davis v. Shields, 26 to bind either party or as will prevent Wend. (N. Y.) 341 ; Pitts v. Beckett, either party from giving parol evi- 13 Mees. & W. 751. 454 PART II.J AGENTS DULY AUTHOEIZBD TO SIGN. *259 the two instruments correspond. The cases in illustration are collected in the note.^ And where the contract made by the broker was one for the exchange or barter of goods, and he wrote out the * contract in the shape of bought and sold notes, [*269] giving to each party on a single sheet a bought note for the goods he was to receive, and a sold note for the goods he was to deliver, it was held no variance that the day of payment was specified at the end of both notes on one sheet, and at the end of the bought note only on the other.^ § 345. The authority of the broker may, of course, like that of any other agent, be revoked by either party before he has signed in behalf of the party so revoking ; ^ but after the signature of the duly-authorized broker is once affixed to the bargain, the only case in which the party can be allowed to recede appears to be that mentioned supra, p. 257, where a credit sale has been made to an unnamed purchaser, in which event custom allows the vendor to retract if, on inquiry within reasonable time after being informed of the name, he disapproves the sufficiency of the purchaser.^ 1 Bold V. Rayner, 1 M. & W. 342 ; Little, 2 Me. (2 Greenl.) 14 ; s. c. 11 and per Brie J. in Sievewright v. Am. Dec. 25 ; Gale v. Tappen, 12 Archibald, 20 L. J. Q. B. 529; 17 Q. N. H. 145; s. c. 37 Am. Dec. 194; B. 115; Rogers v. Hadley, 2 H. & C. Watt o. Watt, 2 Barb. Ch. (N. Y.) ' 227; 32 L. J. Ex. 227; Kempson v. 371; Aertson v. Cage, 2 Humph. Boyle, 3 H. & C. 763; 34 L. J. Ex. (Tenn.) 350; Gait v. Galloway, 29 191. U. S. (4 Pet.) 332 ; bk. 7, L. ed. 876; 2 Maclean v. Dunn, 4 Bing. 722-4. Blades v. Free, 9 Barn. & C. 167 ; , "Farmer v. Robinson, 2 Camp. Wallace v. Cook, 5 Esp. 117; Cam- 339n.; Warwick?;. Shade, 3Camp. 127. panari w. Woodburn, 28 Eng. L. & E. ^ Revocation of authority of broker. 321 ; Smout v. Ilbery, 10 Mees. & W. — Where a broker's agency is not 1 ; Wynne v. Thomas, Willes, 563 ; coupled with an interest it is reroca- Shipman v. Thompson, Willes, 104, ble at pleasure. Blackstone v. But- 105 ; Littleton, § 66 ; Co. Litt. 52 ; termore, 53 Pa. St. 266 ; Clark v. Story on Agency, sees. 264, 477, 488. Courtney, 30 TJ. S. (5 Pet.) 319 ; bk. Where the agency is coupled with an 8, L. ed. 140 ; Gait v. Galloway, 29 interest, or where it is given for a val- U. S. (4 Pet.) 332 ; bk. 7, L. ed. 876 ; uable consideration, in the absence Hunt V. Kousmanier, 21 U. S. (8 of an express stipulation that it shall Wheat.) 174, 201 ; bk. 5, L. ed. 589. be revocable, it cannot be revoked by The revocation may be by opera- the principal (Bonney v. Smith, 17 tion of law or by the death either of 111. 533 ; Franklin v. Osgood, 14 John, the principal or the agent. See Fer- (N. Y.) 527 ; Jackson v. Burtis, 14 ris V. Irving, 28 Cal. 645 ; Harper v. John. (N. Y.) 391 ; Jackson i/, Fer- 465 *259 FORMATION OF THE CONTRACT. [BOOK I. § 346. And where a broker had, reluctantly and after ur- gent persuasion by the vendor, made an addition to the sold note, after both the bought and sold notes had been delivered to the parties and taken away, the vendor's contention that this addition was simply inoperative was overruled, and the Court held that the fraudulent alteration of the note de- stroyed its effect, so that the vendor could not recover on it-i And the effect would be the same in the case of a material alteration even not fraudulent.^ § 347. In Henderson v. Barnewall,i where the parties con- tracted in person in presence of the broker's clerk, who had brought them together on the Exchange, and one, in the hearing of the other, dictated to him the terms of the agree- ment, it was held by all the Barons of the Exchequer that the agency of the clerk was personal, and that neither an entry of the bargain in the broker's books nor a sale note signed by him would satisfy the statute, because the clerk could not delegate the agency to his employer.^ ris, 15 John. 346 ; Raymond v. Squire, 11 John. (N. Y.) 47 ; Knapp v. Alvord, 10 Paige Ch. (N. Y.) 205 ; s. c. 40 Am. Dec. 241 ; Marfield u. Douglass, 1 Sand. (N. Y.) 360 ; Bergen v. Ben- nett, 1 Caines Cas. (N. Y.) 1 ; s. c. 2 Am. Dec. 281 ; Smyth v. Craig, 3 Watts & S. (Pa.) 14 ; Morgan v. Ray- nor (N. Y.), 5 Alb. L. J. 109 ; Gaussen t-. Morton, 10 B. & Cress. 731; Watson V. King, 4 Camp. 272; Walsh v. Whitcomb, 2 Esp. 565; Smart v. Sandars, 5 C. B. 895; Metcalfe v. Clough, 2 Mann. & R. 178; Lepard V. Vernon, 2 Ves. & B. 51 ; Brom- ley V. Holland, 7 Ves. 28; 2 Kent's Com. 643 ; 2 Liverm. on Agency, 308; 1 Pars, on Cont. 69, 70, 71, 72; Smith on Merc. Law (2d ed.) 71, 72) ; and the death of the principal will not terminate the agency ; Merrey v. Lynch, 68 Me. 94; Hunt v. Rous- manier, 21 U. S. (8 Wheat.) 174; bk. 5, L. ed. 589. 1 Powell u. Derit, 15 East, 29. 2 MoUett V. Wackerbath, 5 C. B. 181 ; 17 L. J, C. P, 47. Alteration of contract by broker. — Where an agent or broker has implied power simply to sell, he has no power to rescind tlie sale or materially mod- ify its tercns, after it has become an executed contract. Adrian v. Lane, 13 S. C. 183 ; see, also, Ghirardelli v. McDermott, 22 Cal, 539. An alteration bij a stranger of a con- tract, thougli material, will not ren- der it inoperative. Nichols v. John- son, 10 Conn. 192 ; Rees «. Over- baugh, 6 Cow. (N. Y.) 746; Jackson V. Malin, 15 Johns. (N. Y.) 293. An alteration of a written instrument by mistake will not invalidate it. Nichols u. Johnson, 10 Conn. 192; Wilkinson v. Johnson, 3 Barn. & Cres. 428; s. c. 10 Eng. C. L. 140; Eaper V. Birkbeck, 15 East, 17. 1 1 Y. & J. 387. 2 A signature by a broker's clerk where made in the broker's presence is valid and binding the same as the signature by an auctioneer's clerk. See ante, sec. 305, note 2 ; Williams v. Woods, 16 Md. 220. 456 *BOOK 11. [*260] EFFECT OF THE CONTRACT IN PASSING PROPERTY. CHAPTER I. DISTINCTION BETWEEN CONTRACTS EXECUTED AND EXECUTOEY. PAGE I PAGE Preliminary remarks .... 260 I Division of the subject . . . 262 § 348. Aptee a contract of sale lias been formed, the first question which suggests itself is naturally, What is its effect? When does the bargain amount to an actual sale, and when is it a mere executory agreement? We have already seen^ that the distinction between the two contracts consists in this, that in a bargain and sale, the thing which is the subject of the contract becomes the property of the buyer, the moment the contract is concluded, and without regard to the fact whether the goods be de- livered to the buyer or remain in possession of the vendor,^ whereas in the executory agreement, the goods remain the property of the vendor till the contract is executed.^ In the 1 Ante, pp. *3 and *78. 18, L. ed. 843 ; Meyerstein v. Barber, 2 The sale of a specific chattel passes L. R. 2 C. P. 38, 51 ; s. c. L. R. 4 H. the property to the vendee without L. 317, 326 ; Dixon v. Yates, 5 B. & delivery. See Grill v. Doyle, 63 Ad. 313. Cal. 713; Webber v. Davis, 44 Me. » Leigh v. Mobile & 0. R. R. Co., 147 ; s. c. 69 Am. Dec. 87 ; Bailey v. 58 Ala. 165 ; Cardinell v. Bennett, 52 Smith, 43 N. H. 143 ; Dexter v. Nor- Cal. 476 ; Olney v. Howe, 89 III. 556 ; ton, 65 Barb. (N. Y.) 272; Tome v. s. c. 31 Am. Rep. 105; Lester i;. East, Duboi?, 73 U. S. (6 Wall.) 548; bk. 49 Ind. 588, 592; Straus v. Ross, 25 457 *260 EFFECT OF THE CONTEACT. [book II. one case, A. sells to B.: in the other, he only promises to sell. In the one case, as B. becomes the owner of the goods Ind. 300; The Elgee Cotton Cases, 89 U. S. (22 Wall.) 180; bk. 22, L. ed. 863. Executed and executory contracts. — Whether a sale is to be considered executed or simply executory is to be determined from the real intention of, the parties, as manifested by their language and surrounding circum- stances. Callaghan v. Myers, 89 111. 570 ; Weed u. Boston & Salem Ice Co., 94 Mass. (12 Allen) 377 ; Stone V. Peacock, 35 Me. 388 ; Linghara v. Eggleston, 27 Mich. 324; Hurd v. Cook, 75 N. Y. 404 ; Terry v. Wheeler, 25 N. Y. 525 ; Peoples' Bank v. Gay- ley, 92 Pa. St. 527 ; Nicholson v. Tay- lor, 31 Pa. St. 130; s. c. 72 Am. Dec. 728; Winslow v. Leonard, 24 Pa. St. 14; s. c. 62 Am. Dec. 354; Pletcher v. Ingram, 46 Wis. 201 ; Sewell u. Eaton, 6 Wis. 490; s. c. 70 Am. Dec. 471 ; Hatch v. Standard Oil Co., 100 U. S. (10 Otto) 124; bk. 25, L. ed. 554; Elgee Cotton Cases, 89 U. S. (22 Wall.) 180; bk. 22, L. ed. 863. Tlie intention of the parties is usually a matter of fact to be found by the jury from the evidence. Dyer u. Libby, 61 Me. 45; Merchants' Nat. Bank v. Bangs, 102 Mass. 296 ; Rid- dle V. Varnum, 37 Mass. (20 Pick.) 280; Wilkinson v. Holiday, 33 Mich. 386; Kelsea v. Haines, 41 N. H. 253; Fuller I'. Bean, 34 N. H. 290. See ante, § 351, note 2. Where the actual intention of the parties cannot be determined as a fact from the evi- dence, the law will presume the sale to be an actual present sale, except in those cases where the article is not ready for delivery. Chapman o. Shepard, 39 Conn. 413 ; Bethel Steam Mill Co. 0. Brown, 57 Me. 18 ; Riddle V. Varnum, 37 Mass. (20 Pick.) 283. See, also, Winslow o. Leonard, 24 Pa. St. 14; ». c. 62 Am. Dec. 354; Riddle V. Varnum, 37 Mass. (20 Pick.) 283 ; Sumner r. Hamlet, 29 Mass. (12 Pick.) 76; Clark v. Baker, 46 Mass. (5 Mete.) 452 ; Blacomber r. Parker, 30 Mass. (13 Pick.) 175; Shindler v. Houston, 1 Den. (N. Y.) 48 ; s. c. 49 Am. Dec. 316 ; Sands o. Taylor, 5 Johns. (N. Y.) 395; s. c. 4 Am. Dec. 374 ; Nicholson u. Taylor, 31 Pa. St. \i°; s. c. 72 Am. Dec. 728; Scott v. Wells, 6 Watts & S. (Pa.) 357; s. c. 40 Am. Dec. 568 ; Smyth v. Craig, 3 Watts & S. (Pa.) 14; Pleasants v. Pendleton, 6 Rand (Va.) 473; s. c. 18 Am. Dec. 726 ; Hawes ;■. Watson, 2 Barn. & Cress. 540; Valpy v. Gibson, 4 C. B. 864; Chaplin u. Rogers, 1 East, 192. A bargain bi/ ivords in past or pres- ent tense is not conclusive evidence of a perfect sale ; for if the vendor did not then own the article contracted for, or it was not then in existence, or not yet manufactured, or not selected out of a lot of similar arti- cles, then the subject-matter of the contract remains undefined and un- specified, and it is incompatible with the very nature of things to call it a perfect sale. Bailey v. Ogden, 3 John. (N. Y.) 399; s. c. 3 Am. Dec. 85 ; Andrews v. Dieterich, 14 Wend. (N. Y.) 31 ; Prichett v. Jones, 4 Rawle (Pa.) 260; Eagle w. Eichel- berger, 6 Watts (Pa.) 29; s. c. 31 Am. Dec. 449; Jenkins v. Eichel- berger, 4 Watts (Pa.) 121; s. u. 38 Am. Dec. 691 ; Mucklow v. Mangles, 1 Taunt. 318. Sale of articles in bulk. — A man may sell any kind of articles in bulk, so as to pass the title. Clark v. Baker, 46 Mass. (5 Mete.) 452; Sands o. Taylor, 5 Johns. (N. Y.) 395; s. c. 4 Am. Dec. 374; Hawes v. Watson, 2 Barn. & Cress. 540. He may pass the title to an absent or present thing without delivery. Shaw V. Levy, 17 Serg. & R. (Pa.) 99; Hazard v. Hamlin, 5 Watts (Pa.) 201. This is the rule except in cases 458 CHAP. I.] CONTKACTS EXECUTED AND EXECUTORY. *261 themselves, as soon as the contract is completed by mutual assent,* if they are lost or destroyed, he is the * sufferer.^ In the other case, as he does not become [*261] the owner of the goods, he cannot claim them specifi- cally ; he is not the sufferer if they are lost, cannot main- tain trover for them, and has at common law no other rem- edy for breach of the contract, than an action for damages.^ where other forms have been pre- scribed by statute. Hatch v. Stand- ard Oil Co., 100 U. S. (10 Otto) 124; bk. 25, L. ed. 554 ; but it is said in the Eglee Cotton Cases, 89 U. S. (22 Wall.) 180; bk. 22, L. ed. 863, that a sale of cotton will not pass the owner- ship at once to the buyer where there is no ascertainment of the whole price by weight nor complete prepa- ration for delivery nor any delivery nor payment. * When sale of personal property is complete. — A sale of personal prop- erty is complete as soon as both par- ties have agreed to its terras. Shad- don V. Knott, 2 Swan. (Tenn.) 358; s. c. 58 Am. Dec. 63. See Crawford V. Smith, 7 Dana (Ky.) 59; Willis V. Willis, 6 Dana (Ky.) 48 ; Wing v. Clark, 24 Me. 366 ; Potter v. Coward, Meigs (Tenn.) 22 ; 1 Chitt. on Contr. 274, 275. * At common law nothing was re- quired to give validity to the sale of personal property, except the mutual assent of the parties to the contract. If the property, by the terms of agree- ment, passed immediately to the buyer, the contract was deemed a bargain and sale ; but if the property in the thing sold was to remain for a time in the seller, and only to pass to the buyer at a future time or on cer- tain conditions inconsistent with its immediate transfer, the contract was deemed an executory agreement. Hatch V. Standard Oil Co., 100 U. S. (10 Otto) 124, 130 ; bk. 25, L. ed. 554. ^ Where anything remains to he done to the property, under a contract of sale, the title does not pass, and it is at the risk of the vendor. Hudson V. Weir, 29 Ala. 294 ; Stone v. Pea- cock, 35 Me. 385 ; Keller v. Tutt, 31 Mo. 301; Cunningham v. Ashbrook, 20 Mo. 553; Kein v. Tupper, 52 N. Y. 560 ; Evans v. Harris, 19 Earb. (N. Y.) 416; Fitch v. Beach, 15 Wend. (N. Y.) 221; Ward v. Shaw, 7 Wend. (N. Y.) 404 ; Devane v. Een- nell,2 Ired. (N. C.) L. 36; Thompson V. Franks, 37 Pa. St. 329 ; Nicholson V. Taylor, 31 Pa. St. 128 ; s. c. 72 Am. Dec. 728 ; Nesbit v. Burry, 25 Pa. St. 208 ; Winslow v. Leonard, 24 Pa. St. 14 ; s. c. 62 Am. Dec. 354 ; Lester v. McDowell, 18 Pa. St. 92 ; Hutchinson V. Hunter, 7 Pa. St. 140; Smyth v. Craig, 3 Watts & S. (Pa.) 20 ; Hale V. Huntley, 21 Vt. 147 ; Heilbutt v. Hickson, L. E. 7 C. P. 438; Hanson V. Meyer, 6 East, 614. However, a sale of personal property is complete and passes title to the buyer, not- withstanding the thing sold has not been measured or the quantity ascer- tained, when it is apparent that it was the intention of the seller to transfer the title, and the buyer to accept it. Fletcher v. Ingram, 46 Wis. 201 ; Mor- row V. Reed, 30 Wis. 88; Sewell u. Eaton, 6 Wis. 490 ; s. c. 70 Am. Dec. 471. See, also, Tompkins v. Dudley, 25 N. Y. 274; Moody v. Brown, 34 Me. 107 ; s. ^. 56 Am. Dec. 640 ; Mc- Conihe v. New York & E. E. K. Co., 20 N. Y. 495 ; s. c. 75 Am. Dec. 420 ; Hood V. Manhattan Ins. Co., 11 N. Y. 541; Andrews v. Durant, 11 N. Y. 35, 40; s. c. 62 Am. Dec. 55; Merritt v. Johnson, 7 Johns. (N, Y.) 473 ; s. c. 35 Am. Dec. 289. In a contract for the construction erf 459 *261 EFFECT OP THE CONTE.ACT. [book n. § 349. Both these contracts being equally legal and valid, it is obvious that whenever a dispute arises as to the true character of an agreement, the question is one rather of fact than of law. The agreement is just what the parties in- tended to make it. If that intention is clearly and unequiv- ocally manifested, cadit qiaestio. But parties very frequently fail to express their intentions, or they manifest them so im- perfectly as to leave it doubtful what they really mean, and when this is the case, the Courts have applied certain rules of construction, which in most instances furnish conclusive tests for determining the controversy .^ vessels the title does not pass until the vessel is delivered. Lyman v, Becan- non, 29 Mich. 471 ; i'eople ex rel. Pacific Mail Steamboat Co. v. Com- m'rs of Taxes, 58 N. Y. 247 ; Mc- Conihe v. New York & E. E. R. Co., 20 N. Y. 497 ; s. c. 75 Am. Dec. 420; Low o. Austin, 20 N. Y. 182; An- drews V. Durant, 11 N. Y. 35; s. c. 62 Am. Dec. 56 ; Halterline v. Rice, 62 Barb. (N. Y.) 600; Happy v. Mosher, 47 Barb. (N. Y.) 503 ; Dyck- man u. Valiente, 43 Barb. (N. Y.) 142 ; s. c. 28 How. (N. Y.) Pr. 347 ; Comfort V. Kiersted, 26 Barb. (N. Y.) 473 ; Low v. Austin, 25 Barb. (N. Y.) 28; Brown v. Morgan, 2 Bosw. (N. Y.) 488 ; Wright v. O'Brien, 5 Daly (N. Y.) 56; Decker v. Furniss, 3 Duer (N. Y.) 317; Seymour v. Mont- gomery, 1 Keyes (N. Y.) 465 ; Cor- yell V. Ferine, 6 Robt. (N. Y.) 40; Haney v. Schooner Rosabelle, 20 Wis. 249. Where a party bui/s goods to be de- livered to another, at a certain time, before which time they are destroyed by fire or flood, if he bought them under a contract of sale, he must bear the loss, or if he bought them as agent for a second party, the loss will be his principal's. Black v. Webb, 20 Ohio, 304; s. c. 65 Am. Dec. 456. See Jennings v. Gage, 13 111. 610; s. c. 50 Am. Dec. 476; Low v. Freeman, 12 111. 467 ; Garrett v. Crooks, 15 La. An. 483; Phillips v. Hunnewell, 4 Me. (4 Greenl.) 376; Shaw v. Nudd, 25 Mass. (8 Pick.) 9; Penniraan u. Hartshorn, 13 Mass. 87 ; Lovelace v. Stewart, 23 Mo. 384; Shields v. Pet- tie, 4 N. Y. 122 ; Rodee u. Wade, 47 Barb. (N. Y.) 53; Kelley v. Upton, 5 Duer (N. Y.) 336; McDonald c-. Hewett, 15 Johns. (N. Y.) 351 ; s. c. 8 Am. Dec. 241 ; Brown v. Brooks, 25 Pa. St. 210; Roberts v. Beatty, 2 Pen. 6 W. (Pa.) 67 ; s. c, 21 Am. Dec. 410 ; Leonard i.. Winslow, 2 Grant Cas. (Pa.) 139 ; Lano v. Neale, 2 Stark. 105. 1 As to the intention of the parties and its effect on the sale, see ante, § 348, note 3. Whether the sale is ex- ecuted, and the title passes to the buyer, depends on the intention of the parties, and this may be shown by circumstances as well as declarations. Callaghan v. Myers, 89 111. 566, 570. See, also, Hatch v. Standard Oil Co., 100 U. S. (10 Otto) 124, 131 ; bk. 25, L. ed. 554. There is often great difficulty in determining whether a contract is itself a, sale of personal property so as to pass the ownership to the ven- dee, or whether it is a sale on condi- tion, to take effect or be consummated only when the condition shall be per- formed, or whether it is a mere agree- ment to sell. Whether the title passes depends upon the intention of the parties, which is to be gathered from the language of the instrument. Hatch V. Standard Oil Co., 100 U. S. (10 Otto) 124, 131 ; bk. 25, L. ed. 554 ; 460 CHAP. I.J CONTRACTS EXECUTED AND EXECUTORY. *261 § 350. When the specific goods to which the bargain is to attach are not agreed on, it is clear that the parties can only contemplate an executory agreement. If A. buys from B. ten sheep, to be delivered hereafter, or ten sheep out of a flock of fifty, whether A. is to select them, or B. is to choose which he will deliver, or any other mode of separating the ten sheep from the remainder be agreed on, it is plain that no ten sheep in the flock can have changed owners by. the mere contract ; ^ that something more must be done before it can be true that any particular sheep can be said to have ceased to belong to B., and to have become the property of A.2 § 351. But on the other hand, the goods sold may be spe- cific, as if there be in the case supposed only ten sheep in a Elgee Cotton Cases, 89 U. S. (22 "Wall.) 180, 187 ; bk. 22, L. ed. 863. See, also, Terry v. Wheeler, 25 N. Y. 520, 525 ; Sewell v. Eaton, 6 Wis. 490 ; s. u. 7 Am. Dec. 471 ; Fletcher v. In- gram, 46 Wis. 191, 201. 1 Distinction between sale and con- tract. — In a case of sale and delivery of goods the title passes to the ven- dee, hut in a case of mere contract for a sale, the title remains in the original owner until the sale is con- summated. Jennings v. Gage, 13 111. 610 ; s. c. 56 Am. Dec. 476 ; Golder V. Ogden, 15 Pa. St. 528 ; s. c. 53 Am. Dec, 618. 2 The property remains in the vendor under a contract of sale so long as anything remains to be done between the vendor and vendee, for the pur- pose of ascertaining the amount and price of the article sold. Ward v. Shaw, 7 Wend. (N. Y.) 404 ; Nicholson V. Taylor, 31 Pa. St. 128 ; s. c. 72 Am. Dec. 728. See Winslow v. Leonard, 24 Pa. St. 14 ; Nesbitt v. Burry, 25 Pa. St. 208 ; Lester v. McDowell, 18 Pa. St. 92 ; Hutchinson v. Hunter, 7 Pa. St. 140 ; Smyth v. Craig, 3 Watts & S. (Pa.) 20; Hanson v. Meyer, 6 East, 614. Vide ante, § 348, note 5. Where no particular goods have been specified, set apart or distinguished, or where they have been specified, set apart, or distinguished, and something yet remains to be done to them by the vendor before they are ready for delivery, or to ascertain the price, it is an executory contract, and no title passes. Stephens v. Santee, 49 N. Y. 35. SeeHurdy.Cook,75N.Y.454,459. Where goods are not set apart or identified in some way, there can be no specific sale as a rule (see ante, § 348, note 5) ; except in those cases specified in note 3 to § 348, supra. Uniform quality and value. ■ — Some cases hold that where the property sold is part of an entire mass of a uniform quality and value, a severance is not necessary to vest the title in the ven- dee. See Chapman v. Shepard, 39 Conn. 413 ; Piazzek v. White, 23 Kan. 621 ; s. c. 33 Am. Eep. 211 ; Cushing v. Breed, 96 Mass. (14 Allen) 376; Waldron v. Chase, 37 Me. 414 ; s. c. 59 Am. Dec. 56; HurS u. Hires, 40 N. J. L. (11 Vr.) 581; s. c. 29 Am. Rep. 282; Russell v. Carrington, 42 N. Y. 118; s. c. 1 Am. Rep. 498; Kimberly ^. Patchin, 19 N. Y. 330; s. c. 75 Am. Dec. 334 ; Pleasants u. Pendleton, 6 Rand. (Va.) 473 ; s. c. 18 Am. Dec. 726. 461 *262 EFFECT OP THE CONTRACT. [BOOK II. flock, and A. agrees to buy them all. In such case, there may remain nothing to be done to the sheep, and the bargain may be for immediate delivery, or it may be that the vendor is to have the right to shear them before delivery, or may be bound to fatten them, or furnish pasture for a certain time before the buyer takes them, or they may be sold at a cer- tain price, by weight, or various other circumstances may occur which leave it doubtful whether the real in- [*262] tention of * the parties is that the sale is to take effect after the sheep have been sheared, or fat- tened, or weighed, as the case may be, or whether the sheep are to become at once the property of the buyer, subject to the vendor's right to take the wool, or to his obligation to furnish pasturage, or to his duty to weigh them. And difficulties arise in determining such questions, not only be- cause parties fail to manifest their intentions, but because not uncommonly tlaey have no definite intentions ; because they have not thought of the subject. When there has been no manifestation of intention, the presumption of law is that the contract is an actual sale, if the specific thing is agreed on, and it is ready for immediate delivery; but that the contract is only executory when the goods have not been specified, or if when specified, something remains to be done to them by the vendor, either to put them into a deliverable shape, or to ascertain the price. In the former case, there is no reason for imputing to the parties any intention to suspend the transfer of the property, inasmuch as the thing and the price have been mutually assented to, and nothing remains to be done. In the latter case, where something is to be done to the goods, it is presumed that they intended to make the transfer of the property dependent upon the performance of the things yet to be done, as a condition precedent. Of course, these presumptions yield to proof of a contrary intent, and it must be repeated that nothing prevents the parties from agreeing that the property in a specific thing sold and ready for delivery, is not to pass till certain condi- tions are accomplished, or that the property shall pass in a thing which remains in the vendor's possession, and is not ready for delivery, as an unfinished ship, or which has not 462 CHAP. I.J CONTKACTS EXBCITTED AND EXECTJTOEY. *262 yet been weighed or measured, as a cargo . of corn, in bulk, sold at a certain price per pound, or per bushel. ^ § 352. The authorities which justify these preliminary observations ^ will now be reviewed, thus placing before the reader the means of arriving at an accurate knowledge of this important branch of the law relating to the sale of 1 WJien property passes. — The gen- eral principles governing this subject have been recently very clearly and concisely stated by Chief Justice Bo- vill, in the case of Heilbutt v. Hick- son, L. E. 7 C. P. 449. He says: " Where specific and ascertained ex- isting goods or chattels are the sub- ject of a contract of immediate and present sale, and whether there be a warranty of quality or not, the prop- erty generally passes to the purchaser upon the completion of the bargain, and the vendor thereupon has aright to recover the price, unless from other circumstances it can be collected that the intention was that the property should not at once vest in the pur- chaser. Such an intention is gener- ally shown by the fact of some fur- ther act being first required to be done : such as, for instance, in most cases, delivery ; in some cases, actual payment of the price ; and in other cases, weighing or measuring in order to ascertain the price, or marking, packing, coopering, filling up the casks, or the like. In the case of executory contracts, where the goods are not ascertained, or may not exist at the time of the contract, from the nature of the transaction no property in the goods can pass to the purchaser by virtue of the contract itself ; but where certain goods have been selected and appropriated by the seller, and have been approved and assented to by the buyer, then the case stands, as to the vesting of the property, very much in the same position as upon a contract for the sale of goods which are ascertained at the time of the bargain. In most cases of such executory contracts, something more would generally remain to be done, such as, for instance, selection or appropriation, approval and delivery of some kind, before the property would be considered as intended to pass, and upon that taking place, the property might pass if it was intended to do so, equally as in the case of a contract for specific and ascertained goods." Whether or not the title passes upon an agreement for the sale of personal property, depends upon the intention of the parties to the agreement and the circumstances. Vide ante, sec. 348, note 3. See, also. Chapman u. Shepard, 39 Conn. 413 ; Lester v. East, 49 Ind. 588 ; Dyer V. Libby, 61 Me. 45; Bethel Steam Mill Co. V. Brown, 5 Me. 18; Stone V. Peacock, 35 Me. 388; Morse v. Sherman, 106 Mass. 433; Denny v. Williams, 87 Mass. (5 Allen) 3; Riddle v. Varnum, 37 Mass. (20 Pick.) 283; Macomber u. Parker, 30 Mass. (13 Pick.) 182; Sumner v. Hamlet, 29 Mass. (12 Pick.) 76 ; Wil- ■ kinson v. Holiday, 33 Mich. 386 ; Cunningham v. Ashbrook, 20 Mo. 553 ; Prescott v. Locke, 51 N. H. 101, 103; B. c. 12 Am. Eep. 55; Ockington V. Eichey, 41 N. H. 279; Kelsea v. Haines, 41 N. H. 246, 353 ; Fuller v. Bean, 34 N. H. 290 ; Eussell v. Car- rington, 42 N. Y. 118; s. c. 1 Am. Eep. 498; Fitch v. Burk, 38 Vt. 689; Bellows V. Wells, 36 Vt. 599 ; Barrett «. Goddard, 3 Mason C. C. 113; Ogg V. Shuter, L. E. 10 C. P. 162, 163. 1 In Heilbutt v. Hickson, L. R. 7 C. P. 438, Bovill C. J. laid down the general law on this subject, substan- tially as it is stated in the above text. 463 *263 EFFECT OF THE CONTRACT. [bOOK II. [*263] personal * property. They will be considered in five chapters, having reference to cases. 1. "Where the sale is of a specific chattel, unconditionally. 2. "Where the chattels are specific, but are sold condi- tionally. 3. "Where the chattels are not specific. 4. Where there is a subsequent appropriation of specific chattels to an executory agreement. 5. Where the jus disponendi is reserved. The effect of obtaining goods by fraud, upon the transfer of the property in them, will be considered in Book III. Ch. 2, on Fraud. 464 CHAP. n. j SALE OF CHATTELS UNCONDITIONALLY. *264 * CHAPTER II. [*264] SALE OP SPECLFIC CHATTELS UNCONDITIONALLY. PAGE Common law rules — Shepherd's Touchstone 264 Noy's Maxims 264 Modern rules ; the consideration for the transfer is the promise to pay, not the actual payment of price 265 In bargain and sale of specific goods property passes immedi- ately ... . . .265 Even though vendor retains pos- session 266 § 353. Shepheed's Touchstone, p. 224, gives tlie common law rules as follows : " If one sell me his horse or any other thing for money or other valuable consideration, and. First, the same thing is to be delivered to me at a day certain, and by our agreement a day is set for the payment of the money, or. Secondly, all ; or, Thirdly, part of the money is paid in hand; or. Fourthly, I give earnest money, albeit it be but a penny, to the seller ; or. Lastly, I take the thing bought by agreement into my possession, where no money is paid, earnest given, or day set for the payment, in all these cases there is a good bargain and sale of the thing to alter the property thereof. In the first case I may have an action for the thing, and the seller for his money : in the second case, I may sue for and recover the thing bought ; in the third, I may sue for the thing bought, and the seller for the residue of the money ; in the fourth case, where earnest is given, we may have reciprocal remedies, one against another; and in the last case, the seller may sue for his money." § 354. In Noy's Maxims,^ the rules are given thus : " In all agreements there must be quid pro quo presently, ex- 1 pp. 87, 89. 465 *265 EFFECT OF THE CONTEACT. [BOOK II. [*265] cept a *clay be expressly given for the payment, or else it is nothing but communication. ... If the bargain be that you shall give me 101. for my horse, and you gave one penny in earnest, which I accept, this is a perfect bargain, you shall have the horse by an action on the case, and I shall have the money by an action of debt. If I say the price of a cow is 4?., and you say you will give me 41. and do not pay me presently, yon cannot have her after- wards without I will, for it is no contract ; but if you begin directly to tell your money, if I sell her to another, you shall have your action on the case against me. ... If I sell my horse for money I may keep him until I am paid, but I cannot have an action of debt until he be delivered, yet the property of the horsfi is by the bargain in the bargainee or buyer ; but if he presently tender me my money, and I refuse it, he may take the horse, or have an action of detinue, and if the horse die in my stables, between the bargain and delivery, I may have an action of debt for the money, be- cause by the bargain the property was in the buyer? § 355. The rules given by these ancient authors remain substantially the law of England to the present time, with but one exception. The maxim of Noy, that unless the money be paid " presently " there is no sale except a day be expressly given for the payment, as exemplified in the sup- posed case of the sale of the cow, is not the law in modern times. The consideration for the sale may have been, and probably was, in those early days the actual payment of the ^ PFAera title passes. — Nothing to be to the price, unless it is otherwise done by other party. — We have seen stipulated by the parties. See Hana- (ore^e, sec. 351, note 1. See,also, Lupin uer y. Bartels, 2 Colo. 514; Lester u. i\ Marie, 6 Wend. (N. Y.) 77; s. c. East, 49 Ind. 588; Townsend v. Har- m Am. Dec. 256) that where any- graves, 118 Mass. 325, 332; Haskins thing remains to be done, the title of v. Warren, 115 Mass. 533; Goddard the goods sold does not pass unless o. Binney, 115 Mass. 456; s. c. 15 the parties intend otherwise ; but Am. Rep. 112 ; Foster v. Ropes, 111 where nothing remains to be done Mass. 10 ; Morse u. Sherman, 106 under the contract of sale either in Mass. 430 ; Jenkins u. Jarrett, TON. C. ascertaining or measuring, appropri- 255. In Alabama this rule is modi- ating or delivering the property, the fled by the code. See Lehman v. title passes and immediately vests in Warren, 53 Ala. 538. Also Alabama tlie buyer, and the seller has a right code (1876) sec. 1415. 466 CHAP. II.] SALE OP CHATTELS UNCONDITIONALLY. •^266 price, but it has since been held to be the purchaser's obliga- tion to pay the price where notliing shows a contrary inten- tion. In Simmons v. Swift,i Bayley J. said: "Generally, where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to cast upon the purchaser all future risk, if nothing remains to be done to the goods, although he cannot take them away without paying the price." ^ So in Dixon V. Yates,^ Parke J. said : " I take it to be clear that *by the law of England the sale of a [*266] specific chattel passes the property in it to the vendee 1 6 B. & C. 862. 2 Willis V. Willis, 6 Dana (Ky.) 48; Hall v. Richardson, 16 Md. 396; s. c. 77 Am. Dec. 303; Arnold v. Delano, 58 Mass. (4 Gush.) 33 ; s. e. 60 Am. Dec. 754. Unconditional sale of specific chattels passes the title at once, and the risk of loss is upon the purchaser, who has the right to immediate possession. See Levasseur v. Gary (Me.), 1 New Eng. Rep. 893 ; Philips v. Moor, 71 Me. 78; Waldron v. Chase, 37 Me. 414; s. c. 59 Am. Dec. 56 ; Wilkie u. Day, 141 Mass. 68 ; s. c. 2 New Eng. Rep. 219 ; Gibbons v. Robinson (Mich.), 5 West. Rep. 740; Gohen o. Stewart, (N. C.) (decided Nov. 7, 1887) ; Baldwin v. Doubleday, 59 Vt. 7; o. u. 4 New Eng. Rep. 124. Sale of coal. — Where a landowner granted a right to mine coal, and the grantee contracted to mine the coal and pay a specific price per ton, it was held that the instrument was a sale of the coal, notwithstanding the fact that the parties contract as lessor and lessee (Delaware L. & W. R. R. Co. V. Sanderson, 109 Pa. St. 583 ; s. c. 1 Gent. Rep. 102) ; and a lease taken in accordance with such contract, which provides that the property shall continue to be the property of the lessor, until a certain sum has been paid, at which time the lessor would execute a bill of sale, this is a conditional sale and not a bailment. Mobley v. Morgan (Pa.), 5 Cent. Rep. 527 ; Cooper o. Whit- mer (Pa.), 5 Cent. Rep. 197; Bruns- wick & Balke Co. v. Hoover, 95 Pa. St. 508 ; s. c. 40 Am. Rep. 674. Sale of animals. — Where defend- ant bartered a steer to plaintifE, if he could find it, both supposing it to be lost, the sale is binding ; and if the defendant afterward obtains pos- session of the steer and sells it to a third person, he is liable for conver- sion. Nance v. Metcalf, 19 Mo. App. 183; s. c. 1 West. Rep. 441. Same. — Liability of purchaser for loss hy death . — Where the defendant sold to the plaintifE a drove of horses, which were then running at large, for a stipulated price, and guaranteed that when gathered up they would amount to a certain number, and between the date of the sale and the gathering up of the horses two of them died, it was held that the pur- chaser must suffer the loss. Girdner V. Beswick, 69 Cal. 112. Sale of shares of stock of a railroad corporation, at a specified price, "payable and deliverable, seller's option, in this year, with interest at the rate of 6 per cent per annum," effects a sale in present i, the vendor becomes quasi-trustee for the pur- chaser, and the latter is entitled to all dividends accruing thereafter. Cur- rie V. White, 45 N. Y, 822. 8 5 A. & B. 313, 340. 467 *266 EFrBCT OF THE CONTEACT. [book II. without delivery. . . . Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained. But where by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the par- ties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting posses- sion. The effect of the contract, therefore, is to vest the prop- erty in the bargaineeT * § 356. The principles so clearly stated by these two emi- nent judges are the undoubted law at the present time.-"- * Bufflngton v. Ulen, 7 Bush (Ky.) 231 ; Crawford v. Smith, 7 Dana (Ky.) 59, 60; "Willis v. Willis, 6 Dana (Ky.) 48 ; Sweeney u. Owsley, 14 B. Mon. (Ky.) 413 ; Carpenter v. First Nat. Bank, 119 111. 352; s. c. 7 "West. Rep. 697 ; Seckel v. Scott, 66 111. 106 ; Kohl V. Lindley, 39 111. 195 ; Wade V. Moffett, 21 III. 110 ; s. c. 74 Am. Dec. 79; Lester i-. East, 49 Ind. 588 ; Brown v. Wade, 42 Iowa, 647 ; Taylor v. Twenty-fire Bales of Cot- ton, 26 La. An. 247; Phillips ;-. Moore, 71 Me. 78 ; Chase v. Willard, 57 Me. 157; Hotchkiss v. Hunt, 49 Me. 213; Webber v. Davis, 44 Me. 147 ; s. c. 69 Am. Dec. 87 ; Means v. Williamson, 37 Me. 556 ; Waldron v. Chase, 37 Me. 414; s. o. 59 Am. Dec. 56; Wing v. Clark, 24 Me. 366; Mer- rill f). Parker, 24 Me. 89 ; Gough v. Edelen, 5 Gill (Md.) 101 ; Townsend V. Hargrares, 118 Mass. 325, 332; Goddard u. Binney, 115 Mass. 450, 455; s. c. 15 Am. Rep. 112; Morse v. Sherman, 106 Mass. 430, 4.32 ; Martin t). Adams, 104 Mass. 262; Marble v. Moore, 102 Mass. 443 ; Merchants' National Bank c'. Bangs, 102 Mass. 295 ; Warden v. Marshall, 99 Mass. 305; Thayer v. Lapham, 95 Mass. (13 Allen) 28 ; Gardner v. Lane, 91 Mass. (9 Allen) 498; Rice v. Cod- man, 83 Mass. (1 Allen) 377 ; Bonn c. Haire, 40 Mich. 404 ; Cunningham V. Ashbrook, 20 Mo. 553; Chi v. Robinson, 8 Neb. 272, 278; Bailey v. Smith, 43 N. H. 143; Felton v. Ful- ler, 29 N. H. 121 ; Page v. Carpenter, 10 N. H. 77 ; Bigler v. Hall, 54 N. Y. 167 ; Terry v. Wheeler, 25 N. Y. 520, 524, 525 ; Olyphaut o. Baker, 5 Den. (N. Y.) 379 ; De Fonclear v. Shotten- kirk, 3 Johns. (N. Y.) 170; Jenkins V. Jarrett, 70 N. C. 265 ; Hurlburt ;■. Simpson, 3 Ired. (N. C.) L. 233; Hooban v. Bidwell, 16 Ohio, 509; s. c. 47 Am. Dec. 386; Winslow v. Leonard, 24 Pa. St. 14, 17 ; s. c. 02 Am. Dec. 354; Frazer v. Hilliard, 2 Strobh. (S. C.) 309; Leonard v. Davis, 66 U. S. (1 Black) 476, 483 ; bk. 17, L. ed. 222; Barrett v. God- dard, 3 Mason C. C. 107, 110. ^ Hinde v. Whitehouse, 7 East, 558; Tarling v. Baxter, 6 B. & C. 360; Martindale v. Smith, 1 Q. B. 389; Spartali v. Benecke, 10 C. B. 212; Gilmour „. Supple, 11 Moo. P. C. 551 ; The Calcutta Company f. De Mattos, 32 L. J. Q. B. 322; Wood u. Bell, 6 E. & B. 355; 25 468 CHAP. II.J SALE OF CHATTELS UNCONDITIONALLY. *26T Thus, in Tarling v. Baxter,^ the defendant agreed to sell to the plaintiff a certain stack of hay for 145Z., payable on the ensuing 4th of February, and to be allowed to stand on the premises until the first day of May. This was held to be an immediate, not a prospective sale, although there was also a stipulation that the hay was not to be cut till paid for. Bayley J. said : " The rule of law is that where there is an immediate sale and nothing remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee." This case was followed by one, presenting very similar features, in the Queen's Bench in 1841.2 § 357. In Gilmour v. Supple,^ Sir Creswell Cresswell, in giving an elaborate judgment of the Privy Council, says : " By the * law of England, by a contract for [*267] the sale of specific ascertained goods, the property immediately vests in the buyer, and a right to the price in the seller, unless it can be shown that such was not the in- tention of the parties." And in The Calcutta Company v. De Mattos,2 in 1863, Blackburn J. pronounced this to be a very accurate statement of the law." ^ L. J. Q. B. 148, and in Ex. Ch. jeot-matter of the sale. Winslow v. 321; Chambers v. Miller, 10 C. B. N. S. 125; 35 L. J. C. P. 30; Eurley V. Bales, 2 H. & C. 200 ; 38 L. J. Ex. 43; Joyce r. Swan, 17 C. B. N. S. 84. 2 Martindale v. Smith, 1 Q. B. 389. See, also, Chinery v. Vial, 5 H. & N. 228; and 29 L. J. Ex. 180; Sweeting u. Turner, L. R. 7 Q. B. 810. 1 11 Moo. P. C. 566. 2 82 L. J. Q. B. 822, 328. See Brewster v. Leith, 1 Minn. 56. ^ Identification of •property. — Where the goods sold are identified by the contract, the title will pass, though they be mingled with other goods. See Ropes v. Lane, 91 Mass. (9 Allen) 502, 510; Arnold v. Delano, 58 Mass. (4Cush.)33,40; s.c. 50 Am. Dec. 754. Measuring and setting apart goods are not essential to a perfect sale, except in those cases where it is necessary in order to define the sub- Leonard, 24 Pa. St. 14; s. c. 62 Am. Dec. 354. See Riddle v. Varnum, 37 Mass. (20 Pick.) 280; Sumner «. Ham- let, 29 Mass. (12 Pick.) 76 ; Clark v. Baker, 46 Mass. (5 Mete.) 452 ; Ma- comber V. Parker, 30 Mass. (13 Pick.) 175 ; Shindler v. Houston, 1 Den, (N. Y.) 48 ; Sands v. Taylor, 5 Johns, (N. Y.) .395; s. c. 4 Am. Dec. 374: Scott V. Wells, 6 Watts & S. (Pa.) 357: s. c. 40 Am. Dec. 568; Smyth v Craig, 3 Watts & S. (Pa.) 14 ; Pleas- ants V. Pendleton, G Rand. (Va.) 473 ; s. c. 18 Am. Dec. 726 ; Hawes v. Wat- son, 2 Barn. & Cress. 540 ; Valpy v. Gibson, 4 C. B. 864. Where something remains to be done, as a rule, the title will not pass to the vendee. See, ante, sec. 348, note 6; also, Smith v. Dallas, 35 Ind. 255; Willis v. Willis, 6 Dana (Ky.) 49; Thorndike o. Bath, 114 Mass. 469 ^267 EFFECT OF THE CONTRACT. [book n. 116; s. c. 19 Am. Rep. 318; Marble V. Moore, 102 Mass. 443; Thayer v. Lapham, 95 Mass. (13 Alien) 26; Whitcomb v. Whitney, 24 Mich. 486 ; Terry v. Wheeler, 25 N. Y. 520 ; Bates V. Coster, 3 T. & C. (N. Y.) 580; Joyce V. Adams, 8 N. Y. 296 ; Thomp- son V. Franks, 37 Pa. St. 329 ; Sewell V. Eaton, 6 Wis. 490; s. c. 70 Am. Dec. 471. See Marble v. Moore, 102 Mass. 443 ; Merchants' Nat. Bank o. Bangs, 102 Mass. 295; Beecher v. Mayall, 82 Mass. (16 Gray) 376; Eiddle v. Varnum, 37 Mass. (20 Pick.) 280; Macomber v. Parker, 30 Mass. (13 Pick.) 175; Bemis v. Morrill, 38 Vt. 153 ; Fletcher v. Ingram, 46 Wis. 191; Morrow v. Reed, 30 Wis. 88; Young !■. Matthews, L. R. 2 C. P. 127 ; Martineau v. Etching, L. R. 7 Q. B. 449 ; Tarling v. Baxter, 6 Barn. & Cress. 360; Phillips v. Bistoli, 2 Barn. & Cress. 511; Falk u. Fletcher, 18 C. B. N. S. 403; s. c. 11 Jur. N. S. 176; Rugg V. Minett, 11 East, 210. Where something remains to be done for the purpose of testing the property or fi.xing the amount to be paid, by selecting, weighing, measur- ing, counting, or the like, the prop- erty will pass before that act is done, where it is plain from the contract that such was the intention of the parties. Burr v. Williams, 23 Ark. 244; Ford v. Chambers, 28 Cal. 13 Cummins v. Griggs, 2 Duv. (Ky.) 87 Cushman o. Holyoke, 34 Me. 289 Denny v. Williams, 87 Mass. (5 Allen) 3 ; Riddle v. Varnum, 37 Mass. (20 Pick.) 283 ; Russell r. Car- rington, 42 N. Y. 118; s. c. 1 Am. Rep. 498 ; Terry v. Wheeler, 25 N. Y. 525; Filkins r. Whyland, 24 N. Y. 238; Williams v. Adams, 3 Sneed. (Tenn.) 359; Fitch v. Burk, 38 Vt. 683 ; Jenner v. Smith, L. R. 4 C. P. 270 ; Castle v. Playford, L. R. 7 Ex. 98; Alexander o. Gardner, 1 Bing. (N. C.) 671; Turley v. Bates, 2 Hurl. & C. 200 ; Stone i-. Peacock, 35 Me. 388; Morse v. Sherman, 106 Mass. 430; Fuller v. Bean, 34 N. H. 300; Bellows ;•. Wells, 36 Vt. 599 ; Young V. Matthews, L. R. 2 C. P. 127. The question of intention is always one of fact for the jury (McClung v. Kelly, 21 Iowa, 508 ; George v. Stubbs, 26 Me. 250; Riddle v. Varnum, 37 Mass. (20 Pick.) 283 ; De Ridder r. McKnight, 13 Johns. (N. Y.) 294) ; unless it is plain, as a matter of law, that the evidence will justify a find- ing but one way. Stevens v. Boston & W. R. R. Co., 74 Mass. (8 Gray) 262 ; Stanton v. Eager, 33 Mass. (16 Pick.) 473; Allen v. Williams, 29 Mass. (12 Pick.) 297; Moakes v. Nicolson, 19 C. B, (N. S.) 290; Godts ;/. Rose, 17 C. B. 229; Tregelles v. Sewell, 7 Hurl. & N. 574. Where a vendee accepts property sold and assumes the control thereof, he is vested with title at once, although the property had never been meas- ured, and the exact amount ascer- tained. Baldwin v. Doubleday (Vt.), 4 New Eng. Rep. 124. See, also, Carpenter v. First Nat. Bank, 119 111. 352 ; s. c. 7 West. Rep. 697 ; Terry ,.. Wheeler, 25 N. Y. 520. See HurfE V. Hires, 40 N. J. L. (11 Vr.) 581; s. c. 29 Am. Rep. 282, 286. See Mac- Namara v. Edmister, 11 Hun (N. Y.) 601. But see Ferguson v. Northern Bank of Kentucky, 14 Bush (Ky.) 555; s. c. 29 Am. Rep. 418; also. Burrows v. Whitaker, 71 N. Y. 291 ; s. c. 27 Am. Rep. 42. Thus a sale of logs to be delivered at a particular place, where such logs are designated by a mark, is sufficient to pass the title at once to the pur- chaser, although the logs are to be " driven by a party mutually agreed upon, and afterwards delivered at a designated place." See Waldeii v. Murdock, 23 Cal. 540; Bertelson o. Bower, 81 Ind. 512 ; Cummins r. Griggs, 2 Duv. (Ky.) 87 ; Dyer v Libby, 61 Me. 45 ; Bethel Steam Mill Co. V. Brown, 57 Me. 9; Russell v. Carrington, 42 N. Y. 118; s. c. 1 Am. Rep. 498; Filkins v. Whyland, 24 N. Y. 238. 470 CHAP, in.] SALE OP CHATTELS CONDITIONALLY. *268 * CHAPTER III. [*268] SALE OP SPECIFIC CHATTELS CONDITIONALLY. PAGE Two rules given by Lord Black- burn — Pirst — Where vendor is to do anything to the goods before de- livery, property does not pass 268 Second — Where goods are to be tested, weighed, or measured, property does not pass . 268 A third rule given — Where buyer is bound to the performance of a condition, property does not pass, even by actual delivery, before performance of condi- tion . .269 Goods measured by buyer for his own satisfaction 271 Where buyer assumes risk of de- livery he must pay price, even where property has not passed, if destruction of goods pre- vents delivery 273 But intention must be clearly indicated .... ... 273 Goods sold to be paid for on de- livery at a particular place . 275 Goods put in buyer's packages 275 PAGE Where something is to be done by vendor to the goods after delivery 275 Where something is to be done to the goods by the buyer . . 276 Where chattel is unfinished or incomplete, property does not pass unless contrary intention be proved 277 Where payment for a ship is to be made by fixed instalments, as work progresses . . . 280 Rule does not apply to a contract for work and materials to be supplied . . ... . 283 When property passes in the materials provided for complet- ing the chattel 284 Authorities for third rule above given . 287 Agreement for hire and condi- tional sale 288 American cases on the subject of this chapter 289 American criticisms on the rule in Clarke v. Spence . . . 292 § 358. Two rules on this subject are stated by Lord Blackburn,! ^s follows : — First. — • Where by the agreement the vendor is to do any-; thing to the goods for the purpose of putting them into that state in which the purchaser is to be bound to accept them, or, as it is sometimes worded, into a deliverable state, the performance of those things shall, in the absence of circum- 1 On Sale, pp. 151-2. 471 *268 EFFECT OP THE CONTRACT. [book II. stances indicating a contrary intention, be taken to be a con- dition precedent to the vesting of the property.^ 2 See Straus v. Ross, 25 Ind. 300 ; McClung V. Kelley, 21 Iowa, 508; Foster v. Eopes, 111 Mass. 10; Mar- hee V. Moore, 102 Mass. 443 ; Bailey V. Smith, 43 N. H. 141; Gilbert v. New York Cent. R. R. Co., 4 Hun (N. Y.) 378 ; Paton v. Currie, 19 Up. Can. Q. B. -388. Sale conditional, vendor to do some- thing. — -In order to constitute a con- ditional sale, it is essential that the title to the property should remain in the vendor, because there is no con- ditional sale where the title is trans- ferred to the yendee. Frick v. Bil- liard, 95 N. C. 117. See, also. Batch- elder V. Jenness, 59 Vt. 104; s. c. 3 New Eng. Rep. 379 ; Vt. Rev. Laws, 992. A consignment of goods by one mer- chant to another, to be sold on com- mission, is not a sale, lease, hiring, or delivery of goods, on condition that the title should pass to the vendee or lessee or other person on payment of the price or value of the property when sold, within the provisions of Statute of Frauds, providing that such conditions shall be void as to subsequent purchasers in good faith, against creditors, unless the same is recorded as in cases as chattel mort- gages. Peet V. Spencer, 90 Mo. 384 ; s. c. 7 West. Rep. 286 ; Mo. Rev. Stat. (1879) § 257. Giving mortgage hack, — An agree- ment to sell another personal prop- erty on credit, provided the buyer will give a mortgage back to secure the purchase money, is not a sale, conditional or unconditional. Bruns- wick V. Martin, 20 Mo. App. 158; s. c. 2 West. Rep. 534, 535 ; Rutherford .-. Stewart, 79 Mo. 216 ; Frank v. Play- ter, 73 Mo. 672 ; Wright v. Bircher, 72 Mo. 179; s. c. .37 Am. Rep. 433. See, also, Cass v. Gunnison, 58 Mich. 108 ; s. c. 12 West. Rep. 508. Parol evidence to prove conditional sale. — In a suit between a vendor and creditor of the vendee, parol evidence is not admissible to prove that a sale is conditional when it is evidenced by a writing that imports an absolute sale, where the creditor made his attachment, relying upon the writing and the vendee's repre- sentations that the sale was as the writing showed it to be. See Allen V. Maury, 66 Ala. 10 ; Block Bros. v. Maas, 65 Ala. 211; Leigh v. Mobile & Ohio R. R. Co., 58 Ala. 166; Mc- Crae v. Young, 43 Ala. 622 ; Brown- ing V. Hamilton, 42 Ala. 484; Jones V. Pearce, 25 Ark. 545; Kaufman v. Stone, 25 Ark. 336; Goembel v. Ar- nett, 100 111. 34; Gravett v. Mugge, 89 111. 218; Burns u. Mays, 88 111. 233; Frost v. WoodrufE, 54 III 155: Kohl i: Lindley, 39 111. 195; Lester V. East, 49 Ind. 588; Straus v. Ross, 25 Ind. .300; McClung v. Kelly, 21 Iowa, 508 ; Abat v. Atkinson, 21 La. An. 414; Morrison v. Dingley, 63 Me. 553 ; Dyer v. Libby, 61 Me. 45 ; Chase V. Willard, 57 Me. 157 ; Stone v. Pea- cock, 35 Me. 385, 388; Houdlette v. Tallman, 14 Me. 400; Townsend v. Hargraves, 118 Mass. 325, 332 ; Fos- ter V. Ropes, 111 Mass. 10; Morse v. Sherman, 106 Mass. 430; Marble c. Moore, 102 Mass. 443 ; Ropes v. Lane, 93 Mass. (11 Allen) 591; Arnold v. Delano, 58 Mass. (4 Cush.) 40; s. c. 50 Am. Dec. 754 ; Riddle v. Varnum, 37 Mass. (20 Pick.) 280; Mason v. Thompson, 35 Mass. (18 Pick.) 305 ; s. c. 20 Am. Dec. 471; Macomber c. Parker, 30 Mass. (13 Pick.) 175, 183; Sumner v. Hamlet, 29 Mass. (12 Pick.) 82; Higgins v. Chessman, 26 Mass. (9 Pick.) 7 ; Shaw ;;. Nudd, 25 Mass. (8 Pick.) 9 ; Damon v. Osborn, 18 Mass. (1 Pick.) 476; s. c. 11 Am. Dec. 229 ; Jewett v. Warren, 12 Mass. 300; s. c. 7 Am. Dec. 74; Brewer r. Mich. Salt Ass., 47 Mich. 526; Wil- kinson V. Holiday, 33 Mich. 386; 4T2 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *268 § 359. Secondly . — 'W'he.-rB anything remains to be done to the goods, for the purpose of ascertaining the price, as by Hahn v. Fredericks, 30 Mich. 223; s. c. 18 Am. Rep. 119; Lingham u. Eggleston, 27 Mich. 324; Begole u. McKenzie, 26 Mich. 470; Ortman V. Green, 26 Mich. 209; Adams Min- ing Co. )/. Senter, 26 Mich. 73, 79, 80; Whitcomh v. Whitney, 24 Mich. 486; Southwestern Freight, &c. Co. v. Stanard, 44 Mo. 71 ; Smart v. Batch- elder, 57 N. H. 140; Prescott v. Locke 51 N. H. 94; s. c. 12 Am. Rep. 55; Bailey v. Smith, 43 N. H. 141; Gilman v. Hill, 36 N. H. 311, 320; Fuller V. Bean, 34 N. H. 290, 300, 301; Messer ■;. Woodman, 22 N. H. 172; Davis v. Hill, 3 N. H. 382; s. c. 14 Am. Dec. 373 ; Burrows v. Whit- aker, 71 N. Y. 291 ; Kein v. Tupper, 52 ,N. Y. 550; Bradley v. Wheeler, 44 N. Y. 495; Terry u. Wheeler, 25 N. Y. 520 ; Decker' v. Furniss, 14 N. Y. 611; Crofoot u. Bennett, 2 S. Y. 260 ; Hyde v. Lathrop, 2 Abb. (N. Y.) App. Dec. 436; Dexter v. Norton, 55 Barb. (N. Y.) 272 ; Com- fort V. Kiersted, 26 Barb. (N. Y.) 272 ; Tyler v. Strang, 21 Barb. (N. Y.) 198; Cutwater v. Dodge, 7 Cow. (N. Y.) 85; Rapelye v. Mackie, 6 Cow. (N. Y.) 250 ; Russell v. Nicholl, 3 Wend. (N. Y.) 112; s. c. 20 Am. Dec. 670 ; Downer v. Thompson, 2 Hill (N. Y.) 137 ; McDonald v. Hew- ett, 15 Johns. (N.Y.) 349; s. c. 8 Am. Dec. 241; Keeler v. Vandervere, 5 Lans. (N. Y.) 313; Ormsbee v. Ma- chir, 20 Ohio St. 295 ; Woods v. Mc- Gee, 7 Ohio St. 128 ; Dennis v. Alex- ander, 3 Pa. St. 50; Dixon v. Blon- din, 58 Vt. 689; s. c. 2 New Eng. Rep. 777 ; Gibbs v. Benjamin, 45 Vt. 124 ; Hutchins v. Gilchrist, 23 Yt. 88 ; Hale r. Huntley, 21 Vt. 147; Barrett v. Goddard, 3 Mason C. C. 107; Rey- nolds u. Ayers, 5 Allen (N. B.) 333; Gibson v. Kean, 3 Pugs. (N. B.) 299 ; Hannington v. Cormier, 3 Pugs. (N. B.) 212; Allington ,-. O'Ma- honey, 1 Pugs. (N. B.) 320 ; Sprague V. King, 1 Pugs. & B. (N. B.) 241; Johnson v. Lancashire & Y. R. W. Co., 3 C. P. D. 499 ; Steele v. Grand Trunk Ry., 31 Up. Can. C. P. 260 ; Tuftts v. Mottashed, 29 TJp. Can. C. P. 539; Lockhart v. Pannell, 2 Up. Can. C. P. 597; 2 Kent, 496; Pothier Cont. of Sales, by Cushing, §§ 309, 311. Conditional sale, measuring, testing, weighing, etc.- — ^ Where the vendor proposes to sell a machine on its merits, and states in his le tter, "If it will not do all I claim, you need not buy," and the testimony showed there was a series of experiments and fail- ures, and that changes were made by plaintiff and his agent, and that de- fendants were unwilling to keep the machine, and that plaintiff urged further experiment, and that finally defendants refused to retain it, an absolute sale was not shown. Gur- ney v. Collins (Mich.) 7 West. Rep. 670. And where personal property is actually sold and delivered, and the amount to be paid for it to be ascertained by measuring, weighing, or counting, the matter of measuring, weighing, or counting will be consid- ered as referred to the adjustment and settlement of the accounts. Mc- Million V. Schweitzer, 87 Mo. 402; s. c. 3 West. Rep. 232. See Ober v. ' Carron's Exr., 62 Mo. 213. Thus a contract for the sale of standing mil- let, which provides that it should be cut and stacked on the farm of the vendor, and within thirty days be measured and paid for, does not vest the title to the millet in the vendee until it has been measured and paid for according to the con- tract. Hughes V. Wiley, 36 Kan. 731. It has been held that a contract to furnish ties to a railroad company, whereby vendor was to pile the ties on land of the company, and was thereupon to receive a part of the 473 *269 EFFECT OP THE CONTRACT. [book II. weighing, measuring, or testing the goods, where the price is to depend on the quantity or quaUty of the goods, the per- formance of these things also shall be a condition pre- [*269] cedent to the transfer of the property, although the * in- dividual goods be ascertained, and they are in the state in which they ought to be accepted. § 360. Third Rule. — These may be added. Thirdly. — Where the buyer is by the contract bound to do anything as a condition, either precedent or concurrent, on which the passing of the property depends, the property will not pass until the condition be fulfilled, even though the goods maj^ have been actually delivered into the possession of the buyer.i price, and the ties were to be there- Everett v. Hall, 67 Me. 497 ; Bunker after inspected and selected, and the balance of the price was to be paid when the ties were taken and used, did not contemplate that the title should pass on vendor's piling the ties on the land and receiving the part payment thereon. Cornell u. Clark, 104 N. Y. 451 ; s. c. 6 Cent. Eep. 506. Where an iron press was bar- gained by the pound, and it had to be weighed to ascertain the number of pounds, and the purchase price, it was held that the contract was exe- cutory, but that if the price was fixed, and the delivery was perfect, the contract was executed. Butler v. Lawsher, 74 Ga. 352. See to same effect Amer v. Hightower, 70 Cal. 440; Thompson t-. Libby, 35 Minn. 443 ; Cornell v. Clark, 104 N. Y. 457 ; s. c. 6 Cent. Rep. 506. ^ An agreement as to price is valid and binding although the goods were not in existence where they are sub- sequently delivered under such con- tract. Sumner u. Woods, 67 Ala. 139; Fairbanks v. Eureka Co., 67 Ala. 109; s. c. 42 Am. Eep. 105 (note) ; Dudley v. Abner, 52 Ala. 572; Sewell v. Henry, 9 Ala. 24; Rawls V. Saulsbury, 60 Ga. 394, 396 ; V. McKenney, 63 Me. 529 ; Brown Haynes, 52 Me. 578 ; Hotchkiss r. Hunt, 49 Me. 219; Sawyer v. Fisher, 32 Me. 28 ; George v. Stubbs, 26 Me. 243; Tibbetts v. Towie, 12 Me. (.3 Eairf.) 341; Shaffer v. Sawyer, 123 Mass. 294; Chase v. Ingalls, 122 Mass. 381; Benner v. Puffer, 114 Mass. 376 ; Zuchtmann u. Roberts, 109 Mass. 53 ; s. c. 12 Am. Rep. 063 ; Booraem c. Crane, 108 Mass. 522 ; Hirschorn v. Canney, 98 Mass. 149 ; Whitney v. Eaton, 81 Mass. (15 Gray) 225; Riddle v. Coburn, 74 Mass. (8 Gray) 241; Deshon v. Bigelow, 74 Mass. (8 Gray) 159; Burbank v. Cronker, 73 Mass. (7 Gray) 158; s. c. 66 Am. Dec. 470; Blanchard r. Child, 73 Mass. (7 Gray) 155; Sargent v. Metoalf, 71 Mass. (5 Gray) 306; Gilbert v. Thompson, 69 Mass. (3 Gray) 550 (note) ; Coggill v. Hartford & N. H. R. R. Co., 69 Mass. (3 Gray) 545; Heath v. Randall, (4 Cush.) 53 Mass. 195; Fairbank v. Phelps, 39 Mass. (22 Pick.) 535 ; Vincent v. Cornell, 30 Mass. (13 Pick.) 294; s. c. 23 Am. Dec. 683 ; Barrett f. Pritchard, 19 Mass. (2 Pick.) 512 ; s. c. 13 Am. Dec. 449; Hussey r. Thornton, 4 Mass. 405; s. c. 3 Am. Dec. 224; 474 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *269 Marquette Mfg. Co. ?'. Jeffery, 49 Mich. 283 ; Smith v. Lozo, 42 Mich. 6; Giddey v. Altman, 27 Mich. 206; Fifield V. Elmer, 25 Mich. 48 ; Preston V. Whitney, 23 Mich. 260; Dunlap V. Gleason, 16 Mich. 158 ; Couse v. Tregent, 11 Mich. 65 ; Sumner u. Gottey, 71 Mo. 121; Wangler v. Franklin, 70 Mo. 659; Ridgeway v. Kennedy, 52 Mo. 24 ; Little u. Page, 44 Mo. 412; Porter v. Pettengill, 12 N. H. 299; Davis v. Emery, 11 N. H. 230 ; Lucy v. Bundy, 9 N. H. 293 ; s. c. 32 Am. Dec. 358 ; Bean v. Edge, 84 N. Y. 510 ; Cole v. Berry, 42 N. J. L. (13 Vr.) 308 ; s. c. 36 Am. Rep. 511; Hasbrouok u. Lounsbury, 26 N. Y. 593; Herring v. Hoppock, 15 N. Y. 409; Lees v. Richardson, 2 Hilt. (N. Y.) 164 ; Parris v. Roberts, 12 Ired. (N. C.) L. 268; Sage v. Sleutz, 23 Ohio St. 1 ; Carpenter v. Scott, 13 R. I. 477 ; Bennett v. Sims, 1 Rice (S. C.) 421; Buson v. Dough- erty, 11 Humph. (Tenn.) 50 ; Gam- bling V. Read, 1 Meigs (Tenn.) 231, 234, 236; Duncan v. Stone, 45 Vt. 118; Armington v. Houston, 38 Vt. 448; Davis v. Bradley, 24 Vt. 55; s. c. 65 Am. Dec. 226 ; Root v. Lord, 23 Vt. 563 ; Buckmaster v. Smith, 22 Vt. 203; Smith v. Foster, 18 Vt. 132; Bigelow V. Huntley, 3 Vt. 151 ; West V. Bolton, 4 Vt. 558 ; Wood M. & R Co. V. Brooke, 2 Sawy. C. C. 576: Copland v. Bosquet, 4 Wash. C. C 583; Lambert v. McCloud, 63 Cal 162; s. c. 15 Rep. 780; Cheney . Lynes, 5 N. Y. 41 ; Hintermister v. Lane, 27 Hun (N. Y.) 497; Walker v. Mitchell, 25 Hun (N. Y.) 527; Fleeman v. McKean, 25 Barb. (N. Y.) 474 ; Devlin v. O'Neill, 6 Daly (N. Y.) 305; Beavers !•. Lane, 6 Duer (N. Y.) 233 ; Haggerty V. Palmer, 6 John. Ch. (N. Y.) 437 ; Rawls V. Deshler, 3 Keyes (N. Y.) 572; Martin u. Mathiot, 14 Serg. & R. (Pa.) 214 ; s. c. 16 Am. Dec. 491 ; Brunswick v. Hoover, 95 Pa. St. 508; g. c. 24 Alb. L. J. 186; Krause i. Commonwealth, 93 Pa. St. 418; s. c. 39 Am. Rep. 762; Stadtfeld v. Hunts- 475 *269 EFFECT OP THE CONTRACT. [book II. man, 92 Pa. St. 53; s. c. 37 Am. Rep 661; Rose r. Story, 1 Pa. St. 190 Whitcomb o. Woodworth, 54 Vt. 544 ; Bugbee v. Stevens, 53 Vt. 389 Phelps r. Hubbard, 51 Vt. 489 Towner w. Bliss, 51 Vt. 59; Kelsey u Kendall, 48 Vt. 24 ; Duncan v. Stone, 45 Vt. 123 ; Pales v. Roberts, 38 Vt, 503; Hefflin v. Bell, 30 Vt. 134; Fos dick V. Schall, 99 U. S. (9 Otto) 235 bk. 25, L. ed. 339; Hart u. Barney, &e. Manuf. Co., 7 Fed. Rep. 552. Where the contract is one in the nature of a bailment with a discretion- ary conditional agreement, whereby the purchaser is to acquire the title, if such condition has not been per- formed a purchaser from the bailee acquires no title to the property. Comer v. Cunningham, 77 N. Y. 398; s. c. 33 Am. Rep. 626; Austin u. Dye, 46 N. Y. 500 ; BuUard v. Bur- gett, 40 N. Y. 314 ; Herring v. Hop- pock, 15 N. Y. 409 ; Christie v. Scott's App,, 85 Pa. St. 463 ; Enlow v. Klein, 79 Pa. St. 488 ; Haak u. Linderman, 64 Pa. St. 499; s. c. 3 Am. Rep. 612; Rowe v. Sharp, 51 Pa. St. 27; Chamberlain <. Smith, 44 Pa. St. 431 ; Clark u. Jack, 7 Watts (Pa.) 375; Myers v. Harvey, 2 P. & W. (Pa.) 478 ; s. c. 23 Am. Dec. 60 ; see, also. Chase r. Ingalls, 122 Mass. 383 ; Currier u. Knapp, 117 Mass. 324 ; Crompton u. Pratt, 105 Mass. 255, 258 ; Day r. Bassett, 102 Mass. 445 ; Devlin v. O'Neill, 6 Daly (N. Y.) 305; Carpenter v. Scott, 13 R. I. 477. Where there is a condition present title does not pass until that condition is performed. Carroll v. Wiggins, 30 Ark. 402; Hegler v. Eddy, 53 Cal. 597 ; Cardinell v. Bennett, 52 Cal. 476; Brown v. Fitch, 43 Conn. 512; Flanders r. Maynard, 58 Ga. 56 ; Jowers V. Blandy, 58 Ga. 379; Waters o. Cox, 2 111. App. 129; Domestic Sewing Machine Co. c. Arthurhultz, 63 Ind. 322 ; Hodson v. AVarner, 60 Ind. 214; Bradshaw v. Warner, 54 Ind. 58 ; Sims v. Wilson, 47 Ind. 226; Dunbar u. Rawles, 28 Ind. 225 I Plummer v. Shirley, 16 Ind. 380 ; Shireman u. Jackson, 14 Ind. 459 ; Thomas v. Winters, 12 Ind. 322 ; Chisson v. Hawkins, 11 Ind. 316 ; Moseley v. Shattuck, 43 Iowa, 540; Drury v. Hervey, 126 Mass. 519; Chase v. Pike, 125 Mass. 117; Benner v. Puffer, 114 Mass. 376; Whitwell I'. Vincent, 21 Mass. (4 Pick.) 449; s. c. 16 Am. Dec. 355; Barrett v. Pritchard, 19 Mass. (2 Pick.) 512; s. c. 13 Am. Dec. 449; Preston „. Whitney, 23 Mich. 260; Ridgeway u. Kennedy, 52 Mo. 24 ;. Dannefelser v. Weigal, 27 Mo. 45 ; Holt !■. Holt, 58 N. H. 276; King V. Bates, 67 N. H. 446; Powell v. Preston, 3 T. & C. (N. Y.) 644; Boon c. Moss, 70 N. Y. 465; Morris V. Rcxford, 18 N. Y. 552; Cole v. Mann, 3 T. cSb C. (N. Y.) 380; Strong V. Taylor, 2 Hilt. (N. Y.) 326 ; Wright v. Pierce, 4 Hun (N. Y.) 351 ; Sanders v. Keber, 28 Ohio St. 630; Sage v. Sleutz, 23 Ohio St. 1; Bauendahl u. Horr, 7 Blatchf. C. C. 548 ; Rogers Locomotive Works v. Lewis, 4 Dill. C. C. 158 ; Re Binf ord, 3 Hughes C. C. 265; Truman v. Hardin, 5 Sawy. C. C. 115 ; Fosdick V. Car Co., 99 U. S. (9 Otto) 256; bk. 25, L. cd. 344 ; Bateman u. Green, Ir. R. 2 C. L. 166; Nordheimer v. Robinson, 2 Ont. App. 305 ; Mason V. Bickle, 2 Ont, App. 291; Walker V. Hyman, 1 Ont. App. 345; Tuffts V. Mottashed, 29 Up. Can. C. P. 539; Black /'. Drouillard, 28 Up. Can. C. P. 107 ; Stevenson v. Rice, 24 Up. Can. C. P. 245; Weeks ^. Lalor, 8 Up. Can. C. P. 239. A bailee of personal property on a conditional sale cannot convey the title or subject it to execution for his own debts until the condition of the sale has been performed. Harkness V. Russell, 118 U. S. 664; bk. 30, L. ed. 285. And an express company carrying goods on order of seller to deliver to purchaser C. 0. D. is agent of seller, and title does not pass till after performance of conditions pre- cedent, delivery and payment. State 476 CHAP. III.] SALE OP CHATTELS CONDITIOiTALLT. ^269 V. O'Neil, 58 Vt. 140; s. c. 1 New Eng. Eep. 775. Title not to pass until payment. — A sale and delivery of personal prop- erty, the title to remain in the vendor until payment of the purchase price, is a conditional sale and is valid, and the title remains in the vendor. McRae v. Merrifield, 48 Ark. 160; s. c. 2 S. W. Eep. 780 ; Mcintosh v. Hill, 47 Ark. 363 ; Cooley v. Gillan, 54 Conn. 80; s. c. 2 New Eng. Rep. 826; Bowen u. Erick, 75 Ga. 786; Roberts v. Savannah, F. & W. Ry., 75 Ga. 225; Coover v. Johnson, 86 Mo. 533; s. c. 1 West. Rep. 770; Defiance Machine Works v. Trisler, 21 Mo. App. 69; s. c. 3 West. Eep. 180; Silver Bow & Co. v. Lowry, 6 Mont. Ter. 288 ; Heinbockle v. Zug- baum, 5 Mont. Ter. 345; s. c. 51 Am. Rep. 59 ; Marvin Safe Co. v. Norton, 48 N. J. L. (19 Vr.) 410; s. c. 5. Cent. Rep. 341 ; Harris v. Woodward, 96 N. C. 232, although the description of the chattel in the instrument con- taining the agreement for the condi- tional sale is wrong. Harris u. Woodard, 96 N. C. 232. But where an absolute bill of sale of personal property was given, under which the appellee took possession of the property, — the property being subject to a mortgage which the pur- chaser assumed, agreeing to credit the seller with the entire proceeds upon sale of the property, less the amount of the mortgage, — it was held the intention of the parties that the property should then pass. Fos- ter V. Magill, 119 111. 75; s. c. 6 West. Rep. 765. Construction of a chattel with the reservation of title to the vendor un- til the purchase price is paid, is a conditional and not an absolute sale, and no title vests in the purchaser until the payment ; and a provision in the contract that the purchaser shall execute a mortgage on the property to secure the payment does not make the sale absolute unless the mortgage be in fact executed. McEae v. Mer- rifield, 48 Ark. 160; s. c. 2 S. W. Eep. 780. Conditional sale. — Yalidity as to third parties. — Sub-vendees. — In the absence of fraud a conditional sale is valid against third persons, as well as against the parties. Mcintosh c Hill, 47 Ark. 363 ; Coover v. Johnson, 86 Mo. 533 ; 8. c. 1 West. Eep. 770 ; Silver Bow & Co. v. Lowry, 6 Mont. Ter. 288 ; Heinbockle v. Zugbaum, 5 Mont. Ter. 345 ; s. c. 51 Am. Rep. 59; Harris v. Woodard, 96 N. C. 232; Harkness v. Russell, 118 U. S. 663 ; bk. 30, L. ed. 285. See Eidge- way Stove Co. v. Way, 141 Mass. 657; s. c. 2 New Eng. Eep. 368. The fact that the property is mis- described in the bill of sale will not affect the rights of the vendor. Harris v. Woodard, 96 N. C. 232. But where a portable heating furnace with pipes and registers attached, are annexed to a dwelling-house, they pass to bond fide purchaser without notice of an agreement between the owner and plaintiff that they should remain in the latter's property until paid for. Eidgeway Stove Co. o. Way, 141 Mass. 557 ; s. c. 2 New Eng. Eep. 363. In Minnesota, Gen. St. 1878, c. 39, providing for filing of contracts of conditional sales, is not operative to avoid such a contract as to creditors having notice thereof. Dyer v. Thorstad, 35 Minn. 534. In Missouri. — The word "credi- tor " as used in 2505 and 2507 of Ee- vised Statute concurring conditional sales, means subsequent creditors. Defiance Machine Wks. v. Trisler, 21 Mo. App. 69 ; s. c. 3 West. Eep. 180. A consignment of goods by one merchant to another, to be sold on commission, is not a sale, lease, hiring, or delivery of goods, on con- dition that the title should pass to the vendee or lessee or to other person on payment of the price or value of the property when sold, within the provisions of Eev. Stat. 1879, § 2507, providing that such con- 477 ^269 EFFECT OF THE CONTKACT. [book II. ilitions shall be void as to subsequent purchasers in good faith, and credi- tors, unless the same is recorded, as in case of chattel mortgages. Veet V. Spencer, 90 Mo. 384; s. c. 7 "West. Rep. 286. In New Jersey. — S. purchased of the Marvin Safe Company a safe on credit, under a contract that the safe was to be the property of the com- pany until the contract price was paid. The purchase was made at the company's office in Philadelphia, and the safe was delivered there to car- rier to be transferred to the State where S. resided. Subsequently S. sold the safe to N. and delivered posses- sion to him. The safe was tlien at Hightstown, and the sale and delivery to N. were made at that place. N. was a bond fide purchaser, and paid his purchase money without knowl- edge of the contract between S. and the company. In trover by the com- pany against N. for the safe, — Held " (1) that the contract of the purchase byN. having been made in this State; the legal effect of his contract of purchase and his rights under it were determined by the law of this State ; (2) that N. by his purchase acquired only such title as his vendor had when the property was brought into this State and became subject to the laws of this State, and that therefor the title in the safe was in the company." Marvin Safe Co. v. Norton, 48 N. J. L. (19 Vr.) 410; s. c. 5 Cent. Rep. 341. In Neiv York. — The condition is Toid unless the contract be filled as required by chapter 815 of 1884. On August 5, 1885, the plaintiff sold a wagon to one Smith for seventy-two dollars and fifty cents, five dollars being paid in cash and a note for the balance being given by Smith to the plaintiff until the note was paid, and that the plaintiff might take possession of the wagon whenever he felt in- secure. Smith took possession of the wagon and eight weeks thereafter sold it to the defendant, who took the same without notice of the plain- tiff's claim, paying therefor ten dollars in cash and applying fifty-five dollars on an old debt owing to him by Smith. The plaintiff, after tendering to the defendant ten dollars and de- manding the wagon, brought this action to recover its value in a justice's court. Held, that as the contract was not filed as required by chapter 315 of 1884, the conditions and reservations contained in the note, qualifying and limiting Smith's ownership were, as against the de- fendant who purchased in good faith and without notice of the same abso- lutely void. Moyer v. Mclntyre, 43 Hun (N. Y.) 58. In North Carolina. — As between the parties, a conditional sale is binding although not reduced to writing or registered. The Code, 1275, only requires registration, as against creditors and purchasers for value. Butts v. Screws, 95 N. C. 215. In Vermont. — By the law of this State, upon a conditional sale of chattels followed by delivery of po- session to the vendee, the reservation of title in the vendor until the con- tract price is paid is valid, as against creditors of and 6on3 fide purchasers from the vendee, unless the vendor has conferred upon the vendee in- dicia of title beyond mere possession, or has forfeited his rights by conduct which the law regards as fraudulent. Dixon j>. Blondin, 58 Vt. 689; s. c. 2 New Eng. Rep. 777; Marvin Safe Co. V. Norton, 48 N. J. L. (19 Vr.) 410; s. c. 5 Cent. Rep. 341. A conditional sale, not evidenced by a writing, is valid in Vermont. Dixon V. Blondin, 58 Vt. 689; s. c. 2 New Eng. Rep. 777. Where goods to be so!d at retail. — Where goods are sold upon credit and delivered to a retail dealer, for the apparent and implied purpose of re-sale a condition that the title should remain in the vendor until the purchase price is paid, is fraudulent and void as against a bona fide pur- 478 CHAP, m.j SALE OF CHATTELS CONDITIONALLY. •^269 chaser from the vendee. Winchester Wagon Works and Manuf. Co. v. Carman, 109 Ind. 31 ; s. c. 58 Am. Hep. .382. And where goods are de- livered to a customer to be sold at retail on an agreement that they are to be paid for on a specified day in the future, if sold at that time and that what remains unsold should be taken back, the contract is not a bailment but a sale with an option on the part of the purchaser to return the goods remaining unsold at the specified time. Robinson v. Fair- banks, 81 Ala. 132. Vendor's right. — Replevin. — Upon failure to pay for the property as agreed, the vendor may recover it in an action of replevin or may treat the sale as valid and sue for the agreed price. McRae v. Merrifield, 48 Ark. 160; s. c. 2 S. W. Eep. 780; Campbell Printing Press Co. v. Walker, 43 Hun (N. Y.) 449. And where goods have been exchanged for the price of the goods purchased, the vendor may maintain replevin with- out returning the goods, unless a return of them, upon the failure of the sale, is provided for in the contract. McRae v. Merrifield, 48 Ark. 160 ; s. c. 2 S. W. Rep. 780. See Mansur v. Hill, 22 Mo. App. 372; s. c. 4 West. Rep. 858. Purchasers' rights after pai/ment. — In a contract for the sale of books where the payment was to be made by instalments, and the title was not to pass until after full payment of the purchase price with option of the vendor to retake the property if any instalment was unpaid, and on any instalment becoming due and unpaid the remaining instalment to become payable immediately, the vendee cannot return the books in discharge of the contract, leaving the instal- ment unpaid. Appleton u. Norwalk Library Corp., 53 Conn. 4 ; s. c. 3 New Eng. Rep. 644; See Loomis v. Bragg, 50 Conn. 228 ; s. c. 47 Am. Dec. 638; Hine v. Roberts, 48 Conn. 267 ; s. c. 40 Am. Dec. 17. Payment and delivery simultaneous. — A sale for cash is a conditional sale and vests no title in the pur- chaser until the payment of the purchase price. Commonwealth i'. Devlin, 141 Mass. 428; s. c. 2 New Eng. Rep. 101 ; Turner v. Moore, 58 Vt. 455; B. K^. 2 New Eng. Rep. 110. And where a contract is that delivery of notes in payment is to be concur- rent with that of the article sold, the transaction is not a, conditional sale but a mere agreement to sell. Mill- hiser o. Erdman, (N. C. Oct. 24, 1887,) 3 S. E. Rep. 521. See Pier- son 0. Spaulding (Mich.), 12 West. Rep. 403. Payment made in notes. — A con- tract for the purchase of a machine on credit, providing that until the ^otes, given for the purchase price, shall be paid, the machine shall re- main vendor's property, and may meanwhile be used by the purchaser and be in his possession, and if the notes are not paid, vendor may re- sume possession, is a conditional credit with a provision to convert the sale on credit into a bailment if the price should not be paid. Such provision does not convert the con- tract into a bailment ab initio. Wire B. S. Machine Co. v. Crowell (Pa.), 6 Cent. Rep. 186; 8 Atl. Eep. 22. See Trick v. Hilliard, 95 N. C. 117. A note and agreement executed contemporaneously, and upon which possession of personal property is acquired, must be considered to- gether as parts of the same trans- action; and where such instruments show that the title to such property is to remain in the party to whom the notes are payable, one who sub- sequently acquires possession of the property by purchase from the maker of the notes, and, when sued for the amount remaining due as purchase money, attempts to show that the payee is estopped by his conduct or laches from asserting his title in the property, must prove that 479 *269 EFFECT OF THE CONTRACT. [book n. The authorities in support of these propositions will now be considered.^ such payee represented to or oon- cealed from such purchaser some material fact, or that the purcliaser was induced to act in the premises by something said or done by the payee. Baals v. Stewart, 109 Ind. 371 ; 5. c. 7 West. Eep. 61. Requiring security for the price to be paid for a chattel does not of itself make the sale absolute. McRae V. Merrifield, 48 Ark. 160 ; s. c. 2 S. W. Rep. 780. Whether delii^ery absolute or condi- tional is for the jury.- — The question whether a sale of personal property is complete or only executory is to be determined from the intention of the parties gathered from the con- tract, the situation of the thing sold, and the circumstances surrounding the sale. Gurney v. Collins (Mich.), 7 "West. Eep. 670; 31 N. W. Rep. 429 ; Moran v. King, 28 W. Va. 1. 2 Judge Story lias tersely stated the substance of those rules when he says that if " there remains anything to be done to designate the particular property or to complete the rights of the vendee, then the property does not pass until such acts are done." Barrett u. Goddard, 3 Mason C. C. 107, 111. The principle which runs through all the cases is the same. See Barnard v. Poor, 38 Mass. (21 Pick.) 378; Prescott v. Locke, 59 N. H. 94; s. c. 12 Am. Rep. 55; Fuller V. Bean, 34 N. H. 300 ; War- ren V. Buckminster, 24 N. H. .342 ; Davis V. Hill, 3 N. H. 382; s. c. 14 Am. Dec. 373; Russell v. Carrington, 42 N. Y. 118; s. c. 1 Am. Rep. 498; Rapelye v. Mackie, 6 Cow. (N. Y.) 253; Hanson c. Meyer, 6 East, 614; 2 Kent's Com. 496 ; Browne on Statute of Frauds, § 17. See, also, McDonald v. Hewett, 15 Johns. (N. Y.) 349; s. c. 8 Am. Dec. 211; Merritt «. Johnson, 7 Johns. (N. Y.) 473; s. c. 5 Am. Dec. 289; Shepley V. Davis, 5 Taunt. 617; White v. Wilks, 5 Taunt. 176; Mucklow u. Mangles, 1 Taunt. 318 ; Owenson v. Morse, 7 Tr. 65. Sale of grain in elevator. — How- ever, it was held by the New York Court of Appeals in the case of Russell v. Carrington, 42 N. Y. 118; B. c. 1 Am. Rep. 498, that a sale of a specified quantity of grain, part of a cargo in elevator, the delivery by vendors to the vendees upon payment of the agreed price of a receipted bill of sale and subsequently of an order of the grain purchased drawn upon the elevator by the person upon whose account the cargo was stored, and who was superintendent of the elevator, sufficiently manifests an in- tention to pass the title, and renders the transaction an executed contract without actual separation and de- livery of the property. See, also, Hurff V. Hires, 40 N. J. L. (11 Vr.) 581, 593; s. c. 29 Am. Rep. 282; Lobdell V. Stowell, 51 N. Y. 75; Pleasants v. Pendleton, 6 Rand. (Va.) 473; s. c. 18 Am. Dec. 726. This decision is founded upon the principle that upon a sale of a specified quan- tity of grain its separation from the mass, undistinguishable quality or value in which it is included it is not necessary to pass the title, that it should be separated from the bulk when the intention to do so is other- wise clearly manifested. Kimberly V. Patchin, 19 N. Y. 330. This case is denied in Ferguson o. Northern Bank of Ky., 14 Bush (Ky.) 555; s. c. 29 Am. Rep. 418 ; disapproved in Commercial Nat. Bank ;;. Gillette, 90 Ind. 268; s. c. 46 Am. Rep. 222. See McLaughlin u. Piatti, 27 Cal. 463 ; Morrison v. Woodley, 84 111. 192 ; Bertelson v. Bower, 81 Ind. 512 ; Indianapolis & C. R. W. Co. c. Maguire, 62 Ind. 140; Lester v. East, 49 Ind. 688; Scott u. King, 12 Ind. 480 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *269 § 361. In Hanson v. Meyer,^ the defendant sold a parcel of starch at 61. per cwt., and directed the warehouseman to weigh and deliver it. Part was weighed and delivered, and then the purchaser became bankrupt, whereupon the vendor countermanded the order for delivery of the remainder, and took it away. In an action for trover, brought by the as- signees of the bankrupt purchaser, Lord EUenborough said, that the act of weighing was in the nature of a condition precedent to the passing of the property by the terms of the contract, because " the price is made to depend upon the weight." § 362. In Rugg V. Minett,^ a quantity of turpentine, in casks, was put up at auction, in twenty-seven lots. By the terms of the sale, twenty-five lots were to be filled up by the vendors, out of the turpentine in the other two lots, so that the twenty-five lots would each contain a certain specified quantity, and the last two lots were then to be measured and paid for. The plaintiff bought the last two lots, and twenty-two of the others. The three lots sold to other parties had been filled up, and taken away, and nearly all of those bought by plaintiff had been filled up, but a few re- mained unfilled, and the last two lots had not been measured, when a fire occurred and consumed the goods. The buyer sued to recover back a sum of money paid by him on ac- count of his purchase. The Court held, that the property 203 ; Moffatt o. Green, 9 Ind. 198 ; Rep. 465 ; Anderson v. Brenneman, Bricker v. Hughes, 4 Ind. 146 ; Mur- 44 Mich. 198 ; Ockington v. Richey, phy V. State, 1 Ind. 866 ; Courtright 41 N. H. 275 ; Fuller v. Bean, 34 N. u. Leonard, 11 Iowa, 32 ; Ferguson ti. H. 290; Woods a. McGee, 7 Ohio, Northern Bank of Ky., 14 Bush 137; o. u. 30 Am. Dec. 202; Hubler (Ky.) 555; s. c. 29 Am. Rep. 418; v. Gaston, 9 Greg. 66; s. c. 42 Am. Newcomb v. Cabell, 10 Bush (Ky.) Rep. 794; Haldeman i;. Duncan, 51 460 ; May v. Hoaglan, 9 Bush (Ky.) Pa. St. 66 ; Hutchinson v. Hunter, 7 171 ; Moss V. Meshew, 8 Bush (Ky.) Pa. St. 140 ; 2 Kent Com. 639 ; Story 187 ; Crawford v. Smith, 7 Dana on Sales, sec. 296. (Ky.) 59 ; Jennings u. Flanagan, 5 i 6 Bast, 614. See Hoffman v. Dana (Ky.) 217; Ropes v. Lane, 91 Culver, 9 111. App.450; United States Mass. (9 Allen) 502; Scudder v. v. Woodruff, (Elgee Cotton Cases,) Worster, 65 Mass. (11 Cush.) 573; 69 U. S. (22 Wall.) 180, 189; bk. 22, Merchants, &c. Manuf. Bank of D. L. ed. 863. o. Hibard, 48 Mich. 118; s. c. 42 Am. i 11 East, 210. 481 *270 EFFECT OF THE CONTRACT. [BOOK II. had passed in those lots only which had been filled up, because, as Lord EUenborough said : " Everything [*270] had been done by * the sellers which lay upon them to perform in order to put the goods in a deliver- able state." And Bayley J. said, that it was incumbent on the buyer "to make out that something remained to be done to the goods by the sellers at the time when the loss happened." ^ § 363. In Zagury v. Furnell,i the property was held not to have passed, in a sale of " 289 bales of goat skins, from Mogadore, per Commerce, containing five dozen in each bale, at the rate of 67s. Qd. per doz.," because, by the usage of trade, it was the seller's duty to count the bales over, to see whether each bale contained the number specified in the contract, and this had not been done when the goods were destroyed by fire. This was a decision of Lord Ellen- borough, at Nisi Prius, and the reporter states that after the plaintiff's nonsuit, he brought another action in the Common Pleas, and was again non-suited by Sir James Mansfield C. J., who concurred in opinion with Lord Ellen- borough. In Simmons v. Swift,^ the sale was of a specified stack of bark, at 9?. 6s. per ton, and a part was weighed and taken away, and paid for. Bayley J., and the majority of the Court, held, that the property had not passed in the un- weighed residue, although the specific thing was ascertained, because it was to be weighed, " and the concurrence of the seller in the act of weighing was necessary." ^ ' See, also, Acraman v. Morrice, 8 See, also, Morse v. Sherman, 106 Mass. C. B. 449. The case of Eegg v. 430. And the principle of the case Minett, 11 East, 210, is followed in cited in the text is applied to the sale Mass. where the court say that in the of unmeasured wood in McNeil v. sale of personal property, the general Kelcher, 15 Up. Can. C. P. 470. rule of law is that by the terms of the i 2 Camp. 240. contract the seller agrees to it; any- ^ 5 B. & C. 867. thing for the purpose of putting the ^ Young u. Austin, 23 Mass. (6 property in a state in which the buyer Pick.) 280; Waldo v. Belcher, 11 is bound to accept it, or into a condi- Ired. (N. C.) 609; Messer u. Wood- tion to be delivered, that the title will man, 22 N. H. 172 ; Stevens v. Eno, 10 remain in the vendor until he has per- Barb. (N. Y.) 95 ; Dixon v. Myers, 7 formed the agreement in this respect. Gratt. (Va.) 240. 482 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *271 § 364. In Logan v. Le Mesurier,i the sale was on the Sd of December, 1834, of a quantity of red pine timber, then lying above the rapids, Ottawa River stated to consist of 1391 pieces, measuring 50,000 feet, more or less, to be de- livered at a certain boom in Quebec, on or before the 15th of June then next, and to be paid for by the purchasers' notes at ninety days from the date of sale, at the rate of d^d. per foot, measured off. If the quantity turned out more than 50,000 feet, the purchasers were to pay for the sur- plus, on * delivery, at 9^d., and if it fell short, the [*271] difference was to be refunded by the sellers. The purchasers paid for 50,000 feet, before delivery, according to the contract. The timber did not arrive in Quebec till after the day prescribed in the contract, and when it did arrive, the raft was broken up by a storm, and a great part of the timber lost, before it was measured and delivered. Held, that the property was not transferred until measured,^ and 16 Moo. P. C. 116. See, also, Wallace v. Breeds, 13 East, 522 ; Busk I'. Davis, 2 M. & S. 397 ; Austen V. Craven, 4 Taunt. 644; Shepley v. Davis, 5 Taunt. 617 ; Withers v. Lyss, 4 Camp. 237 ; Boswell v. Kilborn, 15 Moo. P. C. 309. 2 See Stone v. Peacock, 35 Me. 388; Macomber v. Parker, 30 Mass. (13 Pick.) 183 ; Prescott v. Locke, 51 N. H. 94; s. c. 12 Am. Eep. 55; Ockington v. Richey, 41 N. it 275 ; Eussell V. Carrington, 42 N. Y. 118 ; s. c. 1 Am. Rep. 498. In a case where A. sold B. part of a growing crop of corn, designating the part sold by cutting off the tops of one row, and B. paid $80 cash in part payment, but by the terms of the sale A. was to cut and shuck a part of the corn, and to gather the re- mainder, and the corn was then to be measured and paid for by the bushel. The corn having been subsequently levied on in an execution against A., it was held that whether the title passed or not was a question of intention of the parties and for the jury. Grail V. Pitch, 58 111. 373; s. c. 11 Am. Rep. 85. It seems to be well settled that in a contract for the sale of specified goods or all goods identified, if such is the intention of the parties, the title will pass to the purchaser without delivery, although something yet remains to be done by the seller to put the property in condition for final delivery. Marble v. Moore, 102 Mass. 443 ; Merchants' Nat. Bank v. Bangs, 102 Mass. 295; Beecher v. Mayall, 82 Mass. (16 Gray) 376; Bemis v. Morrill, 38 Vt. 153; Young V. Matthews, L. R. 2 C. P. 127 ; Mar- tineau v. Etching, L. R. 7 Q. B. 449; Palk V. Fletcher, 18 C. B. N. S. 403 ; s. u. 11 Jur. N. S. 176. Thus where something remains to be done for the purpose of testing the property, or of fixing the amount to be paid, by weighing, measuring, or the like, the property is held by some courts to pass before the act is done, where such appears by the contract to have been the intention of the parties. Burr V. Williams, 23 Ark. 244 ; Ford V. Chambers, 28 Cal. 13 ; Cummins v. 483 *271 EFFECT OF THE CONTRACT. [book ir. that the purchasers could recover back the price paid for all timber not received, and damages for breach of contract.* § 365. In Gilmour v. Supple,^ where the facts were identi- cal with the preceding, as regards the sale of a raft of timber, which was broken up by a storm, the words of the contract were, " Sold Allen, Gilmour, and Co. a raft of timber, now at Carouge, containing white and red pine, the quantity about 71,000 feet, to be delivered at Indian Cove booms. Price for the whole 7f per foot." The raft ivas delivered to the buyers' servant, at the appointed place, and broken up by a storm the same night. The Court held, in this case, that the property had passed, because it was proven that the raft had been measured before delivery, by a public officer, and it was not to be measured again by the vendor. The buyer was at liberty to measure it for his own satisfaction, as in Swanwick v. Sothern,^ but the vendor had lost all claim on the timber, and all lien for price, and there was nothing further for him to do either alone, or concurrently with the purchaser.^ Griggs, 2 DuT. (Ky.) 87 ; Cushman r. Holyoke, 34 Me. 289; Denny v. "Williams, 87 Mass. (5 Allen) 3 ; Rid- dle 0. Varnum, 37 Mass. (20 Pick.) 283 Russell v. Carrington, 42 N. Y. 118; s. c. 1 Am. Rep. 498; Terry v. Wheeler, 25 N. Y. 525; Filkins ;•. Whyland, 24 N. Y. 338; Williams V. Adams, 3 Sneed (Tenn.) 359; Fitch o. Burk, 38 Vt. 683; Jenner v. Smith, L. R. 4 C. P. 270; Castle v. Playford, L. R. 7 Ex. 98 ; Alexander V. Gardner, 1 Bing. (N. 0.) 671; Turley v. Bates, 2 Hurls. & C. 200. The passing of title always depends upon the intention of the parties. Stone V. Peacock, 35 Me. 388; Morse .,. Sherman, 106 Mass. 4.30; Fuller v. Bean, 34 N. H. 300 ; Bellows v. Wells, 36 Vt. 599; Young v. Marthews, L. R. 2 C. P. 127. And the question of intent is for the jury. McClung v. Kelley, 21 Iowa, 508 ; George ' , Stubbs, 26 Me. 250 ; Riddle r. Var- num, 37 Mass. (20 Pick.) 283; De Ridder v. McKnight, 13 Johns. (N. Y.) 294. ^ The doctrine of this case is ap- plied in Hutchinson v. Hunter, 7 Pa. St. 146. 1 11 Moo. P. C. 551. The same doctrine is held in Canada. See 5 Up. Can. C. P. 318. 2 9 A. & E. 895. ^ Floating timber. — There are many cases of sales of logs and float- ing timber in the American reports. See Bethel Steam Mill Co. v. Brown, 57 Me. 9; Cushman u. Holyoke, 34 Me. 289; Riddle r. Varnum, 37 Mass. (20 Pick.) 280 ; Colwell v. Keystone Iron Co., 36 Mich. 51 ; Wilkinson v. Holiday, 33 Mich. 388; Adams Min- ing Co. V. Senter, 26 Mich. 73; Mar- tin V. Hulbut, 9 Minn. 142 ; Prescott V. Locke, 51 N. H. 94 ; s. c. 12 Am. Rep. 55; Scott v. Wells, 6 Watts & S. (Pa.) 357; s. c. 40 Am. Dec. 568; Gibbs V. Benjamin, 45 Vt. 124 ; Pike V. Vaughan, 39 Wis. 499 ; Leonard v. 484 CHAP. lU.J SALE OF CHATTELS CONDITIONALLY. *272 § 366. In Acraman v. Morris,^ the defendant had con- tracted for the purchase of the trunks of certain oak trees from one Swift. The course of trade between the parties was, that after the trees were felled, the purchaser measured and marked the portions that he wanted. Swift was then to cut off the rejected parts, and deliver the trunks at his own expense, conveying them from Monmouth to Chepstow. The timber in controversy had been bought, measured, and paid for, but the rejected portions had not yet been severed * by Swift, when he became bankrupt, and [*272] the felled trees then lay on his premises. Defendant afterwards had the rejected portions severed by his ■ own men, and carried away the trunks for which he had paid. Action in trover, by the assignees of the bankrupt. Held, that the property had not passed to the buyer, Wilde C. J. saying that " several things remained to be done by the seller . . . it was his duty to sever the selected parts from the rest, and convey them to Chepstow, and deliver them at the purchaser's wharf.^ § 367. But in Tansley v. Turner,^ the sale by the plaintiff was as follows : — "1833. Dec. 26. Bargained and sold Mr. George Jenkins all the ash on the land belonging to John Buckley, Esq., at the price per foot cube, say Is. I^d. Pay- ment on or before 29 Sept., 1834. The above Geo. Jenkins to have power to convert on the land. The timber is now felled ; " and some trees were measured and taken away the same day. The remaining trees were marked and measured some time afterwards, and the number of cubic feet in the several trees was taken, and the figures put down on paper by the plaintiff's servant, but the whole was not then added up, and the plaintiff said he would make out the statement Davis, 66 TJ. S. (1 Black) 476; bk. Wheeler, 44 N. Y. 495; Terry t. 17, L. ed. 222; Cooper v. Bill, 5 Wheeler, 25 N. Y. 520; Brewer v. Hurls. & C. 722. Salisbury, 9 Barb. (N. Y.) 511 ; Oly- 1 8 C. B. 449. phant v. Baker, 5 Den. (N. Y.) 379; 2 Bethel Steam Co. v. Brown, 57 Birge v. Edgerton, 28 Vt. 291 ; Hutch- Me. 9; Prescott v. Locke, 51 N. H. ins v. Gilchrist, 23 Vt. 82; Hale v. 94; s. u. 12 Am. Rep. 55; Kelsea v. Huntley, 21 Vt. 147; McConnell o. Haines, 41 N. H. 240, 255 ; Boynton Hughes, 29 Wis. 537. V. Veazie, 24 Me. 286 ; Bradley v. i 2 Scott, 238 ; 2 Bing. N. C. 151. 485 *273 EFFECT OF THE CONTRACT. [BOOK II. and send it to Jenkins. This was not done, but it was held that the property had passed, nothing remaining to be done by the vendor^ to the tiling sold.^ Cooper V. Bill * was very similar to the above case in the facts, and was decided in the same way, Tansley v. Turner, however, not being cited by the counsel or the Court.^ § 368. In Castle v. Playford,^ the contract was for the sale of a cargo of ice to be shipped, " the vendors forwarding bills of lading to the purchaser, and upon receipt thereof the said purchaser takes upon himself all risks and dangers of the seas, rivers, and navigation of whatever nature or kind soever, and the said Playford to huy and receive the said ice on its arrival at ordered po7't . . . and to pay for the same in cash on delivery at 20s. per ton, weighed on hoard [*273] during delivery." * Declaration for the price by the vendor, and plea that the cargo did not arrive at the ordered port, and the plaintiffs were not willing and ready to deliver. On demurrers to the declaration of the plea, Martin and Channell BB. were of opinion (Cleasby B. diss.) that the property did not pass by the terms of the contract, that the time for payment had not arrived, and that the de- fendant was not liable : but in the Exchequer Chamber the judgment was unanimous for the plaintiff, Cockburn C. J. and Blackburn J. expressing a very decided opinion that the property passed by the agreement, but the case was not decided on that point, but on the ground that whether the property passed or not, the defendant undertook to pay for it if delivery was prevented by dangers of the sea ; and that in cases where property is to be paid for on delivery, and where the risk of delivery is assumed by the purchaser, if the destruction of the property prevents the delivery, the payment is still due, as decided in the cases below cited.^ 2 See ante, § 364, note 2. Also, Pres- Lathrop, 3 Keyes (N. Y.) 600 ; Birge cott V. Locke, 51 N. H. 94; s. c. 12 Am. v. Edgerton, 28 Vt. 291. Rep. 55; Fuller o. Bean, 34 N. li. * 34 L. J. Ex. 161; 3 H. & C. 722. 300, 301 ; Gibbs v. Benjamin, 45 Vt. i L. R. 5 Ex. 165 ; 7 Ex. 98. 124, 128. 2 Alexander v. Gardner, 1 Bing. "Mills u. Camp, 14 Conn. 219; N. C. 671; Fragano v. Long, 4 B. & s. c. 36 Am. Dec. 488 ; Cunningham C. 219. V. Ashbrook, 20 Mo. 553; Hyde v. It would seem that where spe- 486 CHAP. III. J SALK OF CHATTELS CONDITIONALLY. *274 § 369. Similar questions were involved in Martineau v. Kitching,^ where sugars were sold by the manufacturer to a broker. The terms were, " Prompt at one month : goods at seller's risk for two months." The goods had been marked, and paid for in advance of being weighed, at an approximate sum, which was to be afterwards definitely adjusted and set- tled when the goods came to be weighed on delivery ; and part of them had been taken away by the purchaser. The residue was destroyed by fire after the lapse of the two months, and before being weighed. Held by Cockburn C. J. that the property had passed to the purchaser: and the other members of the Court seemed to agree with him, but the case was decided on the same ground as that of Cas- tle V. Playford, supra? § 370. [But in such cases the intention that the purchaser shall assume the risk before the property in the goods has vested in him must be either expressed in the written con- tract between the parties, as in Castle v. Playford and Mar- tineau V. Kitching, or clearly to be inferred from the circumstances of *the case, the presumption being [*274] that the risk and the property go together. § 371. Thus, in Anderson v. Morice,i the plaintiff sought to recover the value of a cargo of rice which he had insured with the defendant, an underwriter at Lloyd's. The plaintiff had bought the rice under a contract, the material parts of which were as follows : — " Bought the cargo of Rangoon rice, per Sunbeam, at 9s. l\d. per cwt., cost and freight. Payment by sellers' draft on purchaser at six months' sight, ciflc goods are sold, to be paid for Kitching, L. R. 7 Q. B. 455, 456; by the pound, bushel, or the like, on Alexander v. Gardner, 1 Bing. N. C. ascertaining the number of pounds 671 ; Turley v. Bates, 2 Hurl. & C. or bushels which cannot be ascer- 200. tained with precision because of the ' L. B. 7 Q. B, 436. loss or destruction of the goods, in ^ Followed by the Supreme Court those cases where the risk was on of United States in the case of the purchaser, the seller may recover United States i'. Woodruff, (Elgee the price by showing the amount as Cotton Cases,) 89 U. S. (22 Wall.) nearly as may be. McConnell v. 180, 193 ; bk. 22, L. ed. 863. Hughes, 29 Wis. 537 ; Castle v. Play- i 1 App. Cas. 713, in Ex. Ch. L ford, L. E. 7 Ex. 98; Martineau u. E. 10 C. P. 609; s. e. ib. 58. 487 *275 EFFECT OF THE CONTRACT. [BOOK II. with documents attached." The sellers advised tlie plaintiff to effect an insurance on the rice, per Sunbeam, and the plaintiff accordingly effected a policy of insurance with the defendant, which described the adventure as : — " Beginning upon the goods and merchandizes from the loading thereof aboard the ship, and to continue and endure during her abode at Rangoon." The Sunbeam arrived at Rangoon, and had taken on board 8878 bags of rice, the remaining 400 bags, which would have completed her cargo, being in lighters alongside, when she sank and was lost with the cargo on board of her. The captain afterwards signed bills of lading for the cargo shipped, which were endorsed to the plaintiff, and the sellers drew bills of exchange for the price of such cargo, which were accepted and met bj^ the plaintiff. It was held in the Exchequer Chamber (diss. Quain J.), and after- wards affirmed by the House of Lords (the Lords being, however, equally divided), reversing an unanimous decision of the Common Pleas ; — 1st, that by the terms of the contract of sale, the property in the rice did not vest in the plaintiff until a full cargo was shipped. The first rule laid down by Lord Blackburn, cited ante, p. 268, was referred to with approval, and it was held that the completion of the loading, so that shipping docu- ments could be made out, was a thing to be done by the vendor for the purpose of putting the goods into a deliver- able state. 2dly, that there was no sufficient intention manifested by the fact of insurance and the terms of the policy, [*275] that the * purchaser should assume the risk of loss before the property had vested in him, and that, therefore, he had no insurable interest in the goods at the time when they were lost. Upon this 2d point the reader is referred to the observa- tions of Blackbui-n J., L. R. 10 C. P. at p. 619.] § 372. A statement is made by the learned editors of Smith's Leading Cases, Vol. I., p. 164 (ed. 1879), that "it was held in a modern case in the Court of Exchequer (which seems not to have been reported) that the property 488 CHAP. UI.] SALE OF CHATTELS CONDITIONALLY^ *275 in a specified chattel bought in a shop to be paid for upon being sent home did not pass before delivery ; " ^ and in ac- cordance with this is the diotum of Cockburn C. J. in the Calcutta Company v. De Mattos,^ that " if by the terms of the contract the seller engages to deliver the thing sold at a given place, and there be nothing to show that the thing sold was to he in the meantime at the risk of the buyer, the contract is not fulfilled by the seller unless he delivers it accord- ingly." In both these instances, as in Acraman v. Morris,^ some- thing remained to be done by the seller to the thing sold in order to make the agreement an executed contract. In Langton v. Higgins,* it was held that where the buyer had purchased in advance all the crop of peppermint oil to be raised and manufactured by a farmer, the property passed to the buyer in all the oil which had been put by the farmer into the buyer's bottles and weighed, although never deliv- ered to him. § 373. But the property in goods will pass, even though something remain to be done by the vendor in relation to the goods sold, after their delivery to the vendee?- Thus, 1 Goods to he paid for on delivery was delivered than had been bar- at a certain place. — Where goods are gained for. DeGraff v. Byles (Mich.), to be delivered at a certain place, to 5 West. Rep. 593. be paid for in cash on delivery, no ^ 32 L. J. Q. B. .322, 355. title passes until after the delivery » 8 C. B. 449 ; 19 L. J. C. P. 57. and payment. See Boynton v. Vea- * 28 L. J. Ex. 252 ; 4 H. & N. 402. zie, 24 Me. 286; Suit v. Woodhall, i See Goddard;,'. Binney, 115 Mass. 113 Mass. 394; Weld v. Came, 98 450; s. c. 15 Am. Rep. 112; Odell c. Mass. 152 ; Goddard o. Binney, 115 Boston & Maine R. R., 109 Mass. 50, Mass. 455; s. u. 15 Am. Rep. 112. 52; Scudder ;;. Bradbury, 106 Mass. Thus where, by a contract of sale, 422; Mount Hope Iron Co. v. Buf- the vendor was to deliver lumber at finton, 103 Mass. 62; Richmond a steamboat landing, and upon its Iron Works v. Woodruff, 74 Mass. delivery the vendee was to give two (8 Gray) 447 ; Kelsea r. Haines, 41 notes covering the amount of the N. H. 254, 255; Pritchett r. Jones, 4 balance of the purchase money, and Rawle (Pa.) 260, 26(i. the lumber was delivered and the Actual deliver i;. — It has been held notes given according to the contract, in Massachusetts that the rule, that and accepted, it was held that the the property does not pass, where title of the lumber passed to the ven- anything remains to be done, applies dee on the giving of the notes, not- to cases of constructive delivery withstanding that a greater quantity and constructive possession, but not 489 ^276 EFFECT OF THE CONTRACT. [book II. where by the custom of the trade if the goods sold continued to lie at the wharf after the sale, the vendor was bound to pay for the warehousing during fourteen days : held, that this did not prevent the property from passing from the moment of the delivery.^ And the same point was held in Greaves v. Hepke,^ where by the usage at Liverpool [*276] the vendor was * bound to pay warehouse rent for two months after the sale, and the goods were dis- trained during that interval for rent due by the warehouse- man to his lessor. This risk, it was decided, must be borne by the purchaser. The decision would no doubt be the same in other familiar cases, as if a vendor shoiild engage to keep in good order for a certain time after the sale a watch or clock sold ; or to do certain repairs to a ship after the sale and delivery. § 374. In Turley v. Bates,^ (also reported suh nom. Furley V. Bates, )^ the jury found that the bargain between the par- te cases of an actual delivery. Or- cutt v. Nelson, 67 Mass. (1 Gray) 543; Sumner v. Hamlet, 29 Mass. (12 Pick.) 82, 8.3 ; Kelsea u. Haines, 41 N. H. 254, 255. In Macomber v. Parker, .30 Mass. (1.3 Pick.) 175, 183, Wilde said: "Where the goods are actually delivered, that shows the intent of the parties to complete the sale by the delivery, and the weigh- ing or measuring or counting after- wards would not be considered as any part of the contract of sale, but would be taken to refer to the ad- justment of the final settlement as to the price. The sale would be as complete as a sale upon credit, before the actual payment of the price." Wilkinson ;;. Holiday, 33 Mich. 388; Lingham v. Eggleston, 27 Mich. 324. 2 Hammond v. Anderson, 1 B. & P. N, E. 69. 3 2 B. & Aid. 131. 1 2 H. & C. 200. 2 33 L. J. Ex. 43. Where an act remains to he done by the seller or the purchaser, where it is not the intention of the parties that the title should pass immediately, no title will pass until the performance of those conditions. See Barnard v. Poor, 38 Mass. (:il Pick.) 378; Pres- cott V. Locke, 51 N. H. 94 ; s. c. 12 Am. Rep. 55; Fuller , . Bean, 34 N. H. 290; Warren v. Buckniinster, 24 N. H. 342 ; Parker v. Mitchell, 5 N. H. . 165; Davis v. Hill, 3 N. H. 382; Rus- sell V. Carrington, 42 N. Y. 118; s. c. 1 Am. Rep. 498; Rapelye v. Mackie, 6 Cow. (N. Y.) 253 ; Ward i . Shaw, 7 Wend. (N. Y.) 404; Gibbs r. Benja- min, 45 Vt. 124, 128; Gorham v. Fisher, 30 Vt. 428 ; Hutchins r. Gil- christ, 2.3 Vt. 83; Hale !'. Huntly, 21 Vt. 147 ; Barrett v. Goddard, 3 Mason C. C. Ill ; Hanson v. Meyer, 6 East, 614; Browne on Frauds, sec. 317; 2 Kent Com. 496 ; Chitt. on Contr. 396. In some of the common law cases the language used is capable of being understood as importing tliat if an act remains to be done it must be by the seller, and necessary to designate and identify the goods to be sold, and not an act to be done by the Ijuyer, or merely to ascertain the price to be 490 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *276 ties was for an entire heap of fire-clay, at 2s. per ton. The buyer was, at his own expense, to load and cart it away, and to have it weighed at a certain machine which his carts would pass on their way when carrying off the clay. All the authorities were reviewed by the Court, and it was held that the property had passed by the contract, great doubt being expressed whether the general rule could be made to extend to cases where something remains to be done to the goods, not hy the seller, hut hy the buyer. Without determining this point, the conclusion was drawn that from the terms of the contract as established by the verdict of the jury, the inten- tion of the parties was that the property should pass, and this was what the Court must look to, in every case.^ paid, in order to render the sale im- perfect and to prevent the title from passing. See Macomber v. Parker, 30 Mass. (13 Pick.) 183; Tarling u. Baxter, 6 Barn. & C. 360 ; Simmons V. Swift, 5 Barn. & C. 857 ; Wallace . . Breeds, 13 East, 522 ; Whitehouse «. Frost, 12 East, 614 ; Rugg v. Minett, 11 East, 10 ; Hanson v. Mayer, 6 East, 614. But the court say in Fuller v. Bean, 34 N. H. 290, 301: "But we think there is no such limitation of the rule and that it is indifferent whether the act to be done to render the sale complete is to be done by the buyer or by the seller or by a third person ; and that it is equally indifferent whether it is to be done to ascertain the amount to be sold, by their designation or measurement or their quality by the buyer or a public inspector; Outwater v. Dodge, 7 Cow. (N. Y.) 87 ; or merely to ascertain the price to be paid by the appraisal of a third person or by counting, weighing or the like, or to do any other act necessary to enable the property to pass in conformity to the agreement, such as might be the pay- ment of duty on goods imported or their transportation to a different place." ^ Logan u. Le Mesurier, 6 Moo. P. 0. 116 ; and Hinde v. Whitehouse, 7 East, 558 ; Sedgwick v. Cottingham, 54 Iowa, 512; Burrows v. Whitaker, 71 N. Y. 291 ; s. c. 27 Am. Rep. 42. Compare O'Brien v. Jones, 47 N. Y. Super. Ct. (15 J. & S.) 67, 73. New York doctrine. — In the case of Burrows v. Whitaker, 71 N. Y. 291 ; o. e. 27 Am. Rep. 42, the New York Court of Appeals hold that where there has been a complete delivery of the property in accord- ance with the terras of the contract of sale, the title passes, notwithstand- ing the fact that something remains to be done in order to ascertain the total value at the rates agreed upon. See, also, Graff v. Fitch, 58 111. 373; s. c. 11 Am. Rep. 85, 89; Crofoot v. Bennett, 2 N. Y. 258 ; Dexter v. Bev- ins, 42 Barb. (N. Y.) 577 ; Tyler v. Strang, 21 Barb. (N. Y.) 206 ; Brewer V. Salisbury, 9 Barb. (N. Y.) 514; Heroy v. Kerr, 8 Bosw. (N. Y.) 206; Olyphant v. Baker, 5 Den. (N. Y.) 379 ; Hyde v. Lathrop, 3 Keyes (N. Y.) 597 ; Keeler t>. Vandervere, 5 Lans. (N. Y.) 313; Bradley v. Wheeler, 4 Robt. (N. Y.) 27. Com- pare Cooke V. Millard, 65 N. Y. 365 ; s. c. 22 Am. Rep. 619 ; Kein v. Tup- per, 33 N. Y. Super. Ct. (1 J. & S.) 476 ; Chapin v. Potter, 1 Hilt. (N. Y.) 872; see, also, ante, § 367, note 3. The distinctions in the oases do not de- 491 *277 EFFECT OF THE CONTEACT. [BOOK II. § 375. In Kershaw v. Odgen,^ the facts as found by the jury were that the defendants purchased four specific stacks of cotton waste, at Is. 9(i. per lb., the defendants to send their own packer and sacks and cart to remove it. The de- fendants sent their packer with eighty-one sacks, and he, aided by plaintiff's men, packed the four stacks into the eighty-one sacks. Two days after twenty-one of the sacks were weighed and taken to defendants' premises. The rest were not weighed. The same day the twenty-one sacks were returned by the defendants, who objected to the [*277] quality. * The cart loaded with the waste was left at the plaintiff's warehouse, and he put the Avaste into the warehouse to prevent its spoiling. Held, in an ac- tion on counts for not accepting, and for goods bargained and sold, and goods sold and delivered, that the plaintiff was entitled to recover. Pollock C. B. saying the case was not distinguishable in principle from Furley v. Bates, and Martin B. saying that on the finding " the property in the four stacks became the fro-perty of the hvyers, and the plaintiff became en- titled to the price in an action for goods harijained and sold." This dictum was not necessary to the decision, because there was a special count for non-accepting, under which the re- covery could be supported, even if the contract was execu- tory. The dicta of the two learned Barons in this case may, perhaps, be reconciled with the decision in Simmons v. Swift,'' on the ground that the purchasers, by their return of the sacks weighed, and refusal to take any, had waived the con- dition that the remainder should be weighed by the vendor. § 376. In Young v. Matthews,i a purchaser of 1,300,000 bricks sent his agent to the vendor's brick-field to take de- pend so much upon what is done, as (N. Y.) 573 ; Tyler v. Strang, 21 upon the object to be effected. If Barb. (N. Y.) 198; Riddle v. Var- the object be the specification, the num, .37 Mass. (20 Piclc.) 282 ; Ma- property is not changed, but if it is comber k. Parlier, 30 Mass. (13 Picli.) merely to ascertain the total value 175. at designated results, the oliange of i 34 L. J. Ex. 159 ; and 3 H. & C. title is effected. Crofoot u. Bennett, 717. 2 N. Y. 258. See Russell v. Carring- 2 5 B. & C. 857, ante, p. 270. ton, 42 N. Y. 118 ; s. c. 1 Am. Rep. i L. R. 2 C. P. 127. 498 ; Dex'er u. Bevins, 42 Barb. 492 CHAP. Iir.J SALE OP CHATTELS CONDITIONALLY. *277 livery, and the vendor's foreman said that the bricks were under distraint for rent, but if the man in possession were paid out, he would be ready to deliver the bricks ; and he pointed out three clumps /rom which he should make the de- livery, of which one was of finished bricks, the second of bricks still burning, and the third of bricks moulded, but not burnt. The buyer's agent then said : " Do I clearly under- stand that you are prepared and will hold and deliver this said quantity of bricks ? " to which the answer was, " Yes." This was held a sufficient appropriation to pass the property, although the bricks were neither finished nor counted out ; the Court, however, laying stress on some other circumstances to show that this was the intention of the parties. This case is only reconcilable with the authorities on the ground that as matter of fact, the proof showed an intention of the parties to take the case out of the general rule.^ 2 See Waldron v. Chase, 37 Me. 414; s. c. 59 Am. Dec. 56. In a con- tract for the sale of specific goods which have been identified or appro- priated to tlie purchaser, the title will pass to such purchaser, when it was the intention of the parties, either ex- pressed or implied from the circum- stances, that it should so pass not- withstanding the fact that something remained to be done to put the prop- erty in a condition to be finally ac- cepted by the purchaser. Burr o. Williams, 23 Ark. 244; Ford v. Chambers, 28 Cal. 13 ; Watts v. Hen- dry, 13 Fla. 523 ; Straus v. Minzeshei- mer, 78 111. 492 ; Shelton v. Franklin, 68 111. 333 ; Graff v. Fitch, 58 111. 373; s. c. 11 Am. Eep. 85; Cummins o. Griggs, 2 DuT, (Ky.) 87 ; Marble o. Moore, 102 Mass. 443 ; Cushing v. Breed, 96 Mass. (14 Allen) 376; Denny V. Williams, 87 Mass. (5 Allen) 3, 4; Riddle v. Varnum, 37 Mass. (20 Pick.) 283, 284; Macomber v. Parker, 30 Mass. (13 Pick.) 182, 183 ; Warren v. Milliken, 57 Me. 97; Bethel Steam Mill Co. V. Brown, 57 Me. 9; Stone v. Peacock, 35 Me. 388; Cushman u. Holyoke, 34 Me. 289; Wilkinson v. Holiday, 33 Mich. 386 ; Ockington v. Richey, 41 N. H. 279 ; Kelsea y. Haines, 41 N. H. 246, 255; Fuller v. Bean, 34 N. H. 302 ; Boswell ;;. Green, 25 N. J. L. (1 Dutch.) 390, 398; Groat v. Gile, 51 N. Y. 431 ; Russell v. Carrington, 42 N.Y. 118; s. c. 1 Am.Rep.498; Terry V. Wheeler, 25 N. Y. 520 ; Filkins v. Whyland, 24 N. Y. 341; Hyde v. Lathrop, 3 Keyes (N. Y.) 597 ; s. c. 3 Tr. App. (N.Y.) 320 ; McCandlish V. Newman, 22 Pa. St. 465; Dennis v. Alexander, 3 Pa. St. 50; Butterworth V. McKinly, 11 Humph. (Tenn.) 206 ; Williams v. Adams, 3 Sneed (Tenn.) 359; Fitch ^. Burk, 38 Vt. 683, 689; Bemis v. Morrill, 38 Vt. 153 ; Morrow V. Campbell, 30 Wis. 90 ; Morrow v. Reed, 30 Wis. 81 ; Sewell v. Eaton, 6 Wis. 490; s. c. 70 Am. Dec. 471; Woodruff V. United States, 7 Ct. of CI. 605; The Bank of Montreal v. McWhirter, 17 Up. Can. C. P. 506; Farnum v. Perry, 4 Law Rep. (Bos- ton) 276. It is otherwise, however, where something remains to be done in order to complete the contract of sale, where it is to be done by the purchaser, by the vendor, or by a third person ; Darden f. Lovelace, 52 Ala. 493 *278 EFFECT OP THE CONTRACT. [book II. § 877. Another class of cases illustrative of the [*278] rules now under * consideration, are those in which the subject of the contract is an unfinished or incom- plete thing, a chattel not in a deliverable state, as a partly- built carriage or ship. Leaving out of view the cases ^ where no specific chattel has been appropriated (to be considered post, Ch. 5), it will be found that the Courts have held it necessary to show an express intention in the parties that the property should pass in a specific chattel unfinished at the time of the contract of sale, in order to take the case out of the general rule that governs where goods are not in a deliverable state. ^ § 378. In the case of Woods v. Russell,^ decided in 1822, the ship-builder had contracted with defendant to build a 289 ; Flanders v. Maynard, 58 Ga. 56 ; Foster o. Ropes, 111 Mass. 10; Pres- cott V. Locke, 51 N. H. 94 ; s. e. 12 Am. Rep. 55; Walrath t'. Ingles, 64 Barb. (N.Y.) 265 ; Pike v. Vaughn, 39 Wis. 499; and it is true even though the property is given into the possession and control of the purchaser ; Stone V. Peacock, .35 Me. 385 ; Ockington v. Richey, 41 N. H. 275, 281 ; Fuller v. Bean, 34 N. H. 300; Messer v. Wood- man, 22 N. H. 181, 182; Parker v. Mitchell, 5 N. H. 165 ; Kein v. Tupper, 52 N. Y. 550 ; Field u. Moore, Hill & Den. (N. Y.) 418, 421; Ward v. Shaw, 7 Wend. (N. Y.) 404. 1 Mucklow V. Mangles, 1 Taunt. 218; Bishop v. Crawshay, 3 B. & C. 418; Atkinson v. Bell, 8 B. & C. 277. 2 Zaleski o. Clark, 44 Conn. 218 ; s. c. 26 Am. Dec. 446 ; Brown v. Foster, 113 Mass. 136 ; s. c. 18 Am. Rep. 463 ; Mount Hope Iron Co. v. Butfinton, 103 Mass. 62; Williams v. Jackman, 82 Mass. (16 Gray) 517; Blaisdell v. Souther, 72 Mass. (6 Gray) 149, 152; Middlesex Co. v. Osgood, 70 Mass. (4 Gray) 447; Phelps V. Willard, 33 Mass. (16 Pick.) 29 ; Bennett v. Piatt, 26 Mass. (9 Pick.) 558 ; Mixer v. Howarth, 88 Mass. (21 Pick.) 205 ; s. c. 32 Am. Dec. 256; Thorndike v. Bath, 114 Mass. 116; s. c. 19 Am. Rep. 318; Pettengill v. Merrill, 47 Me. 109; Veazie v. Holmes, 40 Me. 69 ; Moody V. Brown, 34 Me. 107 ; s. c. 56 Am. Dec. 640; Mclntyre v. Kline, 30 Miss. 361; s. c. 64 Am. Dec. 163; Elliott V. Edwards, 35 N. J. L. (6 Vr.) 265 ; West Jersey R. R. Co. v. Tren- ton Car Works, 32 N. J. L. (3 Vr.) 517; Higgins o. Murray, 73 N. Y. 252; McConihe o. New York & E. R. R., 20 N. Y. 495; ». c. 75 Am. Dec. 420; Abhott v. Blossom, 66 Barb. (N. Y.) 353 ; Wright v. O'Brien, 5 Daly (N. Y.) 54; Gregory v. Stryker, 2 Den. (N. Y.) 628; Hub- bard V. O'Brien, 8 Hun (N. Y.) 244; Merritt v. Johnson, 7 Johns. (N. Y.) 473; s. c. 5 Am. Dec. 289; Andrews V. Durant, 11 N. Y. 35 ; s. c. 62 Am. Dec. 55 ; Sutton v. Campbell, 2 T. ;i C. (N. Y.) 595; Johnson v. Hunt, 11 Wend. (N. Y.) 135; Gammage e. Alexander, 14 Tex. 414 ; Rider i . Kelley, 32 Vt. 268; Powers v. Barber (N. Y.), 7 Alb. L. J. 170 ; Gowans v. Consolidated Bank of Can., 43 Up. Can. Q. B. 318. See, also, ante, note on " Article to be manufactured." 1 5 B. & Aid. 942 ; Sandford u. 494 CHAP. III.] SALE OF CHATTELS CONDITIONALLY. *279 ship for him and to complete her in April, 1819 ; the defend- ant was to pay for her by four instalments, the first when the keel was laid, the second when at the light plank, and the third and fourth when the ship was launched ; the ship was measured with the builder s privity, Avhile yet unfinished, in order that defendant might get her registered in his name ; the builder signed the certificate necessary for her registry, and the ship was registered in defendant's name on the 26th of June, and he paid the third instalment. On the 30th the builder committed an act of bankruptcy, and on the 2d of July the ship was taken possession of by the defendant before she was completed. The defendant had also in the previous March appointed a master, who superintended the building, had advertised her for charter in May, and on the 16th of June had chartered her, with the ship-builder^ s privity, for a voyage. An action in trover was brought by the assignees of the bankrupt, and it was held that the property had passed, "because the ship-builder signed the certificate to enable the defendant to have the ship registered in the defendant's name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant." It is thus clearly intimated, that in the absence of some special evidence of intention, the property would have remained in the builder. § 379. * In Clarke v. Spence,^ the defendants were [*279] the assignees of a bankrupt ship-builder named Brun- ton. In February, 1832, Brunton had agreed to build a ship (not the one in question in the action) for the plaintiff, according to certain specifications, under the superintendence of an agent appointed by plaintiff, for 3250Z. payable as follows : 4001. when the ship was rammed, 4001. when tim- bered, 400Z. when decked, 5001. when launched, the residue, 1500L half at four and half at six months. In July he agreed to build another vessel, of specified dimensions, for 3400Z., to be finished like the previous ship, and "the vessel to be Wiggins Ferry Co., 27 Ind. 522 ; An- i 4 A. & E. 448. See also Read glo-Egyptian Navigation Co. u. Ren- v. Fairbanks, 13 C. B. 692 ; 22 L. J. nie, L. R. 10 C. P. 271, 282. C. P. 206. 495 *280 EFFECT OF THE CONTRACT. [BOOK II. launched in the month of December next, and to be paid for in the same way " as the first vessel, " Mr. Howard (plaintiff's agent) to superintend the building and to be paid 40L for the same." Brunton proceeded to build the vessel, and before his bankruptcy she was rammed and timbered, and two instalments paid accordingly. 200?. were also paid by anticipation on account of the third instalment. When Brunton became bankrupt, 1002Z. lis. had been paid him on account, and the frame of the vessel was then worth, 1601Z. 13s. Id., that being the value of the timber and work done on her. The case was elaborately argued in November, 1835, and held under advertisement till the ensuing Feb- ruary, when Williams J. delivered the judgment. Much stress had been laid, in argument, on a passage in the opinion delivered by Bayley J. in Atkinson v. Bell,^ in which he said that " the foundation of the decision in Woods v. Rus- sell ^ was, that as by the contract, given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price, the ship was ir- revocably appropriated to the person paying the money ; that was a purchase of the specific articles of which the ship was made." In commenting upon this dictum, Williams J. showed that in Woods v. Russell ^ the decision did [*280] not turn upon any such point, * although there were extra-judicial expressions strongly tending to that view, and he continued : " If it be intended in this passage that the specific appropriation of the parts of a vessel while in progress, however made, of itself vests the property in the person who gives the order, the proposition in so general a form may be doubtful. . . . Until the last of the necessary materials be added, the vessel is not complete ; the thing contracted for is not in existence ; for the contract is for a complete vessel, not for parts of a vessel, and Ave have not been able to find any authority for saying that while the thing contracted for is not in existence as a whole, and is incomplete, the general property in such parts of it as are from time to time constructed, shall vest in the purchaser, except the above passage in the case of Woods v. Russell." 2 8 B. & C. 277, 282. s 5 b, & Aid. 942. 496 CHAP, ni.] SALE OF CHATTELS CONDITIONALLY. *281 The Court, however, held, that the passage cited from. Woods V. Eussell, was "founded on the notion that provision for the payment regulated by particular stages of the work is made in the contract with a view to give the purchaser the security of certain portions of the work for the money he is to pay, and is equivalent to an express provision that on payment of the first instalment, the general property in so much of the vessel as it is then constructed shall vest in the purchaser." The Court, with the intimation of a wish that the intention of the parties had been expressed in less ambi- guous terms, deliberately adopted this dictum from Woods V. Russell, as a rule of construction by which, in similar ship- building contracts, the parties are held to have by implica- tion evinced an intention that the property shall pass, not- withstanding the general rule to the contrary. The law thus established has remained unshaken to the present time.* § 380. The next case was Laidler v. Burlinson,^ in the Exchequer, in 1837, in which the Court recognized the au- thority of Woods V. Russell, and Clarke v. Spence, but held those cases not applicable to the contract before it. A ship- builder having a vessel in his yard about one-third * completed, a paper was drawn up describing her [*281] build and materials, ending with the words, " for the sum of 1750?., and payment as follows, opposite to each re- spective name." This was signed by James Laing, the ship- builder. Then followed these words : " We, the undersigned, hereby engage to take shares in the before-mentioned vessel, as set opposite to our respective names, and also the mode of payment." This was signed by seven parties, four of whom set down the modes of payment opposite their names, but the other three did not, the plaintiff being one of the latter, and signing, simply, "Thomas Laidler, one-fourth." The whole number of shares was not made up till after the ship-builder had committed an act of bankruptcy. The plaintiff proved some payments made on account, and the ship-builder became a bankrupt while the vessel was still un- » See per Hellish L. J. in Ex i 2 M. & W. 602. parte Lambton, 10 Ch. 405, 414. 497 *282 EFFECT OF THE CONTRACT. [BOOK II. finished. Held, that there was nothing in this contract to show an intention to vest the property before the ship was completed. Lord Abinger also said : " There is no occasion to qualify the doctrine laid down in Woods v. Russell, or Clarke v. Spence. I consider the principle which those cases establish to be, that a man may purchase a ship as it is in progress of huilding, and by the terras employed there, the contract was of that character; a superintendent was ap- pointed, and money paid at particular stages. The Court held, that that was evidence of an intention to become the purchaser of the particular ship, and that the payment of the first instalment vested the property in the purchasers. Suppose the builder had died after the first instalment was paid, the ship in its then state would have become the prop- erty of the purchaser, and not of the executor. A party may agree to purchase a ship when finished, or as she stands." Parke B. said: "If a man bargain for a specific chattel, though it is not delivered, the property passes, and an ac- tion lies for the non-delivery, or of trover (Langfort v. Tiler, 1 Salk. 113). But it is equally clear that a chattel which is to be delivered infuturo does not pass hy the contract. . . . Is this a contract for an article to be finished? In that case, the article must be finished before the property vests." [*282] § 381. * In Wood v. Bell,i in 1856, the plaintiff con- tracted with Joyce, a ship-builder, for a steamer to be built by the latter for 16,000Z. The contract was in March, 1854, and the price was payable, 4000Z., in four equal parts, on days named in March, April, May, and June ; 3000Z. on the 10th August, 1854, " providing the vessel is plated and decks laid ; " 3000L on the 10th October, " providing the vessel is ready for trial ; " 3000?. on the 10th January, 1855, " pro- viding the vessel is according to contract, and properly com- pleted ; " and 3000Z. on the 10th ]\Iarch, 1855, or by bill of exchange, dated 10th January. The building was begun in March, and continued till December, 1854, when Joyce be- came bankrupt. The ship was then on the slip in frame, ^ 5 E. & B. 772, and 25 L. J. Q. B. 148, and s. o. in Ex. Ch. 6 E. & B. 355 and 25 L. J. Q. B. 321. 498 CHAP. lU.J SALE OF CHATTELS CONDITIONALLY. *283 not decked, and about two-thirds plated. The instalments contracted for were paid by the plaintiff, in advance. The plaintiff had a superintendent, who supervised the building, objected to materials, and ordered alterations, which were submitted to by Joyce. In July, the plaintiff ordered his name to be punched on the keel, in order to secure the vessel to himself, and this object was known to Joyce, and he consented that this should be done, but it was delayed, because the keel was not sufficiently advanced, till October, and then the plaintiff's name was, at his own instance, punched on a plate riveted to the keel of the ship. It also appeared that in November the plaintiff urged Joyce to execute an assignment of the ship, but the latter objected on the ground " that he would be thereby signing himself and his creditors out of everything he possessed ; but during the discussion he admitted that the ship was the property of the plaintiff." On these facts, the Court of Queen's Bench, and the Exchequer Chamber, on writ of error, held that the property in the vessel had passed to the plaintiff. Lord Campbell saying, when giving the judgment of the Court, that the terms which made the payments dependent on the vessel's being built to certain specific stages on the days appointed, were " as an indication of intention, sub- stantially * the same as if the days had not been [*283] fixed, but the payments made to be due expressly when those stages had been reached." The case was deter- mined mainly on the authority of Woods v. Russell,^ and Clarke v. Spence.^ § 382. [The rule of construction laid down in Clarke v. Spence ^ does not however apply where the contract is for work and materials to be supplied to a ship by way of re- pairs and alterations, although the contract provides for pay- ment by instalments "as the work progresses," and upon the certificate of an inspector employed by the shipowner.^ 2 5 B. & Aid. 942 ; Anglo-Egyptian Upper Canada v. Killaly, 21 Up. Can. Navigation Co. u. Rennie, L. R. 10 C. Q. B. 9. P. 271. 1 4 A. & E. 448, ante, p. 279. S4A. &E. 468. See also Bank of ^ ^n agreement by which one party 499 *284 EFFECT OF THE CONTEACT. [BOOK II. Thus in the Anglo-Egyptian Navigation Co. v. Rennie ^ in 1875, the defendants, a firm of engineers, had contracted to make and supply new boilers and machinery for a steamship belonging to the plaintiff company, and to make alterations in the engines of the steamship according to a specification. The engines and boilers, and connections, were to be completed in every way ready for sea, so far as specified, and tried under steam by the defendants before being handed over to the company, the result of the trial to be to the satisfaction of the company's inspector. The price was to he paid hy the company hy instalments as the work progressed in the follow- ing manner, viz., 2,000Z. when the boilers were plated, 2,000Z. when the whole of the work was ready for fixing on board, and 1,800Z. the balance, when the steamship was fully com- pleted and tried under steam. The work was to be executed to the satisfaction of the company's inspector, upon whose certificate alone the payments were to he made. The specifica- tion contained elaborate provisions as to the fitting and fix- ing the new boilers and machinery by the defendants on board the vessel, and the adaptation of the old machinery to the new. The defendants completed the boilers and other new machinery, which were ready to be fixed on board, and one instalment of 2,000Z. had already been paid by the plain- tiffs, when the vessel was lost by perils of the sea. After- wards the plaintiffs, who knew of the loss of the [*284] vessel, although *the defendants did not, paid the second instalment of 2,000L The plaintiffs then claimed delivery of the boilers and machinery, and upon the defendants' refusal to deliver them brought an action for their detention, or in the alternative to recover back the 4,000Z. paid by them to the defendants. The Court held, that the contract was in substance one for work and labor to be done by the defendants for the plaintiffs, and not a contracts to sell to the other, at the running two months from the date actual cost price thereof, all the mate- thereof, settlements to be made semi- rial used in making barrels then in monthly, is an executory agreement store, and the latter agrees to take and not a contract of sale. Brock v. and use it as fast as a sugar house O'Donnell, 45 N. J. L. (16 Vr.) 441 ; should require the barrels, and to s. c. 8 Cent. Rep. 344. pay for it in notes with interest added, ^ L. E. 10 C. P. 271. 500 CHAP. III.] SALE OP CHATTELS CONDITIONALLY. *285 contract of sale ; that it was an entire contract, and that the parties did not intend the property in any part of the boilers and machinery to pass to the plaintiffs until the whole of the work contracted to be done had been completed ; and that as the completion of the contract had been rendered impos- sible by the destruction of the vessel, the plaintiffs were not entitled either to the boilers and machinery or to recover, as on a failure of consideration, the 4,000Z. which they had already paid.] § 883. It is not necessary now to revert to this series of decisions on another point, namely, the effect of such con- tracts in passing propert}' in the materials provided and the parts prepared for executing them, but not yet afQxed to the ship or vessel. In Woods V. Russell,^ the builder became bankrupt on the 30th of June, and on the 2d of July, the purchaser of the ship took froin the builder's yard and warehouse, a rudder and cordage, " which the builder had bought for the ship." All that the Court said, was : " As to the rudder and cordage, as they were bought by Paton specifically for this ship, though they were not actually attached to it at the time his act of bankruptcy was committed, they seem to us to stand on the same footing as the ship ; and that if the defendant was enti- tled to take the ship, he was also entitled to take the rudder and cordage as parts thereof." This point did not arise in Clarke v. Spence, but in 1839 Tripp v. Armitage ^ was decided in the Exchequer. In that case there was a contract for build- ing an hotel, and certain sash frames intended for the build- ing were sent to it, examined, and approved by the super- intendent, who then sent the frames back to the builder's shop, together with some iron pulleys, belonging to * the hotel owners, with directions to fit the pulleys [*285] into the sashes. This was done, but before the sashes, with the pulleys affixed, were' taken away, the builder became bankrupt. The Court held, that the propertj^ in the frames had not passed out of the builder. Lord Abinger put it on the ground, " that there had been no contract for 1 5 B. & Aid. 942. M M. & W. 687. 501 *286 EFFECT OF THE CONTRACT. [BOOK II. the sale and purchase of goods as movable chattels, but a contract to make up materials and fix them, and until they are fixed, by the nature of the contract the property will not pass." ^ His Lordship put as a test, that if the sashes had been destroyed by fire, the builder would have lost them, for the hotel owners were not hound to pay for anything till pitt up and fixed. Parke B. said, also : " In this case there is no contract at all with respect to these particular chattels : it is merely parcel of a larger contract." § 384. In Goss v. Quinton,i in 1842, an unfinished ship, which the builder had contracted to deliver, was conveyed to the purchaser and registered in his name, but the rudder intended for the ship remained in the builder's yard, incom- plete, when he became bankrupt. The Court held that proof that the builder intended the rudder for the ship, coupled with proof of the buyer's approval of this purpose, though not given till after the bankruptcy, was evidence for the jury that the rudder was part of the ship, and the right of prop- erty would be governed by the same considerations as would apply to the body of the ship. But this decision is much questioned, as will presently appear, and could not have been made if the test suggested by Lord Abinger in Tripp v. Armitage had been applied ; for it is manifest that the in- complete rudder in the builder's yard was at his own risk, and if he had remained solvent, there would have been no pretext, in case of its destruction by fire, to call on the ship- owner to supply another rudder at his own expense. § 385. In Wood v. Bell,^ the contest turned upon val- uable materials as well as upon the frame of the ship, and' the decision of the Queen's Bench on this part of [*286] the case was * reversed in the Exchequer Chamber. The facts were that steam-engines were designed for the ship, and several parts which had been made so as to fit each other, forming a considerable portion of a pair of steam-engines, were spoken of constantly by the builder, be- 3 See ante, p. 102. l 5 E. >& B. 772 ; 6 E. & B. 355 ; 25 1 3 M. & G. 825. L. J. Q. B. 148, 321. 502 CHAP. III.j SALE OF CHATTELS CONDITIONALLY. *287 fore his bankruptcy, as belonging to the " Britannia " engines, that being the name of the ship. There was also a quantity of iron plates and iron angles specially made and prepared to be riTcted to the ship, lying partly at her wharf and partly elsewhere, as well as other materials in like condition, intended, manufactured, and prepared expressly for the ship, but not yet fixed or attached to her. The Queen's Bench, after holding that the property in the ship had passed, sim- ply added, " and if this be so, it was scarcely contended but that the same decision ought to be come to with respect to the engines, plates, irons, and planking, designed and in course of preparation for her, and intended to be fixed in her. The question as to these last seems to be governed by the decision as to the rudder and cordage in Woods v. Rus- sell." But in the Exchequer Chamber,^ the decision was reversed, Jervis C. J. giving the judgment of the Court, composed of himself. Pollock C. B., Alderson and Bramwell BB., and Cresswell, Crowder, and Willes, JJ. It was held that it did not at all follow because the ship as constructed from time to time became the property of the party paying for her construction, that therefore the materials destined to form a part of the ship also passed by the contract. The Chief Justice said: "The question is, What is the con- tract? The contract is for the purchase of a ship, not for the purchase of everything in use for the making of the ship. I agree that those things which have been fitted to and formed fart of the ship would pass, even though at the moment they were not attached to the vessel. But I do not think that those things which had merely been bought for the ship and intended for it would pass to the plaintiff. Nothing that has not gone through the ordeal of being approved as part of the ship, passes, in my opinion, under the contract." * The other judges concurred, and the case was sent [*287] back to the arbitrator for a new award on these prin- ciples, which must now be taken to be the settled law on the point under consideration.^ 2 6 E. & B. 355, and 25 L. J. Q. B. 8 See Baker v. Gray, 17 C. B. 321. 462; 25 L. J. C. P. 161; Brown u. 603 *288 EFFECT OF THE CONTRACT. [BOOK II. In the opinion delivered by Jervis C. J., Woods v. Russell was doubted on the question of the rudder and cordage, and Goss V. Quinton was not onlj' doubted by the learned Chief Justice, but was unfavorably mentioned by other Judges during the argument. Cresswell J. also said: "I am not now better satisfied with the ruling respecting the rudder and cordage in Woods v. Russell than I was years ago." § 386. Upon the third proposition stated at the beginning of this chapter, the reported case most directly in point is Bishop V. Shillito.i It was trover for iron that was to be de- livered under a contract, which stipulated that certain bills of the plaintiff then outstanding were to be taken out of cir- culation. The defendant failed to comply with his promise after the iron had been in part delivered, and the plaintiff thereupon stopped delivery and brought trover for what had been delivered. Abbott C. J. left it to the jury to say whether the delivery of the iron and the re-delivery of the bills were to be contemporary, and the jury found in the af- firmative. Scarlett contended that trover would not lie ; that the only remedy was case for breach of contract. Held, on the facts as found by the jury, that the delivery was con- ditional only, and the condition being broken, trover would lie. Bayley J. added: "If a tradesman sold goods, to be paid for on delivery, and his servant by mistake delivers them without receiving the money, he may, after demand and re- fusal to deliver or pay, bring trover for his goods against the purchaser." § 387. The principle of this decision is fully recognized by the judges in Brandt v. Bowlby,i when holding that the property in a cargo ordered by one Berkeley did not pass to him, because by the terms of the bargain he was to [*288] * accept bills for the price as a condition concurrent with the delivery, and had refused to perform this Bateman, L. R. 2 C. P. 272; cf. also 2 B. & Aid. 329, note (a). Anglo-Egyptian Navigation Com- 1 2 B & Ad. 932. And see pany v. Rennie, L. R, 10 C. P. 271. Shepherd v. Harrison, L. R. 4 Q. B. See, also, Parfield Bridge Co. u. 196,493, L. R. 5 H. L. 116 — more Neye, 60 Me. 372. fully referred to, post, Ch. 6. 504 CHAP. III.J SALE OF CHATTELS CONDITIONALLY. *288 condition.^ So in Swain v. Shepherd,^ it was held by Parke B. that if goods are sent on an order, to be returned if not approved, the property remains in the vendor till approval. § 388. To the same effect was the judgment of Lord Ellen- borough in Barrow v. Coles.^ This was trover for 100 bags of coffee shipped by Norton and Fitzgerald of Demerara. They drew for the value upon one Voss, in favor of Barrow the plaintiff, and sent to the latter the bill of lading at- tached to the bill of exchange. The bill of lading was en- dorsed so as to make the coffee deliverable to Voss if he should accept and pay the draft ; if not, to the holder of the draft. When the bill of exchange was sent with the bill of lading to Voss, he accepted the bill of exchange, which was returned to the plaintiff, but detached the bill of lading, which he endorsed to the defendant for a valuable considera- tion. He did not pay the bill of exchange. Lord Ellen- borough said that the coffees were deliverable to Voss only conditionally ; that the defendant had notice of this condition by the endorsement on the bill of lading, and that 'by the dishonor of the bill of exchange the property vested in the holder of the bill of exchange, not in Voss or his assigns. In a very old case. Mires v. Solesby,^ the agreement was that one Alston should take home some sheep and pasture them for the owner at an agreed price per week till a certain date, and if at that date Alston would pay a fixed price for the sheep he should have them. Before the time arrived the owner sold the sheep, which were still in Alston's possession, to Mires, the plaintiff, and the Court held that the property had not vested in Alston, the condition of payment not hav- ing been performed, and that Mires could maintain trover for them under his purchase. § 389. [Under the now common form of agreement for the hire and conditional sale of furniture, the price to be ■^ See, also, 2 Wms. Saund. 47 u, i 3 Camp. 92. note. 2 2 Mod. 243. 3 1 Mood & Rob. 223. See Eeitz's Appeal, 64 Pa. St. 162. 505 1^289 EFFECT OF THE CONTKACT. [book II. [*289] paid by * instalments, the property in the furniture does not pass until all the instalments have been paid.i ^ Sales on instalment plan and leases. — Wliere it is apparent from tlie contract that though the transaction is nominally a hiring, but is in reality a conditional sale, the courts will regard the substance rather than the form in dealing with the contract. Hegler v. Eddy, 53 Cal. 597 ; Kohler V. Hayes, 41 Cal. 455 ; Singer Co. u. Holcomb, 40 Iowa, 33; Greer u. Church, 13 Bush (Ky.) 430; Sum- ner V. Cottey, 71 Mo. 121; Cole v. Berry, 42 N. J. L. (13 Vr.) 308 ; En- low V. Klein, 79 Pa. St. 488 ; Crist v. Kleber, 79 Pa. St. 290; Rowe v. Sharp, 51 Pa. St. 26; Brunswick ;;. Hoover, 95 Pa. St. 508 ; s. c. 24 Alb. L. J. 186 ; Hervey v. Khode Island, L. W. 93 U. S. (3 Otto) 664; bk. 23, L. ed. 1003 ; Heryford v. Davis, 102 U. S. (12 Otto) 235 ; bk. 26, L. ed. 160; Myerw. CarCo. 102 U. S. (12 Otto) 1 ; bk. 26, L. ed. 26. In those cases where the contract of the par- ties is such as to indicate that the sel- ler shall retain his right of owner- ship to the property notwithstand- ing any partial payments that have been made or partial adjustment of the price, the condition of payment is enforceable as a prerequisite to the acquirement of the title by the buyer; Hine v. Roberts, 48 Conn. 268; s. c. 40 Am. Rep. 170; Lucas v. Campbell, 88 111. 447 ; s. c. 31 Am. Rep. 81 ; Greer v. Church, 13 Bush (Ky.) 433 ; Giddey v. Altman, 27 Mich. 206; Preston v. Whitney, 23 Mich. 260; Sumner v. Cottey, 71 Mo. 121 ; Cole V. Mann, 3 T. & C. (N. Y.) 380; Sutton V. Campbell, 2 T. & C. (N. Y.) 595; Sage v. Sleutz, 23 Ohio St. 1 ; Singer Manuf. Co. i. Gra- ham, 8 Oreg. 17; s. c. 34 Am. Rep. 572; Price v. McCallister, 3 Grant Cas. (Pa.) 248; Singer Manuf. Co. I'. Cole, 4 Lea (Tenn.) 439; s. u. 40 Am. Rep. 21 ; Knittle v. Gushing, 57 Tex. 354 ; s. c. 44 Am. Rep. 598, 600; Goldsmith v. Bryant, 26 Wis. 34; Hervey v. R. I. Locomotive Works, 93 U. S. (3 Otto) 664 ; bk. 23, L. ed. 1003; 2 Schouler on Pers. Prop., sec. 297. Construction of contract. — The courts will construe such contracts according to the tenor, give just scope to the mutual undertaking of the parties where the agreement con- tains an option to buy or hire in favor of one party, where there are other special conditions to be observed by the other party. Hine v. Roberts, 48 Conn. 267 ; s. c. 40 Am. Rep. 270 ; Fleck V. Warner, 25 Kans. 492; Sum- ner u. Cottey, 71 Mo. 121; Meagher V. Hollenberg, 9 Lea (Tenn.) 392; Wheeler & W. Manuf. Co. u. Teetz- lafi, 53 Wis. 211. In those cases where there has been a sale of prop- erty made, the payments to be in instalments, with the reservation of title until the price has been paid. Many of the courts hold that partial payments are forfeited in case of a breach of contract on default of pay- ment of the whole amount. Latham V. Sumner, 89 111. 233 ; s. c. 31 Am. Rep. 79 ; Howe Mach. Co. v. Willie, 85 111. 3.33; Singer Manuf. Co. .. Treadway, 4 111. App. 57; Fleck v. Warner, 25 Kans. 492 ; Everett i . Hall, 67 Me. 497 ; Browne v. Haynes, 52 Me. 578; Colcord v. McDonald, 128 Mass. 470; Knox v. Perkins, 81 Mass. (15 Gray) 529; Angier v. Taunton Paper Co., 67 Mass. (1 Gray) 621 ; s. c. 61 Am. Dec. 4.36 ; Duke V. Shackleford, 56 Miss. 552; Haviland r. Johnson, 7 Daly (X. Y.) 297; Whelan ;;. Couch, 26 Grant (Ont.) 74. But the modern tendency of the doctrine in courts possessing equity powers is to allow the seller who rescinds a contract for default in payments of instalments due after 506 CHAP. III.j SALE OF CHATTELS CONDITIONALLY. *289 Thus in Hx parte Crawcour,^ where there was an agree- ment between Crawcour and one Robertson for the hire of some furniture, under which, if Robertson paid certain instal- ments of money month by month the furniture was to become his property, he undertaking at the same time to deposit with Crawcour, as collateral security, promissory notes to the full amount of the instalments to be paid ; it was held, that until the payment of all the instalments, the property in the furni- ture did not pass to Robertson. having received a, part of the price to retain only so much as will com- pensate him. Hine v. Roberts, 48 Conn. 267; s. c. 40 Am. Rep. 170; Guilford v. McKinley, 61 Ga. 230; Johnson o. Whittemore, 27 Mich. 463, 470; Preston v. Whitney, 23 Mich. 260, 267; Minneapolis Har. "Works V. Hally, 27 Minn. 495; Third Nat. Bank, &c. u. Armstrong, 25 Minn. 530 ; Ketchum v. Brennan, 53 Miss. 596; Mott i'. Havana Nat. Bank, 22 Hun (N. Y.) 354 ; Gleason D. Knapp, 26 Up. Can. C. P. 553. And where the seller permits the buyer to retain possession and re- ceive payment after default, this operates as a waiver of the forfeiture and enables the buyer to become the owner of the property by making a tender of the residue of the price agreed upon. Hegler v. Eddy, 35 Cal. 597; Blair i). Hamilton, 48 Ind. 32; Shepard v. Cross, 33 Mich. 96; Hutchings u. Munger, 41 N. Y. 155; Cushman v. Jewell, 7 Hun (N. Y.) 525, 529 ; Taylor v. Pinley, 48 Vt. 78. Contracts for " renting." — It is generally held that agreements pur- porting to be contracts for " renting " articles are sales, and pass title to the vendee where the articles are taken on the instalment plan, if the price and the terms of payment show that the real transaction was intended to be a sale and that the terms of the transaction was resorted to in order to secure payment of the balance of the purchase money. Lucas v. Camp- bell, 88 111. 447, 449; s, c. 31 Am. Rep. 81 ; Greer c. Church, 13 Bush (Ky.) 433; Singer Manuf. Co. c. Graham, 8 Oreg. 17 ; s. c. 34 Am. Rep. 572; Price v. McCallister, 3 Grant (Pa.) 248 ; Singer Manuf. Co. V. Cole, 4 Lea (Tenn.) 439 ; s. c. 40 Am. Rep. 21 ; Knittle v. Gushing, 57 Tex. 354 ; s. c. 44 Am. Rep. 598, 600. Agreement for rent of article with option of purchase is contract of hiring. Ludden, &c. Music House v. Dusenberry, Sup. Ct. S. C. Nov. 25, 1887. When there was a written agree- ment between G. and B. that G. should lease B. a piano, and B. should pay for the use thereof §200 in ad- vance, and $50 quarterly thereafter, with 1^^ per cent, interest, until |500 had been paid, when G. agreed to give B. a bill of sale, and G. was authorized to enter B.'s dwelling and remove the piano upon failure to make any payment, — Held, the lease amounted to a conditional sale. Gorham v. Holden, 79 Me. 317 ; s. c. 4 New Bng. Rep. 502. Lease providing for payment of rent vwnlhli/ for stated term, and giving lessor the right to take pos- session upon default, and giving lessee option to purchase upon pay- ment of specified sum, is a contract of hiring and not a conditional sale. Foreman v. Drake, Sup. Ct. N. C. Nov. 21, 1887. 2 9 Ch. D. 419, C. A. As to this custom of furniture dealers, see Ex parte Powell, 1 Ch. D. 504, C. A. and Crawcour v. Salter, 18 Ch. T>. 30 C. A. 507 *290 EFFECT OF THE CONTEACT. [BOOK II. It sliould be noted that the agreement in question expressly provided that the property should not pass until the payment of all the instalments, but it is submitted that the result would have been the same even in the absence of any such provision.] § 390. The cases in America upon the subject of this chap- ter are not in all respects identical vs^ith those decided in our Courts. In Crofoot v. Bennett,^ a portion of the bricks in a speci- fied kiln were sold at a certain price per thousand, and the possession of the whole kiln was delivered to the vendee, that he might take the quantity bought. Held, that the property had passed in the number sold. Strong J. in de- livering the opinion, said : " It is a fundamental principle pervading everywhere the doctrine of sales of chattels, that if goods be sold while mingled with others, by number, weight, or measure, the sale is incomplete, and the title con- tinues with the seller until the bargained property be sepa- rated and identified. . . . The reason is that the sale cannot be applied to any article until it is clearly designated, and its identity thus ascertained. In the case under consid- eration, it could not be said with certainty that any particu- lar bricks belonged to the defendant until they had been separated from the mass. If some of those in an un- [*290] * finished state had been spoiled in the burning, or had been stolen, they could not have been considered as the property of the defendant, and the loss would not have fallen upon him. But if the goods sold are clearly identified, then, although it may be necessary to number, weight, or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. If a flock of sheep is sold at so much the head, and it is agreed that they shall be counted after the sale in order to determine the entire price of the whole, the sale is valid and complete. But if a given number out of the whole are sold, no title is acquired by the purchaser until 1 2 2Sf. Y. 258. 508 CHAP. III.J SALE OF CHATTELS CONDITIONALLY. *291 they are separated, and their identity thus ascertained and determined. The distinction in all these cases does not de- pend so much upon what is to be done, as upon the object which is to he effected hy it. If that is specification, the prop- erty is not changed; if it is merely to ascertain the total value at designated rates, the change of title is effected." ^ § 391. [The same distinction was maintained in Groat V. Gile.^ The defendant contracted to sell to the plaintiffs two flocks of sheep " except two bucks and a lame ewe," at four dollars a head. The plaintiffs had examined the sheep, and the excepted animals had been identified; they also paid twenty-five dollars on account of the purchase. The sheep were to be taken, and the balance paid at a subsequent specified time ; meanwhile the vendor was to pasture them. Within the time named the plaintiffs paid the balance of the purchase money, and took away the sheep; but meanwhile the defendant had shorn the sheep, and converted the wool to his own use. The action was to recover the value of the wool, and the plaintiffs were held entitled. The Court said, " All the parties understood what particular sheep and lambs were intended to be sold, and there is no doubt that they *were sufficiently identified. Under such cir- [*291] cumstances, when the terms of the sale were agreed on, and the payment of twenty-five dollars was made to the defendant on account of the purchase money by the plain- tiffs, 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 in- tended. The plaintiffs were to take them without any agency in delivering them on the part of the defendant, and they from the time the agreement was made became the owners thereof."] = See, also, Bradley v. Wheeler, i 51 N. Y. 431, where Crofoot 44 N. Y. 495; Groat v. Gile, 51 N. v. Bennett, Bradley v. Wheeler, and Y. 431, and 2 Kent, 496. Kimberly u. Patchin, cited below were referred to with approval. 509 *292 EFFECT OP THE CONTEACT. [BOOK 11. § 392. In Kimberly v. Patchin,i the owner of a large mass of wheat lymg in bulk gave the vendee a receipt acknowl- edging himself to hold 6,000 bushels, sold for a specified price, subject to the vendee's order : and the title was held to have passed by the sale.^ Whitehouse v. Frost (^post, p. 297) was followed and approved. In Russell v, Carrington,^ the Court of Appeal of New York applied the same principle to similar fact. § 393. In Oliphant v. Baker,i the vendor sold barley in bulk at a certain price per bushel, the quantity to be after- wards ascertained. The barley being in the vendor's store- house, which was to be surrendered to another person at a future day, it was agreed that the barley should be allowed to remain in the storehouse till the vendor transferred the possession of the building: and the purchaser agreed with the transferee of the building to pay storage after that time. The goods were destroyed by fire before being measured, but after the building had passed out of the possession of the vendor. Held, that the facts showed an intention to pass the property in the barley notwithstanding it had not yet been measured, and that the loss must fall on the buyer. § 394. In Rourke v. BuUens,^ the vendor sold a [*292] hog on credit, * the hog to be kept and fattened till the buyer called for it, and then to be paid for at the current market price according to its weight when called for, and this was held to be a contract purely executory, not passing the property to the buyer. 1 19 N. Y. 3.30. See, also, Foot v. "Worcester R. E. Corp., 96 Mass-. (14 Marsh, 51 N. Y. 288, where Kim- Allen) 439, 443; Warren v. Buck- berly v. Patchin was distinguished. minster, 24 N. H. 336 ; Russell v. 2 The case of Kimberly v. Patchin Carrington, 42 N. Y. 118; s. c. 1 Am. has been distinguished in Foot v. Rep. 498 ; Clark v. GriflSth, 24 N. Y. Marsh, 51 N. Y. 288. Disapproved 595 ; Woods u. McGee, 7 Ohio, pt. 2, in Commercial National Bank v. 127 ; o. c. 30 Am. Dec. 202 ; Hutch- Gillette, 90 Ind. 268 ; s. c. 46 Am. inson v. Hunter, 7 Pa. St. 140 ; Young Rep. 222 ; denied in Ferguson v. u. Miles, 20 Wis. 615. N. Bank Ky., 14 Bush (Ky.) 555 ; 3 42 N. Y. 118. s. c. 29 Am. Rep. 418. See, also, i 5 Denio (N. Y.) 379. Waldron i'. Chase, 37 Me. 414; s. c. i 74 Mass. (8 Gray) 549. See 59 Am. Dec. 56; Keeler v. Goodwin, Marble v. Moore, 102 Mass. 443. Ill Mass. 490; Hall c. Boston & 610 CHAP. III.j SALE OP CHATTELS CONDITIONALLY. *292 § 395. In Cushman v. Holyoke,i where the property had actually passed to the purchaser in goods that were to be taken by him to another place and there measured to fix the price, it was held that the vendor, and not the purchaser, must bear the loss and depreciation in measurement inci- dent to the removal according to the common course of con- veyance. § 396. The cases of Woods v. Russell and Clarke v. Spence have not met with universal acceptance in America. Thus, in Andrews v. Durant,^ the New York Court of Appeal held in a case, where the facts were similar to those in the above cases, that the property did not pass to the party ordering the goods till the completion of the work : and the same decision was given in Massachusetts in Williams v. Jackman,^ decided in the Superior Judicial Court in January, 1861. In these two cases the decision of the Exchequer Chamber in Wood V. Bell^ was not before the Courts, not being cited in the latter case, and the former case bearing date in 1853, three years before the decision in the Exchequer Chamber.* § 397. [In Briggs v. A Light Boat,^ there was a contract to build three light vessels for the United States, and to deliver them completed within a fixed time, and to be gov- erned during the progress of the building by the directions of an agent of the United States, and to perform the work to his satisfaction, for a price to be paid after their comple- tion ; and it was provided that the United States might at 1 34 Maine, 289. N. J. L. (6 Vr.) 265 ; The West Jer- 1 Kernan (N. Y.) uO. sey R. R. Co. v. The Trenton Car 2 16 Gray (Mass.) 514. Works Co., 32 N. J. L. (3 Vr.) 517 ; s 6 E. & B. 355; 25 L. J. Q. B. Merritt o. Johnson, 7 Johns. (N. Y.) 321. 473; Andrews v. Durant, 11 N. Y. * Respecting the passing of title 35 ; s. c. 62 Am. Dec. 55 ; Lang's where the article is to be made. See, Appeal, 81 Pa. St. 18 ; Coursin's also, Sandford v. The Wiggins Ferry Appeal, 79 Pa. St. 220 ; Scull u. Co., 27 Ind. 522 ; Wright v. Tetlow, Shakespear, 75 Pa. St. 297 ; Clarkson 99 Mass. 397; Briggs v. A Light «. Stevens, 106 U.S. (16 Otto) 505; Boat. 89 Mass. (7 Allen) 287, 292 ; bk. 27, L. ed. 139 ; Scudder v. The Williams v. Jackman, 82 Mass. (16 Calais Steamboat Co., 1 Cliff C. C. 370. Gray) 514; Elliott v. Edwards, 35 i 89 Mass. (7 Allen) 287. 511 *293 EFFECT OP THE CONTRACT. [BOOK 11. any time declare the contract null. It was held that under this contract no title to the vessels passed to the United States until their completion and delivery. Bigelow [*293] C. J., in an exhaustive judgment, says *at p. 292 of the report : " Upon established principles of law, we think it clear that no property in the vessel, which is the subject of controversy in this action, vested in the United States until the vessel was completed and delivered, in pur- suance of the contract with the builder. The general rule of law is well settled and familiar, that, under a contract for building a ship or making any other chattel, not subsisting in specie at the time of the contract, no property vests in the purchaser during the progress of the work, nor until the vessel or other chattel is finished and ready for delivery. To this rule there are exceptions, founded for the most part on express stipulations in conti-acts, by which the property is held to vest in the purchaser from time to time as the work goes on. It is doubtless true that a particular agreement in a contract concerning the mode or time of making payment of the purchase money, or providing for the appointment of a superintendent of the work, may have an important bearing in determining the question whether the property passes to the purchaser before the completion of the chattel. It is, however, erroneous to say, as is sometimes stated by text writers, that an agreement to pay the purchase money in instalments, as certain stages of the work are completed, or a stipulation for the employment of a superintendent by the purchaser to overlook the work, and see that it is done according to the tenor of the contract, will of itself operate to vest the title in the person for whom the chattel is intended. Such stipulations may be very significant, as indicating the intention of the parties, but they are not in all cases decisive. Both of them may co-exist in a particular case, and yet the property may remain in the builder or manufacturer. Even in England, where the cases go the farthest in holding that property in a chattel in the course of construction under a contract passes to and vests in the purchaser, these stipula- tions are not always deemed to be conclusive of title in him. It is a question of intent arising on the interpretation of the 512 CHAP. III.] SALE OP CHATTELS CONDITIONALLY. *294 entire contract in each case. If, taking all the stipulations together, it is clear that the parties intended that the prop- erty should vest in the purchaser during the progress of the * work, and before its completion, effect wiU [*294] be given to such intention, and the property will be held to pass accordingly ; but, on the other hand, it will not be deemed to have passed out of the builder, unless sucli intent is clearly manifested, but the general rule of law will prevail." And he then proceeded to show that, upon the contract before him, no intention was indicated to take the case out of the general rule, but, on the contrary, there were several stipulations which clearly showed a different in- tention.] 513 *295 EFFECT OF THE CONTJRACT. [book II. [*295] * CHAPTER IV. SALE OP CHATTEL NOT SPECIFIC. PAGE This is an executory agree- ment 295 Does giving of earnest alter prop- erty ? 298 Submitted that it does not . . 301 § 398. When the agreement for sale is of a thing not specified, as of an article to be manufacture d,i or of a certain quantity of goods in general, without a specific identification of them, or an " appropriation " of them to the contract, as it is technically termed, the contract is an executory agree- ' Articles to be manufactured. — Where an article is to be manufac- tured according to order, the contract is executory, and no title passes until the article is completed and notice of that fact given to the vendee or a tender made to him. Moline S. Co. V. Beed, 52 Iowa, 307, 310 ; s. c. 35 Am. Rep. 272; Goddard v. Binney, 115 Mass. 450 ; s. c. 15 Am. Eep. 112 ; First National Bank of Marquette v. Crowley, 24 Mich. 492 ; Whitcomb v. Whitney, 24 Mich. 486. On comple- tion of the article and notice or tender, the title passes to the vendee subject to the lien of the manufac- turer for the price, and a right of action accrues at once for such price. Goddard v. Binney, 115 Mass. 450; s. c. 15 Am. Rep. 112 ; Spencer v. Cone, 42 Mass. (1 Mete.) 283; Mixer <,. Howarth, 38 Mass. (21 Pick.) 205 ; s. V. 32 Am. Dec. 256; Muckey v. Howenstine, 3 T. & C. (N. Y.) 28; Higgins V. Murray, 4 Hun (N. Y.) 505 ; aff'm 73 N. Y. 253 ; Crookshank t,. Burrell, 18 Johns. (N. Y.) 58; s. c. 514 9 Am. Dec. 187 ; Ballentine v. Rob- inson, 46 Pa. St. 177. And after notice or tender the property remains at the risk of the vendee. Goddard I). Binney, 115 Mass. 450; s. c. 15 Am. Rep. 112; Morse v. Sherman, 106 Mass. 430 ; Macomber v. Parker, 30 Mass. (13 Pick.) 175, 183; Tarling V. Baxter, 6 Barn. & Cres. 300 ; Blox- am V. Sanders, 4 Barn. & Cres. 941 ; Hinde v. Whitehouse, 7 East, 571 ; 2 Kent Com. (12th ed.) 492; Noys Maxims, 89. However, there is some confusion in the authorities as to when the title passes to the purchaser in such case, some cases holding that the title does not pass under such a contract until the article is furnished and delivered, or at least until it is ready for delivery and ap- proved by the purchaser. Grippen V. New York Cent. R. R., 40 N. Y. 36 ; Andrews v. Durant, 11 N. Y. 85; s. c. 62 Am. Dec. 55 ; Comfort v. Kiersted, 26 Barb. (N. Y.) 473. See Higgins v. Murray, 73 N. Y. 252, 254 ; Baker v. Bourcicault, 1 Daly (N. Y.) 24. CHAP. IV.] SALE OF CHATTEL NOT SPECIFIC. *295 ment, and the property does not pass.^ There is but little difficulty in the application of this rule. '^ Browning v. Hamilton, 42 Ala. 484 ; Indianapolis P. & C. R. R. Co. V. Maguire, 62 Ind. 140; Smyth o. Ex'rs of Ward, 46 Iowa, 339 ; Scudder V. Worster, 65 Mass. (11 Cush.) 573; Warren v. Buckminster, 24 N. H. 336 ; Levey v. Lowndes, 2 Low. Can. 257 ; O'Neil V. Mcllmoyle, 34 Up. Can. Q. B. 236; Robertson v. Strickland, 28 Up. Can. Q. B. 221; Pew v. Lawrence, 27 Up. Can. C. P. 402 ; Cox v. Jones, 24 Up. Can. Q. B. 81 ; McDougall v. Elliott, 20 Up. Can. Q. B. 299; Mid- dlebrook v. Thompson, 19 Up. Can. Q. B. 307 ; Dunning v. Gordon, 4 Up. Can. Q. B. 399. See Chapman v. Shepard, 39 Conn. 413; Phillips v. Ocraulgee Mills, 55 Ga. 638; Stephens V. Tucker, 55 Ga. 543 ; Morrison u. Woodley, 84 111. 192 ; Bell v. Farrar, 41 111. 400 ; Ferguson v. Louisville City Nat. Bank, 14 Bush (Ky.) 555 ; Newcomb v. Cabell, 10 Bush (Ky.) 460; May V. Hoaglan, 9 Bush (Ky.) 171 ; Moss V. Meshew, 8 Bush (Ky.) 187 ; Crawford v. Smith, 7 Dana (Ky.) 59 ; Cumberland Bone Co. u. Andes Ins. Co., 64 Me. 466; Morrison V. Dingley, 63 Me. 553; Warren <^. Milliken, 57 Me. 97 ; Waldron v. Chase, 37 Me. 415 ; s. c. 59 Am. Dec. 56 ; Kopes o. Lane, 91 Mass. (9 Allen) 502 ; Scudder v. Worcester, 65 Mass. (11 Cush.) 578; Merrill v. Hunnewell, 30 Mass. (13 Pick.) 215, 218; Gardner v. Dutch, 9 Mass. 427; Lamprey v. Sargent, 58 N. H. 241 ; Smart v. Batchelder, 57 N. H. 140; Bailey v. Smith, 43 N. H. 141 ; War- ren V. Buckminster, 24 N. H. 3.36; Messer v. Woodman, 22 N. H. 172; Huff V. Hires, 40 N. J. L. (11 Vr.) 581; s. c. 39 N. J. L. (10 Vr.) 4; Kein v. Tupper, 52 N. Y. 550 ; Foot V. Marsh, 51 N. Y. 288 ; Kimberly v. Patchin, 19 N. Y. 338 ; s. c. 75 Am. Dec. 334 ; Rodee v. Wade, 47 Barb. (N. Y.) 63 ; Field v. Moore, Hill & Den. (N. Y.) 418 ; Hoyt v. Hartford Ins. Co., 26 Hun (N. Y.) 416 ; Waldo V. Belcher, 11 Ired. (N. C.) L. 609; Woods 0. McGee, 7 Ohio, 2d pt. 127 ; s. c. 30 Am. Dec. 202 ; Southwell u. Beezley, 5 Oreg. 143; Haldeman u. Duncan, 51 Pa. St. 66, 70 ; Golder v. Ogden, 15 Pa. St. 528 ; s. c. 58 Am. Dec. 618 ; Hutchinson v. Hunter, 7 Pa. St, 140; Pleasants v. Pendleton, 6 Rand. (Va.) 473; s.u. 18 Am. Dec. 726; Pollock v. Fisher, 1 Allen (N. B.) 515 ; Tompkins v. Tibblts, 1 Han- nay (N. B.) 817 ; Rigney v. Mitchell, 2 Up. Can. C. P. 266 ; Box v. Provin- cial Ins. Co., 15 Grant (Ont.) 337. 352. Executory contracts. — A contract of sale where the article is to be delivered in the future is an executory contract. Nance v. Metcalf, 19 Mo. App. 183 ; s. c. 1 West. Rep. 443. Where anything remains to be done to identify the subject of the sale, title does not pass. Amer u. Hightower, 70 Cal. 440; Cornell a. Clark, 104 N. Y. 451; s. c. 6 Cent. Rep. 506. A written contract not executed in form to make a conveyance of an interest in land, which is expressed to be an agreement to sell and take, cut, and remove timber which is to be paid for in the form of bark lumber and timber, is an executory contract which passes no title in the standing timber. United Society of Shakers V. Brooks, 145 Mass. 410; s. u. 5 New Eng. Rep. 482. Separation; when not essential to trans- fer of title. — • Where a certain num- ber of articles are sold from an ascer- tained lot, identical in kind and value, a separation is not essential to trans- fer title. Kingman u. Holmquist, 36 Kans. 735; s. c. 59 Am. Rep. 604. See Horr ;;. Barker, 8 Cal. 603 ; s. c. 11 Cal. 893; 70 Am. Dec. 791; Chapman u. Shepard, 39 Conn. 413; Phillips V. Ocmulgee Mills, 55 Ga. 515 ^295 EFFECT OF THE COKTEACT. [book II. 633 ; Piazzek v. White, 23 Kans. 621 ; s. c. 33 Am. Eep. 211; Waldron o. Chase, 37 Me. 414; s. c. 59 Am. D*c. 56; Gardner r. Dutch, 9 Mass. 426; Carpenter v. Graham, 42 Mich. 191 ; Kaufman v. Schilling, 58 Mo. 218; HurfE V. Hires, 40 N. J. L. (11 Vr.) 581 ; s. 0. 29 Am. Rep. 282; Groat v. Gile, 51 N. Y. 431 ; Lobdell v. Stowell, 51 N. Y. 70 ; Clark v. Griffith, 24 N. Y. 595; Kimberly v. Patchin, 19 N. Y. 3.30; s. c. 75 Am. Dec. 334; Pleas- ants t). Pendleton, 6 Rand. (Va.) 473; s. c. 18 Am. Dec. 726; Young v. Miles, 20 Wis. 615. Thus where A. had one hundred barrels of flour of the same kind, at a railroad station, with the charges paid, and in charge of the company as warehousemen, and he sold fifty barrels to B. and the balance to other parties, and gave to each an order on the company's agent therefor; B. took away seventeen barrels and left his receipt, the re- mainder of the fifty purchased were destroyed by fire, and it was held to be a valid sale. Newhall v. Langdon, 39 Ohio St. 87 ; s. c. 48 Am. Eep. 426. The court say : " We hold that upon facts found by the court, showing the well-known usage of the business, it is manifest that upon the presenta- tion and acceptance of this order, the sale was completed, and the sub- sequent loss of the flour while stored at the depot must fall on the pur- chaser." Citing, Aderholt v. Embry, 78 Ala. 185; McLaughlin ;;. Piatti, 27 Cal. 463; Horr v. Barker, 8 Cal. 603; s. c. 70 Am. Dec. 791; Smith v. Priend, 15 Cal. 124; Chapman u. Shepard, 39 Com. 420 ; Watts v. Hen- dry, 13 Pla. 523 ; Phillips v. Ocmul- gee Mills, 55 Ga. 634 ; Morrison v. Woodley, 84 111. 192 ; Cloud v. Moor- man, 18 Ind. 40 ; Morrison v. Dingley, 63 Me. 553; Waldron v. Chase, 37 Me. 414; s. c. 59 Am. Dec. 56; Cush- ing V. Breed, 96 Mass. (14 Allen) 376; Riddle v. Varnum, 37 Mass. (20 Pick.) 282 ; Macomber v. Parker, 30 Mass. (13 Pick.) 175; Gardner v. Dutch, 9 Mass, 427; Merchants' Bank i'. Hib- bard, 48 Mich. 118 ; s. c. 42 Am. Rep. 465; Carpenter v. Graham, 42 Mich. 191 ; Iron Cliffs Co. v. Buhl, 42 Mich. 86 ; Crapo v. Seybold, 35 Mich. 169 ; s. c. 36 Mich. 444 ; Lobdell v. Stowell, 61 N. Y. 75; Russell v. Carrington, 42N. Y. 118; s. c. 1 Am. Rep. 498; Terry v. Wheeler, 25 N. Y. 520; Kimberly v. Patchin, 19 N. Y. 330; s. u. 75 Am. Dee. 334; Dexter v. Bevins, 42 Barb. (N. Y.) 573; Tyler V. Strang, 21 Barb. (N. Y.) 198; Olyphaut i. Baker, 5 Den. (N. Y.) 379; Andrews v. Richmond, 34 Hun (N. Y.) 24; Keeler ti. Vandervere, 5 Lans. (N. Y.) 313; Steel Works o. Dewey, 37 Ohio St. 242 ; Scott v. Wells, 6 Watts & S. (Pa.) 362; Andei'son c. Levison, Tex. App.; Pleasants v. Pendleton, 6 Rand. (Va.) 473; s. c. 18 Am. Dec. 726 ; Hofiraan v. King, 58 Wis. 314 ; Galloway v. Week, 54 Wis. 604; Howell v. Pugh, 27 Kans. 702; Young <•. Miles, 23 Wis. 643; Whitehouse v. Frost, 12 East, 614; Turley w. Bates, 2 Hurls. & C. 200 ; Coffey v. Quebec Bank, 20 Up. Can. C. P. 110, 555. But there is a hopeless conflict in the decisions on this subject, a goodly number of cases holding that on sale of a part of a quantity of goods of the same kind, no title passes without a separation or particular designation. Fry v. Mobile Savings Bank, 75 Ala. 473; Block v. Maas, 65 Ala. 211 ; Browning r. Hamilton, 42 Ala. 484; McLaughlin V. Piatti, 27 Cal. 463 ; Central R. R. Co. V. Burr, 51 Ga. 553; Huntington V. Chisholm, 61 Ga. 270 ; Morrison v. Woodley, 84 111. 192; Carruthers t. McGarby, 41 111. 15 ; Dunlap r. Berry, 5 111. (4 Scam.) 327 ; s. c. 39 Am, Dec. 413; Commercial National Bank V. Gillette, 90 Ind. 268; s. c. 46 Am. Rep. 222 ; Bertelson v. Bower, 81 Ind. 512; Indianapolis P. & C. Co. r. Maguire, 62 Ind. 140; Lester v. East, 49 Ind. 588, 594; Scott o. King, 12 Ind. 203; Moffatt v. Green, 9 Ind. 198 ; Bricker r. Hughes, 4 Ind. 146 ; Murphy v. State, 1 Ind. 366 ; Rosen- thal V. Risley, 11 Iowa, 541; Court- 516 CHAP. IV.] SALE OF CHATTEL NOT SPECIFIC. *295 right V. Leonard, 11 Iowa, 32 ; Cook V. Logan, 7 Iowa, 142 ; Ferguson v. Northern Bank, 14 Bush (Ky.) 555 ; s. c. 29 Am. Rep. 418; Newcomb v. Cabell, 10 Bush (Ky.) 460 ; May v. Hoaglan, 9 Bush (Ky.) 471 ; Moss v. Meshew, 8 Bush (Ky.) 187; Craw- ford V. Smith, 7 Dana (Ky.) 59 ; Jen- nings V. Flanagan, 5 Dana (Ky.) 217 ; s. c. 30 Am. Dec. 688 ; Stone v. Pea- cock, 35 Me. 385 ; Brewer v. Smith, 3 Me. (3 Greenl.) 44; s. c. 14 Am. Dec. 213; Keeler u. Goodwin, 111 Mass. 490 ; Ropes v. Lane, 91 Mass. (9 Allen) 502; Scudder ^. Worster, 65 Mass. (11 Cush.) 579; Merrill v. Hunnewell, 30 Mass. (13 Pick.) 213; Young V. Austin, 23 Mass. (6 Pick.) 280; Anderson v. Brenneman, 44 Mich. 198 ; Wilkinson v. Holiday, 33 Mich. 386; Hahn v. Fredericks, 30 Mich. 223; s. c. 18 Am. Rep. 119; Ober V. Carson, 62 Mo. 213 ; England V. Mortland, 3 Mo. App. 490 ; Bailey V. Smith, 43 N. H. 141 ; Ockington v. Richey, 41 N. H. 275 ; Fuller v. Bean, 34 N. H. 290 ; Warren v. Buckminster, 24 N. H. 337 ; Messer u. Woodman, 22 N. H. 172 ; Thompson v. Conover, .32 N. J. L. (3 Vr.) 466; Burrows v. Whitaker, 71 N. Y. 291; Foot o. Marsh, 51 N. Y. 288; Gardiner y. Suydam, 7 N. Y. 357 ; Rodee v. Wade, 47 Barb. (N. Y.) 63 ; Stevens v. Eno, 10 Barb. (N. Y.) 95; Rapelye o. Mackie, 6 Cow. (N. Y.) 250 ; Downer V. Thompson, 2 Hill (N. Y.) 137 ; Field V. Moore, Hill & Den. (N. Y.) 418; Fitch v. Beach, 15 Wend. (N. Y.) 221; Ward v. Shaw, 7 Wend. (N. Y.) 404; Dunkart v. Rineheart, 89 N. C. 357 ; Austin v. Dawson, 75 N. C. 523 ; Blakeley v. Patrick, 67 N. C. 40; s. c. 12 Am. Rep. 600; Waldo V. Belcher, 11 Ired. (N. C.) L. 609 ; Woods v. McGee, 7 Ohio, pt. 2, 127 ; s. c. 30 Am. Dee. 202 ;' Hubler V. Gaston, 9 Oreg. 66; s. c. 42 Am. Rep. 794; Haldeman v. Duncan, 51 Pa. St. 66; Colder v. Ogden, 15 Pa. St. 528; s. 0. 53 Am. Dec. 618; Hutchinson v. Hunter, 7 Pa. St. 140 ; Leonard v. Winslow, 2 Grant (Pa.) 139 ; s. c. 24 Pa. St. 14 ; Fitzpatrick V. Fain, 3 Coldw. (Tenn.) 15; Robbins V. Chipman, 1 Utah, 355 ; s. c. 2 Utah, 347 ; Young v. Matthews, L. R. 2 C. P. 127 ; Martineau u. Kitching, L. R. 7 Q. B. 436; Simmons v. Swift, 5 Barn. & Cres. 857 ; s. c. 8 D. & R. 693 ; Zagury v. Furnell, 2 Campb. 240; Campbell v. Mersey Docks, 14 C. B. N. S. 412; s. c. 11 W. R. 596; 8 L. T. (N. S.) 245; Gillett v. Hill, 2 Compt. & M. 530; s. u. 4 Tyrw. 290 ; Wallace v. Breeds, 13 East, 522; Rugg V. Minett, 11 East, 210; Han- son V. Meyer, 6 East, 614 ; Aldridge c. Johnson, 7 El. & Bl. 885; Langton V. Higgins, 4 Hurls. & N. 402 ; Rusk V. Davis, 2 Maule & S. 398 ; Logan v. LeMesurier, 4 Moore Priv. C. Cas. 116 ; Shepley v. Davis, 5 Taunt. 617 ; ■White V. Wilks, 5 Taunt. 176 ; Austen V. Craven, 4 Taunt. 643; Pollock u. Fisher, 1 Allen (N. B.) 515; Mac- Dougall V. Elliott, 20 Up. Can. Q. B. 299. Sale of manufactured article ; when property passes to purchaser. — Under a contract for the sale and purchase of a manufactured article, the prop- erty does not pass to the purchaser by his order to the manufacturer and its acceptance; there must be the selection and appropriation of one particular article, and facts showing an intention to pass the title or prop- erty to the purchaser. Jones v. Brewer, 79 Ala. 545. See Lewis u. Lofley, 60 Ga. 559 ; May v. Hoaglan, 9 Bush (Ky.) 171 ; Moss v. Meshew, 8 Bush (Ky.) 187 ; Banchor v. War- ren, 33 N. H. 183 ; Randolph Iron Co. V. Elliott, 34 N. J. L. (5 Vr.) 184 ; Higgins V. Delaware & Lack. R. R., 60 N. Y. 553; Black v. Webb, 20 Ohio, 304; s. c. 55 Am. Dec. 456; Ormsbee v. Machir, 20 Ohio St. 295 ; Winslow V. Leonard, 24 Pa. St. 14; McCandlish v. Newman, 22 Pa. St. 460; Pew v. Lawrence, 27 Up. Can. C. P. 402. 517 *296 EFFECT OF THE CONTRACT. [BOOK II. In Wallace v. Breecls,^ the sale was of fifty tons of Green- land oil " allowance for foot-dirt and water as customary.'' The vendors gave an order on the wharfingers for delivery to the purchasers of " fifty tons of our Greenland oil, ex- ninety tons." The purchasers became insolvent on the day after this order was sent to the wharfinger, and the order was then countermanded by the vendors, nothing having been done on it. Held, that the property had not passed. So in Busk v. Davis,* the vendor had about eighteen tons of Riga flax, in mats, lying at the defendant's wharf, and sold ten tons of it, giving an order to the purchaser on de- fendant for " ten tons Riga PDR. flax, ex Vrow Maria." In order to ascertain what portion of the flax was to be ap- propriated to this order, it was necessary to weigh the mats, and this had not been done, when the buyer became insol- vent, and the vendor thereupon countermanded the order. Held, that the property had not passed. [*296] § 399. *In White v. Wilks,i the sale was of twenty tons of oil, out of the vendor's stock in his cisterns. In Austen v. Craven,^ the sale was by sugar refiners, of fifty hogsheads of sugar, double loaves, no particular hogsheads being specified. In Shepley v. Davis, ^ of ten tons of hemp out of thirty ; and the contracts were all held to be execu- tory, no property passing. In Gillett v. Hill,* Bayley J. stated the law very perspic- uously in the following words : " The cases may be divided into two classes ; one in which there has been a sale of goods, and something remains to be done by the vendor, and until that is done, the property does not pass to the vendee, so as to entitle him to maintain trover. The other class of cases ib 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 ; then the right to them does not pass to the vendee, until the vendor has made his selection, and trover is not maintainable till that is done. If I agree 3 13 East, 522. 2 4 Taunt. 644. * 2 M. & S. 397. 8 5 Taunt. 617. 1 5 Taunt. 176. * 2 C. & M. 530. 518 CHAP. IV.] SALE OF CHATTEL NOT SPECIFIC. *297 to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quantity I have agreed to deliver until a selection is made. There is no in- dividuality until it has been divided;^ § 400. [In Gabarron v. Kreeft,^ the sale was of all the iron ore, the produce of a certain mine in Spain. The contract pro- vided that the price should be paid by the defendants' ac- ceptances, to be given on a certificate, that the quantity of ore drawn for was in stock, and that thereupon the property in the ore so drawn for should vest in the defendants. In carrying out the contract the defendants' acceptances, at a particular time exceeded the amount of all the ore already shipped, so that the defendants were entitled to a further quantity of the ore then in stock, as to which, however, no certificate had been given. Held, that in the absence of any specific appropriation of the ore by the seller in ful- filment of * the contract no property in any of the [*297] ore in stock could vest in the defendants.] § 401. The only case to be found in the reports in ap- parent contradiction to this principle of the law of sale, is Whitehouse v. Prost,^ which, notwithstanding explanations by the judges in subsequent cases, is scarcely ever mentioned, without suggestion of doubt or disapproval. In that case the contract was as follows : " Mr. J. Townsend bought of J. and L. Frost, ten tons of Greenland oil, in Mr. Stain- forth's cisterns, at your risk, at 39Z. — 390Z." There were then in the cistern forty tons of oil, which had belonged to Dutton and Bancroft, and they had sold ten tons of it to Frost and Co., and these were the ten tons which the latter sold to Townsend, giving Townsend an order on Dutton and Bancroft for "the ten tons of oil we purchased from you, 8th Nov. last." The order was taken to Dutton and Bancroft by the purchaser, and accepted by them in writing, on the face of the order. Townsend left the oil in the 5 See, also, Camptell v. Mersey i L. R. 10 Ex. 274, fully consid- Docks Company, 14 C. B. N. S. 412. ered, post, p. 345. 1 12 East, 614. 519 *298 EFFECT OF THE CONTRACT. [BOOK II. custody of Dutton and Bancroft, and it was not severed from the bulk in the cisterns. It was held, that the property had passed, as between Frost and Townsend. Lord Ellen- borough put it on the ground, that all right in the seller was gone by the acceptance of liis delivery order, in favor of Townsend, the seller never having had himself possession, but only a right to demand possession from the bailees, which right he had assigned to Townsend, just as it had been assigned to himself by his vendors. Grose J. was of opinion, that as the risk was in the luyer, and the delivery complete so far as the vendor was concerned, the property had passed. It was the purchaser'' s business to act with Dutton and Ban- croft in drawing off the ten tons of oil. Le Blanc J. put it on the ground that the sale was complete between Frost and Townsend, because nothing remained to be done between them. The vendor had given to the purchaser the only possession that the vendor ever had, and the purchaser had accepted this, and Dutton and Bancroft were bailees of the oil [*298] for the * purchaser's use. All that remained to be done was between the purchaser and his bailees. Bayley J. was very much of the same opinion, considering the purchaser's acceptance of an order on Dutton and Ban- croft, his presentation of it to them, and obtaining their as- sent to be his bailees, as equivalent to a consent that the goods should be deemed to have been delivered to him. This case was much questioned in subsequent decisions.^ In Wallace v. Breeds,^ Lord EUenborough again said of Whitehouse v. Frost, "there nothing remained to be done by the seller to complete the sale between him and the buyer." And in the subsequent case of Busk v. Davis,* where thi-ee of the judges (Lord EUenborough, and Le Blanc and Bayley JJ.), who decided Whitehouse v. Frost, were still on the bench, they adhered to the decision, both Le Blanc and Bayley saying, however, that the sale was of an " undivided quantity," and that delivery had been made 2 See White v. Wilkes, 5 Taunt. 14 C. B. N. S. 412 ; Blackburn on 176; Austen v. Craren, 4 Taunt. Sale, 125. 644; Campbell v. Mersey Company, 3 13 East, 525. * 2 M. & S. 397. 520 CHAP. IV.J SALE OF CHATTEL NOT SPECIEIC.^ *298 of that undivided quantity so far as in the nature of things it was possible for the vendor to deliver it.^ ^ Storing of grain in warehouse. — Where grain of different persons is stored in a warehouse and com- mingled in tlie same bin, with their knowledge and consent, they become tenants in common. See Ferguson V. Louisville City National Bank, 14 Bush (Ky.) 555; s. c. 29 Am. Rep. 418; Morrison v. Woodley, 84 111. 192; Wilson I/. Cooper, 10 Iowa, 565; Morrison v. Dingley, 63 Me. 556, 557 ; Warren v. Milliken, 57 Me. 97 ; Waldron v. Chase, 37 Me. 414; ». u. 59 Am. Dec. 56; Hall v. Boston & Worcester R. R. Corp., 96 Mass. (14 Allen) 4.39; Cushing v. Breed,96 Mass. (14 Allen) 376 ; Hatch v. Lincoln, 66 Mass. (12 Cush.) 31; Merchants' Bank v. Hibbard, 48 Mich. 118 ; s. c. 42 Am. Rep. 465 ; Russell u. Carring- ton, 42 N. Y. 118; s. o. 1 Am. Rep. 498; Kimberly v. Patchin, 19 N. Y. 330 ; s. c. 75 Am. Dec. 384 ; Chase v. Washburn, 1 Ohio St. 244; s. c. 59 Am. Dec. 623 ; South Australian Ins. Co. V. Eandell, L. R. 3 P. C. 101. And such grain may be sold in par- cels without any separation of the quantity sold from the rest of the mass, if by request from the vendor and purchaser, the store-keeper agrees thenceforward to hold the quantity for the purchaser ; and a valid title will pass of such sale, and the vendor and purchaser will be- come tenants in common of the whole grain in proportion to their respective interest therein. Cushing i: Breed, 96 Mass. (14 Allen) 380. The court say in this case : " This is not like the class of sales where the vendor retains the possession because there is something further for him to do, such as measuring, or weighing, as in Scudder c^. Worster, 65 Mass. (11 Cush.) 573; nor like the case of Weld V. Cutler, 68 Mass. (2 Gray) 195, where the whole of a pile of coal was delivered to the vendee in order that he might take the separation. But the property is in the hands of an agent ; and the same person who was the agent of the vendor to keep, becomes the agent of the vendee to keep ; and the possession of the agent becomes the possession of the principal. Hatch v. Bayley, 66 Mass. (12 Cush.) 27, and cases cited. The tenancy in common results from the method of storage which has been agreed upon, and supersedes the necessity of measuring, weighing or separating the part sold." No delivery is necessary to a ten- ant in common. Beaumont v. Crane, 14 Mass. 400. It has been questioned whether in cases of this kind, the title passing is one in severalty or in common ; that if it is a title in common it is such in a qualified sense, and that the vendee can maintain trover for his share of the articles upon de- mand on the vendor and his refusal to deliver. See Chapman v. Shep- hard, 39 Conn. 413; Phillips v. Ocraulgee Mills, 55 Ga. 633 ; McPher- son V. Gale, 40 111. 368; Burton v. Curyea, 40.111. 320, 329; Damon u. Osborn, 18 Mass. (1 Pick.) 476 ; s. c. 11 Am. Dec. 229; Gardner v. Dutch, 9 Mass. 427; Piquet u. Allison, 12 Mich. 328; Kimberly v. Patchin, 19 N. Y. 330; s. c. 75 Am. Dec. 334; Crofoot V. Bennett, 2 N. Y. 258; Morgan v. Gregg, 46 Barb. (N. Y.) 183; Pobes u- Shattock, 22 Barb. (N. Y.) 568; Tripp u. Riley, 15 Barb. (N. Y.) 335 ; Channon v. Lusk, 2 Lans. (N. Y.) 211 ; Wood v. Pales, 24 Pa. St. 246, 248; s. u. 64 Am. Dec. 655; Pleasants v. Pendleton, 6 Rand. (Va.) 473 ; s. c. 18 Am. Dec. 726 ; Spence v. Union Marine Ins. Co., L. R. 3 C. P. 426; Buckley v. Gross, 2 Best & S. 566, 575 ; White- house V. Frost, 12 East, 614 ; Busk v. Davis, 2 Maule & S. 397. In Morgan 521 *298 EFFECT OF THE CONTEACT. [book II. The cases in which those contracts are considered, by which the vendor agrees to make and deliver a cliattel, are reviewed in the next chapter, on " Subsequent Appropria- tion." V. Gregg, 46 Barb. (N. Y.) 183, upon a sale of barley by A. to B. for cash on delivery at the storehouse of C, and by agreement the money was to be left by B. with C. to pay the price. The court held that the fact that at the time the grain was, as de- livered from day to day, at the storehouse of C, put into bins in which other grain belonging to B. was being put at the same time, was not such an admixture of the grain as to make the owners thereof ten- ants in common; no such tenancy being contemplated, and the admix- ture for no such purpose. Parker P. J., in delivering the opinion of the court, says : " I am strongly inclined to think that the admixture of the grain, under the circumstances of this case, did not make the owners thereof tenants in common. The admixture was for no such purpose. The plaintiff delivered his barley either absolutely, intending to pass the title to Davis, or conditionally, intending to retain it himself, so that no tenancy in common was con- templated. The case of Seldon f. Hickock, 2 Cai. (N. Y.) 166, is an authority showing that the mere fact of an admixture does not necessarily produce a tenancy in common, and that each owner may own in sever- alty his share of the goods so min- gled ; especially when, as in that case, the property is all of one kind and value. The circumstances which gives rise to the rule that an admix- ture produces a tenancy in common, is the loss of identity of the property mixed, making it impossible for each owner to reclaim his separate prop- erty. But where the property, so mixed, is of the same kind and of equal value, and the proportionate shares are known, the loss of identity does not prevent each owner from claiming his separate share, and each may take and sell or destroy his share, without being liable to the owner of the other part. Tripp v. Eiley, 15 Barb. (N. Y.) 334 ; Forbes V. Shattuck, 22 Barb. (N. Y.) 568. In such cases the admixture does not have the effect to change the title, unless so intended, but each owner continues to own his separate share as though no admixture had been made. The identity, in such case, is not deemed destroyed, so as to pro- duce the consequences following a mixture of ingredients incapable of separation. Story on Bailm., sec. 40; Wilson V. Nason, 4 Bosw. (N. Y.) 155. The tenancy in common exists only when the things mixed cannot be separated without inconvenience, in the proportion of the quantity, quality, and value belonging to each. "Wilson 0. Nason, 4 Bosw. (I\. Y.) 167. In Ryder a. Hathaway, 38 Mass. (21 Pick.) 306, it is said: ' The intentional and innocent inter- mixture of property of substantially the same quality and value, does not change the ownership; and no one has a right to take the whole, but in so doing he commits a trespass on the other owner.' This, I am in- clined to think, is the rule applicable to this case. The plaintiff, notwith- standing the admixture of the barley delivered by him, with barley deliv- ered by others, did not lose his owner- ship, but remained owner of the 585 bushels delivered, as though it had not been so mixed. He had the right as against Davis, and consequently as against the defendant, his bailee, to take that amount from the com- mon bulk, as held in 15 and 22 Barb. 522 CHAP. IV.J SALE OP CHATTEL NOT SPECIFIC. *299 § 402. This seems to be an appropriate occasion for con- sidering the question whether earnest has any, and what, effect in altering the property in the goods, which are the subject-matter of the contract. In former times, when the dealings between men were few and simple, and consisted for the most part, where sale was intended, in the transfer of specific chattels, it was said that by the giving of earnest, the property passed. Thus we have seen in the second chapter of this book, that Shepherd's Touchstone contains this rule : ^ "If one sell me his horse, or any other thing for money, . . . and I give earnest money, albeit it be but a penny to the seller, . . . there *is a good bargain and sale of the thing to [*299] alter the property thereof." And Noy says (^ante, p. 265) : " If the bargain be that you shall give me 101. for my horse, and you give me one penny in earnest, which I accept, this is a perfect hargain, you shall have the horse by an action on the case, and I shall have the money by an action of debt." But the context of both these passages shows very plainly that the authors were considering the subject of the different modes in which a bargain for the sale of a specific chattel could be completed, and were point- ing out that the mere agreement of A. to buy, and B. to sell, did not constitute a bargain and sale, but that some- thing further must be done " to bind the bargain." As soon as the bargain for the sale of the specific chattel was com- pleted, in whatever form., the property passed, and the giving of earnest is included among the modes of binding the bar- gain, so that neither could retract, and then the passing of the property was the result, not of giving the earnest, but of the bargain and sale. So in Bach v. Owen,^ the plaintiff claimed a mare under a bargain in which "the defendants, to make the agreement supra, and it follows that the de- Transfer by delivery of warehouse fendant, in denying that right and receipt is a sufficient delivery to refusing to permit him to have his pass the title in such case. McPher- own, was guilty of converting it, so son v. Gale, 40 111. 368 ; Burton v. as to entitle him to this action." Curj-ea, 40 111. 320, 329. Bristol V. Burt, 7 Johns. (N. Y.) ^ Ante, p. 264. 254 ; s. c. 5 Am. Dec. 264. 2 5 t. R. 409. 523 *300 EFFECT OP THE CONTRACT. [BOOK II. the more firm and binding, paid to the plaintiff one half- penny in earnest of the bargain." The contract was that the plaintiff should give a colt and two guineas for the mare, and the defendant demurred to the declaration for want of an averment that the plaintiff was ready and willing, or offered to deliver the colt; but BuUer J. said: "The pay- ment of the halfpenny vested the property of the colt in the defendant," and the tender was therefore unnecessary. This, again, was a perfect bargain and sale of a specific chattel, which altered the property as soon as the earnest given pre- vented either party from retracting. § 403. In Hinde v. Whitehouse,^ Lord EUenborough, in considering the mode of passing the property in the sugar sold, rejected a defence founded on the fact that the goods were not ready for delivery because the duties had not yet been paid, and said, arguendo : " Besides, after ear- [*300] nest given, * the vendor cannot sell the goods to an- other, without a default in the vendee ; and, there- fore, if the vendee do not come and pay for and take away the goods, the vendor ought to go and request him; and then if he do not come and pay for and take away the goods in a convenient time, the agreement is dissolved, and the vendor is at liberty to sell them to any other person." His Lordship, after quoting this dictum from Holt C. J. in Lang- ford V. Administratrix of Tyler, Salk. 113, and Noy's Max- ims, as above, continued : " On this latter ground, therefore, I do not think that the sale is incompleted This, again, was the sale of a specific chattel, and the mind of that great judge was plainly intent on the question whether there had been a " complete sale," and the authorities on the subject of earnest were invoked solely to show that the bargain had been closed. Blackstone, also,^ if his remarks be carefully considered, as well as the authorities to which he refers, con- templates earnest as a mode of binding the bargain, and thus furnishing proof of such a complete contract of sale as suf- fices to pass property in a specific chattel. 1 7 East, 558. 2 o Black. Com. 447-9. 524 CHAP. IV.J SALE OP CHATTEL NOT SPECIFIC. *301 § 404. No case, however, has been found in the books in which the giving of earnest has been held to pass the prop- erty in the subject-matter of the sale, where the completed bargain, if proved in writing or any other sufficient manner, would not equally have altered the property. It is difficult to conceive on what principle it could be contended that the giving of earnest would pass the property, for example, in fifty bushels of wheat, to be measured out of a larger bulk.^ In the cases of Logan v. Le Mesurier,^ and Acraman v. Mor- ris,^ it was held, as we have already seen (ante, p. 270-1), that where the whole purchase-money had been paid at the time of the contract, the property did not pass in the timber which was to be afterwards measured on delivery, and it is scarcely conceivable that a penny, delivered under the name of " earnest," could be more effective in altering the prop- erty than the payment of the entire price. * It is therefore submitted that the true legal effect [*301] of earnest is simply to afford conclusive evidence that a bargain was actually completed with mutual intention that it should be binding on both ; and that the inquiry whether the property has passed in such cases is to be tested, not by the fact that earnest was given, but by the true nature of the contract concluded by the giving of the earnest. * See Morrison v. Dingley, 63 Me. the entire consideration." It has 553; Nesbit v. Burry, 25 Pa. St. 208, heen said that the courts will lay 210; United States v. "Woodruff (El- hold of slight circumstances, to re- gee Cotton Cases), 89 TJ. S. (22 tain in the vendor the property until "Wall.) 180, 195 ; bk. 22, L. ed. 863. the whole purchase money has been The court say in Jennings v. Flanna- paid. See Huri^ v. Hires, 40 N. J. L. gan, 5 Dana (Ky.) 217; s. c. 30 Am. (11 Yr.) 581; Swannick v. Sothern, Dec. 683, that payment of earnest 9 Ad. & E. 895; Godts u. Rose, 17 does not necessarily change the prop- C. B. 229 ; Hanson v. Meyer, 6 East, erty ; it only binds the bargain, and 614; "Wallace v. Breeds, 1-3 East, 522 ; that the buyer cannot maintain trover Busk u. Davis, 2 Maule & S. 397 : or detinue for his purchase, without Shepley v. Davis, 5 Taunt. 616. But paying or tendering the residue of the it will be different where the whole price. The court say that " notwith- price is paid. "Waldron v. Chase, 37 standingthepaymentof earnest, if the Me. 414; Terry v. "Wheeler, 25 N. Y. whole price is to be paid, delivery of 520 ; Eilkins u. "Whyland, 24 N. Y. the thing bought, of which there was 338. See Blood v. Harrington, 25 no delivery at the time of the contract, Mass. (8 Pick.) 552; Dunn v. Hewitt, the purchaser cannot maintain deti- 2 Den. (N. Y.) 637. nue or trover for the property bought 2 g Moo. P. C. 116. until he should have paid or tendered ^ g C. B. 449. 525 *302 EFFECT OF THE CONTEACT. [book il [*302] * CHAPTER V. OF SUBSEQUENT APPROPRIATION. Executory agreement converted into bargain and sale by sub- sequent appropriation . . 302 When vendor is to appropriate goods . 302 Rule as to determination of elec- tion . . . . ... 303 Point of time at which property passes . 304 Review of the authorities . . . 304 Remarks on Bryans v. Nix . . 310 Conditional appropriation . . 311 Observations on dicta in Camp- bell V. Mersey Docks . 314 Great diversity of opinion in Cal- cutta Company u. De Mattos 318 Vendor's election must conform to contract . . . 323 Cannot elect more than contract requires and leave purchaser to select . 323 Subsequent appropriation of chattels ordered to be manu- factured 325 § 405. After an executory contract has been made, it may be converted into a complete bargain and sale by speci- fying the goods to which the contract is to attach, or in legal phrase, by the appj-opriation of specific goods to the contract. The sole element deficient in a perfect sale is thus supplied. The contract has been made in two successive stages, instead of being completed at one time ; but it is none the less one contract, namely, a bargain and sale of goods. As was said by Holroyd J. in Rohde v. Thwaites,i " the selection of the goods by one party, and the adoption of that act by the other, converts that which before was a mere agreement to sell into an actual sale, and the property thereby passes." ^ The only difficulty that can arise on this question is in 1 6 B. & C. 388. 2 Claflin V. Boston & L. R. R. Co., 89 Mass. (7 Allen) 341; Hyde v. Lathrop, 2 Abb. App. Dec. (N. Y.) 430. See Crawford v. Smith, 7 Dana (Ky.) 59, 61; Gough v. Edelen, 5 Gill (Md.) 101; Merchants' Nat. Bank u. Bangs, 102 Mass. 291, 296; Chapman v. Searle, 20 Mass. (3 Pick.) 38; Thompson u. Conover, 32 N. J. L. (3 Vr.) 466; Bickford v. Grand June. Ry. Co., 1 Duv. (Can.) 696, 723; Coleman o. McDermot, 5 Up. Can. C. P. 303 ; Macpherson v. Fred- ericton Boom Co., 1 Hannay (N. B.) 337. 526 CHAP, v.] OF SUBSEQUENT APPKOPKIATION. *303 cases where tlie vendor only has made the subsequent appro- priation. If it has been agreed that the purchaser shall select out of the bulk belonging to the vendor, it is not easy to raise a controversy, but the cases in which the ablest judges have been much perplexed are those where the vendor * is, by the express or implied terms of [*303] the contract, entitled to make the selection. A very common mode of doing business is for one merchant to give an order to another to send him a certain quantity of mer- chandise, as so many tons of oil, so many hogsheads of sugar. Here it becomes the vendor's duty to appropriate the goods to the contract. The difficulty is to determine what constitutes the appropriation : to find out at what precise point the ven- dor is no longer at liberty to change his intention. It is plain that the vendor's act in simply selecting such goods as he intends to send, cannot change the property in them. He may lay them aside in his warehouse, and change his mind afterwards ; or he may sell them to another purchaser with- out committing a wrong, because they do not yet belong to the first purchaser, and the vendor may set aside other goods for him. It is a question of law whether the selection made by the vendor in any case is a mere manifestation of his in- tention, which may be changed at his pleasure, or a deter- mination of his right conclusive on him, and no longer revocable. § 406. The rule on the subject of election is, that when, from the nature of an agreement, an election is to be made, the party 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.^ 1 Heyward's Case, 2 Co. 36; Co- icating liquors are sold "under an myn's Dig. Election; Blackburn on agreement that the sale shall be at Sale, 128. the seller's shop, and the liquors The Supreme Court of Massachu- taken by him to a railroad depot to setts have held, in Lynch v. O'Don- be sent to the purchaser, and the nell, 127 Mass. 311, that where intox- seller, upon receipt of an order by 627 *304 EFFECT OF THE CONTRACT. [BOOK II. For example, suppose A. sell out of a stack of bricks one thousand to B., who is to send his cart and fetch them away. Here B. is to do the first act, and cannot do it till the election is determined. He therefore has authority to make the choice, but he may choose first one part of the stack and then another, and repeatedly change his mind, until he has done the act which determines the election, that is, until he has put them in his cart to be fetched away ; [*304] * when that is done, his election is determined, and he cannot put back the bricks and take others from the stack. So, if the contract were that A. should load the bricks into B.'s carts, A.'s election would be determined as soon as that act was done, and not before.^ § 407. It follows from this, says Lord Blackburn, that where from the terms of an executory agreement to sell unspecified goods the vendor is to despatch the goods, or do anything to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be ; and the property is transferred the moment the despatch or other act has commenced, for then an appropriation is made finally and conclusively by the authority conferred in the agreement, and in Lord Coke's language, " the certainty, and thereby the property begins by election." i But how- ever clearly the vendor may have expressed an intention to mail, puts up the liquors, marks them See, also, Wigton v. Bowley, 130 with the buyer's name, labels them, Mass. 254 ; Merchants' Nat. Bank v. and sets them aside with a bill of Bangs, 102 Mass. 292, 295 ; Stevens v. lading attached to them, with the Boston & W. R. R. Corp., 74 Mass. intent to pass the title in the liquors (8 Gray) 262; Coggill v. Hartford & to the buyer, a jury will be war- N. H. R. R. Co., 69 Mass. (3 Gray) ranted in finding that there was a 545; Hatch v. Lincoln, 66 Mass. (21 complete sale of the liquors at the Cush.) 31; Stanton w. Eager, .33 Mass. shop of the seller." (16 Pick.) 473; Allen v. Williams, 2 See Rohde v. Thwaites, 6 Barn & Cr. 388 ; Marquand r. Banner, 6 El & Bl. 232; Coffey v. Quebec Bank^ Macbride, 7 Up. Can. C. P. 382 Blackburn on Sales, 127 1 Heyward's Case, 2 Coke, 36 29 Mass. (12 Pick.) 297 ; Moakes Nicolson, 19 C. B. (N. S.) 290 ; Godts Rose, 17 C. B. 229; Tregelles v. 30 Up. Can. C. P. 110, 555 j^ AVaddell Sewell, 7 Hurls. & N. 574; Dunning ;•• Gordon, 4 Up. Can. Q. B. 399. See, also. Grove v. Brien, 49 U. S. (8 How.) 429; bk. 12, L. ed. 1142; Gib- Merchants' National Bank v. Bangs, son v. Stevens, 49 U. S. (8 How.) 102 Mass. 291, 2G5. 384; bk. 12, ed. 1123. 528 CHAP. V.J OF SUBSEQUENT APPBOPRIATION. *305 choose particular goods, and however expensive may have been his preparations for performing the agreement with those particular goods, yet until the act has actually commenced, the appropriation is not yet final, for it is not made by the authority of the other party nor binding on him.^ § 408. A review of the authorities will show the subtle distinctions to which this subject gives rise, and the infinite diversity of circumstances under which its application be- comes necessary in commercial dealings. The considerations that govern it are rendered still more complex when the vendor, although appropriating the goods to the contract by despatching them, still retains control by taking the bills of lading or other documents of title in his own name, in order to secure himself against Joss in the event of the buyer's insolvency or refusal to pay. The decisions in cases where the vendor, although appropriating the goods, has reserved expressly or by implication a special property in them, will * be separately examined, after disposing of those [*305] which are free from this element of controversy. § 409. In 1803, in the case of Button v. Solomonson,i it was treated as already settled law that where a vendor de- livers goods to a carrier by order of the purchaser, the appropriation is determined; the delivery to the carrier is a delivery to the vendee, and the property vests immediately. And in the United States the law is established to the same effect.^ 2 Blackburn on Sale, p. 128. The N. R. 119 ; Vale v. Bayle, Cowp. 294; accuracy of this statement of the Dawes v. Peck, 8 T. R. 330. law was attested by Erie J. in Aid- ^ Krulder v. Ellison, 47 N. Y. 36. ridge v. Johnson, 7 E. & B. 885, 901 ; See, also, Devine v. Edwards, 101 111. 26 L. J. Q. B. 296. 138; Stafford v. Walter, 67 111. 83; 1 3 B. & P. 582, per Lord Alvan- Torrey v. Corliss, 33 Me. 336 ; Wing ley Ch. J. ; and see Cork Distilleries v. Clark, 24 Me. 366 ; Barry v. Palmer, Co. V. Great Southern, &c. Railway 19 Me. 303; Suit v. Woodhall, 113 Co., L. R. 7 H. L. 269 ; and Johnson Mass. 394 ; Odell v. Boston & M. R. V. The Lancashire and Yorkshire Rail- R., 109 Mass. 50 ; Johnson v. Stod- way Co., 3 C. P. D. 499, where, under dard, 100 Mass. 306, 308 ; Kline v. somewhat curious circumstances, the Baker, 99 Mass. 253, 254; Hunter ». same rule was applied. See, also, Wright, 84 Mass. (12 Allen) 548; Dutton V. Solomonson, 3 Bos. & Pul. Putnam v. Tillotson, 54 Mass. (13 584 ; Cooke u. Ludlow, 2 Bos. & Pul. Mete.) 517; Stanton v. Eager, 33 529 *306 BPFBCT OF THE CONTRACT. [BOOK II. § 410. In 1825, Fragano v. Long^ was decided in the King's Bench. The plaintiff sent an order from Naples to M. and Sons at Birmingham, for merchandise "to be de- spatched on insurance being effected. Terms to be three months' credit from the time of arrival." The goods were sent from Birmingham, marked with the plaintiff's name, to the agents of the vendors in Liverpool, with orders to ship them to the plaintiff. Insurance was made in the plaintiff's name. The goods were injured by the carrier by being allowed to fall into the water while loading them, and the action was assumpsit against the carrier. It was contended by the defendant that the property had not passed because the vessel's receipt expressed that the goods were received from the Liverpool shippers, the agents of the vendors, and they would therefore have been entitled to the bill of lading. But the Court held that the property had passed to the plaintiff from the time the goods left the vendors' warehouse. Holroyd J. said the principle was that " when goods are to be delivered at a distance from the vendor, and no charge is made hy him for the carriage^ they become the property of the buyer as soon as they are sent off." The words above printed in italic suggest that where the vendor pays the charges it is presumed that he retains the property in [*306] the * goods. On this point the reader will find a very full exposition of the law in the elaborate opin- ion of Lord Cottenham, delivering the judgment of the House of Lords in Dunlop v. Lambert.^ Mass. (16 Pick.) 467 ; Armentroul v, right to immediate possession thereof St. Louis, &c. Ry. Co., 1 Mo. App. in the consignee, and the effect of a 158 ; Arnold v. Prout, 51 N. H. 687, consignment of goods by a bill of 589; Garland v. Lane, 46 N. H. 245, lading is to vest the property in the 248; Smith v. Smith, 27 N. H. 252; consignee. Walsh w. Blakely, 6 Mont. Woolsey u. Bailey, 37 N. H. 217; 194. Eodgers v. Phillips, 40 N. Y. 519; i 4 B. & C. 219. Ludlow V. Bowne, 1 Johns. (N. Y.) ' 6 CI. & Finn. 600. See Packard 1, 15; s. c. 3 Am. Dec. 277; Griffith v. Getman, 6 Cow. (N. Y.) 757; a. u. V. Ingledew, 6 Serg. & R. (Pa.) 16 Am. Dec. 475; Pittsburg, C, & St, 429; s. c. 9 Am. Dec. 444; Strong L. Ry. Co. «. Barrett, 30 OMo St. 448 V. Dodds, 47 Vt. 348; Sortwell v. Sneathen r. Grubbs, 88 Pa. St. 147 Hughes, 1 Curt, C. C. 244. Hobart v. Littlefleld, 13 R. I. 341 Delivery of goods by consignor to a The M. K. Rawley, 2 Low. C. C. 447 common carrier primct facie vests the British Columbia S. M. Co. u. Nettle- 530 CHAP, v.] OF SUBSEQUENT APPROPRIATION. *307 § 411. In Rohde v. Thwaites,i the appropriation by the vendor was assented to by the purchaser. The purchaser bought twenty hogsheads of sugar out of a lot of sugar in bulk belonging to the vendor. Four hogsheads were filled and delivered. Sixteen other hogsheads were then filled up and appropriated to the contract by the vendor, who gave notice to the purchaser to take them away, which the latter promised to do. Held, that this was an assent to the appro- priation, that the contract was thereby converted into a bar- gain and sale, and that the property passed. § 412. In Alexander v. Gardner,^ decided in 1835, the property in a parcel of butter was held to have passed from the plaintiff to the defendant by subsequent appropriation with mutual assent under the following circumstances. The original contract was for " 200 firkins Murphy & Co.'s Sligo butter at 71s. 6cl. per cwt. free on board ; payment, bill at two months from the date of lading ; to be shipped this month. 11 Oct., 1833." On the 11th of November the plaintiff re- ceived from Murphy an invoice and bill of lading for these butters, which had not been shipped till the 6th of Novem- ber. Defendant waived the delay, and consented to take the invoice and bill of lading, which described the butter, the weights and marks of the casks, &c. The butter was after- wards lost by shipwreck. Held, that the subsequent appro- priation was complete by mutual assent ; that the property had passed, and the buyer must suffer the loss. The case was decided directly on the authority of Fragano v. Long and Rohde V. Thwaites. § 413. The same principle governed Sparkes v. Marshall,^ decided by the same Court in the following year (1836). * Bamford, a corn-merchant, sold to plain- [*307] tiff "500 to 700 barrels of prepared black oats, at lis. 9d. per barrel, to be shipped by Thomas John and Son, ship, L. R. 3 C. p. 499, 503. See, in Scotten !•. Sutter, 37 Mich. 526, also, Stanton v. Eager, 33 Mass. (16 532. Pick.) 467 ; Bolin i,. Huffnagle, 1 i 1 Bing. N. C. 671. See, also, Ravvle (Pa.) 9 ; Ogle v. Atkinson, 5 Wilkins v. Bromhead, 6 M. & G. 963 ; Taunt. 759. s. c. 7 Scott N. R. 921. 1 6 B. & C. 388. Distinguished i 2 Bing. N. C. 761. 631 *30T EFFECT OF THE CONTEACT. [BOOK II. of Youghall." The oats were to be delivered at Ports- moutli. Some days afterwards Bamford informed plaintiffs that Messrs. John and Son had engaged "room in the schooner Gibraltar Packet of Dartmouth to take about 600 barrels of black oats on your account." Plaintiff next day ordered insurance, "400?. on oats per the Gibraltar Packet of Dartmouth, &c." In this action against the underwriters it was contended by them that the property had not passed, but the Court held the contrary. Tindal C. J. said that Bamford's letter to the plaintiff " was an unequivocal appro- priation of the oats on board the Gibraltar Packet," and " this appropriation is assented to and adopted by the plain- tiff, who, on the following day, gives instructions to his agent in London to effect the policy on oats fer Gibraltar Packet." § 414. In Bryans v. Nix,^ decided in the Exchequer in 1839, the facts were, that one Tempany, in Longford, drew a bill of exchange on the plaintiff at Livei'pool, against two cargoes of oats, fer boats Nos. 604 and 54, represented by two boat receipts or bills of lading, whereby the masters of the boat acknowledged to have received the oats on board, deliverable in Dublin to the plaintiff's agents, for shipment thence to the plaintiff at Liverpool. The plaintiff received, on the 7th of February, a letter from Tempany, dated the 2d, containing these two boat receipts, dated the 31st of January, and thereupon accepted the bill of exchange which Tempany stated in a letter to be drawn against these oats. In point of fact, boat No. 604 had received its cargo, but al- though the master's receipt for boat 54 was dated on the 31st of January, the loading of it was only begun on the 1st of February, and on the 6th it had received only about 400 1 4 M. & W. 775. See First Nat. Bank of Rochester v. Jones, 4 N. Y. Bank of Gieen Bay v. Dearborn, 11 497 ; s. c. 55 Am. Dec. 290; Grove v. Mass. 219, 222 ; s. c. 15 Am. Rep. 92 ; Brien, 49 U. S. (8 How.) 429 ; bk. Prince u. B^^ston & L. R. R. Corp., 12, L. ed. 1142; Gibson v. Stevens, 101 Mass. 542 ; De Wolf v. Gardner, 49 U. S. (8 How.) 384 ; bk. 12, L. ed. 66 Mass. (12 Gush.) 19, 24; s. u. 59 1120; Anderson v. Clark, 2 Bing. 20; Am. Dec. 165; Allen v. Williams, 20 Haillie v. Smith, 1 Bos. & Pul. 563; Mass. (12 Pick.) 297, 301 ; Gardner Evans v. Nichol, 3 Man. & Gr. 614. V. Rowland, 19 Mass. (2 Pick.) 599 ; 532 CHAP, v.] OF SUBSEQUENT APPIiOPKIATION. *308 barrels out of the 530 barrels called for by the receipt. On that day, the 6th, Tempany, pressed by the importunity of the defendant, to whom he was largely indebted, gave to the defendant an order for both the boat-loads, addressed to Tempany's agent * in Dublin, and the latter ac- [*308] cepted the order and agreed to forward the cargoes to the defendant in London. The defendant obtained pos- session of the oats in Dublin, and the plaintiff demanded them from him, and brought action on his refusal to deliver them. The loading of the boat No. 54 was completed on the 9th of February. On these facts, after elaborate argument and time for advisement, Parke B. delivered the judgment of the Exchequer of Pleas, holding, that the property in the cargo No. 604 had vested in the plaintiff but not the cargo No. 54. In relation to the first cargo, the decision was on the ground that " the intention of the consignors was to vest the property in the consignee from the moment of delivery to the carrier, and the case resembles that of Haille v. Smith (1 B. & P. 563), where the bill of lading being transmitted for a valuable consideration, operated as a change of property instanter when the goods were shipped ; and it is also gov- erned by the same principle upon which I know that of Anderson v. Clark ^ was decided, where a bill of lading mak- ing the goods deliverable to a factor was upon proof from correspondence of the intention of the principal to vest the property in the factor as security for antecedent advances, held to give him a special property the instant the goods were delivered on board, so as to enable him to sue the mas- ter of the ship for their non-delivery." In relation to the cargo of No. 54, however, the ground was that there were no specific chattels appropriated to it. The reasoning on this part of the case is submitted in full, because it does not seem altogether reconcilable with the subsequent case of Aldridge V. Johnson, poBt^ so far as regards the 400 barrels that had actually been put on board, destined for the plaintiff, before Tempany was persuaded to give an order for them in favor of the defendant. The learned Baron said (p. 792) : " At 2 2 Bing. 20. 533 *309 EFFECT OF THE CONTRACT. [BOOK II. the time of the agreement, proved by the bill of lading or boat receipt of the 31st of January, to hold the 530 barrels therein mentioned for the plaintiffs, there were no such oats on board, and consequently no specific chattels which were held for them. The undertaking of the boat-master [*309] had * nothing to operate upon, and though Miles Tempany had prepared a quantity of oats to put on board, those oats still remained his property : he might have altered their destination and sold them to any one else : the master's receipt no more attached to them than to any other quantity of oats belonging to Tempany. If, indeed, after the 31st of January, these oats so prepared, or anj^ other like quantity, had been put on board to the amount of 530 barrels, ot: \e&s, for the purpose of fulfilling the cont)-act, and received hy the master as such^ before any new title to these oats had been acquired by a third person, we should probably have held that the property in these oats passed to the plaintiffs, and that the letter and receipt, though it did not operate as it purported to do, as an appropriation of any existing spe- cific chattels, at least operated as an executory agreement by Tempany and the master and the plaintiffs, that Tempany should put such a quantity of oats on board for the plaintiffs, and that when so put the master should hold them on their account; and when that agreement was fulfilled^ then, but not otherwise, they would become their property. But be- fore the complete quantity of 530 barrels was shipped, and when a small quantity of oats only were loaded,'^ and before any appropriation of oats to the plaintiffs had taken place, Tempany was induced to enter into a fresh engagement with the defendant, to put on board for him a full cargo for No. 64, by way of satisfaction for the debt due to him, for such is the effect of the delivery order of the 6tli, and the agreement with Walker of the same date, to send the boat receipt for the cargo of that vessel. Until the oats were appropriated 3 The reporter's statement, p. 778, partly loaded, the loading having be- is that on the 6th of February, when gun on the 1st of February, and defendant's agent first pressed Tern- about 400 barrels being then on pany for security, " boat 54 was still board." in the canal harbor at Longford, 534 CHAP, v.] OF SUBSEQUENT APPEOPRIATION. *310 by some new act, both contracts were executory : on the 9th this appropriation took piace by the boat receipt for the 530 barrels then on board, which was signed by the master, at the request of Tempany, whereby the master was constituted the agent of the defendent to hold these goods ; and this was the first act by which these oats * Avere spe- [*310] cifically appropriated to any one. The master might have insisted on Tempany's putting on board oats to the amount of the first bill of lading, on account of the plaintiffs, but he did not do so." § 415. The difiiculty felt in receiving this decision as sat- isfactory, arises chiefly from the difference between the facts as stated by the reporter and found by the jury, and the facts as assumed in the opinion of the Court. The trial at Nisi Prius was before Williams J., who told the jury to con- sider, as regards the cargo of No. 54, "whether, although the loading was not complete, the oats to be put on board were designated and appropriated to the plaintiff, as if they were, he was of opinion that they were entitled to recover that cargo also." The jury found for the plaintiff, finding also, as a fact, " that at the time the receipts were given, the cargo for boat 54 was specially designated, although the loading was not complete." But in the opinion of Parke B. the quantity loaded at the time when Tempany assumed the power of diverting it to a new consignee, is treated as a trifle, " only a small quantity," instead of about three-fourths of the whole, as stated by the reporter, and no notice is taken of the ruling of Williams J. or the finding of the jury, although in some earlier passages of the opinion it is expressly stated to be the law that " if the intention of the parties to pass the property, whether absolute or special, in certain ascertained chattels is established, and they are placed in the hands of a depositary, no matter whether such depositary be a common carrier, or ship-master, emploi/ed by the consignor or a third person, and the chattels are so placed on account of the person who is to have that property, and the depositary assents, it is enough ; and it matters not by what documents this is effected : nor is it material whether 535 *311 EFFECT OF THE CONTKACT. [BOOK II. the person who is to have the property be a factor or not, for such an agreement may be made with a factor as well as any other individual." The Court, however, drew the legal inference, notwithstanding the verdict of the jury, that the oats which had been prepared for shipment on No. 54, for which the master had given a receipt in advance [*311] agreeing to deliver them to the * plaintiff's agent, and of which about three-fourths had actually been put on board before the defendant made his apjDcarance in Longford, were not received on account of the j?lai7itiff, and had 'not been a2}propriated to the plaintiff in whole or in part. In the case of Aldridge v. Johnson,^ as will presently be seen, it was held that where the vendor had filled 155 out of 200 sacks of grain for the vendee, in the vendor's own ware- house, and then emptied them again into the bulk, his elec- tion was determined as soon as he had filled each sack, and that the property had passed so far as regarded the 155 sacks. But it is remarkable that in Bryans v. Nix there is no suggestion, in the argument or in the decision, that there was any difference in the consignees' rights to the 400 bar- rels already loaded into the boat and the residue which had not been received by the master in fulfilment of the agree- ment that he was to deliver them to the plaintiff's agent in Dublin : nor was Bryans v. Nix quoted or referred to in Aldridge v. .Johnson. § 416. In Godts v. Rose,i in 1854, there was a conditional appropriation, which was held not to pass the property, be- cause the vendee had not complied with the condition. The sale was of five tons of oil, " to be free delivered and paid for in fourteen days." The plaintiff, who was the vendor, sent to his wharfinger an order to transfer eleven specified pipes to the purchaser, and took the wharfinger's acknowl- edgment, addressed to the buyer, that these eleven pipes were transferred to the buyer's name. The plaintiff then sent this acknowledgment to the buyer, by a clerk, who also took an invoice of the oils, and asked for a cheque in pay- ' 7 E. & B. 875. and 26 L. J. Q. B. ^ 17 C. B. 229, and 25 L. J. C. P. 200. 61. 636 CHAP. V.J OF SUBSEQUENT APPEOPEIATION. *312 ment. This was refused, on the ground that payment was only to be made in fourteen days. The clerk then de- manded that the wharfinger's acknowledgment should be returned to him, and this was refused. The buyer then sent immediately to the wharfinger, and got possession of part of the oil, but before the delivery of the rest, the vendor countermanded his order on the wharfinger. The * latter, however, thinking that the property [*312] had passed, delivered the whole to the purchaser, against whom the action was then brought in trover. All the judges were of opinion that the property had not passed, because the order for its transfer was conditional on pay- ment, the jury having found as a fact that the plaintiff's clerk did not intend to part with the oil or the transfer order without the cheque, and that he said so at the time. § 417. Aldridge v. Johnson ^ was decided by the Queen's Bench, in 1857. The plaintiii agreed to take from one Knight one hundred quarters of barley, out of the bulk in Knight's granary, at 21. 3s. a quarter, in exchange for thirty- two bullocks, at Ql. apiece. The difference to be paid to Knight in cash. The bullocks were delivered. The plaintiff was to send his own sacks, which Knight was to fill, to take to the railway for conveyance to the plaintiff, and to place upon trucks free of charge. Each quarter of barley would fill two sacks, and the plaintiff sent two hundred sacks to be filled, some of them with his name marked on them. Knight filled one hundred and fifty-five of the sacks, leaving in the bulk more than enough to fill the other forty-five sacks, but could not succeed, upon application at the railway, in obtain- ing trucks for conveying them. The plaintiff afterwards complained to Knight of the delay, and was assured that the barley would be put on the rail that day, but this was not done ; and Knight finding himself on the eve of bankruptcy, emptied the barley out of the sacks into the bulk again, so as to make it undistinguishable.^ The action was detinue 1 7 E. & B. 885, and 26 L. J. Q. B. In a case where sheep were purchased 296. by an oral contract, and were sepa- 2 Cammingling of goods after sale. — rated from the vendor's flock, the 537 *313 EFFECT OF THE CONTRACT. [BOOK IL and trover, against the assignees of Knight for the barley and the sacks. Meld, that the property in the barley, in the one hundred and fifty-five sacks, had passed, but not in the barley -which had not been filled into the other forty-five sacks. Campbell C. J. said : " As soon as each sack was filled with barley, eo histanti the property in the barley in the sacks vested in plaintiff. I conceive there was here an a priori assent ; not only was there a sale of barley, but it was a sale of part of a specific bulk, which the plain- [*313] tiff had * seen, and he sends the sacks to be filled out of that bulk, and out of that only could the vendee's sacks be filled. No subsequent assent was neces- sary, if the sacks were properly filled." His Lordship then showed that there was also a subsequent assent, and added : " Nothing whatever remained to be done by the vendor, for he had actually appropriated a portion of the bulk to the vendee." Erie J. said : " Sometimes the right of ascertain- ment rests with the vendee, sometimes solely with the vendor. In the present case the election rested with KjiigJit alone : he had to fill the sacks, which were to be sent to purchaser's mark put upon them, and meagre or equivocal, and the real the sheep placed in a separate in- intention of the parties at the time closure, but no part of the purchase cannot therefore be ascertained, in money was paid, and no further acts such case it is always a question of were done, and a short time after- fact for the jury under proper in- wards they were turned again with structions, and must be submitted to the flock, it was held that there was them, unless it is plain that as a not a sufficient delivery of the sheep matter of law the evidence will jus- to take the sale out of the Statute of tify a verdict but one way. Mer- Frauds. Eappleye v. Adee, 1 T. & C. chants' Nat. Bank v. Bangs, 102 (N. Y.) 126. See Groff v. Belche, 02 Mass. 291, 205. See Stevens v. Bos- Mo. 400 ; Kauf mann v. Schilling, 58 ton & W. R. R. Corp., 71 Mass. (8 Mo. 218; Ropes v. Lane, 91 Mass. Gray) 262; Coggill !>. Hartford & N. (9 Allen) 509; Ryder v. Hathaway, H. R. E. Co., 69 Mass. (3 Gray) 545; 38 Mass. (21 Pick.) .305; Mason v. Stanton u. Eager, 3.3 Mass. (16 Pick.) Thompson, 35 Mass. (18 Pick.) 305; 473; Allen v. Williams, 20 Mass. (12 Inglebright t-. Hammond, 19 Ohio, Pick.) 297; Moakes v. Nicolson, 19 337; Henderson v. Lauck, 21 Pa. St. C. B. (N. S.) 290; Godts v. Rose, 17 359; Bond o. Greenwald, 4 Heisk. C. B. 229; Tregelles v. SewcU, 7 (Tenn.) 453; Butters v. Stanley, 21 Hurls. & N. 574. See, also, Leney v. Up. Can. C. P. 402. Taplin, 21 L, T. N. S. 204, 207; Mar- Approjjriution. — The question of shall v. Jamieson, 42 Up. Can. Q. B. appropriation is practicably difficult 115, 119. to ascertain, when the evidence is 538 CHAP, v.] OP SUBSEQUENT APPROPRIATION. *314 him for that purpose by the vendee, and as soon as he had done an outward act, indicating his election, viz., by filling the sacks, and directing them to be sent to the railway, the property passed^ The decision in Aldridge v. Johnson was followed by the Exchequer of Pleas, in 1857, in Langton v. Higgins^ (^ante, p. 275). § 418. In 1863, Campbell v. The Mersey Docks i was decided in the Common Pleas. A cargo of cotton, ex Bos- phorus, consisting of five hundred bales, arrived in the defendants' docks in September, 1862. The plaintiff was the broker for them, and had himself bought two hundred and fifty bales, and sold the remainder to other parties. All had one mark, but the numbers were only affixed by the defendants when the bales were landed and weighed. On the 13th of September, a certificate or warehouse warrant was sent to the plaintiff for two hundred and fifty bales, " numbered from 1 to 250, entered by J. P. Campbell, on the 10th of September, 1862 ; rent payable from the 15th of Sep- tember." The plaintiff thereupon paid for the two hundred and fifty bales, getting the warrant endorsed to him with a delivery order, "for the above-mentioned goods," dated the 15th of September. On the 7th of October, the plaintiff re- sold the cotton, and sent the warrant, endorsed by him, with a delivery order for the cotton therein mentioned. The buyer repudiated the contract, on the ground that the cotton was not equal to the * samples. The [*314] plaintiff then demanded back the warrant, and was told by the defendants, for the first time, that two hundred of the bales, numbered from 1 to 250, had been inadvertently delivered on the 11th and 13th of September to other per- sons. They offered him a fresh warrant for other numbers. He declined, and brought suit for the value of the two hun- dred and fifty bales. On the trial, the defendants insisted that the appropriation by the company, of the two hundred and fifty bales, out of the larger number, was not sufficient 3 4 H. & N. 402, and 28 L. J. Ex. 252. 1 14 C. B. N. S. 412. 539 *315 EFFECT OF THE CONTEACT. [BOOK II. to vest the property in those specific bales in the plaintiff, without his assent, and Keating J. sustained this view. One of the jury then asked his Lordship if the plaintiff's indorse- ment of the warrant (on the re-sale) did not amount to such assent, and the learned judge said, it was not conclusive, but that it was open to the company to show that the appropria- tion was a mistake on the part of one of their clerks. The verdict was for the defendants, and the Court refused to order a new trial. Erie C. J. said : " There certainly was some evidence of appropriation, and the question left to the jury upon that was, whether the evidence of that appropria- tion did not arise from a mistake on the part of the com- pany's clerk. The learned judge is not dissatisfied with the finding of the jury upon that question." Willes J. also said : " The real question was whether the appropriation of Nos. 1 to 250 was not a mistake. The jury found that it was. No property in the goods, therefore, ever vested in the plaintiff." But both the learned judges eKpressed an extra- judicial opinion upon a point, confessedly " not material," to which attention must be directed. Erie J. said : " It has been established by a long series of cases, of which it will be enough to refer to Hanson v. Meyer, 6 East, 614 ; Rugg v. Minett, 11 East, 210; and Rohde v. Thwaites, 6 B. & C. 688, that the purchaser of an unascertained portion of a larger bulk acquires no property in auij part until there has been a sejyaration and an appropriation assented to both hy vendor and vendee. Nothing passes until there has been an assent, express or implied, on the part of the vendee.'''' [*315] Willes .1. assented to tlris statement * of the law, and said : " Perhaps the case of Godts v. Rose, 17 C. B. 229, is even more in point to show that there must not only be an appropriation, but an appropriation assented to by the vendee. The assent of the vendee may be given prior to the appropriation by the vendor ; it may be either express or implied, and it may be given by an agent of the party, by the warehouseman or wharfinger, for instance." Care must be taken not to misconceive the true sense of these dicta. They do not mean that a subsequent assent by the buyer to the appropriation made by the vender is neces- 540 CHAP, v.] or StrBSBQTJENT APPEOPKIATION. *316 sary. Willes J. states this plainly, and Erie J. says that there must be an assent of the vendee express or implied. This assent is implied, as shown by the language of Erie J. himself in Aldridge v. Johnsan, and in several of the cases already quoted, where by the terms of the contract the vendor is vested with an implied authority to select the goods, and has determined an election by doing some act which the contract obliged him to do, and which he could not do till an appropriation was made. That this is the real signification of these dicta is also fully shown in the strongly contested case of Brown v. Hare,^ in which the unanimous decision of the Exchequer Chamber was likewise delivered by Erie J. §' 419. In this case the defendant, at Bristol, bought from the plaintiffs, merchants at Rotterdam, through their broker, residing at Bristol, " 20 tons of best oil, at 47s." The plain- tiffs wrote to the broker on the 19th of April that they had secured ten tons for the defendant, deliverable in September, and the defendant wrote back " send them by next steamer." The oil was to be shipped " free on board." On the 7th of September the plaintiffs from Rotterdam wrote to the broker to inform the defendant, which he did, that they had shipped "five tons of rape oil for defendant," and on the 8th they forwarded the invoices and bill of lading. The bill of lading was for delivery to the plaintiffs' " order or assigns," and was endorsed by them on the 8th of September, "Deliver the * goods to the order of Hare & Co." [*316] (the defendants). The invoices specified the casks by marks and numbers ; and the bill of lading also identified them in the same way. The letter to the broker containing the invoices and bill of lading thus endorsed reached him on the 10th, after business hours, and on the 11th he sent them to the defendant. The ship was actually lost before the documents were received by the broker, and he knew it, but the defendant did not hear of the loss till about two hours after receiving the bill of lading, and he then imme- 2 3 H. & N. 484, and 27 L. J. Ex. 372 ; afterwards in Ex. Ch. 4 H. & N. 822, and 29 L. J. Ex. 6. 541 *316 EFFECT OF THE CONTEACT. [BOOK II. diately returned it to the broker. Bramwell B. dissented from the majority of the Court, thinking that there had been no appropriation to pass the property, but Pollock C. B. de- livered the judgment, holding that the property had passed, and that the buyer must bear the loss ; on the ground, first, that the contract to deliver " free on the board " meant that it was to be for account of the defendant as soon as de- livered on board ; ^ secondly, that taking the bill of lading to the shippers' own order, and then endorsing it to the defendant, was precisely the same in effect as taking the bill of lading to the order of the defendant; thirdly, that the bill of lading hav- ing been forwarded to the broker only that he might get the defendant's acceptance on handing it over, as provided in the contract, this did not prevent the property from passing, the goods represented by the bill of lading being in the same legal state as if in a warehouse, subject to the purchaser's order, but not to be taken by him without payment of the price. § 420. In error to Exchequer Chamber, this judgment was unanimously affirmed, the Court consisting of Erie, Wil- liams, Crompton, Crowder, and Willes, JJ. Erie J. in giv- ing the opinion, said, that — " The contract was for the pur- chase of unascertained goods, and the question has been, when the property passed. For the answer the contract ''■ Delivery "free on board." — Where afterwards separated from the bulk, the contract is for delivery " free on See Bloxam v. Sanders, 4 Barn. & board" of a vessel, or the cars, the Cres. 941; Butters v. Stanley, 21 Up. title, and consequently the risk. Can. C. P. 402 ; Coleman u. McDer- passes by such delivery of goods, mott, 5 Up. Can. C. P. 313 ; Marshall originally unascertained, notwith- v. Jamieson, 42 Up. Can. Q. B. 118 ; standing the fact, the bill of lading Clark v. Rose, 29 Up. Can. Q. B. to be taken to the consignor's order 168, .302 ; George v. Glass, 14 Up. and then indorsed over to his agent. Can. Q. B. 514 ; Rowland v. Brown, Browne r. Hare, .'l Hurls. & N. 484; 13 Up. Can. Q. B. 199; Wilmot v. s. c. 4 Hurls. & N. 822; Langd. Lead. Wadsworth, 10 Up. Can. Q. B. 604. Cas. on Sales, 976, 989. Where the But see Brandt v. Bowlby, 2 Barn, contract is for delivery "free on & Ad. 932; Ruck i'. Hatfield, 5 Barn, board," payment to be made " cash & Aid. 632 ; Godts v. Rose, 17 C. B. on delivery," such delivery is not a 229 ; Wait v. Baker, 2 Ex. 1 ; Craven condition precedent to the passing of v. Ryder, 6 Taunt. 434 ; s. c. 2 Marsh. the title, although the goods at the 127; Shepherd u. Harrison, L. R. 5 time were not specified, but were to be H. & L. 116. 542 CHAP. V.J OF SUBSEQUENT APPBOPEIATION. *317 must be resorted to, and under that we think the property passed when the goods were placed free on hoard in perform- ance of the contract. In this class of contracts the property may depend, according to the contract, either on mutual consent of both parties, or on the act of the vendor communicated * to the purchaser, or on the act of the [*317] vendor alone. If the bill of lading had made the goods to be delivered ' to the order of the consignee,' the passing of the property would be clear. The bill of lading made them ' to be delivered to the order of the consignor,' and he indorsed it to the order of the consignee, and sent it to his agent for the consignee. Thus, the real question has been on the intention with which the bill of lading was taken in this form, whether the consignor shipped the goods in performance of his contract to place them free on board, or for the purpose of retaining control over them and continu- ing owner contrary to the contract. The question was one of fact, and must be taken to have been disposed of at the trial ; the only question before the Court below or before us being, whether the mode of taking the bill of lading neces- sarily prevented the property from passing. In our opinion, it did not, under the circumstances." ^ § 421. In Tregelles v. Sewell,i in -1863, both buyer and seller were residents of London, and the contract was made there. The purchaser bought " 300 tons Old Bridge rails, at bl. 14s. Qd. per ton delivered at Harburg, cost, freight, and insurance : payment by net cash in London, less freight, upon handing bill of lading and policy of insurance. A dock company's weight note, or captain's signature for weight, to be taken by buyers as a voucher for the quantity shipped." Held, by all the judges in the Exchequer, and afterwards in the Ex. Ch., that by the true construction of this sale the seller was not bound to make delivery of the 1 And see Ogg v. Shuter, as re- ject, Ogg v. Shuter, L. R. 10 C. P. ported in the Court of Common Pleas, 159 ; s. c. reversed on appeal L. R. 1 L. R. 10 C. P. 159. The decision C. P. Div. 47; Browne v. Hare, 3 was reversed on appeal, 1 C. P. 15. Hurls. & N. 484 ; s. c. 4 Hurls. & N. 47, C. A., and is fully considered, 822 ; 27 L. J. Ex. 372 ; 29 L. J. Ex. 6. post, p. 347. See further on this sub- i 7 H. & N. 571. 543 *318 EFFECT OF THE CONTRACT. [BOOK IL goods at Harburg, but only to ship them for Harburg at his own cost, free of any charge against the purchaser, and that the property passed as soon as the seller handed the bill of lading and policy of insurance to the purchaser. § 422. The difficulty that sometimes exists in construing contracts involving the subject now under consideration, could hardly be illustrated by a more striking ex- [*318] ample than * the recent case of The Calcutta Com- pany V. De Mattos,! argued by very eminent counsel in the Queen's Bench in Michaelmas Term, 18G2, and held under advisement till the 4th of July, 1863, when the judges were equally divided in opinion ; Cockburn C. J. and Wight- man J. differing from Blackburn and Mellor JJ. When the cause was heard in error in the Excheqiier Chamber,^ the diversity of opinion was still more marked, for while three judges (Erie C. J., Willes J., and Channell B.) con- curred in opinion with Blackburn and Mellor JJ., and one judge (Williams J.) agreed with Cockburn C. J. and Wight- man J., two other judges (Martin and Pigot BB.) differed from both. § 423. The facts were these. On the 1st of May, 1860, defendant wrote to the company, proposing to supply them with " 1000 tons of any of the first-class steam-coals on the Admiralty list, at my option, delivered over the ship's side at Rangoon at 45s. per ton of 20 cwt., the same to be shipped within three months of the date of acceptance of this offer. Payment of one-half of each invoice value in cash, on hand- ing you bills of lading and policy of insurance to cover the amount, and balance by like payment on delivery," &c., &c. The reply of the 4th of May accepted the tender with the following modifications and additions : " The selection of the particular description to be at the company's option . . . half the quantity, say not less than 500 tons, to be shipped not later than 10th June prox., and the remainder in all that month . . . payment one half of each invoice value by bill at three months on handing bills of lading and policy 1 32 L. J. Q. B. 322. 2 33 L. J. Q. B. 214, in Ex. Ch. 544 CHAP, v.] OF. SUBSEQUENT APPEOPEIATION. *319 of insurance to cover the amount, or in cash under discount at the rate of 51. per centum per annum, at your option, and the balance in cash at the current rate of exchange at Ran- goon." The contract was closed upon these conditions, and defendant in performance of it chartered the ship Waban for Rangoon, the company being no party to the charter, and loaded her with 1166 tons of coal, taking a bill of lading which expressed that the coal was * shipped [*319] by him, and was to be delivered at Rangoon to the agent of the company or to his assigns, freight to be paid by the charterer as per charter-party. The charter-party stipulated that the freight was " to be paid in London on unloading and right delivery of the cargo at 40s. per ton on the quantity delivered . . . one quarter by freighter's acceptance at three months, and one quarter by like accept- ance at six months from the final sailing of the vessel from her last port in the United Kingdom, the same to be re- turned if the cargo be not delivered at the port of destina- tion ; and the remainder, by a bill at three months from the date of the delivery at the freighter's office in London of the certificate of the right delivery of the cargo." The defendant also effected insurance for 1400L and handed the bill of lading and policy to the company, in pur- suance of the contract, together with the letter: "5th of July, 1860. Herewith I hand you Ocean Marine policy for 1400Z. for this ship, as collateral security against the amount payable by you on account of the invoice order, say 1311L 15s., receipt of which please own." The answer acknowl- edged the receipt of the policy "to be held as collateral security for the payment to you of 1311Z. 15s. on account of the invoice of that shipment." The invoice value of the coals was 2623Z. 10s., of which the company paid half to defendant on the 5th of July, and the vessel sailed on the 8th, but never arrived at her desti- nation, nor were the coals delivered in conformity with the contract. § 424. On these facts it became necessary to decide what was the effect of the contract on the property in the goods, 545 *320 EFFECT OF THE CONTRACT. [BOOK II. and the right to the price from the time of the handing over the shipping documents and paying half the invoice value. The opinion of Blackburn J. was the basis of the final judgment, and was approved by the majority of the judges. It is so instructive on the whole subject, as to justify copi- ous extracts. The learned judge said : " There is no rule of law to prevent the parties in cases like the present from making whatever bargain they please. If they use [*320] * words in the contract showing that they intend that the goods shall be shipped by the person who is to supply them on the terms that when shipped they shall be the consignee's property and at his risk, so that the vendor shall be paid for them whether delivered at the port of desti- nation or not, this intention is effectual. Such is the com- mon case where goods are ordered to be sent by a carrier to a port of destination. The vendor's duty is in such cases at an end when he has delivered the goods to the carrier, and if the goods perish in the carrier's hands, the vendor is dis- charged and the purchaser is bound to pay him the price. See Dunlop v. Lambert (6 CI. & Fin. 600). If the parties intend that the vendor shall not merely deliver the goods to the carrier, but also undertake that they shall actually be delivered at their destination, and express such intention, this also is effectual. In such a case, if the goods perish in the hands of the carrier, the vendor is not only not entitled to the price, but he is liable for whatever damage may have been sustained by the purchaser in consequence of the breach of the vendor's contract to deliver at the place of destination. See Dunlop v. Lambert. But the parties may intend an intermediate state of things ; they may intend that the vendor shall deliver the goods to the carrier, and that when he has done so he shall have fulfilled his undertaking, so that he shall not be liable in damages for a breach of con- tract, if the goods do not reach their destination, and yet they may intend that the whole or part of the price shall not be payable unless the goods do arrive. They may bargain that the property shall vest in the purchaser as owner as soon as the goods are shipped, that then they shall be both 546 CHAP, v.] OF SUBSEQUENT APPKOPKIATION. *321 sold and delivered, and yet that the price (in whole or in part) shall be payable only on the contingency of the goods arriving, just as they might, if they pleased, contract that the price should not be payable unless a particular tree fell, but vi^ithout any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall." Referring to the terms of the contract under consideration, the learned judge proceeded to remark : "It is clear that the coals are to be shipped in * this country, on board a vessel to be engaged by [*321] De Mattos, to be insured, and the policy of insur- ance and the bill of lading and invoice to be handed over to the company. As soon as Mattos, in pursuance of these stipulations, gave the company the policy and bill of lading, he irrevocably appropriated to this contract the goods which were thus shipped, insured, and put under the control of the company. After this he could never have been required nor would he have had the right to ship another cargo for the company ; so that from that time, what had originally been an agreement to supply any coals answering the description, became an agreement relating to those coals only, just as much as if the coals had been specified from the first. . . . In construing this contract, the primd facie con- struction is that the parties intended that the property in the coals vested in the company, and the right to the price in De Mattos, as soon as it came to relate to specific ascertained goods, that is, on the handing over of the documents, and the inquiry must be whether there is any sufficient indication in the contract of a contrary intention. As to one-half of the price, the intention that it should only be paid ' on comple- tion of the delivery at Rangoon,' seems to me as clearly de- clared as words could possibly declare it, and consequently I think as to that half of the price no right vested in De Mattos unless and until there was a complete delivery at Rangoon. But consistently with this there might be an in- tention that there should be a complete vesting of the prop- erty in the goods in the company, and a complete vesting of the right to the half of the price in De Mattos, so as in effect to make the goods be at the risk of the company, though 547 *322 EFFECT OF THE CONTRACT. [BOOK 11. half the price was at the risk of De Mattos ; so that the goods were sold and delivered, though the payment of half the price was contingent on the delivery at Rangoon, and this I think is the true legal construction of the contract." Wightman J. was of opinion that on the true construc- tion of the contract, tlie whole cargo remained the property of the vendor, and at his risk : that he was bound to deliver the whole at Rangoon, and that the transfer of the policy and hill of lading to the company was a security to pro- [*322] tect the company * in recovering back their advance of one half the price in the event of De Mattos's failure to make delivery at Rangoon. Cockburn C. J. thought that the property in the coals passed to the company, subject to the vendor's lien, for the payment of the price ; that the coals, when shipped, were specifically appropriated to the company, and that by the transfer of the bill of lading they obtained dominion of the cargo, and could have disposed of it at their pleasure. But that De Mattos remained bound to make delivery in Ragoon, and by breach of that contract was bound to return the half of the price already paid, and to lose his claim for the remainder. In the Exchequer Chamber, Erie C. J. expressed his con- currence with the opinion of Blackburn J. as to the true meaning and effect of the contract, and Willes J. and Chan- nell B. did the same. Williams J. merely expressed his assent to the views of Cockburn C. J. Martin B. gave his view of the true intention of the par- ties, without declaring whether and when, if at all, the property passed, but remarked : " I cannot say that I agree with my brother Blackburn's judgment:" and Piggott I!. expressed his concurrence with the interpretation of the contract by Martin B. § 425. In Jenner v. Smith,i where the sale was made by sample, and was of two pockets of hops out of three that were lying at a specified warehouse, the vendor instructed the warehouseman to set apart two out of the thi'ee pockets 1 L. R. 4 c. P. 270. 548 CHAP, v.] OF SUBSEQUENT APPKOPEIATION. *323 for the purchaser, and the warehouseman thereupon placed on two of them a " wait-order card," that is a card on which was written, " to wait orders," and the name of the vendee : but no alteration was made in the warehouseman's books, and the vendor remained liable for the storage. The vendor then sent an invoice with the numbers and weights to the buyer of these two pockets, with a note at the foot, " The two pockets are lying to your order." Held, that the prop- erty had not passed, because the buyer had not made the vendor his agent for appropriating the goods to the contract, * nor abandoned his right of comparing the [*323] bulk with the sample, or of verifying the weight. There was neither previous authority nor subsequent assent to the appropriation. In Ex parte Pearson,^ the purchaser had ordered and paid for the goods, and the company loaded the goods on a rail- way to his address, and sent him the invoice after the pre- sentation of a petition for winding up the company, but hefore order made, and it was held that the property had passed to the purchaser and could not be taken by the offi- cial liquidator as assets of the company. § 426. Before leaving this branch of the subject, it is well to notice that the property does not pass even when the vendor has the power to elect, unless he exercise it in con- formity with the contract. He cannot send a larger quan- tity of goods than those ordered, and throw the selection on the purchaser.^ Thus in Cunliffe v. Harrison,^ it was held 2 3 Ch. 443. 844) ; and should he accept, he will 1 Sending larger quantity than or- be liable to pay only for that which dered. — Where more goods are sent he ordered. It is held in Iron Cliff than were ordered the purchaser may Co. v. Buhl, 42 Mich. 86, that where repudiate the whole contract (Rommel ore is piled at the point of delivery V. Wingate, 103 Mass. 327 ; Clark v. in a mass larger than was contracted Baker, 52 Mass. (11 Mete.) 186; s. c. for, and nothing remained to be done 45 Am. Dec. 199 ; Corninger «. Crocker, other than to take the contract quan- 62 N. Y. 151 ; Downer v. Thompson, tity from the pile, this will constitute 2 Hill (N. Y.) 137 ; Levy v. Green, 1 a suflScient delivery. See further on EI. & El. 969; s. i;. 27 L. J. Q. B. this subject, Smith v. Eriend, 15 Cal. Ill ; Cunliffe w. Harrison, 6 Ex. 903 ; 124 ; Bean v. Howe, 85 Pa. St. 260 ; Isherwood u. Whitmore, 11 Mees. & Hutchinson c. Commonwealth, 82 Pa. W. 347 ; Langd. Lead. Cas. on Sales, 472. It was held In Eaton v. Gay, 44 549 *324 EFFECT OF THE CONTRACT. [BOOK II. that where an order was given for ten hogsheads of claret, and the vendor sent fifteen, the action for goods sold and delivered would not lie against the purchaser (who refused to keep any of the hogsheads), on the ground that no spe- cific hogsheads had been appropriated to the contract, and thus no property had passed. And in Levy v. Green,^ the goods sent in excess of those ordered were articles entirely different, but packed in the same crate : the order being for certain earthenware teapots, dishes, and jugs, to which the plaintiff had added other earthenware articles of various patterns not ordered. In the Court below,* there was an equal division of the judges. Lord Campbell and Wight- man J. holding that the defendant had a right to reject the whole on account of the articles sent in excess, and Cole- ridge and Erie JJ. being of a different opinion ; but in the Exchequer Chamber, Martin, Bramwell, and Watson, BB., and Willes and Byles JJ., were unanimous in holding with Lord Campbell, and Wightman J., that the property [*324] had * not passed, and that the purchaser had the right to reject the whole .^ § 427. [In Gath v. Lees,^ the defendants agreed to buy from the plaintiff cotton "to be delivered at seller's option in August or September, 1864, payment within ten days from date of invoice." The plaintiff afterwards gave notice to the defendants that the cotton was ready for delivery on a certain day in August, and that the invoice would be dated Mich. 431 ; =. c. 38 Am. Hep. 276, 319 ; Tarling v. O'Eiordan, 2 L. R. Ir. that where a man orders a club sup- 82, C. A. per, and agrees on the bill of fare ^ 27 L. J. Q. B. 111. and the price for each guest, he has ^ Election by vendor. — The election a right to expect that the printed bill by the vendor must correspond with of fare will be limited accordingly, the contract, or there can be no per- and he is not liable for any extras feet sale and no binding appropriation that may be called for or supplied to of specific goods to the contract, 2 the guests, and that he is not bound Schouler on Pers. Prop. sec. 263. See, to give any notice that he will not be also, Rommel v. Wingate, 103 Mass. liable. 327 ; Hill u. Heller, 27 Hun (N. Y.) 2 6 Ex. 903. See, also. Hart u. 416 ; Barrowman v. Free, L. K. 4 Q. Mills, 15 M. & W. 85, and Dixon u. B. Div. 500 ; Tarling v. O'Riordan, 2 Fletcher, 3 M. & "W. 145. L. R. Ir. 82 ; Shannon v. Barlow, 9 3 1 E. & E. 969, and 28 L. J. Q. B. Jr. Jur. N. S. 229. 1 3 H. & C. 558. 550 CHAP. V.J OF SUBSEQUENT APPROPRIATION. *324 from that day. And it was held that the plaintiff, having exercised his option, was bound to deliver the cotton in August; and that the non-delivery in that month was a good equitable defence to an action against the defendant for not accepting the cotton. Martin B. saying during the course of the argument : — " The seller could not give two notices. When the notice was given, the buyer was hound to he ready with the money, which he might have had difficulty in getting ; then is the seller to say, ' I will not deliver the cotton according to my notice, but will put you off until next month.' " ^ § 428. But an appropriation and tender of goods, not in accordance with the contract, and in consequence rejected by the purchaser, does not prevent the vendor from after- wards, within the time limited for so doing, appropriating and tendering other goods which are in accordance with the contract. This was decided in Borrowman v. Free,^ where the plain- tiffs, being bound by contract to tender a cargo of maize to the defendants, tendered a cargo which was rejected by the defendants, as not being in accordance with the contract, and afterwards and within the time limited for so doing the plaintiffs tendered a cargo which was in accordance with the contract, and it was held, that this second tender was good, and that the defendants were bound to accept it. Grath V. Lees was distinguished upon the grounds that there the seller's option was exercised in a proper manner, and that the purchasers, acting upon the vendor's notice, 2 Where plaintiff delivered wheat structed that the contract was not a to the proprietor of an elevator, re- bailment unless the bailor retained ceiving a plain receipt therefor, and from the beginning the right to elect afterwards the proprietor became in- whether he would demand the re- solvent and plaintiff thereupon ten- delivery of his property or other of dered storage and insurance, and like quality and grade, but if he sur- made demand, held, in an action of rendered to the other the right of replevin, that parol evidence was ad- election, it would be considered a sale, missible to show whether the contract with the option on the part of pur- was intended as a sale or bailment. chaser to pay either in money or And evidence was properly submitted property. Lyon v. Lenon, 106 Ind. to the jury of the usage of the 567 ; s. c. 4 West. Rep. 461. business, and they were properly in- ^ 4 Q. B. D. 500, C. A. 561 *325 EFFECT OF THE CONTEACT. , [BOOK II. had altered their position for the worse. Brett L. J. ob- serves,^ "I have only to add that a different rule [*325] might * have been applied if the defendants had ac- cepted the cargo of the Charles Piatt (the cargo which had been first tendered). It is possible that the tender of the plaintiffs could not in that case have been withdrawn. I wish it, however, to be understood that this is a point upon which I express no opinion."] § 429. The decisions as to subsequent appropriation in cases where the agreement was for the delivery of a chattel to be manufactured begin with Mucklow v. Mangles, ^ in 1803. Pocock ordered a barge from one Rojdand, a barge- builder, and advanced him some money on account, and paid more as the work proceeded, to the whole value of the barge. When nearly finished, Pocock's name was painted on the stern, but by whom and under what circumstances is not stated in the report. The barge was finished and seized on execution against Royland two days afterwards, but before he had delivered it up to Pocock, and the sheriff's officer delivered it to Pocock under an indemnity. Royland had committed an act of bankruptcy before the barge was fin- ished, and the action was trover by his assignees against the sheriff's officer. Held, that the property had not passed. Heath J. saying : " A tradesman often finishes goods which he is making in pursuance of an order given by one person, and sells them to another. If the first customer has other goods made for him within the stipulated time, he has no right to complain ; he could not bring trover against the purchaser of the goods so sold." § 430. In Bishop v. Crawshay,i it was held by the Queen's Bench, in 1824, that no property passed to the defendant in goods which he had ordered from a manufacturer in the country, and on account of which he had accepted a bill of exchange for 400L The manufacturer had received the or- der on the 26th of January, had committed an act of bank- 2 At page 505. i 3 B. & C. 415. 1 1 Taunt. 348. 552 CHAP, v.] OF SUBSEQUENT APPKOPEIATION. *326 ruptcy, not known to the defendant on the 5th of February, and on the 6th drew the above mentioned bill of exchange. On the 8th the goods were completed and loaded on barges to be forwarded to the defendant, and on the 15th a com- mission issued against the bankrupt, by whose as- signees the * action of trover was brought. Hoi- [*326] royd J. said : " The goods were made, but until the money paid was appropriated to these particular goods the defendant could not have maintained trover for them, if they had been even sold to another person." ^ § 431. In Atkinson v. Bell,^ already fully explained (ante, p. 92), the purchaser had ordered the machines ; they had been made and packed under his agent's superintendence, and the boxes made ready to be sent, and the vendor had written to ask the purchaser by what conveyance they were to be sent, but had received no answer, when he became bankrupt. His assignees then brought an action against the purchaser (who refused to take the goods) for goods bar- ^ Appropriation of seller. — It is sometimes difficult to determine when appropriation is completed in those cases where the subsequent acts of appropriation are to be performed by the seller and not by the buyer. 2 Schouler on Pers. Prop. sec. 260. It is a general doctrine that where the vendor is to make the appropria- tion, the title vests and the sale is completed as soon as the act is done by him identifying the property. Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295 ; Dunning v. Gordon, 4 Up. Can. Q. B. 399. And it is also held that discounting bills of exchange attached to bills of lading that this will constitute an appropriation of the goods mentioned in the bills of lad- ing. Bondurant v. Owens, 4 Bush (Ky.) 662 ; Holmes v. Bailey, 92 Pa. St. 57 ; Holmes v. German Security Bank, 87 Pa. St. 525 ; First Nat. Bank of Mempliis v. Pettit, 9 Heisk. (Tenn.) 447 ; First Nat. Bank «. Bensley, 9 Biss. C. C. 378. ' 8 B. & C. 277. Contract for the construction of an article. — Where the plaintiil in per- formance of an agreement with the defendant, furnished materials and constructed a carriage in accordance with his direction, for which a stipu- lated price was to be paid, and the defendant refused to receive and pay for it when completed and tendered, it was held that the plaintiff was entitled to recover the contract price and interest from the time the money should have been paid. Shawhan v. Van Nest, 25 Ohio St. 490; s. c. 18 Am. Rep. 313. See Allen v. Jarvis, 20 Conn. 50; Moody v. Brown, 34 Me. 107; s. c. 56 Am. Dee. 640; Hague i,. Porter, 3 Hill (N. Y.) 141 ; Downer v. Thompson, 2 Hill (N. Y.) 137 ; Bement o. Smith, 15 Wend. (N. Y.) 493 ; Ballentine v. Robinson, 46 Pa. St. 177; Girard v. Taggart, 5 Serg. & B. (Pa.) 19; s. c. 9 Am. Dec. 327; Clarke v. Spenee, 4 Ad. & E. 448 ; Boswell v. Kilborn, 15 Moo. P. C. C. 309. Contra, GiUett v. Hill, 2 C. & M. 535. 553 *327 EFFECT OF THE CONTEACT. [BOOK II. gained and sold, this form of action not being maintainable where the property has not passed. Held, that the form of action was misconceived ; it should have been for not accept- ing the goods : the property had not passed, for although the vendor intended them for the purchaser, his right to re- voke that intention still existed, and he might have sold the goods to another at any time before the buyer assented to the appropriation. 2 This is perhaps the strongest case in the books on this subject, for the conduct of the vendor was as near an approximation to a determination of election, without actually becoming so, as one can well conceive. It is distinguishable from Fragano v. Long ^ only on the ground that in this latter case the order was to despatch the goods for the buyer's account, and when the goods were despatched it was really the act of the buyer through his agent the seller, and this act of the buyer constituted an implied assent to the appropriation made by the seller, which then became no longer revocable. In Atkinson v. Bell this element was defi- cient. But there was another circumstance in that case, adverted to in the judgment of the Court, which renders it almost impossible to distinguish it from Rohde v. Thwaites.* The defendant had made Kay his agent to procure the machines ; and the report states that they were altered [*327] so as *to suit Kay, and then packed up by Kay's directions, which is equivalent to their being packed up by the buyer's own directions ; and surely if the buyer after goods have been completed on his order, is informed by the seller that they are ready for him, and then examines ^Assent to appropriation. — Where Mcllmoyle, 34 Up. Can. Q. B. 236; the seller is to select and set apart Eobertson v. Strickland, 28 Up. Can. the goods and notify the buyer, the Q. B. 221 ; Bank of Upper Canada v. title passes when the buyer assents Killaly, 21 Up. Can. Q. B. 9. to the appropriation, if not before. Implied acceptance. — The accept- Kohde V. Thwaites, 6 Barn. & Cr. ance of the vendee may be express 388; Wilkins v. Bromhead, 6 Man. & or implied, and may be given in per- Gr. 963 ; Langd. Gas. on Sales, 1.33, son or by his agent. See Jenner v. 140, 838; 2 Schouler on Pers. Prop. Smith, L. R. 4 C. P. 270; Campbell sec. 261. See, also, Gooderham v. w. Mersey Docks, 14 C. B. N. S. 412; Dash, 9 Up. Can, C. P. 413; Coleman Langd. Lead. Cas. on Sales, 873, 875, V. McDermot, 5 Up. Can. C. P. 303 ; 877, 882. Gowans v. Consolidated Bank of Can- ^ AB. & C. 291. ada, 43 Up. Can. Q, B, 318 ; O'Neil v. ^ 6 B. & C. 388. 554 CHAP, v.] OF SUBSEQUENT APPKOPEIATION. *327 and directs them to be packed up for him, this constitutes as strong an assent to the .appropriation as was given by the purchaser in Rohde v. Thwaites, when he said, without seeing the sugar that had been packed up for him, that he would send for it. Many attempts have been made to reconcile Atkinson v. Bell with the principles recognized in the other cases on the subject, but it is very difficult to avoid the con- clusion that a conflict really exists, and that if correctly re- ported, the case would not on this particular point be now decided as it was in 1828. § 432. In Elliott v. Pybus,i in 1834, a machine was ordered by defendant, and he deposited with plaintiff 4Z. on account of the price. When completed, he saw it, paid 21. more on account, but made no final settlement. In reply to a demand for lOZ. 19s. 8d., the balance of the account, de- fendant admitted that the machine was made according to his order, and asked plaintiff to send it to him before it was paid for. This was held an assent to the appropriation, and a count for goods bargained and sold was maintained. The cases in relation to the appropriation of an unfinished chattel, paid for by instalments during the progress of the work, have already been examined in Chapter III. of tliis Book, pp. 278 et seq. 1 10 Bing. 512. 555 "328 EFFECT OF THE CONTEACT. [BOOK U. [*328] * CHAPTER VL EESEEVATIOlSr OF THE JTJS DISPONENDl. PAOB I PASE Preliminary observations on the subject 328 Review of authorities .... 329 Remarks on Coxe v. Harden . . 330 Observations on Joyce v. Swan . 342 Principles deduced from the au- thorities reviewed 352 § 433. It has already been shown that the rules for de- termining whether the property in goods has passed from vendor to purchaser, are general rates of construction adopted for the purpose of ascertaining the real intention of the par- ties, when they have failed to express it. Such rules from their very nature cannot be applied to cases where excep- tional circumstances repel the presumptions or inferences on which the rules are founded. However definite and com- plete, therefore, may be the determination of election on the part of the vendor, when the contract has left him the choice of appropriation, the property will not pass if his acts show clearly his purpose to retain the ownership, notwithstanding such appropriation. § 434. The cases which illustrate this proposition arise chiefly where the parties live at a distance from each other, where they contract by correspondence, and where the ven- dor is desirous of securing himself against the insolvency or default of the buyer. If A., in New York, orders goods from B. in Liverpool, without sending the money for them, there are two modes usually resorted to, among merchants, by which B. may execute the order without assuming the risk of A.'s inability or refusal to pay for the goods on arrival. B. may take the bill of lading, making the goods deliverable to his own order, or that of his agent in New York, and send it to his agent, with instructions not to transfer it to A. except on payment for the goods. Or B. may not choose 556 CHAP. VI.] KESEKVATION OF JUS DISPOI^ENDI. *329 to advance the money in Liverpool, and may draw a bill of exchange for the price of the goods on A., and sell the bill * to a Liverpool banker, transferring to the [*329] banker the bill of lading for the goods, to be delivered to A. on due payment of the bill of exchange. Now in both these modes of doing the business, it is impossible to infer that B. had the least idea of passing the property to A. at the time of appropriating the goods to the contract.^ So that although he may write to A. and specify the packages and marks by which the goods may be identified, and although he may accompany this with an invoice, stating plainly that these specific goods are shipped for A.'s account, and in accordance with A.'s order, making his election final and determinate, the property in the goods will nevertheless remain in B. or in the banker, as the case may be, till the bill of lading has been endorsed and delivered up to A. These are the most simple forms in which the question is generally presented, but we shall see that in this class of cases as well as in that just discussed, it is often a matter of great nicety to determine whether or not the vendor's pur- pose or intention was really to reserve a jus disponendi? 1 See Security Bank of Minnesota man Bank, L. K. 3 Ex. Div. 164, 172 ; V. Luttgen, 29 Minn. 363 ; Mason v. s. c. 31 Moak's Eng. Rep. 201, 208. Great Western Ry. Co., 31 Up. Can. Where the vendor takes the bill of Q. B. 73. lading or the carrier's receipt in his 2 Reservation of control. — Where own or some agent's name, or takes the vendor manifests an intention to the bill of lading to his own order, retain control over the property, the the title will not vest in the vendee, title will not vest in the vendee. Wigton o. Bowley, 130 Mass. 252, Wigton u. Bowley, 130 Mass. 252, 254; First National Bank i;. Crocker, 254; Merchants' Nat. Bank v. Bangs, 111 Mass. 163, 167; Merchants' Nat. 102 Mass. 291, 295 ; Griffith v. Ingle- Bank v. Bangs, 102 Mass. 291, 295 ; dew, 6 Serg. & E. (Pa.) 429 ; s. c. Farmers' & Mechanics' Nat. Bank v. 9 Am. Dec. 444 ; Hobart ti. Little- Logan, 74 N. Y. 568, 578 ; Griffith v. field, 13 R. L 341, 346; Brandt v. Ingledew, 6 Serg. & R. (Pa.) 429; Bowlby, 2 Barn. & Ad. 932; Langd. s. c. 9 Am. Dec. 444; Hobart ;. Cas. on Sales, 825, 929. But a de- Littlefleld, 13 E. I. 341, 346; Ga- livery by the vendee to a common barren u. Kreeft, L. R. 10 Ex. 274 ; carrier or on board a vessel belonging Mirabita c. Imperial Ottoman Bank, to the purchaser or chartered by him, L. R. 3 Ex. Div. 164 ; s. c. 31 Moak's will vest the title in such purchaser, Eng. Rep. 207, 208; EUershaw i. unless the fact of the shipment is Magniac, 6 Ex. 570 ; Wait v. Baker, restrained by the terms of the bill of 2 Ex. 1 ; Langd. Cas. on Sales, 835, lading. Mirabita u. Imperial Otto- 942. The same is true where the 557 *329 EFFECT OP THE CONTRACT. [book II. § 435. In Walley v. Montgomery,^ the plaintiff had ordered a cargo of timber from Schumann and Co., and they informed him by letter that they had chartered a vessel for him, and afterwards sent him in another letter the bill of lading and invoice, advising that they had drawn on him at three months, " for the value of the timber." The invoice was of a cargo of timber, "shipped by order, and for account and risk of Mr. T. Walley, at Liverpool," and the bill of lading was made " to order or assigns, he or they paying freight, &c." Schumann and Co. sent at the same time another bill of lading, with bills of exchange drawn on the plaintiff for the price, to the defendant, who was their agent, and he got the cargo from the captain. The plaintiff applied to the de- fendant for the cargo, offering to accept the bills of exchange. vendor sends forward the bill of lading with the bill of exchange attached, and directs that there shall be no delivery until after acceptance or payment of the draft. Newcomb V. Boston & L. R. E. Co., 115 Mass. 230; StoUenwerck v. Thacher, 115 Mass. 224 ; Seymour v. Newton, 105 Mass. 272 ; Farmers' and Mechanics' Nat. Bank of Buffalo v. Logan, 74 N. Y. 568 ; Ogg ... Shuter, L. R. 10 C. P. 159 ; Schotsmans v. Lancashire & R. Co., L. R. 2 Chan. App. 336; Mitchel V. Ede, 11 Ad. & E. 888; EHershaw c. Magniac, 6 Ex. 570; Turner v. Trustees of Liverpool Docks, 6 Ex. 543 ; Jenkyns v. Brown, 14 Q. B. 490; Mason v. Great West- ern Ry. Co., 31 Up. Can. Q. B. 73. However, where the goods are shipped for the purpose of completing the contract, the title will vest in the purchaser on payment or tender of the contract price. See Mirabita v. Imperial Ottoman Bank, L. R. 3 Ex. Div. 164, 172; s. c. 31 Moak's Eng. Rep. 201, 200. See, also, Halliday V. Hamilton, 78 U. S. (11 Wall.) 560 ; bk. 20, L. ed. 214; Treadwell v. Anglo-American Packing Co., 13 Fed. Rep. 22. Intention of the vendor. — Where the evidence is meagre or equivocal, the difficulty in ascertaining the real intention of the vendor at the time is very great. Merchants' Nat. Bank V. Bangs, 102 Mass. 291, 295 ; Hobart u. Littlefield, 13 R. I. 341, 346. The question of intention is always one for the jury, under proper instruc- tions, where the evidence will justify the finding but one way. Forcheimer V. Stewart, 65 Iowa, 594, 596 ; Wigton 0. Bowley, 130 Mass. 252, 254 ; Mer- chants' Nat. Bank v. Bangs, 102 Mass. 291, 295; Stevens u. Boston & W. R. R. Co., 74 Mass. (8 Gray) 202 ; Coggill V. Hartford & N. H. R. R. Co., 69 Mass. (3 Gray) 545; Stanton. c. Eager, 33 Mass. (16 Pick.) 473; Allen V. Williams, 29 Mass. (12 Pick.) 297 ; Farmers' and Mechanics' Nat. Bank o. Logan, 74 N. Y. 568 ; Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360 ; s. c. 18 Am. Rep. 299; Hobart v. Littlefield, 13 R. I. 341 ; Dows v. Nat. Exchange Bank, 91 U. S. (1 Otto) 618; bk. 2,3, L. ed. 214; Moakes v. Nicolson, 19 C. B. (N. S.) 290 ; Godts o. Rose, 17 C. B. 229 ; Tregelles v. Sewell, 7 Hurls. & N. 574 ; Sprague v. King, 1 Pugs. & B. (N. B.) 241 ; The New Brunswick Ry. Co. u. McLoed, 1 Pugs. & B. (N. B.) 257 ; Langd. Cas. on Sales, 713. 1 3 East, 585. 558 CHAP. Vl.j RESERVATION OF JUS DISPONENDI. *330 but the latter insisted on immediate payment; and on tlie plaintiff's refusal, sold the cargo, under direction of Schu- mann and Co. Trover was brought, and Lord Ellenborough at first nonsuited the plaintiff, who did not prove a tender of the freight, * but afterwards joined the [*330] other judges in setting aside the nonsuit, on the ground that the property passed by the invoice and bill of lading, and that the vendor had lost all rights over the goods, save that of stoppage in transitu (as to which, see post, Book V. Ch. 6). § 436, In Coxe v. Harden,^ the property was held to have passed under somewhat similar circumstances. Oddy and Co., of London, ordered a purchase of flax, from Browne and Co., of Rotterdam, who executed the order, and sent an in- voice to Oddy and Co., and a bill of lading, unendorsed, by which the goods were made deliverable to Browne and Co., and a letter, stating, " We have drawn on you at two usances in favor of Lucas, Fisher, and Co., &c. We close this ac- count in course." Browne and Co. then sent another bill of lading of the same set to the plaintiff, endorsed, for the pur- pose of securing the amount of their bill upon Oddy and Co. Oddy and Co. transferred their unendorsed bill to the defend- ant, in payment of an antecedent debt, and the defendant got delivery of the flax on that bill, and sold it, notwithstanding plaintiff's warning and demand for the goods under his en- dorsed bill. The action was trover, and the Court held, that even assuming the plaintiff to have all the rights of the vendor, he could not succeed, because the property in the goods had passed by the shipment for the buyer's account, and no right remained in the vendor, save that of stoppage in tran- situ. No notice was taken of the vendor's purpose to retain a jus disponendi. Lord Ellenborough saying, that the only thing which stood between Oddy and Co., and their right to possession, was "the circumstance of the captain's having signed bills of lading in such terms as did not entitle them to call upon him for a delivery imder their bill of lacUng. But that difficulty has been removed, for the captain has 1 4 East, 211. 569 *331 EFFECT OP THE CONTRACT. [BOOK II. actually delivered the goods to their assigns." It is to be re- marked of this case, that the date at which the bill of lading was endorsed by Browne and Co., to the plaintiff, was not shown ; that it was perhaps not so endorsed till after [*331] the goods had got into * possession of the defendant, and stress was laid on this by one of the judges. At the same time no one of them adverted to the fact, as having any influence on the decision, although printed in italics in the report, that the endorsed bill of lading was sent to the plaintiff by Browne and Co., expressly "for the purpose of securing the amount of their bill upon Oddy and Co." See Moakes v. ISricholson,^ and Brandt v. Bowlby,^ infra. § 437. In Ogle v. Atkinson, i it was again held, that the property had passed, notwithstanding the vendor's attempted reservation of a jus disponendi, but the attempt was fraudu- lent. The plaintiff ordered goods from Smidt and Co., at Riga, in return for wine consigned to them for sale the pre- vious year, and sent his own ship for the goods, which were delivered to the captain, who received them in behalf of plaintiff, and as being plaintiff's own goods, according to the statement of Smidt and Co., themselves. They afterwards obtained from the captain, by fraudulent misrepresentation, bills of lading in blank, for the goods so shipped, and sent them to their agent, with orders to transfer them to a third person, unless plaintiff would accept certain bills of ex- change which Smidt and Co. drew in favor of that third person. Held, that the property had passed, by the delivery to the plaintiff's agent, and was not divested nor affected by the subsequent acts of Smidt and Co.^ 2 34 L. J. C. P. 273 ; 19 C. B. right by subsequent order to suspend N. S. 290, post, p. 343. or control the sale, except as to the ^ 2 B. & Ad. 932, post, p. 332. surplus, which is not necessary for 15 Taunt. 759; Ogle i).- Atkinson, the reimbursement of the advances, followed in Gabarron v. Kreeft, L. R. and that where the consignment was 10 Ex. 274, 278. changed to the cashier of a bank, 2 In Nelson v. Chicago, &c. R. R. who had knowledge of the factor's Co., 2 111. App. 180, it is held that claim, that the bank occupied no where a factor has made advances or better position than the consignor incurred liability on the strength of himself, a consignment, the consignor has no 560 CHAP. VI.] BESEEVATION OF JUS DISPONENDI. *332 § 438. In Craven v. Ryder,^ the vendor maintained his right. The plaintiffs agreed to sell to French and Co. twen- ty-four hogsheads of sugar, free on board a British ship, two months being the usual credit. They sent it by a lighter, taking a receipt from the ship " for and on account of the plaintiffs," which was proven to be/o?' the purpose of giving the skipper command of the goods till exchanged for the bill of lading. Frenph & Co. sold the goods, and the defendant gave a bill of lading for them to the vendee of French and Co. without the plaintiff's privity. French and Co. stopped payment * without paying the price of the [*332] sugar, and plaintiffs claimed it, but the defendant refused to deliver to them on the ground that the bill of lad- ing already signed for it in favor of the buyer from French and Co. had been assigned to another vendee, who had in turn paid for it in good faith. The jury found that the re- ceipt given to the plaintiffs for the sugar was " restrictive," and that they had done nothing to alter their right of posses- sion of the goods. The Court held, that without regard to the form of the receipt, the plaintiffs had the right "to refrain from delivering the goods, unless under such circum- stances as would enable them to recall the goods if they saw occasion," and had exercised that right. This seems to be but another mode of describing what, in more recent cases, is termed a reservation of the jus disponendi. Ruck v. Hat- field,^ on similar facts, was decided in conformity with Craven v. Ryder.^ § 439. In Brandt v. Bowlby,i the vendor was again suc- cessful. The facts were that one Berkeley, of Newcastle, ordered wheat from the plaintiffs, Brandt and Co., of St. Petersburg, through their agent, E. H. Brandt, of London. A dispute arose between Berkeley and E. H. Brandt, and the former countermanded all his orders. In the meantime, 1 6 Taunt. 433. the mate's receipts, if he is satisfied !! 5 B. & Aid. 632. that the goods are on board. See 3 Tlie mate's receipts for goods Hathesing v. Laing, 17 Eq. 92, at pp. are valueless after the bills of lading 102, 103 ; and Maude and Pollock have been signed, and the captain is on Shipping, pp. 136, 338, ed. 1881. justified in signing bills of lading i 2 B. & Ad. 932. without requiring the production of 561 *333 EFFECT OF THE CONTRACT. [BOOK II. however, the plaintiffs had bought a cargo for him and they put it on board the defendants' ship Helena, which Berkeley had chartered, and sent for the wheat. They wrote, request- ing Berkeley's approval, and enclosed him "invoice and bill of lading of 770 chests wheat shipped for your account and risk per the Helena. . . . An endorsed bill of lading we have this day forwarded to Messrs. Harris and Co., of London, at the same time drawing upon them for 673Z. 15s., and for the balance remaining in our favor, viz., 136?. 9s. bd., we value on you, &c., &c." An unendorsed bill of lading was enclosed to Berkeley, together with an invoice of "wheat bought by order and for account of J. Berkeley, Esq., [*333] * Newcastle, and was shipped at his risk to London to the address of R. Harris and Sons there per the Helena." The endorsed bill of lading was forwarded by the plaintiffs to E. H. Brandt, their agent. Berkeley refused to accept, and ordered Harris and Co. not to accept. There- upon E. H. Brandt gave Harris and Co. the endorsed bill of lading, and desired them to accept for his account, which they did. Berkeley then confirmed his revocation, and was notified by E. H. Brandt that he shou^ld retain the whole of the wheat for the plaintiffs. Afterwards Berkeley offered to pay the price of the wheat and charges, but this was refused. The defendants delivered the wheat to Berkeley, instead of Harris and Co., as required by the bill of lading, and when sued in assumpsit, sought to defend themselves by maintain- ing that the property in the wheat had passed to Berkeley. The Court held the contrary, Parke B. saying : " That de- pends entirely on the intention of the consignors. It is said that the plaintiffs, by the very act of shipping the wheat in pursuance of Berkeley's order, irrevocably appropriated the property in it to him. I think that is not the effect of their conduct, for, looking to the letter of the 26th of August, it manifestly appears that they intended that the property should not vest in Berkeley unless the hills were accepted^ § 440. In Wilmshurst v. Bowker,i the plaintiffs bought wheat from defendant on a contract by which they promised 1 2 M. & G. 792. 562 CHAP. VI.] KESEEVATION OP JUS DISPONBNDI. *334 to pay for it in a banker's draft, on receipt of invoice and hill of lading. The wheat was shipped, and the invoice and bill of lading properly laid out and endorsed to the plaintiffs were forwarded to them in a letter, in which the defendant re- quested them to remit him the amount of the invoice. Plain- tiffs remitted a draft, which was not a banker's draft, and defendant sent it back by return of post, as being contrary to the agreement, and kept back the cargo and disposed of it. The plaintiffs had already failed in an action in trover,^ and the present action was case for breach of contract. The judgment of the lower Court was again for defendant, Tindal C. J. saying : " There is no doubt that the property in the * wheat passed to the plaintiffs, . . . but [*334] the question is as to the intention of the parties, as evidenced by the contract, with reference to the delivery of possession. And we are of opinion that the intention of the parties under this contract was, that the consignors should retain the power of withholding the actual delivery of the wheat in case the consignee failed in remitting the banker's draft, not upon the delivery of the wheat, biit upon the delivery of the bill of lading, . . . and we think the object could have been no other than to afford security to the consignors." But on error to the Exchequer Chamber, this decision was unanimously reversed,^ the Court, composed of Lord Abinger C. B., Parke, Alderson, and Rolfe, BB., and Patteson, Cole- ridge, and Wightman, JJ., saying that they acceded to the general principle of the judgment of the Common Pleas, but could not ag}'ee with it in inferring from the facts that the remitting of the banker's draft was a condition precedent to the vesting of the property in the plaintiffs. " The de- livery of the bill of lading and remitting the banker's draft could not be simultaneous acts : the plaintiffs must have re- ceived the bill of lading and invoice before they could send the draft." § 441. In Waite v. Baker,i which is a leading case, de- cided in 1848, the facts were that the defendant at Bristol 2 5 Bing. N. C. 541. i 2 Ex. 1. => 7 M. & G. 882. 563 *335 BPPBCT OF THE CONTKACT. [BOOK II. bought from one Lethbridge 500 quarters of barley free on board at Kingsbridge, and in answer to an inquirjr about the shipment wrote to Lethbridge : " I took it for granted that you would get a vessel for the barley I bought from you f. o. b., and therefore did not instruct you to seek one. . . . Please advise when you have taken up a vessel, with jiar- ticulars of the port she loads in, so that I may get insurance done correctly." By further correspondence, Lethbridge forwarded copy of the charter-party which he had taken in his own name ; ad- vised the commencement of the loading ; and on the 1st of January, 1847, wrote : " I hope to be able to send you invoice and bill of lading on Tuesday or Wednesday." And again on the 6th : " I expect the bill of lading to-day or to- [*335] morrow. I expect to be in Exeter on * Friday, when it is very likely I shall run down and see you." The bills of lading for the cargo were to the " order of Leth- bridge or assigns, paying the freight as per cliarter." Leth- bridge took them to Bristol, called on the defendant, and left at his counting-house, early in the morning, an unen- dorsed bill of lading. At an interview with defendant at a later hour on the same daj^, the defendant made objections to the quality of the cargo, saying that it was inferior to sample, offered to take the cargo and tendered the amount in money, but said that he should sue for eight shillings a quarter difference. Lethbridge refused to accept the money or to endorse the bill of lading, but took it up from the counter and went to the plaintiffs, from whom he obtained an advance on endorsing the bill of lading to them. The defendant obtained part of the barley from the ship before the plaintiffs presented their bill of lading, and the action was trover for the portion of the cargo so delivered. The jury found that the defendant did not refuse to accept the barley from Lethbridge ; that the tender was unconditional ; and that Lethbridge was not an agent intrusted with the bill of lading by defendant. There was a verdict for the plain- tiff at Nisi Prius, and on the motion for new trial, Parke B. gave the reasons on which the rule was discharged : " It is perfectly clear that the original contract between the parties 564 CHAP. VI.] RESERVATION OF JUS DISPONBNDI. *336 was not for a specific chattel. Tliat contract would be satis- fied by tbe delivery of any 500 quarters of corn, provided the corn answered the character of that which was agreed to be delivered. By the original contract, therefore, no prop- erty passed, and that matter admits of no doubt whatever. In order, therefore, to deprive the original owner of the property it must be shown in this form of action, — the ac- tion 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 car- rier to be sent to the person by whom they have been or- dered, the moment the goods which have been se- lected in pursuance of the contract * are delivered [*336] 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 ven- dor and vendee, either by note in writing or by part payment, or subsequently by part acceptance, then there is no doubt that the property passes by such delivery to the carrier. It is necessary, of course, that the goods should agree with the contract. In this case it is said that the delivery of the goods on ship-board is equivalent to the delivery I have men- tioned, because the ship was engaged on the part of Leth- bridge as agent for the defendant. But assuming that it was so, the delivery of the goods on board the ship was not a de- livery of them to the defendant, hut a delivery to the captain of the vessel, to be carried under a hill of lading, and that bill of lading indicated the person for whom they were to he car- ried. By-that bill of lading the goods were to be carried by the master of the vessel for and on account of Lethbridge, to be delivered to him in case the bill of lading should not be assigned, and if it should, then to the assignee. The goods therefore still continued in possession of the master of the vessel, not as in the case of a common carrier, but as a per- son carrying them on behalf of Lethbridge. ... It is admitted by the learned counsel for the defendant that the property does not pass unless there is a subsequent appro- priation of the goods. . . . Appropriation may be used 565 *337 EFFECT OF THE CONTEACT. [BOOK II. in another sense, viz., where botli 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 tliat sort subsequently took place. 1 must own that I think the delivery on board the ves- sel could not be an appropriation in that sense of the word. . . . The vendor has made his election to deliver those 500 quarters of corn. The next question is, whether the circum- stances which occurred at Bristol afterwards, amount to an agreement by both parties that the property in those 500 quarters should pass. I think it is perfectly clear that there is no pretence for sajdng that Lethbridge agreed that [*337] * the property in that corn should pass. It is clear that his object was to have the contract repudiated, and thereby to free himself from all obligation to deliver the cargo. On the other hand, as has been observed, the de- fendant 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 unendorsed bill of lading was left, there was no agree- ment between the two parties that that specific cargo should become the property of the defendant. . . . There is a contract to deliver a cargo on board, and probably for an as- signment of that cargo by endorsing the bill of lading to the defendant; but there was nothing which amounted to an appropriation, in the seme of that term which alone would pass the property." This conclusion of the learned judge is sub- stantially a statement that, thoi.gh the determination of election by the vendor was complete, and the appropriation therefore perfect in one sense, yet the reservation of the jus disponendi prevented it from being complete "in that sense of the term which alone would pass the property." The case is quite in harmony with aU the later decisions on the subject. § 442. "Van Casteel v. Booker i was decided by the same Court in the same year. The goods in that case had been placed by the vendor on board of a vessel sent for them by 1 2 Ex. 091. 566 CHAP. VI.] RESERVATION OF JUS DISPONENDI. *338 the vendees, and a bill of lading taken for them deliverable " to order or assigns," and showing that they were " freight free," and the bill of lading was endorsed in blank by the vendor and sent to the vendees. On the different questions arising in the case, which were numerous, it was held : First, that the decisions in EUershaw v. Magniac^ and Waite V. Baker ^ had been correct in holding that the fact of making the bill of lading deliverable to the order of the con- signor, was decisive to show that no property passed to the consignee, it being clearly intended hy the consignor to preserve his title to the goods till he did a further act. * Second, that notwithstanding the form of the bill [*338] of lading, the contract may be really made by the consignor as agent of the vendee and in his behalf, and it was a question for the Jury, in the case before the Court, what, under all the circumstances, was the real intention of the consignors or vendors. On the new trial, the jury found that the goods were put on board for, and on no account of, and at the risk of, the buyer, and the Court refused to set aside the general verdict for the defendants which had been entered on this finding of the jury. § 443. In 1850, the case of Jenkyns v. Brown,^ was de- cided in the Queen's Bench. Klingender, a merchant in New Orleans, had bought a cargo of corn on the order of plaintiffs, and taken a bill of lading for it, deliverable to his own order. He then drew bills for the cost of the cargo on the plaintiffs, and sold the bills of exchange to a New Orleans banker, to whom he also endorsed the bill of lading. He sent invoices and a letter of advice to the plaintiffs, showing that the cargo was bought and shipped on their account. Held, that the property did not pass to plaintiffs, as the taking of a bill of lading by Klingender in bis own name was " nearly conclusive evidence " that he did not in- tend to pass the property to plaintiffs ; that by delivering the endorsed bill of lading to the buyer of the bills of exchange, 2 6 Ex. 570. The case was not ^ 2 Ex. 1. reported till some years after it had ^ 14 Q. B. 496, and 19 L. J. Q. B. been decided. 286. 567 *339 EFFECT OF THE CONTPw\CT. [BOOK II. he had conveyed to them " a special property " in the cargo : and by the invoices and letter of advice to the plaintiffs, he had passed to them the " general property " in the cargo, subject to this special property, so that the plaintiffs' right to the goods would not arise till the bills of exchange were paid by them. § 444. The case of Turner v. Trustees of Liverpool Docks^ was decided in the Exchequer Chamber in 1851, the Court being composed of Patteson, Coleridge, Wightman, Erie, Williams, and Talfourd, JJ. A cargo of cotton had [*339] been purchased in * Charleston, on the order of Hig- ginson and Dean, of Liverpool, and put on board their own vessel, which had been sent for it. Bills of ex- change for the price were drawn by Menlove and Co., on the buyers, and sold to Charleston bankers, to whom were transferred, as security, the bills of lading, which had been signed by the master. The bills of lading made the goods deliverable " to order, or to our (Menlove and Co.'s) assigns, he or they paying freight, nothing being oume/s property." The question was, whether by delivery on board the pur- chaser's own vessel, and by the statement in the bill of lading that the cotton was owner's property, the title had so passed as to render inoperative the transfer of the bill of lading to Charleston bankers. The Court took time to consider, and the decision was given by Patteson J. who said : " There is no doubt that the delivery of goods on board the purchaser's own ship is a delivery to him, unless the vendor protects himself by special terms, restraining the effect of such de- livery. In the present case, the vendors, by the terms of the bill of lading, made the cotton deliverable at Liverpool, to their order or assigns, and there was not, therefore a delivery of the cotton to the purchasers as otvners, although there was a delivery on board their ship. The vendors still reaerved to themselves, at the time of delivery to the captain, the jus disponendi of the goods, which he by signing the bill 1 6 Ex. 543. See, also, Schotsman cited post, Book V. Ch. 5, on " stop- V. Lancaster and York Railway page in transitu." Company, 2 Ch. •">■'-, and other cases 5G8 CHAP. VI.J RESERVATION OF JUS DISPONENDI. *340 of lading acknowledged, and without which it may be as- sumed that the vendors would not have delivered them at all. . . . The plaintiffs in error rely vipon the terms of the invoice and the expression in the bill of lading, that the cotton is free of freight, being owner's property, as showing that the delivery on board the ship was with intention to pass the property absolutely ; but the operative terms of the bill of lading, as to the delivery of the goods at Liverpool, and the letter of Menlove and Co., of the 23d of October, show too clearly for doubt, that notwithstanding the other terms of the bill of lading and the invoice, Menlove and Co. had no intention, when they delivered the cotton on board, of parting with the dominion over it, or vesting the absolute property in the bankrupts." ^ § 445. * EUershaw v. Magniac ^ was decided prior to [*340] Van Casteel v. Booker,^ and is referred to in that case, but was not reported till 1851. There the plaintiff had con- tracted with C. and Co., of London and Odessa, for the pur- chase of 1700 quarters of Odessa linseed, had paid half the pi'ice, and had sent the Woodhouse, a vessel chartered by him- self, " to take on board, from agents of the said freighter, about 1700 quarters of linseed, in bulk ; " and a quantity of linseed was put on board the vessel at Odessa, the partner there writing to the London partner, " With regard to your sales of linseed, Mr. EUershaw will receive a part by the "Wood- house ; " and again, " By Friday's post you shall have the bill of lading of the linseed, by the Woodhouse." The Odessa partner afterwards took a bill of lading for the cargo, and made it deliverable " to order or assigns," and, being in difficulties, got advances by transferring the bills of lading to the defendant. Held, by the Court (Lord Abinger C. B. and Parke and Alderson BB.), that the shippers, by making the linseed deliverable to order by the bill of lading, clearly 2 The case of Turner v. Trustees U. S. (9 Cr.) 18.3; bk. 3, L. ed. 698; of Liverpool Docks is cited and and Mirabita i\ Imperial Ottoman approved by the Supreme Court of Bank, L. R. 3 Ex. Div. 164. New York in the case of FarnuTs' and ^ 6 Ex. 570. Mechanics' Bank o. Logan, 74 N. Y. 2 2 Ex. 691, 702. 568. See, also. The Frances, 13 569 *341 EFFECT OF THE CONTRACT. [BOOK II. showed the intention to preserve the right of property and pos- session in. themselves, until they had. made an assignment of the bill of lading to some other person : and the property, therefore, had not passed to the plaintiff. § 446. In Joyce v. Swan,i a decision was rendered in 1864, by the Common Pleas, on the following facts : McCarter, of Londonderry, on the 14th of February, 1863, ordered one hundred tons of guano, from Seagrave and Co., of Liverpool, with whom he had been in the habit of dealing, and was on very intimate terms. On the 26th, he was in- formed that Anne and Isabella had been engaged to carry about one hundred and fifteen tons, and " we presume we may value upon you at six months from the date of ship- ment at lOZ. per ton. . . . Please say if you purjjose effect- ing insurance at your end." On the 2d of March, McCarter ordered Joyce, the plaintiff, an insurance broker, to insure for him, "1200Z., on guano, valued at 1200?., per Anne [*341] and Isabella, from * Liverpool to Derry." Then, on the 3d of March, McCarter wrote to Seagrave and Co., in relation to the price of 10?. : " I really cannot under- stand this, when I know that Mr. Lawson supplies your guano, in Scotland, at 9Z. 15s. nett, there, to dealers ; besides, I look for the special allowance made to me at the origin of our transactions, and now that you are making some changes, it may be as well that I should know how we are to get on for the future. I should be sorry, indeed, to appear un- reasonable in my demands, but you will admit there is no one in this country has a prior claim on you." The letter ended with a request to send him some flowering shrubs, "in charge of captain." Seagrave and Co. received this letter on the 4th of March, fearing from its tenor that McCarter would not accept the cargo, insured it in their own name, on that day, and took a bill of lading, "to order of Seagrave and Co., or their assigns." They also on the same day made out an invoice of " the particulars of guano delivered to account of McCarter, by Seagrave and Co., per Anne and Isabella." 1 17 C. B. N. S. 84. 570 CHAP. VI.j BESEEVATION OF JUS DISPONENDI. *342 § 447. The invoice and bill of lading were forwarded in a letter to the senior partner of Seagrave and Co., who was then in Ireland, and on the evening of Saturday, the 7th of March, he went on a friendly visit to McCarter's private house near Londonderry, and there told him that he had received these papers from his partners, who feared that McCarter was not satisfied. McCarter said he was quite willing to take the cargo, and on Monday morning they went into town together, and at McCarter's office Seagrave endorsed the bill of lading to McCarter and obtained from him an acceptance for the price, which he at once enclosed to his firm at Liverpool. After this and on the same day, they heard that the Anne and Isabella had been wrecked on the evening of Saturday the 1th. The action was on the policy effected by Joyce in behalf of McCarter, and was de- fended by the underwriters on the ground that the property had not passed to the purchaser, and that he had therefore no insurable interest. Erie J. charged the jury that it was not a necessary con- dition of the passing of the property that the price should *be agreed on; that there might be a con- [*342] tract of sale, leaving the price to be afterwards set- tled; that if the guano was appropriated to McCarter when put on board by Seagrave and Co. with the intention of passing the property, they must find for the plaintiff, but if they intended to keep it in their own hands and under their own control till a final arrangement took place as to the terms of the bargain, they must find for defendant. The verdict was for plaintiff, and was sustained by the Court. The letter of McCarter was construed by the judges as a "grumbling" assent to the price. § 448. It is to be remarked that this case is not at all in conflict with Turner v Liverpool Docks, or Waite v. Baker, in holding that although the shipper took the bill of lading to his own order, yet the property had passed when the goods were put on board. The distinction is a plain one. In the former cases the shipper had taken the bill of lading to his own order, for the purpose of retaining control of the 571 *343 EFFECT OP THE CONTRACT. [BOOK II. goods for his own security ; but in Joyce v. Swan, the ship- pers and vendors had no purpose nor desire to keep any control of the goods, but, on the contrary, wished the buyer to take them. They were doubtful of the buyer's meaning, and therefore took a precaution against leaving the property uninsured and uncared-for if his letter meant that he refused the purchase ; but they were acting as his agents and in- tended to reserve nothing, no jus disponendi, if his meaning was that he assented to the price. The buyer interpreted his own language just as the Court did ; he had meant to take the goods even at the price of lOL, and that being so, the vendors were his agents in taking the bills of lading; and the case is exactly in accord with Van Casteel v Booker,^ where it was left to the jury to decide as a question of fact, what was the intention of the vendor under all the circum- stances of the case ; and with Brown v. Hare,^ where it was held that the question of intention must be considered as having been disposed of by the verdict of the jury, because it was one of the facts for their decision on the trial. [*343] § 449. * In Moakes v. Nicholson,i the facts were, that a sale was made by one Josse to Pope for cash, of a quantity of coal, parcel of a heap lying in Josse's yard, to be shipped on board of a vessel chartered by Pope in his own name and on his own behalf, to carry it to London. The coal was shipped by Josse, who took three bills of lading, making the coal deliverable to " Pope or order." Only one of the three bills was stamped, and that was kept by Josse, but the second, with invoice and letter of advice, was sent to Pope on the 19th of December, and received by him on the 20th. Josse, being unable to get the price from Pope, sent the stamped bill to his agent, the defendant. In the meantime, on the 13th of December, Pope had sold the coal on the London Exchange, but before it had Ijeen separated from the heap in Josse's yard, to the plaintiff, ^ho paid for the coals before action brought. The defendant 12 Ex. 691. 134 L. J. C. P. 273; 19 C. B. 2 In Ex. Ch. 4 H. & N. 822 ; 29 N. S. 290. L. J. Ex. 6. 572 CHAP. VI.] RESERVATION OP JUS DISPONENDI. *344 induced the captain of the vessel to refuse delivery to the plaintiff, and took possession of the coal himself. The plain- tiff brought trover. Held, first, that the plaintiff had no better right than his vendor, Pope, because at the time of his purchase the goods were not ascertained and no bills of lading had been given, so that the sale had not been made by a transfer of documents of title ; secondly, that no title had passed to Pope from Josse, because the retention of the stamped bill of lading by the latter was a clear indication of his intention to reserve the jus dlponendi ; thirdly, that the intention of Josse was a fact to be determined by the jury .2 But semble, per Byles and Keating JJ., that if Pope's sale had been made after his receipt of the bill of lading by indorsing it over, although unstamped, to a bona fide purchaser, the result might have been different. The ratio decidendi of the case was clearly that Pope's sale was of a thing not yet his, of property not yet acquired, and there- fore inoperative to pass the property. Ante, p. 78. § 450. In Fulke v. Fletcher,^ the plaintiff, a merchant of LiA'-erpool, acting in behalf of De Mattos of Lon- don, had * chartered from the defendant a vessel to [*344] load a complete cargo of salt for Calcutta. The plaintiff had put on board about 1000 tons of salt, for which he took receipts in his own name, when De Mattos failed, and the plaintiff declined to continue loading, whereupon the defendant filled up the vessel for his own account, and refused to deliver to the plaintiff bills of lading for the 1000 tons on the ground that they belonged to De Mattos. It was proven that the plaintiff was in the habit of buying such cargos for De Mattos, and charged him no commission, but an advance on the cost of the salt to remunerate himself for his trouble ; that the plaintiff always paid for the salt and loaded it at his own expense, and when the cargo was com- pleted sent invoices to De Mattos and received the accept- ances of the latter for the cost. Held, under these circum- stances, a question of intention for the jury, whether the 2 Vide ante, sec. 424, note 2. i 18 C. B. N. S. 403 ; 34 L. J. C. P. 146. 573 *345 EFFECT OP THE CONTEACT. [BOOK II. plaintiff intended to part with the property in the salt or to reserve it, and a verdict in favor of the plaintiff that he had not parted with the goods was maintained. § 451. In Shepherd v. Harrison,^ the facts were that Paton, Nash and Co., merchants of Pernambuco, bought for the plaintiff, a merchant of Manchester, certain cotton, and shipped it on the defendant's steamship Olinda, taking a bill of lading. Then they wrote to the plaintiff, saying, " Enclosed please find invoice and bill of lading of 200 bales cotton shipped per Olinda, costing 851Z. 2.s. Id." The letter also announced that a draft had been drawn for the price in favor of George Paton and Co., the agents in Liver- pool of Paton, Nash and Co., " to which we beg your pro- tection." The invoice was headed "Invoice, &c., on account and risk of Messrs. John Shepherd and Co. (the purchaser)." The bill of lading, however, was not enclosed in the letter to the plaintiff, but was, together with the bill of exchange, enclosed to George Paton and Co., of Liverpool, who at once sent a letter to the plaintiff enclosing the bill of lading and the bill of exchange drawn on him, and stating " We beg to enclose bill of lading for 200 bales cotton [*345] shipped by Paton, Nash * and Co., per Olinda, s. s. on your account. We hand also their draft on your good selves for cost of the cotton to which we beg your pro- tection." The plaintiff refused to accept the bill of exchange, but retained the bill of lading, and demanded the cotton from the master of the ship, who however delivered the goods to George Paton and Co., on a duplicate bill of lading held by them, and on receiving an indemnity against the plaintiff's claim. The plaintiff's action was trover against the master, but all the Courts were unanimous in favor of the defendant, and it was held in the House of Lords : 1st. that the jus disponendi had been reserved by the vendors ; 2dly. That where a bill of exchange for the price of goods is enclosed to the buyer for acceptance, together with the bill of lading which is the symbol of the property in the 1 L. R. 4 Q. B. 196; in Ex. Ch. ibid. 493; in the House of Lords, L. K. 5 H. L. 116. 674 CHAP. VI.J EESBRVATION OF JUS DISPONENDI. *345 goods, the buyer cannot lawfully retain the bill of lading without accepting the bill of exchange ; that if he does so retain it, he thereby acquires no right to the bill of lading or to the goods.^ § 452. [In Gabarron v. Kreeft,i the defendants had bought from one Munoz all the ore of a certain mine in Spain to be shipped by Munoz f. o. b. at Cartagena, on ships to be char- tered by the defendants, or by Munoz. The ore was to be paid for by acceptances against bills of lading, or on the exe- cution of a charter-party, in which latter case a certificate that there was enough ore in stock to load the ship was to accompany the drafts. On being so paid for, the ore was to become the property of the defendants. Various vessels had been loaded, and others chartered, and various payments made up to March, 1872, when the Trowbridge, one of the ships chartered by the defendants, arrived at Cartagena. The payments that had been made at that time exceeded in amount the price of all the ore shipped and to be shipped in all the vessels chartered and not loaded; so that had Munoz shipped ore on the Trowbridge, he would have been entitled to no payment from the defendants in respect of it. 2 The delivery of a bill of lading 28 Vt. 118 ; 65 Am. Dec. 226 ; Glyn as a rule transfers the property from v. East India Dock Co., 5 Q. B. Div. the vendor to the vendee and vests 129 ; s. c. 31 Week. E. 201 ; 35 Eng. the title in the latter. Robinson o. Rep. 414 ; Royal Canadian Bank v. Stewart, 68 Me. 61 ; First National Grand Trunk By. Co., 23 Up. Can. C. Banki). Northern R.R., 58 N.H. 203; P. 225. See, also, Dodge v. Meyer, Becker i. Hallgarten, 86 N. Y. 167 ; 61 Cal. 405, 416; St. Paul Roller Jlill Merchants' Bank v. Union R. R. & T. Co. v. Great ATestern Dispatch Co., Co., 69 N. Y. 373 ; City Bank v. Rome, 27 Fed. Rep. 434; Allen v. Jones, 24 W. & 0. R. E. Co., 44 N. Y. Co. 136; Fed. Rep. 11. But where a bill of Holmes u. Bailey, 92 Pa. St. 57 ; lading is provisional it does not vest Holmes v. German Security Bank, the property in the vendee or au- 87 Pa. St. 525; Emery's Sons v. thorize him to take possession of it, Irving Nat. Bank, 25 Ohio St. 360, except upon the conditions fixed by 366 ; s. C.18 Am. Eep. 299 ; see McKee the bill of lading. National Bank of V. Garcelon, 60 Me. 165; s. c. 11 Am. Cairo v. Crocker, 111 Mass. 163; Rep. 200; Stone v. Swift, 21 Mass. Allen d. Williams, 29 Mass. (12 Pick.) (3 Pick.) 389; s. c. 16 Am. Dec. 297. See De Wolf v. Gardner, 66 349 ; Peters v. Ballister, 20 Mass. (3 Mass. (12 Cush.) 19, 23 ; s. c. 59 Am. Pick.) 495 ; Hazard v. Fiske, 88 N. Y. Dec. 165 ; Shepherd v. Harrison, L. 287 ; Joslyn v. Grand Trunk Ey. Co., E. 5 H. L. 116. 51 Vt. 92; Tilden v. Minor, 45 Vt. i L. E. 10 Ex. 274. 196 ; Davis o. Bradley, 24 Vt. 55 ; s. c. 575 *346 EFFECT OF THE CONTEAOT. [BOOK II. He had ore which he could and ought to have so shipped, tak- ing bills of lading to the order of the defendants. In- [*346] stead of doing this, before * any ore was put on board the Trowbridge, he picked a quarrel with the defendants, telegraphed to them that he would not load the Trowbridge on their account, and though they telegraphed back to him threatening him if he did not, he loaded the Trowbridge, and took out bills of lading snaking the shipment to be by one Sabadie, and the cargo deliverable to Sahadie's order. He then endorsed Sahadie's and his own name on the bills of lading, and pledged them for value with the plain- tiffs. No certificate in relation to this ore was given by Munoz to the defendants. The captain was justified in giving the bills of lading, as the charter-party contained a clause authorizing him to " sign bills of lading as presented." It was agreed that at the time of shipment INIunoz had no intention to ship the ore for the defendants. The question was whether the plaintiffs, or the defendants, were entitled to the cargo, and this depended for its decision on whether the property became vested in the defendants upon the ore being paid for, as the contract provided it should, or upon shipment on board the vessel chartered by the defendants. The Court of Exchequer held that the plaintiffs were entitled. Bramwell and Cleasby BB. rested their decisions upon the following grounds : — That notwithstanding the provision in the contract to that effect, the payment of the price could not per se operate to transfer the property in the ore to the defendants, so long as the ore had not been separated from the bulk of the stock ; that there was no evidence of a spe- cific appropriation of the ore in fulfilment of the contract previous to shipment ; ^ and that shipment on board a vessel chartered by the defendants did not vest the property in them, when the shipper in dealing with the bills of lading has manifested his intention to reserve the jus dispo)icndi. Kelly C. B. came to the same conclusion upon a quite dis- tinct ground, viz.: that as the defendants by the terms of the charter-party had authorized the master to sign bills of 2 See ante, p. 296. 576 CHAP. VI.j EESEEVATION OF JITS DISPONENDI. *347 lading as presented, they were estopped from disputing plain- tiffs' title as bona fide indorsees for value. § 453. It will be observed that although the agreement provided that the ore was to become the property of the defendants upon * being paid for, yet, since the [*347] sale was not one of specific goods, it was necessary that there should be some subsequent appropriation by Munoz for the defendants before the property could actually vest in them. In the absence of any evidence of such appropriation previous to shipment, the question was reduced to this; — Did the property pass on actual shipment, the shipper having no right to ship, except to pass the property, and having no right to retain possession for any lien for the price or other- wise, but taking, when he did take it, a bill of lading, deliver- able otherwise than to the defendants, to whom it ought to have been made deliverable ? and after a careful review of the authorities cited in the text it was held, that the property did not pass. After commenting on EUershaw v. Magniac, Turner v. Trustees of the Liverpool Docks, Fulke v. Fletcher, Waite V. Baker, and Moakes v. Nicholson, Bramwell B. says, at p. 281 : " The cases seem to me to show that the act of shipment is not completed till the bill of lading is given; that if what is shipped is the shipper's property till shipped on account of the shipowner or charterer, it remains uncer- tain on whose account it is shipped, and is not shipped on the latter's account till the bill of lading is given deliverable to him." And Cleasby B., at p. 285, refering to Turner v. Trustees of the Liverpool Docks, and Shepherd v. Harrison, as being respectively an early and the latest authority on the subject says : " The effect of these decisions is that the de- livery of goods contracted for, on board a ship when a bill of lading is taken, is not a delivery to the buyer, but to the captain as bailee to deliver to the person indicated by the bill of lading, and that this may equally apply when the ship is the ship of the vendee." § 454. In Ogg V. Shuter,! the facts were that the plaintiffs had made a contract for the purchase of 20 tons of potatoes 1 1 C. P. D. 47 C. A. rerersing s. u. L. R. 10 C. P. 159. 577 *348 EFFECT OP THE CONTEACT. [BOOK II. to be delivered /ree on hoard at Dunkirk, price to be paid in cash against hill of lading, and tbe plaintiffs were to pay part of the price in earnest of the bargain. The potatoes were shipped under the contract in the plaintiffs' own sacks under a bill of lading which made them deliverable to the [*348] vendor's * order, and the plaintiffs paid 30L in part payment of the price. The vendor endorsed the bill of lading to the defendant, who was his agent in London, and he upon the arrival of the ship presented to the plaintiffs a draft for the balance of the purchase-money with the bill of lading annexed. The plaintiffs, believing that the ship- ment was short, declined to accept the draft for the full amount, and thereupon the defendant sold the potatoes to another party. In an action against the defendant for con- version, a verdict was entered by consent for the plaintiffs, leave being reserved to the defendant to move that it should be entered for him, the Court to draw inferences of fact. It was held by the Court of Common Pleas that the property in the potatoes had passed to the plaintiffs, on the ground that any evidence of the vendor's intention to reserve the jus disponendi manifested by the expression in the contract " cash against bill of lading," and by the fact of the vendor taking the bill of lading to his own order, was over-ridden by the other terms of the contract, viz., that the potatoes should be delivered " free on board," and that there should be part payment of the price, coupled with the fact that the potatoes were delivered into the plaintiffs' own sacks. This decision was reserved on appeal, the Court of Appeal holding — First, that the retention by the vendor in his agent's hands of the bill of lading in the form in which it was taken Avas elf ectual to reserve the jus disponendi. Secondly, that the right so reserved was not merely a ven- dor's lien on the goods, but involved the right to dispose of the goods by sale or otherwise, so long at least as the buyer remained in default. § 455. In Ex parte Banner,^ the firm of Christiansen & Co. who carried on business at Para, in South America, acted 1 2 Ch. D. 278, C. A. 578 CHAP. VI.] RESERVATION OF JUS DISPONENDI. *349 as commission agents in the purchase and consignment of goods for Tappenbeck & Co., at Liverpool. The course of dealing between the parties was as follows : — Chris- tiansen & Co., in order to provide funds for the * pur- [*349] chase of goods, drew bills of exchange on Tappen- beck & Co., which they discounted at Para. They then purchased the goods with the proceeds, and shipped them for Liverpool, and sent the hills of lading making the goods deliverable to Tappenbeck ^ Co. and the invoices of the goods by post direct to Tappenbeck & Co. At the same time Tap- penbeck & Co. were advised of the bills drawn upon them, which, in the ordinary course, they accepted on presentment, and paid at maturity. Both Christiansen & Co. and Tappen- beck & Co. stopped payment. At the time of Tappenbeck & Co.'s stopping payment considerable quantities of goods were in transit between Para and Liverpool, and on their arrival were taken possession of by the trustee in their liqui- dation. Some of the bills, out of the proceeds of which the goods had been purchased, were accepted, and others re- fused acceptance by Tappenbeck & Co. but none of them were paid at maturity. Held, by the Court of Appeal, re- versing the decision of Bacon C. J. that the property in the goods, had passed unconditionally to Tappenbeck & Co. and through them to their trustee, and that the creditors of Christiansen & Co. were not entitled to have the goods or their proceeds appropriated to meet the bills drawn in respect of them. Shepherd v. Harrison was expressly distinguished on the ground that there the consignor had taken the pre- caution to make the goods deliverable to his own order, and to forward the endorsed bill of lading, together with the bill of exchange, to an agent of his own. Mellish L. J. in de- livering the judgment of the Court, said (at page 288) : "We think that as soon as the goods were put on board ship at Para and the bills of lading making the goods deliverable to Tappenbeck & Co. were put into the post directed to Tappen- beck note 1, supra, there must be a, com- plete restoration of the property pur- chased or of the price paid, before there can be a rescission of the con- tract. Bishop V. Stewart, 13 Nev. 25, 41. See Barnett v. Stanton, 2 Ala. 189 ; Ogburn .;. Ogburn, 3 Port. (Ala.) 129; State u. McCauley, 15 Cal. 458; Jennings v. Gage, 13 111. 612 ; s. t;. 56 Am. Dec. 476 ; Vance v. Schroyer, 79 Ind. 380 ; Hess v. Young, 59 Ind. 379 ; Dill !■. O'Ferrell, 45 Ind. 268; Hendrickson v. Hendrickson, 51 Iowa, 68; Bain v. Wilson, 1 J. J. Marsh. (Ky.) 203 ; Tisdale c. Buckmore, 33 Me. 461; Brewster o: Burnett, 125 Mass. 68 ; s. c. 28 Am. Rep. 203 ; Bas- sett V. Brown, 5 Mass. 551, 558 ; Morse V. Brackett, 98 Mass. 207 ; Bryant V. Isburg, 79 Jlass. (13 Gray) 607; Thayer v. Turner, 49 Mass. (8 Mete.) 550; Clark t: Baker, 40 Mass. (5 Mete.) 461 ; Coolidge v. Bingham, 42 Mass. (1 Mete.) 047; Perley v. Balch, 40 Mass. (23 Pick.) 285; s. c. 34 Am. Dec. 56; Jewett v. Petit, 5 Mich. 512 ; Haase v. Nonnemacher, 21 Minn. 486; Cocke v. Rucks, 34 Jliss. 105; Minor v. Kelly, 5 T. B. Mon. (Ky.) 272; Sumner !•. Parker, 36 N. H. 454; Cook v. Gilman, 34 N. H. 556, 560; AVebb v. Stone, 24 N. II. 288; Utter V. Stuart, 30 Barb. (X. Y.) 20 ; Royce v. Watrous, 7 Daly (X. Y.) 87; affirmed, 73 N. Y. 597; Mas- son V. Bovete, 1 Den. (N. Y.) 69; s. c. 43 Am. Dee. 651; Stoddard v. Graham, 23 How. (N. Y.) Pr. 518; Reed v. MoGraw, 5 Ohio, 386 ; Carter 604 CHAP. I.J PAILXJEE OF CONSIDEEATIOX. the mistake of the complaining party was caused by the fraud of the other.^ § 486. * In Strickland v. Turner,^ the sale was of [*371] an annuity, dependent on a life that had ceased with- out the knowledge of either party, and the purchaser paid his money. Held, that he could recover it back as money had and received. V. Walker, 2 Rich. (S. C.) 46 ; Smith use without Icnowledge of the fraud, V. Smith, 30 Vt. 139; Hammond v. Buckmaster, 22 Vt. 375; Hendricks V. Goodrich, 15 Wis. 679 ; Gay v. Alter, 102 U. S. (12 Otto) 79 ; bk. 26, L. ed. 48 ; Grymes c. Sanders, 93 U. S. (3 Otto) 55, 62 ; bk. 23, L. ed. 798; Lyon o. Bertram, 61 U. S. (20 How.) 149, 154 ; bk. 15, L. ed. 327 ; Christy v. Cummings, 3 McL. C. C. 386 ; Hunt u. Silk, 5 East, 449 ; Au- ger u. Tliompson, 3 Ont. App. 19. The rescission must be made within the reasonable time after the mis- take is discovered. Wolf v. Dietzsch, 75 111. 205; Johnson v. McLane, 7 Blackf. (Ind.) 501. But what is a reasonable time always depends upon the circumstances surrounding each particular case. Marston v, Simpson, 54 Cal. 189; Grymes v. Sanders, 93 U. S. (3 Otto) 55, 62 ; bk. 23, L. ed. 798. Where the party, desiring to rescind, has changed the condition of the property, before learning of any mistake or fraud in the sale of it, caunot have his remedy by rescission. Smith V. Bittenham, 98 111. 188. See, also. Wolf V. Dietzscli, 75 111. 205; Buchanan v. Horney, 12 111. 338. Where H., the owner of chattels, rely- ing en the representations of R. that he was the agent of L., agreed to sell the same to L. on credit, and H. in the belief that R. was such agent, delivered the chattels to him, when in fact he was not such agent, nor had he authority to purchase for L., it was held tliat the property in the chattels did not pass from H., and that L., who bought the chattels of R. and converted them to his own was liable to H. for their value; and the fact that R. at the time the chat- tels were delivered to him had paid H. part of the price agreed on, was held to make no difference except as to the amount of recovery against L. Hamet e. Letcher, 37 Ohio St. 356; s. c. 41 Am. Rep. 519. The court say thart it was not a contract voidable merely, but an agreement wliolly void ; and that " under the circum- stances, the hogs never passed to Hamet." Hence, applying the maxim that no one can transfer a greater right or better title than he him- self possesses (Roland v. Gundy, 5 Ohio, 202), it necessarily follows that Letcher & Co. are liable as for a conversion. Fawcett v. Osborn, 32 111. 411 ; Moody v. Blake, 117 Mass. 23; s. c. 19 Am. Rep. 394; Saltus r. Everett, 20 Wend. (N. Y.) 267 ; s. c. 32 Am. Dec. 541 ; Barker v. Dinsmore, 72 Pa. St. 427 ; s. c. 13 Am. Rep. 697 ; Fowler v. Hollins, L. R. 7 Q. B. 616 ; Cundy v. Lindsay, 3 App. Cas. 459; In re Reed, 3 Ch. Div. 123; Hardman c. Booth, 1 Hurls. & N. 803; Kingsford u. Merry, 1 Hurls. & N. 503 ; Higgons v. Burton, 26 L. J. Ex. 342 ; Lickbarrow .,'. Mason, 6 T. R. 131 ; s. i;. 1 Smith's L. C. pt. 2, p. 1195. 2 Hunt r. Silk, 5 East, 449 ; Black- burn o. Smith, 2 Ex. 783 ; Sully r. Fearn, 10 Ex. 535; Clarke ;;. Dick- son, E. B. & E. 148; 27 L. J. Q. B. 223; Savage <>. Canning, 16 W. R. 133; 1 Ir. C. L. R. 434. And see next chapter. 1 7 Ex. 208. See a similar case 605 *372 AVOIDANCE OF THE CONTRACT. ["BOOK III. In Cox V. Prentice,^ the plaintiff bought a bar of silver, and by agreement it was sent to an expert to be assayed, and on his report of the quantity of silver contained in the bar, the plaintiff paid for it. There was a mistake in the assay, and the quantity of silver was much less than was stated in the report. Held to be a common mistake, and that the plaintiff, on offer to return the bar, could recover the price paid in assumpsit, Lord EUenborough saying, it was just as if an article is sold by weight, and there is an accidental misreckoning of the weight. § 487. The case of Boulton v. Jones,^ was a very singular case of mutual mistake, and is well worth consideration. The facts have already been stated at length (^ante, p. 61), and were substantially these : — One Brocklehurst kept a shop. He owed money to the defendant Jones. One day he sold out his shop and business to the plaintiff Boulton. On the same day, Jones, ignorant of this sale, sent a written order for goods to the shop, addressed to Brocklehurst, and Boul- ton supplied them. Jones consumed the goods, still igno- rant that they were supplied by Boulton, and when payment was asked for, declined on the ground that he had a set-olf against Brocklehurst, with whom alone he had assented to deal. The action was for goods sold, and the Court held that there ,was no contract by Jones with the plaintiff, and that inasmuch as he had a set-off against Brocklehurst, the mistake as to the person was sufficient to entitle him to refuse payment.^ So far the case was in accordance [*372] with the rule laid down by Gibbs C. J. in * Mitchell in equity. Coclirane v. Willis, I country. See Boston Ice Co. v. Ch. 58. Potter, 123 Mass. 28; s. c. 25 Am. 2 o. 3 M. & S. 344. Rep. 9; Moody v. Blake, 117 Mass. 1 2 H, & N. 504; 27 L. J. Ex. 117, 23; Winchester v. Howard, 97 Mass. followed in the American case of 303; Mudge v. Oliver, 83 Mass. (1 The Boston Ice Co. v. Potter, 123 Allen) 74; Orcutt v. Nelson, 67 Mass. 28, ante, p. 62. See a criticism Mass. (1 Gray) 636, 542 ; Gregory v. on the remarks in the text in Pollock Wendell, 40 Mich. 432, 443 ; Ran- on Contracts, Appendix E. p. 457 dolph Iron Co. v. Elliott, 34 N. J. L. (2d ed.). The note is omitted in (5 Vr.) 184; Barkers. Dinsmore, 72 the 3d edition; see, however, note Pa. St. 427; s. c. 13 Am. Rep. 697; at p. 436 of that edition. Decan v. Shipper, 35 Pa. St. 239 ; 2 The same doctrine is held in this s. c. 78 Am. Dec. 334; Hamet v. 606 CHAP. I.] FAILURE OF CONSIDEEATION. *372 V. Lepage^ (not cited in Boulton v. Jones), and the plain- tiff could not be permitted to recover. But on the prin- ciples governing contracts in general, it is submitted that the plaintiff was not wholly without remedy. For aught that appears in the report, there was a clear case of mutual mistake. The plaintiff who had just bought out the shop and business of Brocklehurst, did nothing wrong, nothing out of the usual course of trade in supplying goods on a written order sent by a customer to a shop, addressed to the man whose business he had just bought, and in ignorance of the fact that it could be at all material to the buyer whether the goods were supplied by himself or by his predecessor in business. Plaintiff's mistake was his ignorance that the defendant wished to buy qud creditor of Brocklehurst, so as to pay for the goods by a set-off. Defendant's mistake was in consuming the goods of the plaintiff, in the belief that they were the goods of Brocklehurst. It can hardly be doubted that if the goods had not been consumed before the discovery of the mistake, the defendant would have been bound on demand to return the goods if he did not choose to pay for them. The very basis of the decision was that there had been no contract between the parties, and if so, on no conceivable ground could the defendant have kept without payment another man's goods sent to his house by mistake. The consumption of the goods prevented the possibility of a simple avoidance of the contract on the ground of mutual mistake. That mistake was in relation to the mode of pay- ment. The vendor thought he was to be paid in money : the buyer intended to pay in his claim against Brocklehurst. The real question under the circumstances then was this : Is the buyer to pay as he intended, or as the vendor intended ? for both had intended that the property in the goods should pass, at the price fixed in the invoice. Now, in determining this., was the real dispute, a controlling circumstance is that the buyer was wholly blameless, whereas the seller had been guilty of some slight negligence. If the seller had sent an Letcher, 37 Ohio St. 356 ; s. c. 41 » Holt, N. P. 253. Am. Rep. 519 ; Dean v. Yates, 22 Ohio St. 388. 607 *373 AVOIDANCE OF THE CONTKACT. [BOOK III. invoice or bill of parcels with the goods, shoAving [*373] that he *was the vendor, the buyer would have been at once informed of the mistake, and might have rejected the goods ; but the vendor delayed sending his invoice till the goods were consumed. The true result therefore of the whole transaction, it is submitted, is in principle this, that the buyer was bound to pay for the goods in the manner in which he had assented to pay, and the vendor was bound to accept payment in that mode. The buyer was therefore responsible, not at law (for courts of law have no means nor machinery for reforming contracts nor rendering conditional judgments), but in equity, either to make an equitable assignment to the vendor of his claim against Brocklehurst for an amount equivalent to the price, or to become trustee for the seller in recovering the claim against Brocklehurst. He would have no right to retain the whole of his claim against Brocklehurst while refusing to pay for the goods.* The case is manifestly quite distinct from that of a mutual mistake, where a party has consumed what he did not intend to buy. If A. sends a case of wine to B., intending to sell it, but fails to communicate his inten- tion, and B., honestly believing it to be a gift, consumes it, there is no ground for holding B. to be responsible for the price, either in law or equity, if he be blameless for the mistake. § 488. Where the mistake is that of one party onlj' to the contract, and is not made known to the other, the party laboring under the mistake must bear the consequences, in the absence of any fraud or warranty. If A. and B. contract for the sale of the cargo per ship " Peerless," and there be two ships of that name, and A. mean one ship and B. intend the otiier there is no contract.^ But if there be but one ship "Peerless," and A. sell the cargo of that ship to B., the latter would not be permitted to excuse himself on the ground that he had in his mind the ship "Peeress," and * See for illustration of equitable ^ Raffles v, Wiclielhaus, 2 H. & C. principles in such cases, Harris v. 906; 33 L. J. Ex. 100. Pepperell, 5 Eq. 1. G08 CHAP. I.J FAILURE OF CONSIDERATION. '^374 intended to contract for a cargo by tliis last-named ship. Men can only bargain by mutual communication, and if A.'s proposal were * unmistakable, as if it were [*374] made in writing, and B.'s answer was an unequivocal and unconditional acceptance, B. would be bound, however clearly he might afterwards make it appear that he was thinldng of a different vessel. For the rule of law is general, that whatever a man's real intention may be, if he manifests an intention to another party, so as to induce that other party to act upon it, he will be estopped from denying that the intention as manifested was his real intention.^ § 489. When the mistake of one party is known to the other, then the question resolves itself generally into one of fraud,! which is the subject of the next chapter. In the case 2 Per Lord Wensleydale, in Free- man o. Cooke, 2 Ex. 654; Doe ;). Oliver, and cases collected in notes to it, 2 Sm. L. C. 775 (8th ed.) ; Cor- nish V. Abington, 4 H. & N. 549 ; 28 L. J. Ex. 262 ; Alexander v. Worman, 6 H. & N. 100; 30 L. J. Ex. 198; Van Toll v. South Eastern Railway Co., 12 C. B. N. S. 75; 31 L. J. C. P. 241 ; In re Bahia and San Francisco Railway Co., L. R. 3 Q. B. 584 ; Carr V. London and North Western Rail- way Co., L. R. 10 C. P. ZOl—per Brett J., at p. 316. ^ Mistake concerning person is vital where personality is important. Bos- ton Ice Co. V. Potter, 123 Mass. 28 ; s. c. 25 Am. Rep. 9; Hills v. Snell, 104 Mass. 173; s. c. 6 Am. Rep. 216; Johnson v. Raylton, L. R. 7 Q. B. Div. 438 ; Boulton v. Jones, 2 Hurls. & N. 564; Dalton v. Hamilton, 1 Hannay (N. B.) 422, 425, 426. Thus where one buys goods at a shop which has been occupied by a person who owes him, under the supposition that he is dealing with his debtor, he will be relieved from the contract, but if, on learning his mistake, he makes no objection, but retains the goods, he will be bound by the pur- chase. Mudge V. Oliver, 83 (1 Allen) 74; but see Orcutt v. Nelson, 67 Mass. (1 Gray) 536, 542. As to mistake of one not known to the other .party , see Stoddard v. Ham, 129 Mass. 383; s. c. 37 Am. Rep. 369. See, also, Daley v. Carney, 117 Mass. 288 ; Foster v. Ropes, 111 Mass. 10, 16; Wright u. "Willis, 84 Mass. (2 Allen) 191. As to mistake of one known to the other of the parties to a contract, see Winchester v. Howard, 97 Mass. 303 ; Huntington v. Knox, 61 Mass. (7 . Cush.) 371; Holtz v. Schmidt, 59 N. Y. 253 ; Humble v. Hunter, 12 Q. B. 311 ; s. c. 12 Ad. & El. N. S. 310 ; Smith v. Drew, 25 Grant (Ont.) 188. See Clodfelter v. Hulett, 72 Ind. 137, 143; Smither w. Calvert, 44 Ind. 242 ; Rice v. Dwight Manuf . Co., 56 Mass. (2 Cush.) 80, 86 ; Miller v. Lord, 28 Mass. (11 Pick.) 11 ; Fleet- wood V. City of New York, 2 Sandf. (N. Y.) 475; Coleman v. Grubb, 23 Pa. St. 393; Clark v. Lillie, 39 Vt. 405; Railroad Co. o. Trimble, 77 U. S. (10 Wall.) 367, 377 ; bk. 19, L. ed. 948 ; see, also, Downs v. Donnelly, 5 Ind. 496; Gooding c Morgan, 37 Me. 419 ; Norton v. Marden, 15 Me. 609 *375 AvoiDAJsrcE op the contract. [book in. just supposed of a ship " Peerless " and a ship " Peeress," there can be little doubt that if the vendor knew that the purchaser had a different ship in his mind from that intended by the vendor, there would be no contract, for by the rule of law just stated, the vendor would not be in a position to show that he had been induced to act by a manifestation of the buyer's intention diffej-ent from his real intention. And if he not only knew the buyer's mistake, but caused it, his conduct would be fraudulent. But, as a general rule in sales, the vendor and purchaser deal at arms' length, each relying on his own skill and knowledge, and each at liberty to impose conditions or exact warranties before giving assent, and each taking upon himself all risks other than those arising from fraud, or from the causes against which he has fortified himself by exacting conditions or warranties. So that even if the vendor should know that the buyer was pur- chasing, for instance, cotton goods submitted to his inspec- tion in the mistaken belief that they were made of linen, or if the purchaser should know that the vendor was [*375] selling a * valuable estate under the mistaken belief that a search for mines under it had proved unsuc- cessful, neither party could avoid the contract made under the supposed error or mistake. The exception to this rule exists only in cases where, from the relations between the parties, some special duty is incumbent on the one to make full and candid disclosure of all he knows on the subject to the other. This topic is more fully considered in the next Chapter on Fraud. § 490. The mistake which will justify a party in seeking 45; s. c. 32 Am. Dec. 132; Hill u. 327; Robinsons. Charleston, 2 Rich. Green, 21 Mass. (4 Pick.) 114; Bean (S. C.) 317 ; s. c. 45 Am. Dec. 739 ; V. Jones, 8 N. H. 149 ; Wyman v. Hubbard v. Martin, 8 Yerg. (Tenn.) Farnsworth, 3 Barb. (N. Y.) 369; 498; Dickinsr. Jones, 6 Yerg. (Tenn.) Clarke ,.•. Dutcher, 9 Cow. (S. Y.) 483; s. c. 27 Am. Dec. 488; Lee v. (;74; Abell U.Douglass, 4 Den, (N.Y.) Stuart, 2 Leigh (Va.) 76; s. c. 21 305 ; Onondaga u. Briggs, 2 Den. Am. Dec. 599 ; Elliott v. Svvartwout, (X. Y.) 26; Silliman u. Wing, 7 Hill 35 U. S. (10 Pet.) 137; bk. 9, L. (N. Y.) 159; Mowatt o. Wright, 1 ed. 373; East India Co. v. Tritton, 3 Wend. (N. Y.) .355; s. c. 19 Am. Dec. Barn. & Cr. 280, 290; Stevens v. 508; Ege v. Koontz, 3 Pa. St. 109; Lynch, 12 East, 38; Piatt v. Brom- Colwell u. Peden, 3 Watts (Pa.) age, 24 L. J. Ex. 63. 610 CHAP. I.J PAILUEE OF CONSIDEKATION. *376 to avoid liis contract must be one of fact, not of law. The universal rule is Ignorantia juris neminem excusat} The cases illustrating this maxim are very numerous, and only a small number of them will be found in the note.^ But in Wake V. Harrop,^ it was held, both in the Exchequer of Pleas and in the Exchequer Chamber, that where a party had specially stipulated that he was acting only as agent for another, and had signed as such agent for his absent principal named in the signature, he was at liberty to show, by way of equitable defence, that the agreement which had been drawn up in such terms as to make him personally liable at law, was so written by mistake, that it did not express the real contract, and that he was not liable as principal. Some of the judges thought the plea a good defence, even at law, but this point not being raised, was not decided. § 491. In Cooper v. Phibbs,^ Lord Westbury gave the following very lucid statement of the true meaning of the maxim just quoted. " It is said ignorantia juris haud exousat, but in that maxim the word jus is used in the sense of de- noting general law, the ordinary law of the country. But when the word jus is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact ; it may also be the result of matter of law : but if parties contract under a mutual mistake and * misapprehension as to their relative and [*376] respective rights, the result is that the agreement is liable to be set aside as having proceeded upon a common mistake. Now that was the case with these parties — the respondents believed themselves to be entitled to the prop- erty ; the petitioner believed that he was a stranger to it : the mistake is discovered and the agreement cannot stand." The case was that of a party the real owner of a property, 1 See Burt v. Bowles, 69 Ind. 1 ; Stewart v. Stewart, 6 CI. & F. 966 ; American Ins. Co. v. Capps, 4 Mo. Teed v. Johnson, 11 Ex. 840 ; Piatt v. App. 571; King v. Doolittle, 1 Head Bromage, 24 L. J. Ex. 63; Wake v. (Tenn.) 77. Harrop, 6 H. & N. 768 ; 1 H. & C. 2 Bilbie v. Lumley, 2 East, 471 ; 202 ; 30 L. J. Ex. 273 ; 31 L. J. Ex. Stevens v. Lynch, 12 East, 38 ; East 461. India Co. v. Tritton, 3 B. & C. 280; IL. R. 2 H. L. 148-170; and see Milnes v. Duncan, 6 B. & C. 671; Jones w. CUfford, 3 Ch. D. 779. 611 *377 AVOIDANCE OF THE CONTKACT. [bOOK III. agreeing in ignorance of his right, to take a lease of it from the supposed owners, who were equally ignorant that they had no title to it. § 492. [And in Earl Beauchamp v. Winn,^ Lord Chelms- ford said : " With regard to the objection, that the mistake (if any) was one of law, and that the rule, Ignorantia juris neminem excusat applies, I would observe upon the peculiarity of this case, that the ignorance imputable to the party was of a matter of law arising upon the doubtful construction of a grant. This is very different from the ignorance of a well- known rule of law. And there are many cases to be found in which Equity, upon a mere mistake of the law, without the admixture of other circumstances, has given relief to a party who has dealt with his property under the influence of such mistake." In Equity the line between mistakes in law and mistakes in fact has not been so clearly and sharply drawn as by the Courts of Common Law, and there are cases in which Equity grants relief against mistakes of law, the ground for the re- lief being that, under the particular facts of the case, it is inequitable that the one party should profit by the mistake of the other. 2 And now it would seem that under the Judicature Act, 1873, sect. 25, sub-s. 11, the rule adopted by Courts of Equity will prevail.] § 493. An innocent misrepresentation of fact or law may give rise to a contract, and thus involve the question, [*377] whether the * party deceived by such innocent mis- representation is entitled on that ground to avoid the contract. The law as to misrepresentation of fact was thus stated by Blackburn J. in delivering the judgment of the Court in Kennedy v. The Panama Mail Company.^ " There is a very 1 L. E. 6 H. L. at p. 234. v. Ingham, 3 Ch. D. C. A. at p. 357 ; 2 Per Turner L. J. in Stone v. per cur. in Daniell u. Sinclair, 6 App. Godfrey, 5 D. M. & G. at p. 90 ; per Gas. at p. 190. James L. J. in Ex parte James, 9 Ch. i L. E. 2 Q. B. 580-587. at p. 614 ; per Mellish L. J. in Eogers 612 CHAP. I.J FAILURE OF CONSIDEEATIO^T. *377 important difference between cases where a contract may be rescinded on account of fraud, and those in which it may be rescinded on the ground that there is a difference in sub- stance between the thing bargained for and that obtained. It is enough to show that there was a fraudulent representa- tion as to any part of that which induced the party to enter into the contract which he seeks to rescind ; but where there has been an innocent misrepresentation or misapprehension, it does not authorize a rescission unless it is such as to show that there is a complete difference in substance between what was supposed to be and what was taken, so as to constitute a failure of consideration. For example, where a horse is bought under a belief that it is sound, if the purchaser was induced to buy by a fraudulent representation as to the horse's soundness, the contract may be rescinded. If it was induced by an honest misrepresentation as to its soundness, though it may he clear that both vendor and purchaser thought that they ivere dealing about a sound horse and were in error, yet the purchaser must pay the whole price, unless there was a warranty: and even if there was a warranty, he cannot return the horse and claim back the whole price unless there was a condition to that effect in the contract. Street v. Blay." ^ The learned judge then quotes the authorities from the Civil Law to the same effect, and concludes the passage by saying, " And as we apprehend, the principle of our law is the same as that of the Civil Law ; and the difficulty in every case is, to determine whether the mistake or misapprehension is as to the substance of the whole consideration, going as it were, to the root of the matter, or only to some point, even though a mate- 2 2 B. & Ad. 456. Franklin v. Henderson, 15 Mass. 319; s. c. 8 Am. Long, 7 Gill & J. (Md.) 417, 419; Dec. 103; Perley d. Balch, 40 Mass. Hyatt «. Boyle, 5 Gill & J. (Md.) 110; (23 Pick.) 283; s. c. 34 Am. Dec. s. c. 25 Am. Dec. 276; Bartlett v. 56; Kimball u. Cunningham, 4 Mass. Drake, 100 Mass. 176 ; s. c. 1 Am. 502 ; s. c. 3 Am. Dec. 230 ; Carter v. Rep. 101 ; Morse v. Brackett, 98 Walker, 2 Rich. (S. C.) 40 ; Thornton Mass. 209 ; Boardman v Spooner, 95 v. Wynn, 25 U. S. (12 Wheat.) 183 ; Mass. (13 Allen) 361 ; Bryant v. Is- bk. 6, L. ed. 595 ; Doggett v. Emer- burg, 79 Mass. (13 Gray) 607 ; s. c. son, 3 Story C. C. 700, 732 ; Daniel 74 Am. Dec. 655; Borr v. Fisher, 55 v. Mitchell, 1 Story C. C. 172, 188; Mass. (1 Gush.) 271, 274 ; Conner v. Small u. Atwood, 1 Young, 407, 459. 613 *378 AVOIDANCE OF THE CONTRACT. [BOOK III. [*378] rial point, an error as * to which does not affect the substance of the whole consideration." ^ § 494. In Torrance v. Bolton,^ it was held that where a bidder at an auction was misled by the particulars advertised, as to the property exposed for sale, and being deaf did not hear the conditions read out at the sale in which the prop- erty was stated to be subject to mortgages, he was not bound by the contract made by mistake under such misleading par- ticulars, which had induced him to believe that he was buy- ing the absolute reversion of the freehold and not an equity of redemption. No fraud was shown, but the Court said, that the description in the particulars was " improper, insuf- ficient, and not very fair." (Per James L. J., 8 Ch. at p. 123.) This subject is further treated in the Chapter on War- ranty, Book IV. Part II. Ch. 1. § 495. As to mistake or failure of consideration in a con- tract which was induced by an innocent misrepresentation of law, it was carefully considered by the Common Pleas in the two cases of Southall v. Rigg and Forman v. Wright,^ and held to form a valid ground for avoiding a contract. 8 Innocent misrepresentations. — A Pet.) 26, bk. 10, L. ed. 00; Brooks v. contract founded upon material mis- Stolley, 3 McL. C. C. 523 ; Doggett representations of facts, innocently v. Emerson, 3 Story C. C. 733; made by one party or inadvertently Hough i. Richardson, 3 Story C. C. through a mutual mistake of both 659; Daniel v. Mitchell, 1 Story parties, affords no ground for refusal C. C. 172 ; Tuthill o. Babcock, 2 to execute the contract. See Coe v. Woodb. & M. C. C. 299 ; Smith v. Turner, 5 Conn. 86 ; Sherwood o. Babcock, 2 Woodb. & M. C. C. 246 ; Salmon, 5 Day (Conn.) 439; s. c. 5 Mason i-. Crosby, 1 Woodb. & M. C. Am. Dec. 167; Walker v. Denison, C. 342; Person v. Sanger, 1 Woodb. 86 111. 142; Bird v. Porceman, 62 111. & M. C. C. 138; Warner ;;. Daniels, 212; Kyle v. Kavanagh, 103 Mass. 1 Woodb. & M. C. C. 90; Clapham ;■. 356 ; 4 Am. Eep. 560 ; Spurr v. Ben- Shillito, 7 Beav. 149 ; Pearson v. edict, 99 Mass. 463; Parnum o. Ran- Morgan, 2 Bro. C. C. 388; Jennings dolph, 5 Miss. (4 How.) 435; s. c. 35 v. Broughton, 5 DeG. M. & G. (Am. Am. Dec. 403 ; Roosevelt v. Dale, 2 ed.) 126, note 2 ; Bigelow on Torts, Cow. (N. Y.) 581 ; Dale v. Roosevelt, 23, note 1. 5 Johns. Ch. (N. Y.) 174; Champlin i 14 Eq. 124; 8 Ch. 118. «. Laytin, 6 Paige Ch. (N. Y.) 189; i Both reported in 11 C. B. 481; Lewis V. McLeraore, 10 Yerg. (Tenn.) 20 L. J. C. P. 145. See, also, Rush- 206; Smith v. Richards, 38 U. S. (13 dall v. Ford, 2 Eq. 750. 614 CHAP. I.J TAILURE OF CONSIDEEATION. *379 It is to be observed, however, that in both those cases, the mistake went in the above-quoted language of Mr. Justice Blackburn, "to the substance of the whole consideration," and it is apprehended that the right of rescinding a con- tract, on the ground of mistake of law induced by innocent misrepresentations, is subject to the same qualification and limitation as where there is a mistake of fact induced by the same cause, as explained in Kennedy v. The Panama Mail Co., supra. § 496. In Stevens v. Lynch,^ the drawer of a bill of ex- change, knowing that time had been given to the acceptor without his, the drawer's, assent, but ignorant that in law he was thereby discharged, promised to pay the bill, and he was held bound.2 This case was cited in Forman v. Wright, but Williams J. simply said,^ " That is a very * different case ; " the difference being apparently [*379] this, that in the case of Forman v. Wright, the de- fendant had never owed the money at all, so that his error went " to the substance of the whole consideration," whereas, in Stevens v. Lynch, the defendant had been indebted to the plaintiff for a good consideration, and although the law dis- charges a surety where time is given to the principal debtor without the surety's assent, yet this is done on the ground that the condition of the surety is generally thereby altered ; and non constat that in Stevens v. Lynch, the defendant's condition was really altered. Certainly the whole considera- tion of his promise to pay was not the mistake of law, inas- much as the promise was manifestly based in part on the original consideration received when the bill was drawn. In the case of Beattie v. Lord Ebury,* there is an elaborate discussion of the law on this subject in its application to the 1 12 East, 38. (S. C.) 479 ; Gibbon v. Coggon, 2 2 Breed v. Millhouse, 7 Conn. 523 ; Campb. 188 ; Taylor v. Jones, 2 Bryam u. Hunter, 36 Me. 217; An- Campb. 105; Pickin i:. Graham, 1 C. drews v. Boyd, 44 Mass. (3 Mete.) & M. 725; Lundie c-. Robertson, 7 434 ; Martin v. Ingersoll, 26 Mass. (8 East, 231 ; 3 Kent Com. 113. Pick.) 1 ; Dorsey v. Watson, 14 Mo. ^ 2 L. J. C. P. at 149. 69; Harvey v. Troupe, 23 Miss. 538; * 7 Ch. 777, at p. 800; s. c. L. R. 7 Loose V. Loose, 38 Pa. St. 538, 545 ; H. L. 102. Hall c;. Freeman, 2 Nott & McC. 616 *380 AVOIDANCE OF THE CONTEAOT. [BOOK III. case of an agent honestly representing himself to have an authority which he does not possess, and Mellish L. J. in de- livering the judgment of the Court, expressed a very strong opinion, that if in such a case the written power was shown by the agent, he would not be responsible for the innocent misrepresentation of its legal effect. § 497. As early as 1797, it was held by the King's Bench to be settled law that a man who had advanced money on a contract of sale had a right to put an end to his contract for failure of consideration, and recover in an action for money had and received, if the vendor failed to comply with his entire contract.^ A buyer may recover, on the same ground, the price paid to the seller who has warranted title, when the goods for which the money was paid turn out to have been stolen goods, and the buyer has been compelled to de- liver them up to the true owner. ^ And, even without such warranty, it has been said to be the undoubted right of a buyer to recover back his money paid on the ordinary purchase of a chattel, where he does not get that for [*380] * which he paid ; ^ but this subject of failure of title is more elaborately treated, post, Book IV. Part II. Ch. 1, Sec. 2, on Implied Warranty of Title. And the same right exists in favor of the buyer where he has paid money for forged scrip in a railway : * or for forged bills or notes : ^ 1 Giles V. Edwards, 7 T. R. 181. 50 Am. Dec. 602; Keene u. Thomp- ' Eichholtz V. Banister, 17 C. B. son, 4 Gill & J. (Md.) 463 ; Mudd v. N. S. 708; 34 L. J. C. P. 105. Beeves, 2 Harr. & J. (Md.) 368; 2 Per cur. in Chapman v. Speller, Merriam v. Wolcott, 85 Mass. (3 14 Q, B. 621, and 19 L. J. Q. B. 241. Allen) 2-58; s. u. 80 Am. Dec. 69; Howe Machine Co. u. Willie, 85 111. Cabot Bank v. Morton, 70 Mass. 333; Burt v. Bowles, 69 Ind. 1, 7; (4 Gray) 156, 158; Gloucester Bank Minneapolis Harvester "Works u. v. Salem Bank, 17 Mass. 33 ; Salem Holley, 27 Ind. 495; Thomas v. Bank i/. Gloucester Bank, 17 Mass. Knowles, 128 Mass. 22. 1 ; s. c. 9 Am. Dec. Ill ; Young v. * Westropp u. Solomon, 8 C. B. Adams, 6 Mass. 182; Bank of Mis- 345. souri i>. Benoist, 10 Mo. 519; Markle 5 Jones V. Eyder, 5 Taunt. 488; v. Hatfield, 2 Johns. (N. Y.) 455; Gurney v. Womersley, 4 E. & B. 133 ; s. u. 3 Am. Dec. 446 ; Hargrave v. 24 L. J. Q. B. 46 ; Woodland v. Fear, Dusenberry, 2 Hawks. (N. C.) L. 326 ; 7E.&B. 519;26L.J. Q. B. 202. See, Raymond i-. Baar, 13 Serg. & R. (Pa.) also, Sims <.. Klein, I 111. (1 Breese) 318; s. c. 45 Am. Dec. 603; Pindall 234 ; Baxter v. Duren, 29 Me. 434 ; s. c. u. Northwestern Bank, 7 Leigh (Va.) 616 CHAP. I.J EAILUKE OF CONSIDERATION. "380 or for an article different from that whicli was described in the sale, as is shown post, in Book IV. Part I. on Condi- tions.^ § 498. Where money was paid for shares in a projected joint-stock company, and the undertaking was abandoned, and the projected company not formed, the buyer was held entitled to recover back his money as paid on a consideration which had failed.^ So, also, where a buyer has paid for a bill of exchange which proves to be invalid, having been avoided by a material alteration;^ or for an unstamped bill of ex- change which purports to be a foreign bill, and turns out to be worthless because really a domestic bill, invalid without a stamp,^ he may rescind the contract for failure of consider- ation.* 617 ; Woodland v. Eear, 7 El. & Bl. 519 ; Gurney v. AVomersley, 4 El. & Bl. 13.3 ; Trimmins v. Gibbons, 18 Q. B. 722 ; Jones v. Eyde, 5 Taunt. 488. ^ See notes to Ghandelor v. Lopus, 1 Sim. L. C. (ed. 1879) 183. 1 Kempson v. Saunders, 4 Bing. 5. "- Burchfield v. Moore, 3 E. & B. 683 ; 32 L. J. Q. B. 261. Massachusetts doctrine. — It was held in the case of Talbot v. National Bank of Commonwealth, 129 Mass. 67 ; s. c. 37 Am. Rep. 302, that if an indorser of a promissory note, relying upon a notice received from a notary public that the note had been dis- honored, and being called upon to pay the note by a subsequent indorser, pays it to him, when in fact a proper demand has not been made upon the maker, such payment is made under a mistake of fact, and an action for money had and received will lie for the amount so paid. Garland v. Salem Bank, 9 Mass. 408 ; s. c. 6 Am. Dec. 86 ; see, also. Union Bank V. United States Bank, 3 Mass. 74; Cripps V. Reade, 6 T. R. 607. ^ Gompertz v. Bartlett, 2 E. & D. 849 ; 23 L. J. Q. B. 65. * A contract for the sale of chases in action, which prove to be worthless can be avoided by the party injured. See Terry v. Bissell, 26 Conn. 23; Snyder v. Reno, 38 Iowa, 829 ; Mer- riam v. Wolcott, 85 Mass. (3 Allen) 258; s. c. 80 Am. Dec. 69; Lobdell V. Baker, 42 Mass. (1 Mete.) 193; B. c. 35 Am. Dec. 358 ; Young v. Adams, 6 Mass. 182; "Wood v. Shel- don, 42 N. J. L. (13 Vr.) 421; s. c. 36 Am. Rep. 523; Littauer v. Gold- man, 72 N. Y. 506 ; s. c. 28 Am. Rep. 171; Ross V. Terry, 63 N. Y. 613; Bell V. Dagg, 60 N. Y. 530; Webb v. Odell, 49 N. Y. 583; Whitney v. National Bank of Potsdam, 45 N. Y. 305 ; Delaware Bank v. Jarvis, 20 N. Y. 226 ; Markle c. Hatfield, 2 Johns. (N. Y.) 455 ; s. c. 3 Am. Dec. 446 ; Dumont v. Williamson, 18 Ohio St. 515 ; Aldrich v. Jackson, 5 R. I. 218 ; Grand v. Mason, 1 Swan. (Tenn.) 196 ; Thrall v. Newell, 19 Vt. 202, 208 ; s. c. 47 Am. Dec. 682 ; Giffert V. West, 33 Wis. 617 ; Paul v. City of Kenosha, 22 Wis. 266; Hurd o. Hall, 12 Wis. 112, 135; Bank of United States v. Bank of Georgia, 23 U. S. (10 Wheat.) 333 ; bk. 6, L. ed. 335; Young v. Cole, 3 Bing. N. C. 724 ; Gompertz v. Bartlett, 2 El. & Bl. 849 ; s. c. 75 Eng. C. L. 849. Com- pare Jones V. Ryder, 5 Taunt. 488 ; 617 *380 AVOIDANCE OF THE CONTKACT. [BOOK III. § 499. But there is not a failure of consideration when the buyer has received that which he really intended to buy, although the thing bought should turn out worthless.^ s. c. 1 Eng. C. L. 488; Shove v. Webb, 1 T. E. 732. In Littauer v. Goldman, 72 N. Y. 506 ; s. c. 28 Am. Eep. 171 ; rev'g 9 Hun (N. Y.) 23, it is said that where the holder of a promissory note, which is tainted with usury, transferred it for a valu- able consideration, without indorse- ment and without representations as to legality, in the absence of knowl- edge on his part at the time of the transfer of the defect, that no war- ranty against it will be implied, and that an action cannot be sustained against him for loss sustained by the purchaser by reason of the defect, because a scienter is essential to es- tablish an implied warranty as to the validity of the note, the general doctrine being that upon such a transfer there is only an implied warranty of the title, and that the instrument is genuine. This case distinguishes, Eoss v. Terry, 63 N. Y. 613; Stone v. Frost, 61 N. Y, 614; Bell V. Dagg, 60 N. Y. 530 ; Webb v. Odell, 49 N. Y. 583; Whitney v. National Bank, 45 N. Y. 305 ; Fake V. Smith, 7 Abb. (N. Y.) Pr. N. S. 106 ; Eoss V. Mather, 47 Barb. (N. Y.) 582 ; Gompertz v. Bartlett, 2 BI. & El. 849; s. c. 75 Eng. C. L. 849; Wil- liamson V. Allison, 2 East, 446. ^ Defective article. — In the absence of fraud or latent defects the accept- ance of an article upon an executory contract of sale, after an opportimity to examine, equity will not relieve against mistake, where the party com- plaining had within his reach the means of ascertaining the true state of facts, and without being induced thereto by the other party, neglected to avail himself of his opportunity of information ; it is a well estab- lished rule that if a party gets all he knowingly contracts for he will not be allowed to plead that he got no consideration. Neidefer v. Chastain, 71 Ind. 363, 368; =. l-. 36 Am. Eep. 198; Smock v. Pierson, 68 Ind. 405; s. c. 34 Am. Eep. 269 ; Hess v. Young, 59 Ind. 379 ; Hunter v. McLaughlin, 43 Ind. 38 ; Baker v. Eoberts, 14 Ind. 552; Harvey v. Dakin, 12 Ind. 481; Taylor v. Huff, 7 Ind. 680 ; Louden v. Birt, 4 Ind. 566; Hardosty v. Smith, 3 Ind. 39 ; Wheat v. Cross, 31 Md. 99, 104; Brown v. Fagan, 71 Mo. 563; Gaylord Manuf. Co. ,.. Allen, 53 N. Y. 515 ; Sankey v. First Nat. Bank of Miffinburg, 78 Pa. St. 48 ; McCrea v. Longstreth, 17 Pa. St. 316; Stein- hauer v. Witman, 1 Serg. & E. (Pa.) 438 ; Bryant v. Pember, 45 Vt. 487. However it is held that where the consideration for a promissory note is an interest in or a right under a void patent, it will not be sufficient con- sideration to support the note. Har- low V. Putnam, 124 Mass. 553 ; Lester V. Palmer, 86 Mass. (4 Allen) 145; Nash V. Lull, 102 Mass. 60; s. c. 3 Am. Eep. 438 ; Dickinson u. Hall, 31 Mass. (14 Pick.) 217; Bliss w. Negus, 8 Mass. 46 ; Shepherd v. Jenkins, 73 Mo. 510 ; Cowan v. Dodd & Mitchell, 3 Coldw. (Tenn.) 278. See Myers v. Turner, 17 111. 179 ; McClure v. Jef- frey, 8 Ind. 79; Lester v. Palmer, 86 Mass. (4 Allen) 145 ; Bierce v. Stock- ing, 77 Mass. (11 Gray) 174; Dickin- son V. Hall, 31 Mass. (14 Pick.) 217 ; Bliss V. Negus, 8 Mass. 46 ; JoUiffe v. Collins, 21 Mo. 343 ; Dunbar v. Mar- den, 13 N. H. 311 ; Cross v. Huntly, 13 Wend. (N. Y.) 385; Geiger v. Cook, 3 Watts & S. (Pa.) 266 ; Gray V. Billington, 21 Up. Can. C. P. 288. But where an invention can be ap- plied to any beneficial purpose, it is to be regarded as useful and the patent will be valid. Nash v. Lull, 102 Mass. 60; s. c. 3 Am. Eep. 435; Green v. Stuart, 7 Baxt. (Tenn.) 418. See McKee ;;. Eaton, 26 Kans. 226; 618 CHAP. I.] FAILURE OF CONSIDEKATION. *381 Thus, where a buyer bought railway scrip, and the directors of the company subsequently repudiated it as issued without their authority; upon proof offered that the scrip was the only known scrip of the railway, and had been for several months the subject of sale and purchase in the market, held, that the buyer had got what he really intended to buy ; and could not rescind the contract on the ground of a failure of consideration.^ [And so where a person bought the exclusiTe right of using a patent in a foreign country, being aware at the time of the * purchase that no exclusive right to [*381] use the process there could be obtained, but desiring an ostensible grant of the exclusive right, with the object of floating a company : it was held, that having obtained what he desired and intended to buy, he could not recover the purchase-money on the ground that the consideration had failed.3] § 500. Where the failure of consideration is only partial, the buyer's right to rescind will depend on the question whether the contract is entire or not. Where the contract is entire, as in Giles v. Edwards,^ and the buyer is not Harlow v. Putnam, 124 Mass. 553 ; there is no want or failure of the con- Lester V. Palmer, 86 Mass. (4 Allen) sideration in the legal sense of the 145; Shepherd n. Jerkins, 73 Mo. 510 ; rule, even if thereby the article is Cowan V. Dodd, 3 Coldw. (Teun.) rendered worthless; as the buyer in 278. Compare Gray v. Billington, 21 such case gets and retains what he Up. Can. C. P. 288. The degree of bought, that is the property, at his its utility or practical value does not own risk as to such defect. Bryant aifect the validity of the patent. v. Peraber, 45 Vt. 487, 491. See Bedford v. Hunt, 1 Mason C. C. 304 ; Palmer's Appeal, 96 Pa. St. 106 ; Lowell V. Lewis, 1 Mason C. C. 185, Green v. Stuart, 7 Baxt. (Tenn.) 418; 188 ; Roberts v. Ward, 4 McL. C. C. Clarke v. White, 3 Duv. (Can.) 309. 565 ; Langdon v. De Groot, 1 Paine - Lamert v. Heath, 15 M. & W. C. C. 203 ; Kneass v. Schuylkill Bank, 487. See, also, Lawes v. Purser, 6 4 Wash. C. C. 12. However, it would E. & B. 930 ; 26 L. J. Q. B. 25. seem that where there is no warranty ^ Begbie v. Phosphate Sewage Co., as to the utility of the invention, the L. E. 10 Q. B. 491 ; aflBrmed, 1 Q. B. fact that it does not answer fully the D. 674, C. A. contemplated use to be made of it by i 7 T. E. 181, ante, p. 379. See Whin- the assignee, does not constitute a cup v. Hughes, L. E. 6 C. P. 78; see, defence to an action on a note for the also. Smith v. Lewis, 49 Ind. 98 ; Davis purchase price, for if there is a failure v. Ma.xwell, 53 Mass. (12 Mete.) 286 ; of an article by reason of a defect Hill v. Eewee, 52 Mass. (11 Mete.) as to which the buyer takes the risk, 268 ; Clark o. Baker, 46 Mass. (5 619 *381 AVOIDANCE OP THE CONTKACT. [BOOK III. willing to accept a partial performance, he may reject the contract in toto, and recover back the price. But if he has accepted a partial performance, he cannot afterwards rescind the contract, but must seek his remedy in some other form of action. Thus, in Harnor v. Groves,^ a purchaser of fifteen sacks of flour having, after its delivery to him, used half a sack, and then two sacks more, was held not entitled to rescind the contract, on the ground of a failure of considera- tion, and to return the remainder, although he had made complaint of the quality as not equal to that bargained for, as soon as he had tried the first half saok.^ So if the buyer has paid for a certain quantity of goods, and the vendor has delivered only part, and makes default in delivering the remainder, the buyer may rescind the contract for the defi- ciency, and recover the price paid for the quantity deficient ; for the parties in this case have, by their conduct, given an implied assent to a severance of the contract by the delivery on the one part, and the acceptance on the other, of a por- tion only of the goods sold. This is in its nature a total fail- ure of consideration for part of the price paid ; ^ not, as in the case of the flour, a partial failure of the whole. This was held, in Devaux v. Connolly,^ where the plaintiff had paid for two parcels of terra japonica, one of 25 tons, and the other of 150 tons, and the parcels turned out to be only 24 tons and 132| tons respectively. Mete.) 452 ; Parish v. Stone, 31 Mass. sion and restoration." See, also, Nor- (U Pick.) 198; s. c. 25 Am. Dec. ris i: Harris, 15 Cal. 226; Young 378 ; Miner v. Bradley, 39 Mass. (22 v. Conant Manuf. Co. of Wakeiield, Pick.) 457; Jenness v. Wendell, 51 121 Mass. 91; Mansfield «. Trigg, 113 N. H. 63, 67, 70; s. i;. 12 Am. Rep. Mass. 350; Morse v. Brackett, 98 48 ; Gault v. Brown, 48 N. H. 183 ; Mass. 205 ; s. c. 104 Mass. 494 ; Clark Paige V. Ott, 5 Den. (N. Y.) 406; v. Baker, 46 Mass. (5 Mete.) 452; Bruce v. Pearson, 3 Johns. (N. Y.) Miner ;;. Bradley, 39 Mass. (22 Pick.) 62(J ; Mills v. Hunt, 17 Wend. (N. Y.) 457 ; Carpentier v. Minturn, 65 Barb. 333; Shinn !•. Bodine, 60 Pa. St. 182; (N. Y.) 293; Morgan v. MeKee, 77 Johnson v. Johnson, 3 Bos. & Pul. Pa. St. 228; Johnson v. Johnson, 3 162; Bigg V. Whisking, 14 C. B. 195; Bos. & Pul. 162; Mingaye v. White, Story on Sales, §§ 204, 240. 34 Up. Can. Q. B. 82. - 15 C. B. 069 ; 24 L. J. C. P. 53. < Devine v. Edwards, 101 111. 138 ; 3 Rescission of contract. — The re- Wright u. Cook, 9 Up. Can. Q. B. scission of contract must be in toto 605. and not in part. See ante, "Eescis- ^ 8 C. B. 640. 620 CHAP. I.]. FAILURE OF CONSIDERATION. *382 § 501. * On the other hand, if the thing sold is [*382] such in its nature as not to be severable, and the buyer has enjoyed any part of the consideration for which the price was paid, he is no longer at liberty to rescind the contract.^ Thus in Taylor v. Hare,^ where the plaintiff pur- chased from the defendant the use of a patent right, and had made use of it for some years, and then discovered the defendant not to be the inventor, it was held that he could not maintain an action for rescission of the contract and re- turn of the price, on the ground of failure of consideration ; and this case was followed by the King's Bench half a cen- tury later in Lawes v. Purser,^ where the facts as pleaded were almost identical with those in Taylor v. Hare. In Chanter v. Leese,* the Exchequer Chamber, in the case of a sale of six patents for one consideration, five of which were valid, and one void, held, that there had been an entire failure of consideration, on the ground that the money pay- able had not been apportioned by the contract to the differ- ent parts of the consideration, and the patents had not been enjoyed in part by the buyer. " We see, therefore, that the consideration is entire, and the payment agreed to be made by the defendants is entire, and we see also a failure of the consideration, which being entire, bi/ failing partially, fails entirely ; and it follows that no action can be maintained for the money." The Court further stated that even if the five patents had been enjoyed, they were of opinion that no ac- tion could be maintained on the agreement, though possibly a remedy might exist in some other form of action. 1 Articles sold not severable. — Where where the vendor can be put in statu articles sold are not severable, the quo as before the contract. Morse v. contract of sale is entire and cannot Brackett, 98 Mass. 205, 209 ; Perley be rescinded in part, on discovering v. Balch, 40 Mass. (23 Pick.) 283 ; that a portion of the articles are dif- s. c. 34 Am. Dec. 56 ; Conner v. Hen- ferent from the others. Morse v. derson, 15 Mass. 319 ; s. c. 8 Am. Brackett, 98 Mass. 205. See Clark Dec. 103 ; Kimball v. Cunningham, 4 V. Baker, 46 Mass. (5 Mete.) 452, 461 ; Mass. 502 ; s. c. 3 Am. Dec. 230 ; Bowker v. Hoyt, 35 Mass. (18 Pick.) Hunt v. Silk, 5 East, 449. 555 ; Conner v. Henderson, 15 Mass. 2 i g & p. jj. R. 260. 319; =. c. 8 Am. Dec. 103. The ' 6 E. & B. 930; 26 L. J. Q. B. 25. right of rescission is limited to cases * 5 M. & W. 698. 621 *383 AVOIDANCE OF THE CONTEACT. [BOOK 111. [*383] * CHAPTER II. PEAUD. SECTION I. IN GENERAL. Fraud renders contract voidable 385 Definitions of fraud . . . 385 No fraud unless party received 386 Nor unless contract is induced thereby 386 Nor without dishonest intention . 386 Fraud without damage gives no right of action . . . 386 Mistaken belief as to facts caused actively or passively . . . 387 Silence may be equivalent to active misrepresentation . . 387 Caveat emptor is the general rule 387 Buyer can exact warrant}', if unwilling to deal on these terms .... . . 388 Action of deceit, being founded on tort, may exist in favor of third persons, not parties to the sale . . . . 388 Limits of liability . . . 388 But third persons cannot sue ex contractu 391 To entitle any one of the public to bring action in tort for de- c^eit where fraudulent repre- sentations are published, he must establish a direct con- nection between himself and the person publishing them . 391 An American case on this point . 392 SECTION II. — ON THE VENDOR. Effect of fraud on vendor in passing title .... . 392 Depends on vendor's intention to transfer possession and ownership or possession only . 393 Sale obtained by fraud on vendor not void, but voidable .... 393 Bond, fide third persons protected in rights acquired before avoid- ance of sale 393 Not protected where vendor transferred possession only . 393 Exception to protection of in- nocent third person, where fraudulent vendee is prose- cuted to conviction .... 393 Law now altered 393 Earlier cases as to passing prop- erty reviewed . . 394 Doubt suggested as to Duff ;;. Budd and Stephenson v. Hart 395 Remarks on Parker v. Patrick . 399 Rules which govern the vendor's right of election . . . 401 No judgment necessary to give effect to election . . . . 402 General principles laid down in Pease v. Gloahec 404 Preventing other persons bidding at auction sale . ... 406 Inducing sale by false represen- tations of solvency . . 406 False representations by third persons must be proven by writing 406 Representation by partner of credit of his firm . ... 407 False representation by buyer to get goods cheaper 408 In equity, purchaser not bound to inform vendor of latent advantages of thing sold . . 408 But purchaser must not mislead vendor . . 408 622 CHAP, n.] FRAUD. *384 At common law — Vernon w. Keys 409 Jones i: Franklin — questioned, not reconcilable with Vernon V. Keys 411 American decisions 411 SECTION III. FKAnD ON THE BUYER. Buyer defrauded may ayoid sale before or after delivery . . 412 Rules as to buyer's election . . 413 Points decided in Redgrave v. Hurd 414 What elements of fraud required to enable buyer to avoid sale . 415 Innocent false representation in- sufficient 415 Concurrence of fraudulent inten- tion necessary 415 Review of the cases 415 Conflict of opinion between the Queen's Bench and Exchequer 419 Queen's Bench finally overruled in Exchequer Chamber in Evans v. Collins and Ormrod 1-. Huth 421 Subsequent cases 422 Qualification of rule — reckless statements .... . . 423 Essentials to support action of deceit 425 Essentials to entitle buyer to rescission at common law and in equity 426 Grounds of doctrine in equity . 426 Second point in Cornfoot u. Eowke questioned 427 Liability of principal for false statement innocently made by agent, when principal knew the true state of facts . . . 428 Fraud of agents ... . . 428 Conflicting decisions of House of Lords and Exchequer Chamber 429 * Barwick v. English Joint Stock Bank in Exchequer Chamber, 429 Principal answerable for agent's fraud committed in course of PAGE master's business and for his benefit 431 Western Bank of Scotland u. Addie in House of Lords . . 432 Distinction between action against the principal in tort for deceit, and action on the contract . 432 Principles deduced from the cases, as to the effect on prin- cipal of fraud in agent . . . 434 Rights of buyer in such cases at law 434 Further remedy in equity . . . 434 Third principal reconsidered . 434 Effect of later decisions .... 437 Liability of directors of com- panies 438 False representation when equiv- alent to warranty gives right to buyer against innocent vendor . 440 Feret v. Hill, converse of Corn- foot u. Fowke — lessor de- frauded by lessee .... 441 Shareholders defrauded by pro- spectus ... 442 Companies' Act, 1867, s. 38 . . 442 Devices held frauds on buyers . 443 Pufiing at auction . . 443 Auctioneer personally responsible 444 Auctioneer, when he sells " with- out reserve," binds himself to the highest bonH fide bidder . 447 Distinction between law and equity as to puffing .... 448 Act 30 & 31 Victoria, c. 48 . . 448 Other frauds on buyer . . . 449 Vessel sold " with all faults " . 449 Concealing a defect where buyer fails to inspect . . 450 Pictures sold as if by great artists 451 Damage to goods not declared, where usage requires it . . 452 Fraud by collusion between ven- dor and buyer against third person : vendor cannot recover against buyer 455 623 •^-385 AVOIDANCE OF THE CONTRACT. [BOOK III. Cases decided in America of knowledge by vendor of con- cealed defect 455 SECTION IV. — FKAUD ON CREDITORS STATUTE OF ELIZABETH. Statute of Elizabeth 456 Semble protects future creditors . 457 Twyne's case .... . . 457 Conveyance fraudulent or not, question of fact for jury . 458 Cases reviewed . . .... 461 Notoriety of sale rebuts pre- sumption of fraud 461 No general rule — each case de- cided on its own circum- stances .... . 461 Mere intention to defeat credi- tor's execution no fraud . . . 461 Confession of judgment not a fraudulent preference . . . 461 Decisions in America — Edwards 1,. Harben followed .... 461 Law as to bills of sale . . . 462 Object of legislation . . 462 SECTION V. FRAUD OX CREDITORS- — BILLS OF SALE. Provisions of Bills of Sale Act, 1878 Definition of bill of sale . . "What it does not include . . . Inventories of goods with receipt attached .... . , Equitable assignments . . . Transfer of ships .... Hire and conditional sale . . . Definition of personal chattels Fixtures and growing crops . " Wlien separately assigned or charged " . Trade machinery . . Apparent possession .... More than formal possession . . Taking possession of growing crops ... ... Occupation by grantor . . Possession by bailee . 463 463 463 404 464 464 465 465 465 466 466 466 467 467 467 468 Possession by sheriff 468 Reputed ownership in bank- ruptcy as affecting bills of sale Under Act of 1878 . . 468 Under Act of 1882 . . 469 Distinction between " apparent possession" and "reputed ownership " 469 Application of Act to trade ma- chinery . 470 Instruments giving powers of distress . . . . . 470 Avoidance of unregistered bills of sale 472 Persons as against whom un- registered bill of sale void . . 473 New provision as to setting forth consideration . ... 473 Decisions thereunder .... 474 Rules deduced from decided cases 477 Avoidance of duplicate bills of sale ... . ... 478 478 479 480 480 481 481 483 483 484 485 485 4S.3 486 487 487 Mode of registration . . . Attestation and explanation — decisions thereunder Affidavit of " due execution and attestation " . . . . Description of residence and oc- cupation of grantor . Description must be repeated in affidavit * How far bill of sale and affidavit may be read together . Trading company may give bill of sale . . ... Directors attesting seal not wit- nesses under the act Registration unnecessary if goods seized within seven days Defeasance or conditions must be set forth ... Priority given by date of regis- tration Priority as affected by notice Renewal of registration . Amendment Act, 1882 . . . Repealing sections — their effect considered 624 CHAP. II.] PEAUD. "385 Principal provisions 488 Old law — contract not voidable between the parlies .... 490 "Voidable, not void, as to creditors 491 Title of bond, fide third persons protected 491 New law — contract absolutely void in certain cases .... 491 Sheriff's liability as trespasser . 491 Effect of grantor's discharge in bankruptcy 492 FAGE SECTION Tl. — FRAUD ON CKEDITOKS FKAUDHLENT PREFERENCE. Sale which disturbs equality among creditors 492 Return of goods to unpaid ven- dor 492 Early decisions overruled . . . 493 Now only permissible to re- scind where property has not passed 493 Or possession not taken .... 493 Section I. — IN general. § 502. Fraud renders all contracts voidable ab initio both at law and in equity .^ No man is bound by a bargain into which he has been deceived by a fraud, because assent is necessary to a valid contract, and there is no real assent 1 McCuUoch V. Scott, 13 B. Mon. (Ky.) 172; s. c. 56 Am. Dec. 561; Adams o. Nelson, 22 Up. Can. Q. B. 199. Election to rescind must be exercised promptly on learning of the fraud (Southern Life Ins. Co. v. Lanier, 5 Fla. 110 ; o. c. 58 Am. Dec. 448 ; Mas- son V. Bovet, 1 Den. (N. Y.) 69; s. c. 43 Am. Dec. 651) ; and the property returned McCuUoch v. Scott, 13 B. Mon. (Ky.) 172; s. c. 56 Am. Dec. 661 ; Masson v. Bovet, 1 Den. (N. Y.) 69;, s. u. 43 Am. Dec. 651. The vendor of personal property cannot treat his sale as void on account of the vendor's brand, and still retain the consideration. Duncan x:. Jeter, 5 Ala. 604 ; s. c. 39 Am. Dec. 342 ; Hyn- son V. Dunn, 6 Ark. 395 ; s. c. 41 Am. Dec. 100 ; Catling v. Newell, 9 Ind. 578; Johnson u. McLane, 7 Blackf. (Ind.) 501; s. c. 43 Am. Dec. 102; Chance v. Commissioners of Clay Co., 6 Blackf. (Ind.) 441; s. k:. 35 Am. Dec. 131 ; Carneal v. May, 2 A. K. Marsh. (Ky.) 587 ; s. c. 12 Am. Dec. 458; Durrett v. Simpson, 3 T. B. Mon. (Ky.) 517; s. c. 16 Am. Dec. 116; Bassett u. Brown, 105 Mass. 558; Bartlett v. Drake, 100 Mass. 176; s. c. 1 Am. Rep. 101; Morse v. Brackett, 98 Mass. 205; s. c. 104 Mass. 494 ; Perley v. Balch, 40 Mass. (23 Pick.) 283; s. c. 34 Am. Dec. 56 ; Thurston v. Blanehard, 39 Mass. (22 Pick.) 18; s. c. 33 Am. Dec. 700; Conner o. Henderson, 15 Mass. 319; s. u. 8 Am. Dec. 103; Kimball v. Cunningham, 4 Mass. 502 ; s. c. 3 Am. Dec. 230; Luey v. Bundy, 9 N. H. 298 ; 0. u. 32 Am. Dec. 359 ; Bucken- heimer v. Angevine, 81 N. Y. 394 ; Cobb V. Hatfield, 46 N. Y. 533 ; Cur- tiss ;;. Howell, 39 N. Y. 215 ; Tallman V. Turck, 26 Barb. (N. Y.) 170; Ste- vens 0. Hyde, 32 Barb. (N. Y.) 182 ; Bartholomew v. Finnemore, 17 Barb. (N. Y.) 429; Wheaton v. Baker, 14 Barb. (N. Y.) 597 ; Voorhees v. Earl, 2 Hill (N. Y.) 288; s. c. 38 Am. Dec. 588; Kinney v. Kiernan, 2 Lans. (N. Y.) 495; Smith u. Brittain, 3 Ired. (N. C.) Eq. 347; s. u. 42 Am. Dec. 175 ; Poor v. Woodburn, 25 Vt. 234. If the vendor has taken the vendee's note in payment, it is not necessary that he offer to return the note before rescission, it will be suffi- cient if he surrender it at the trial. Ryan v. Brant, 42 111. 86 ; Thurston V. Blanehard, 39 Mass. (22 Pick.) 18; 625 *-385 AVOIDANCE OF THE CONTEACT. [BOOK III. where fraud and deception have been used as instruments to control the will and influence the assent.^ Although fraud has been said to be " every kind of artifice employed by one person for the purpose of deceiving another," courts and lawgivers have alike wisely refrained from any attempt to define with exactness what constitutes a fraud, it being so subtle in its nature, and so Protean in its disguises, as to render it almost impossible to give a definition which fraud would not find means to evade.^ s. c. 33 Am. Dec. 700 ; Nichols v. 2 Vern. 121 ; Ardglasse v. Muschamp, Michael, 23 N. Y. 264 ; s. c. 80 Am. Dec. 259. However this is true only where the note given is the note of the purchaser only. Bassett v. Brown, 105 Mass. 558 ; where the note is that of the vendee and a third person, and the vendor wishes to rescind because of false and fraudulent representation as to the surety's solvency, he must first offer to return the note. Mori- arty V. Stofferan, 89 111. 528. Where the vendor has received other prop- erty in payment, which property he has disposed of, he must account for the price at which it was estimated at the time of the sale. Durrett v. Simpson, 3 T. B. Mon. (Ky.) 517; s. c. 16 Am. Dec. 517. In those cases where the vendor has received part payment it is not necessary that it be first refunded where the vendee has proceeds suflieient to reimburse him- self derived from sale of the goods. Peters ;•. Hilles, 48 Md. 506. Wilful misrepresentation of quality is not sufficient to avoid a sale of per- sonal property unless the party was deceived by it, unless it formed an inducement to him to make the pur- chase. President, &c., of Conners- ville 0. Wadleigh, 7 Blackf. (Ind.) 102; s. c. 41 Am. Dec. 214. 2 W7iere a contract is in itself fraud- ulent it is void and cannot be confirmed by any subsequent declarations or acts by which variance is acknowl- edged. Duncan v. McCullough, i Serg. & E. (Pa.) 487; Brooke v. Gaily, 2 Atk. 34 ; Wiseman v. Beake, 1 Vern. 237 ; Chesterfield v. Janssen, 2 Ves. Sr. 125; Baugh v. Price, 1 Wils. 320. Sec, also. Bank of Geor- gia v. Higginbottom, 34 U. S. (9 Pet.) 48; bk. 9, L. ed. 46. 3 See Sledge v. Scott, 56 Ala. 202, 206; Todd i-. Pambro, 02 Ga. 664; Smith V. Newton, 59 Ga. 113 ; Hanna 0. Rayburn, 84 111. 533; Merwin v. Arbuckle, 81 111. 501 ; Gregory i>. Schoenell, 55 Ind. 101, 106 ; Bowman V. Carithers, 40 Ind. 90; Frenzel v. Miller, 37 Ind. 117; McDonald i/. Trafton, 15 Me. 225; Gunby v. Sluter, 44 Md. 237, 247 ; Cochrane v. Halsey, 25 Minn. 52, 63; Parker u. Marquis, 64 Mo. 38, 42; Stewart v. Emerson, 52 N. H. 301, 313; Dambmann v. Schulting, 75 N. Y. 55, 61; Paul v. Iladley, 23 Barb. (N. Y.) 521 ; Bench V. Sheldon, 14 Barb. (N. Y.) 66; Hadley i'. Clinton Co. Importing Co., 13 Ohio St. 502; Rodman v. Thal- heimer, 75 Pa. St. 232; Weist ... Grant, 71 Pa. St. 95; Clark v. Ever- hart, 63 Pa. St. 347 ; Phipps v. Buck- man, 30 Pa. St. 401 ; Smith v. Smith, 21 Pa. St. 367, 378 ; s. c. 54 Am. Dec. 578. But the fraud need not be the sole inducement. Winter v. Bandel, 30 Ark. .363, 373 ; Ruff v. Jarrett, 94 111. 475, 480 ; McAleer u. Horsey, 35 Md. 439, 452 ; Saftord v. Grout, 120 Mass. 20, 25; Matthews v. Bliss, 39 Mass. (22 Pick.) 48; Morgan u. Skiddy, 62 N. Y. 319 ; Shaw v. Stine, 8 Bosw. (N. Y.) 157 ; Hersey v. Ben- edict, 15 Hun (N. Y.) 282, 287; People I.. Haynes, 11 Wend. (N. Y.) 626 CHAP. II.] FEAUD. *386 The Roman jurisconsults attempted definitions, two of which are here given: "Dolum malum Seevius quidem ita definit, machinationem quandam alterius decipiendi causa, cum aliud simulatur, et aliud agitur. Labeo autem, posse et sine simulatione id agi ut quis circumveniatur : posse et sine dolo malo aliud agi, aliud simulari; sicuti faciunt qui per ejus modi dissimulationem deserviant, et tuentur vel sua vel aliena: Itaque, ipse sic definit, dolum malum esse omnem calliditatem, fallaciam, machinationem ad circum- veniendum, * fallendum, decipiendum alterum adhi- [*386] bitam. Labeonis definitio vera est." Dig. 1. iv., t. 3, 1. 1, § 2. § 503. The Civil Code of France, without giving a defini- tion, provides, in Art. 1116 : " Fraud is a ground for avoid- ing a contract when the devices (les manceuvres) practised by one of the parties are such as to make it evident that with- out these devices the other party would not have contracted." § 604. However difficult it may be to define what fraud is in all cases, it is easy to point out some of the elements which must necessarily exist before a party can be said at common law to have been defrauded. In the first place it is essential that the means should be successful in deceiving .^ However 557 ; Clarke v. Dickson, 6 C. B. N. S. 732 ; Mason v. Crosby, 1 Woodb. & 453 ; Rawlins v. Wickham, 3 De G. & M. C. C. 342 ; Vigers v. Pike, 8 CI. & J. 304 ; Reynell v. Sprye, 1 De G. M. Fin. (Am. ed.) 562, 650 ; Attwood o. & G. 660 ; Smith v. Kay, 7 H. L. Cas. Small, 6 CI. & F. (Am. ed.) 233, and 750, 775; Trailf v. Baring, 33 L. J. note (2); 2 Chit. Contr. (11th Am. Ch. 521, 527; Kerr on F. & M. (1st ed.) 1036, and note (z). The pre- Am. ed.) 74, 75. sumption is that fraudulent repre- 1 See Smith v. Newton, 59 Ga. sentations made by one party were 113; Bowman c. Carithers, 40 Ind. relied upon by the other. Holbrook 80 ; Hagee v. Grossman, 31 Ind. 223 ; v. Burt, 39 Mass. (22 Pick.) 546, Gunby v. Sluter, 44 Md. 237 ; Bruce 552 ; Fishback a. Miller, 15 Ner. V. Burr, 67 N. Y. 237 ; Vandewalker 428, 443 ; Redgrave v. Hurd, 20 Ch. V. Osmer, 65 Barb. (N. Y.) 556; D. 1. But see Jackson d. Collins, 39 Taylor v. Fleet, 1 Barb. (N. Y.) 471 ; Mich. 557 ; Merriam y. Pine City Jlorris Canal Co. u. Emmett, 9 Paige, Lumber Co., 23 Minn. 314 ; Sims v. Ch. (N. Y.) 168 ; s. c. 37 Am. Dec, 388 ; Foy v. Haughton, 83 N. C. 467 Clark V. Everhart,'63 Pa. St. .347 Phipps V. Buckman, 30 Pa. St. 402 Stebbins v. Eddy, 4 Mason C. C. 414 Doggett II. Emerson, 3 Story C. C, Eiland, 57 Miss. 607 ; Taylor v. Guest, 58 N. Y. 262. Mere misrepresentation of the law will not be sufficient to avoid the sale. Fish v. Cleland, 33 111. 243; Clodfelter v. Hulett, 72 Ind. 137, 143; 627 *386 AVOIDANCE OF THE CONTKACT. [BOOK HI. false and dishonest the artifices or contrivances may be by which one man may attempt to induce another to contract, they do not constitute a fraud if that other knows the truth, and sees through the artifices and devices.^ Haud enim decipitur qui scit se decipi. If a contract is made under such circumstances, the inducement or motive for making it is ex coneessis, not tlie false and fraudulent representations, which are not believed, but some other independent motive.* [And Burt t/. Bowles, 69 Ind. 1 ; Rose v. Hurley, 39 Ind. 77, 82 ; Clem v. New- castle & D. E. R. Co., 9 Ind. 488; s. c. 68 Am. Dec. 653 ; Rawson ik Harger, 48 Iowa, 269; Dailey v. Jessup, 72 Mo. 144 ; iEtna Ins. Co. ./. Reed, 33 Ohio St. 283, 293 ; Upton V. Tribilcock, 91 U. S. (1 Otto) 45, 60; bk. 23, L. ed. 203. ''See sec. 602, note 1, and, also, Younge v. Harris, 2 Ala. 108; Thorne V. Prentiss, 83 111. 99 ; Strong v. Lin- ington, 8 111. App. 430 ; Rose v. Hur- ley, 39 Ind. 82, 83; Bean o. Herrick, 12 Me. 262; s. c. 28 Am. Dec. 176; Clopton V. Cozart, 21 Miss. (13 Smed. &. M.) 363; Merchants' Bank V. Sells, 3 Mo. App. 85; Mead c. Bunn, 32 N. Y. 275 ; Vandewalker v. Osmer, 66 Barb. (N. Y.) 556 ; Boyce V. Grundy, 28 U. S. (3 Pet.) 210 ; bk. 7, L. ed. 655; Dominion Bank v. Blair, 30 Up. Can. C. B. 591 ; Smith's Case, L. R. 2 Ch. App. 614; Red- grave V. Hurd, 20 Ch. D. 1 ; Vigers V. Pike, 8 CI. & Fin. 662, 650; Per- fect V. Lane, 3 De G. F. & J. 369; Conybeare v. The New Brunswick & C. Ry. Co., 1 De G. F. & J. 578, and notes; s. c. 9 H. L. Cas. 711; Kisch V. Central Venezuela R. Co., 3 De G. J. & S. 122; s. c. L. R. 2 H. L. Cas. 99, 120, 121; Wilson u. Short, 6 Hare, 366, 375 ; Deveber v. Roop, 3 Pugs. (N. B.) 295 ; Kerr on F. & M. (1st Am. ed.) 79, 255; Kerr Inj. 39. 8 The misrepresentation must be ma- terial to relieve from the contract or furnish a foundation for suit in dam- ages. Wilcox V. Henderson, 64 Ala. 535 ;• Cooper v. Merritt, 30 Ark. 686 ; Winter v. Bandel, 30 Ark. 362; Bradley v. Luce, 99 111. 234; Schwa- backer ;;. Riddle, 99 111. 343; Smith f. Brittenham, 98 111. 188; Melendy V. Keen, 89 111. 395 ; Bond v. Ramsey, 89 111. 29; Race v. Weston, 86 111 91 ; Hanna v. Raybum, 84 111. 533 Higgins V. Bicknell, 82 111. 502 Miller v. Young, 33 111. 355 ; Jones v. Hathaway, 77 Ind. 14 ; Elsass v Moore's Hill Institute, 77 Ind. 72 Welshbillig v. Dienhart, 65 Ind. 94 Meyers v. Funk, 56 Iowa, 52 ; Noel V. Morton, 50 Iowa, 687 ; Dawson v. Graham, 48 Iowa, 378; Rawson u. Harger, 48 Iowa, 269; Mather v. Robinson, 47 Iowa, 403 ; Common- wealth V. Jackson, 132 Mass. 16 ; Blair a. Laflin, 127 Mass. 518; Teague v. Irwin, 127 Mass. 217 ; Nowlan c. Cain, 85 Mass. (3 Allen) 263; Stevens r. Rainwater, 4 Mo. App. 292 ; Miller v. Barber, 66 N. Y. 558 ; Duflfany v. Ferguson, 66 N. Y. 482; Rice v. Manley, 66 N. Y. 82; s. c. 23 Am. Rep. 300; Smith v. Countryman, 30 N. Y. 655; Swike- hard v. Russell, 66 Barb. (N. Y.) 560 ; Mason v. Raplee, 66 Barb. (N. Y.) 180 ; Brown v. Tuttle, 66 Barb. (N. Y.) 169 ; Bower v. Fenn, 90 Pa. St. 359; Gordon v. Butler, 105 U. S. 553; bk. 26, L. ed. 1166; Smith v. Richards, 33 U. S. (13 Pet.) 26; bk. 10, L. ed. 42 ; Sanders v. Lyon, 2 McArthur (D. C.) 462; Lapp. v. Firstbrook, 24 Up. Can. C. P. 2.39; Jennings v. Broughton, 5 De G. M. & G. 126 ; Kerr on F. & M. (Ist Am. ed.) 73, 74. 628 CHAP. II.] FKAUD. *387 even if the one party is unaware of the truth, yet if the arti- fice adopted by the other has not induced him to enter into the contract, that is to say, if the fraud is not fraus dans locum contractui, he will not be entitled to relief.] § 505. Next, it is now well settled that there can be no fraud without dishonest intention, no such fraud as was formerly termed a legal fraud. Therefore, however false may be the representation of one party to another to induce him to make a contract, there is no ground for avoiding it as obtained hy fraud, if the party making the representation honestly and on reasonable grounds believed it to be true ; ^ although other remedies are sometimes available to the deceived party, ante, p. 376 et seq., post, Warranty. § 506. Lastly, there must be damage to the party de- ceived, even when there is a knowingly false representation, before a right of action can arise. " Fraud Avithout damage, or damage without fraud, gives no cause of action," was the maxim laid down by Croke J. in 3 Bulst. 95, and quoted with approval by Buller J. in the great leading case of Pasley v. * Freeman,^ to which more particular [*387] attention will presently be drawn. 1 See Eighter v. Roller, 31 Ark. 170; Sellar v. Clelland, 2 Colo. 532; KimbeU v. Moreland, 55 Ga. 164; Wharf 0. Roberts, 88 111. 426; St. Louis & S. E. R. R. Co. v. Rice, 85 111. 406; Tsne v. Wilson, 81 111. 529 Mervvin u. Arbuckle, 81 111. 501 Mitchell a. McDougall, 62 111. 498 Josselyn v. Edwards, 57 Ind. 212 McDonald ;;. Trafton, 15 Me. 225 Beach v. Bemis, 107 Mass. 498 Cooper V. Lovering, 106 Mass. 78, 79 Fisher v. Mellen, 103 Mass. 503, 506 French v. Vining, 102 Mass. 132 King V. Eagle Mills, 92 Mass. (10 Allen) 548; Brown u. Castles, 65 Mass. (11 Cush.) 348, 351 ; Stone v. Denny, 45 Mass. (4 Mete.) 151, 155 ; Page V. Bent, 43 Mass. (2 Mete.) 371 ; Tyron v. Whitmarsh, 42 Mass. (1 Mete.) 1; s. c. 35 Am. Dec. 339; Salem India Rubber Co. ii. Adams, 40 Mass. (23 Pick.) 256; Pettigrew V. Chellis, 4 N. H. 95 ; Page v. Parker, 40 N. H. 47, 69 ; Hanson v. Edgerly, 29 N. H. 343 ; Stitt v. Little, 63 N. Y. 427 ; Morehouse v. Yeager, 41 N. Y. Super. Ct. (9 J. & S.) 135; Barrett V. Western, 66 Barb. (N. Y.) 205; Babcock v. Libbey, 53 How. (N. Y.) Pr. 255; Young v. Covell, 8 Johns. (N. Y.) 25; s. c. 5 Am. Dec. 316; Westcott V. Ainsworth, 9 Hun (N. Y.) 53; Marshall v. Fowler, 7 Hun (N. Y.) 237 ; Frisbee v. Fitzsimons, 3 Hun (N. Y.) 674 ; DufI v. Williams, 85 Pa. St. 490 ; Dilworth v. Bradner, 85 Pa. St. 238 ; Boyd u. Browne, 6 Pa. St. 310; Weeks u. Burton, 7 Vt. 67 ; Lord v. Goddard, 54 U. S. (13 How.) 198; bk. 14, L. ed. Ill; Russell V. Clark, 11 U. S. (7 Cr.) 69; bk. 3, L. ed. 271; French v. Skead, 24 Grant (Ont.) 179 ; 2 Chit. Contra. (11th Am. ed.) 1044, 1045. 1 3 T. R. 51 ; 2 Am. L. C. (8th ed.) 66. 629 *387 AVOIDANCE OF THE CONTEACT. [BOOK III. The whole dectrine on the subject was very much dis- cussed in the House of Lords, in the celebrated case of At- wood V. Small ;^ and in Lord Brougham's opinion, the principles unanimously conceded to be true by their lord- ships are carefully laid down.^ § 507. The mistaken belief as to facts may be created by active means, as by fraudulent concealment or knowingly false representation ; or passively, by mere silence when it is a duty to speak. But it is only where a party is under some pledge or obligation to reveal facts to another that mere silence will be considered as a means of deception. ^ American authoriites. — Hughes v. Sloan, 8 Ark. (3 Eng.) 14fi; Hart u. Tallmadge, 2 Day (Conn.) 382; s. c. 2 Am. Dec. 105; Young v. Hall, 4 Ga. 95; Bartlett u. Blain, 83 111. 25; 0. c. 25 Am. K^p. 346 ; Weatherford V. Fishback, 4 111. (3 Scam.) 170; Hagee u. Grossman, 31 Ind. 223; Fisher u. Mellen, 103 Mass. 505; Milliken v. Thorndike, 103 Mass. 385; Randall v. Hazelton, 94 Mass. (12 Allen) 414; Stiles u. White, 52 Mass. (11 Mete.) 356; s. c. 45 Am. Dec. 214; Medbury u. Watson, 47 Mass. (6 Mete.) 246; s. c. 39 Am. Dec. 726 ; Page v. Bent, 43 Mass. (2 Mete.) 371, 374; Adams v. Paige, 24 Mass. (7 Pick.) 542 ; Newell v. Horn, 45 N. H. 422 ; Hanson u. Ed- gerly, 29 N. H. 357 ; AVhite l: Mer- ritt, 7 N. Y. :352 ; s. c. 57 Am. Dec. 527 ; Phipps .■. Buckman, 30 Pa. St. 402; Castleman v. Griffin, 13 Wis. 535 ; see McMaster v. Geddes, 19 Up. Can. Q. B. 216. 2 6 CI. & Fin. 2.32. The opinions delivered by some of the law lords in this case are considered and ex- plained by Jessel M. E. in Ked- grave v. Hurd, 20 Ch. D. 1, C. A. pp. 14-17. "6 CI. & Fin. pp. 443-7. See, also, per Lord Wensleydale, in Smith V. Kaj^ 7 H. L. C. at p. 774. 1 Smith V. Hughes, L. R. 6 Q. B. 597 ; and see an interesting case be- fore the Supreme Court of the United States, Laidlaw v. Organ, 15 U. S. (2 Wheat.)' 178; bk. 4, L. ed. 214. Concealment of a material fact. — Van Arsdale v. Howard, 5 Ala. 596 Roseman v. Canovan, 43 Cal. 110 Otis u. Raymond, 3 Conn. 413 Roper V. Tlie Trustees of Sangamon Lodge, 91 111. 618 ; s. c. 33 Am. Rep. 60; Emmons ... Moore, 85 111. 304; Atwood V. Chapman, 68 Me. 38; s. c. 28 Am. Rep. 5; Prentiss v. Russ, 16 Me. 30 ; Sides v. Hilleary, 6 Har. & .J. (Md.) 86; French v. Vining, 102 Mass. 135; Coddington v. Goddard, 82 Mass. (16 Gray) 436; Matthews V. Bliss, 39 Mass. (22 Pick.) 48; Hanson v. Edgerly, 29 N. H. 343; Stevens v. Fuller, 8 N. H. 463 ; Brown V. Montgomery, 20 N. Y. 287; s. c. 75 Am. Dec. 404; Howell u. Bid- dlecom, 62 Barb. (K Y.) 131 ; Nick- ley V. Thomas, 22 Barb. (N. Y.) 652; March v. First Nat. Bank of Mobile, 4 Hun (N. Y.) 466; Croyle v. Moses, 90 Pa. St. 250; s. c. 35 Am. Rep. 654; Maynard u. Maynard, 49 Vt. 297; Paddock v. Strobridge, 29 Vt. 470 ; Baker u. Humphrey, 101 U. S. 494; bk. 25, L. ed. 1065; Smith v. Richards, 38 U. S. (13 Pet.) 26 ; bk. 10, L. ed. 42; Cassel v. Herron, 5 Clark (Pa.) 250; Lovelace v. Har- rington, 27 Grant (Ont.) 178; Machar V. Vandewater, 26 Grant (Ont.) 83 ; Green v. Gosden, 3 M. & G. 446, 450 ; 630 CHAP. II.] FBAUD. *387 There are, however, cases in which a non-disclosure of. a material fact may be equivalent to active misrepresentation, for the withholding of that which is not stated may make that which is stated absolutely false.^ Or, again, it may be that from the nature of the transaction, the fact not disclosed is such that it is impliedly represented not to exist.^] § 508. In general, where an article is offered for sale, and is open to the inspection of the purchaser, the common law does not permit the latter to complain that the defects, if any, of the article are not pointed out to him.^ The rules are Caveat emptor and Simplex commendatio non obligat. The buyer is always anxious to buy as cheaply as he can, and is suffi- Irvine v. Kirkpatrick, 7 Bell's Sc. App. 186; 2 Chit. Contr. (11th Am. ed.) 1042, 1043. 2 Per Lord Cairns in Peek v. Gurney, L. R. 6 H. L. at p. 403. And this statement of the law has been approved and explained by James L. J. in Arkwright v. New- bold, 17 Ch. D. C. A. at p. 317, and by Jessel M. R. in Smith v. Chadwick, 20 Ch. D. C. A. at p. 58. ' Per Blackburn J. in Lee c. Jones, 17 C. B. N. S. at p. 506, and per eundem in Phillips v. Poxall, L. R. 7 Q. B. at p. 679. See Armstrong c. Huffstutler, 19 Ala. 51 ; Turner v. Huggins, 14 Ark. 21 ; Stephens v. Orman, 10 Fla. 9 Marsh o. Webber, 13 Minn. 109 Hanson v. Edgerly, 29 N. H. 343 Devoe v. Brandt, 53 N. Y. 462 Brown v. Montgomery, 20 N. Y. 287 s. c. 75 Am. Dec. 404 ; Pease o. Mc- Clelland, 2 Bond C. C. 42. 1 Stephens v. Orman, 10 Fla. 9; Port V. Williams, G Ind. 219; Dickin- son V. Lee, 106 Mass. C57, 558, 559; Mooney v. Miller, 102 Mass. 220; Veasey h. Doton, 85 Mass. (3 Allen) 380 ; Brown c. Castles, 65 Mass. (11 Cush.) 350; Hoitt v. Holcomb, 32 N. H. 185, 202-205 ; Lytle v. Bird, 3 Jones (N. C.) 222 ; Hough v. Rich- ardson, 3 Story C. C. 659; Smith v. Babcock, 2 Woodb. &, M. C. C. 246 ; Tuthill V. Babcock, 2 Woodb. & M. C. C. 298; Warner v. Daniels, 1 Woodb. & M. C. C. 90, 101, 102; Vigers v. Pike, 8 CI. & Fin. 650; Attwood V. Small, 6 CI. & Fin. (Am. ed.) 233 and note (2) ; Aberaman Iron Works u. Wickens, L. R. 4 Ch. App. 101; s. c. L. R. 5Eq. 485. Reasonable diligence must be used by the party to whom the representa- tion is made to ascertain its truth or falsity. Crown v. Carriger, 66 Ala. 590 ; Bank of Woodland v. Hiatt, 58 Cal. 234; Huston v. McCloskey, 76 Ind. 38 ; Hess u. Young, 59 Ind. 379; Poland I). Brownell, 131 Mass. 138; s. c. 41 Am. Rep. 215 ; Dickinson a. Lee, 106 Mass. 557 ; Cooper v. Lover- ing, 106 Mass. 77, 79; Prescott v. Wright, 70 Mass. (4 Gray) 461; Brown v. Castles, 65 Mass. (11 Cush.) 348; Newell v. Horn, 45 N. H. 422; Long V. Warren, 68 N. Y. 426 ; Spar- mann u. Keim, 44 N. Y. Super. Ct. (12 J. & S.) 163; Furman v. Titus, 40 N. Y. Super. Ct. (8 J. & S.) 284 ; Randall v. Farnum, 52 Vt. 539; Chamberlain v. Rankin, 49 Vt. 133 ; Coates V. Bacon, 21 Grant (Ont.) 21 ; McRae v. Froom, 17 Grant (Ont.) 337 ; Crooks v. Davis, 6 Grant (Ont.) 317 ; Attwood v. Small, 6 CI. & Fin. 233; James v. Litchfield, L. R. 9 Eq. 51 ; 1 Sugden V. & P. (8th Am. ed.) 331. 631 *888 AYOIDAJSrCE OF THE CONTRACT. [BOOK III, ciently prone to find imaginarj^ fault in order to get a good bargain, and tlie vendor is equally at liljerty to praise [*388] his merchandize in * order to enhance its value if he abstain from a fraudulent representation of facts, pro- vided the buyer have a full and fair opportunity of inspection, and no means are used for hiding the defects.^ If the buyer is unwilling to bargain on these terms, he can protect him- self against his own want of care or skill by requiring from the vendor a warranty of any matters, the lisk of "\\'hich he is unwilling to take on himself. But the use of any device b}^ the vendor to induce the buyer to omit inquiry or ex- amination into the defects of the thing sold is as much of a fraud as an active concealment by the vendor himself.^ § 509. [In America, the doctrine that mere " dealer's talk " will not give rise to an action of deceit has been car- ried very far. Thus, in Ellis v. Andrews,^ a false statement by the vendor as to the value of stock was held to be a mere expression of ojoinion as to the value of the thing sold, and as such giving no right of action to the purchaser who bought on the faith of it.J 2 Mere statement not in the form of a right to rely upon the representation warrant!) will not be binding. Eighter of value as of fact, nor to place any V. Eoller, ol Ark. 170; Merwin c. confidence in it ; he must use his own Arbuckle, 81 111.501; Homer t'. Per- judgment regarding such matters, kins, 124 Mass. 431; s.c. 26 Am. Ecp. Dillard v. Moore, 7 Ark. 166; Pro- 677; Brown v. Leach, 107 Mass. 364; tection, &c. Co. v. Osgood, 03 111. 69, Cooper u. Lovering, 106 Mass. 70; 76; Cogel v. Kniseley, 89 111. 589; Mooney v. Miller, 102 Mass. 217; Morris t). Thompson, 85 111. 16; Mc- Hemmer W.Cooper, 90 Mass. (8 Allen) Clanahan v. McKinley, 52 Iowa, 222; 334; Veasey v. Doton, 85 Mass. (3 Graffenstein i\ Epstein, 20 Kans. 443 ; Allen) 381 ; Gordon v. Parmelee, 84 s. c. 33 Am. Rep. 171 ; Teague v. Ir- Mass. (2 Allen) 212 ; Brown v. Cas- win, 127 Mass. 217 ; Beninger v. ties, 65 Mass. (11 Cush.) 350; Med- Corwin, 24 X. J. L. (4 Zab.) 257; bury V. Watson, 47 Mass. (6 Mete.) Morrison v. Koch, ,32 Wis. 254 ; Peek 259, 260; s. c. 39 Am. Dec. 720; v. Gurney, L. R. 6 H. L. 403; Ark- Willard u. Randall, 05 Me. 81, 86; wright .,•. Newbold, 17 Ch. Div. 317 ; Bishop V. Small, 03 Me. 12; Hoi- Smith i'. Chadwick, 20 Ch. Div. 58. brook V. Connor, 00 Me. 578, 582 ; Studied efforts to conceal the facts s. c. 11 Am. Rep. 212; Chrysler i'. may amount to false representations. Canaday, 90 N. Y. 272; ». c. 43 Am. Roseman v. Canovan, 43 Cal. 110, Rep. 166 ; AVolcott r. Mount, 38 N. J. 118 ; Smith v. Countryman, 30 N. Y. L. (9 Vr.) 496, 499; s. c. 13 Am. 655,681. Rep. 438. 1 56 N. Y. 83; and see Bishop v. 2 Caveat emptor applies to sale of Small, 63 Me. 12. chattels and the purchaser has no 632 CHAP. II.] FRAUD. *389 § 510. The authorities on which the foregoing preliminary remarks are based will be referred to in the detailed investi- gation which it is proposed to make of the subject, divided, for convenience, into three parts ; 1st, fraud on the vendor ; 2d, on the purchaser ; 3d, on creditors, including the law on Bills of Sale. But it will be useful first to point out that a man may make himself liable in an action, founded on tort for fraud or deceit or [perhaps] negligence ^ in respect of a con- tract, brought by parties with whom he has not contracted, by a stranger, by any one of the public at large who may be injured by such deceit or negligence. [But the liability is limited in this way, that to enable a third person, a stranger to the contract, to maintain an action of deceit, it must appear that he has been injured by acting upon the defendant's false representation, made with the direct intent that he should act upon it in the manner which has occasioned the injury or loss.^ § 511. *The principles by which the limits of [*389] responsibility for a false representation are to be as- certained, were laid down by Lord Hatherley (then Wood V.-C.) in Barry v. Crosskey,^ as follows : — " First. Every man must be held responsible for the conse- quences of a false representation made by him to another, upon which that other acts, and so acting, is injured or dam- nified. " Secondly. Every man must be held responsible for the consequences of a false representation made by him to another, upon which a third person acts, and so acting, is in- jured or damnified, provided it appear that such false repre- sentation was made with the intent that it should be acted upon 1 George v. Skivington, L. R. 5 Ex. plained and commented upon by 1 ; bxit see Heaven v. Pender, 9 Q. Wood V.-C. in Barry v. Crosskey, 2 B. D. 102, where George, v. Skiv- J. & H. 117, 118, 123 ; and by Lord ington is disapproved, and the earlier Cairns in Peek v. Giirney, L. R. 6 H. case of Winterbottom v. Wright, L. 377, 412; see, also, Hosegood v. 10 M. & W. 109, followed in prefer- Bull, .36 L. T. N. S. 617. ence. i 2 J. & H. at p. 122, adopted by 2 Langridge v. Levy, 2 M. & W. Lord Cairns in Peek v. Gurney, L. R. 159; in error, 4 M. & W. 337, as ex- 6 H. L. pp. 412, 413. 633 *390 AVOIDANCE OF THE CONTRACT. [jBOOK III. by such third person in the manner that occasions the injury or loss. " Thirdly. The injury must be the immediate and not the re- mote consequence of the representation thus made. To ren- der a man responsible for the consequence of a false repre- sentation made by him to another, upon which a third person acts, and so acts, is injured and damnified, it must appear that such false representation was made with the direct intent that it should be acted upon by such third person in the manner that occasions the injury or loss." ^J § 512. The case usually cited as the leading one on this point is Langridge v. Levy,^ where the defendant offered for sale a gun, on which he put a ticket in these terms : " War- ranted, this elegant twist gun, by Nock, with case complete, made for his late Majesty, George IV. : cost 60 guineas ; only 25 guineas." The gun was sold to the plaintiff's father, who told the defendant that it was wanted " for the use of him- self and his sons. It was warranted to be a good, safe, and secure gun, and to have been made by Nock." The gun burst in the hands of the plaintiff, injuring him severely, and it was proven not to be of Nock's make. Parke B. delivered the judgment of the Court, after time taken for considera- tion. He said : " If the instrument in question . . . ["*390] had been delivered *by the defendant to the plaintiff for the purpose of being used ly him, with an accom- panying representation to him that he might safely so use it, and that representation had been false to the defend ant'' s knowledge, and the plaintiff had acted upon the faith of its ^ False representations must have been would seem that if the statement is addressed directlij to the party who seeks made for the purpose of being com- a remedy for having been deceived municated to the purchaser with the and defrauded by means thereof. purpose of influencing his act by Commonwealth u. Harley, 48 Mass. such statement, he may have his (7 Mete.) 462 ; Commomvealth v. remedy. Commonwealth i/. Harley, Call, -38 Mass. (21 Pick.) 500, 515; 48 Mass. (7 Mete.) 402; Common- s. c. ?.2 Am. Dec.284; Eaton u. Avery, wealth v. Call, 38 Mass. (21 Pick.) 83 N. Y. 31, .33; Morgan v. Skiddy, 515; s. c. 32 Am. Doc. 284; Nauga- 62 N. Y. 319; Bruff v. Mali, 36 N. Y. tuck Cutlery Co. v. Babcoek, 22 Hun 200 ; Newberry v. Garland, 31 Barb. (N. Y.) 481, 48-3. (N. Y.) 121 ; Cazeaux v. Mali, 25 i 2 M. & W. 519 ; in error, 4 M. & Barb. (N. Y.) 578. However, it W. 337. 634 CHAP. II.] FKAUD. *390 being true, and had received damage thereby, then there is no question but that an action would have lain upon the principle of a numerous class of cases, of which the leading one is that of Pasley v. Freeman ; ^ which principle is that a mere naked falsehood is not enough to give a right of action: but if it be a. falsehood told with the intention that it should he acted upon hy the party injured, and that act must produce damage to him; if instead of being delivered to the plaintiff immediately, the instrument had been placed in the hands of a third person, for the purpose of being delivered to and then used by the plaintiff, the like false representation being know- ingly made to the intermediate person to be communicated to the plaintiff, and the plaintiff had acted upon it, there can be no doubt but that the principle would equally apply, and the plaintiff would have his remedy for the deceit." In the Exchequer Chamber the judgment was affirmed on the ground " that as there is fraud ; and damage the result of that fraud ; not from an act remote and consequential, but one contemplated by the defendant at the time, as one of its results, the party guilty of the fraud is responsible to the party injured." § 513. In George v. Skivington,i the plaintiffs, Joseph George and Emma, his wife, claimed damages of the defend- ant, a chemist, for selling to the husband a bottle of a chem- ical compound to be used by the wife, as the defendant then knew, for washing her hair. The declaration charged negli- gence and unskilfulness of the defendant in making the said compound, and alleged personal injury to the wife resulting from the use of it. Demurrer and joinder. Pleld, a good cause of action on the authority of Langridge v. Levy. [This case, however, has met with disapproval, and is very doubtful law.^] 2 3 T. R. 51, and 2 Sm. L. C. (ed. 726 ; Lobdell v. Baker, 42 Mass. (1 1879) 66, where all the authorities Mete.) 201; s. c. 35 Am. Dec. 358; are collected. See, also, Randall v. Pasley v. Freeman, 3 T. R. 51. Hazelton, 94 Mass. (12 Allen) 414, i L. R. 6 Ex. 1 ; 39 L. J. Ex. 8. 415 ; Medbury v. Watson, 43 Mass. 2 gee Heaven v. Pender, 9 Q. B. (6 Mete.) 246, 259 ; s. c. 39 Am. Dec. D. 102. 635 *391 AVOIDANCE OP THE CONTRACT. [BOOK III. [*391] § 514. * But no action growing out of the contract can be maintained in such cases, except by parties or proxies.! The distinction was clearly illustrated in a case in the Queen's Bench, where there were two counts in the decla- ration ; the first, on contract, which M^as held bad, the second, in tori, which was sustained. The fraud charged was issuing to the public a false and fraudulent prospectus for a com- pany, whereby the plaintiff was deceived into taking shares.^ This principle, that the liability in an action of tort may be enforced against a party guiltj' of fraudulent representa- tions publicly given out and intended to deceive the public at large, by any person who has suffered damages in conse- quence of them, has since been frequently enforced by the Courts.^ § 515. [But it is now conclusively settled, overruling some of the earlier decisions, that this liability can only be enforced in cases where the person, who complains that he has been injured by acting in reliance upon the false repre- sentations, can establish in the communication of the false representations some direct connection between himself and the person publishing them. This was decided by the House of Lords in Peek v. Gurney,! where it was held that the responsibility of direc- tors who issue a prospectus for an intended company mis- representing actual and material facts, and concealing facts material to be known, does not, as of course, follow the shares on their transfer from an allottee to one who after- wards purchases them from him upon the market, the ground 1 Winterbottom v. Wright, 10 M. note, 29 L. J. Ex. 62, and 18 C. B. & "VV. 109; Longraeid r. Holiday, 903 ; Bedford v. Bagshaw, 4 H. & N. 6 Ex. 761 ; Howard v. Shepherd, 9 538 ; 29 L. J. Ex. 59. But these two C. B, 297 ; 19 L. J. C. P. 249 ; Play- last cases are overruled by Peek v. ford V. United Kingdom Telegraph Gurney, infra. See, also. North Co., L. E.. 4 Q. B. 706. Brunswick Railway Co. <;. Cony- 2 Gerhard y. Bates, 2 E. & B. 476 ; beare, 9 H. L. C. 712; Western 22 L. J. Q. B. 364. Bank of Scotland v. Addie, L. E. 1 5 Scott V. Dixon, reported in note, Sc. Ap. 145 ; Henderson u. Lacon, 6 29 L. J. Ex. 62 ; decided by the Q. B. Eq. 249 (V. C. W.). in 1859; Bagshaw v. Seymour, in i L. E. 6 H. L. 377. 636 OHAP. II.J FRAUD. *392 of the decision being, that as the object of the pro- spectus was * to induce persons to become original [*392] shareholders in the company, its office was fulfilled when the shares were once allotted.^] § 516. The following action was held to be maintainable in the State of New York. A. had agreed to bring certain animals for sale and delivery to B., at a specified place. A third person, desirous of making a sale to B., falsely repre- sented to him that A. had abandoned all intention of fulfil- ing his contract thereby inducing B. to supply himself by buying from that third person. A. was put to expense and loss of time in bringing the animals to the appointed place and otherwise disposing of them. In an action for damages for the deceit against the third person by A., it was not only held that he was entitled to recover, but that it was no defence to the action that the contract between A. and B. was one that could not have been enforced.^ We will now revert to the subject of fraud as specially applied in cases of sale. 2 In this case, Seymour v. Bag- Thomas v. Winchester, 6 N. Y. 397 ; shaw, and Bedford v. Bagshaw {ubi s. c. 57 Am. Dec. 457 ; Roth v. Siyara), were expressly overruled; and Palmer, 27 Barb. (N. Y.) 652; Ca- Scott V. Dixon (uhi supra), Gerhard zeaux u. Mali, 25 Barb. (N. Y.) 578; V. Bates {ante, p. 391), Langridge u. Fenn v. Curtis, 25 Hun (N. Y.) 384; Levy, and Barry v. Crosskey {ante, Wigand v. Sichel, 3 Keyes (N. Y.) p. 389) , were explained and adopted 120 ; Bartholomew v. Bentley, 15 by Lord Chelmsford, at p. .396, and Ohio, 659; s. c. 45 Am. Dec. 596; by Lord Cairns, at p. 412. Downer v. Smith, 32 Vt. 1; s. c. 3 American cases. — Commonwealth Am. Dec. 482; Grant w. Law, 29 Wis. Harley, 48 Mass. (7 Mete.) 462; Day- 99; Bank of Montreal v. Thayer, 2 ton V. Monroe, 47 Mich. 193; Powers McC. C. C. 1 ; s. c. 7 Fed. Rep. 622, V. Benedict, 88 N. Y. 605 ; The Eaton, 628. &c. Co. V. Avery, 83N. Y.31; Barnes i Benton v. Pratt, 2 Wend. 385. V. Brown, 80 N. Y. 627 ; Morgan v. See notice of this case by Colt J. Skiddy, 62 N. Y. 319; Arthur v. in Randall w. Hazleton, 94 Mass. 412, Griswold, 55 N. Y. 400 ; McGoldrick at p. 417. See Rice v. Manley, 66 N. V. Willits, 52 N. Y. 612, 620; Wake- Y. 82 ; s. c. 23 Am. Rep. 300; White man v. Dalley, 51 N. Y. 27 ; s. c. 10 Am. v. Merritt, 7 N. Y. 352 ; Snow v. Jud- Eep. 557 ; Kinney v. Kiernan, 49 N. son, 38 Barb. (N. Y.) 210. y. 164; Bruff v. Mali, 36 N. Y. 200 ; 637 *^98 AVOIDANCE OF THE CONTRACT. [BOOK III. Section II. FRAUD ON THE VENDOR. § 517. It is not until quite recently that it was finally settled whether the property in goods passes by a sale which the vendor has been fraudulently induced to make. The recent cases of Stevenson v. Newnham,i in the Exchequer Chanaber, and of Pease v. Gloahec,^ in the Privy Council, confirming the principles asserted by the Exchequer in Kingsford v. Merry ,3 taken in connection with the decision of the House of Lords in Oakes v. Turquand/ leave no room for further question. By the rules established in [*393] these cases, whenever goods are * obtained from their owner by fraud, we must distinguish whether the facts show a sale to the party guilty of the fraud, or a mere delivery of the goods into his possession, induced by fraudulent devices on his part.^ In other words, we must ask whether the owner intended to transfer both the prop- erty in, and the possession of, the goods to the person guilty of the fraud, or to deliver nothing more than the bare posses- sion. In the former case, there is a contract of sale, how- ever fraudulent the device, and the property passes : but not in the latter case.^ 1 13 C. B. 285, and 22 L. J. C. P. 27 Barb. (N. Y.) 654 ; King v. Phillips, 10. 8 Bosw. (N. Y.) 607 ; Gary v. Hotai- 2 L. E. 1 P. C. 220; 3 Moo. P. C. ling, 1 Hill (N. Y.) 313 ; s. c. 37 Am. N. S. 55§. De3. 323; Ash v. Putnam, 1 Hill 8 11 Ex. 577, and 25 L. J. Ex. 166. (N. Y.) 305 ; Durell v. Haley, 1 Paige * L. R. 2 H. L. 325. See, also, Ch. (N. Y.) 492 ; s. c. 19 Am. Dec. Keese River Mining Co. v. Smith, 2 444; Crary c-. Sprague, 12 Wend. Ch. 604, and L. R. 4 H. L. 64; and (N. Y.) 41; s. c. 27 Am. Dec. 110; Clough V. London & North Western Root v. French, 13 Wend. (N. Y.) Railway Co., L. E. 7 Ex. 26, post, 570; s. c. 28 Am. Dec. 482; Barker page 400. ,i. Dinsmore, 72 Pa. St. 427 ; s. c. 13 5 A fraudulent purchase acquires no Am. Rep. 697 ; Gilbert v. Hoffman, 2 title to the goods as against the party Watts (Pa.) 66; s. c. 26 Am. Dec. defrauded. Butler v. Collins, 12 Gal. 103 ; Knowles v. Lord, 4 Whart. (Pa.) 462; Stevens v. Hyde, 32 Barb. 500; s. c. 34 Am. Dec. 525 ; Farr y. (N. Y.) 175; Tallman v. Turck, 26 Sims, Rich. (S. C.) Eq. Gas. 122; s. c. Barb. (N. Y.) 170; Buckley v. Art- 24 Am. Dec. 396; Stockwell i'. United Cher, 21 Barb. (N. Y.) 585 ; Van Neste States, 80 U. S. (13 Wall.) 566 ; bk. V. Conover, 20 Barb. (N. Y.) 547; 20, L. ed. 491. Hunter v. Hudson River, &c. Co., 20 ^ A fraudulent purchase of goods Barb. (N. Y.) 501 ; Wheaton v. Baker, accompanied with delivery is not 14 Barb. (N. Y.) 597 ; Roth v. Palmer, void but voidable only, at the elec- 638 CHAP. II.J FEAUD. ''2,9s § 518. In the former case the contract is voidable at the election of the vendor, not void ab initio.'^ It follows, there- fore, that the vendor may affirm and enforce it, or may rescind it. He may sue in assumpsit for the price, and this affirms the contract, or he may sue in trover for the goods or their value, and this disaffirms it.^ But in the meantime, and tion of the vendor, and until a sale is avoided the vendee has power to make a transfer to a bond, fide pur- chaser liaving no notice of the fraud. Rowley v. Bigelow, 29 Mass. (12 Pick.) 307 ; Somes v. Brewer, 19 Mass. (2 Pick.) 184; s. c. 13 Am. Dec. 406 ; Parker v. Patrick, 5 T. E. 175. !■ Hewitt V. Clark, 91 111. 605; Titcomb v. Wood, 38 Me. 501, 503 ; Ditson V. Randall, 33 Me. 202 ; Ori- ental Bank v. Haskins, 44 Mass. (3 Mete.) 332 ; s. c. 37 Am. Dec. 140 ; Rowley v, Bigelow, 29 Mass. (12 Pick.) 307, 312 ; s. c. 23 Am. Dec. 607; Mowrey v. Walsh, 8 Cow. (N. Y.) 238. 2 Purchase of property by means of false representation as to solvency vests no title in the vendee, and the vendor may recapture the property if it can be done without necessary violence to the persons and without breach of peace. Poor v. Woodburn, 25 Vt. 238 ; Dustin v. Cowdry, 23 Vt. 646; Hodgeden o. Hubbard, 18 Vt. 504 ; s. u. 46 Am. Dec. 167. See McBean v. Fox, 1 111. App. 177; Butler V. Hildreth, 46 Mass. (5 Mete.) 49; Stewart u. Emerson, 52 N. H. 301. Who may avoid fraudulent sale. — A fraudulent sale can only be avoided by the party defrauded. Thus where the fraud is on the part of the vendee he will be bound by the purcliase unless the defrauded vendor chooses to avoid it. Brown u. Pierce, 97 Mass. 46 ; Thayer v. Turner, 49 Mass. (8 Mete.) 552; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 312; s.c.22 Am. Dec. 607 ; Henry v. Daley, 17 Hun (N.Y.) 210; White v. Garden, 10 C. B. 919. And where a party purchases from such bond, fide pur- chaser without notice of the fraud on a new consideration before the vendor has exercised his election to disaffirm the sale he will get a good title. Paige v. O'Neal, 12 Cal. 498; Williamson v. Russell, 39 Conn. 406 ; Thompson u. Rose, 16 Conn. 71; s. c. 41 Am. Dec. 121; Hears v. Waples, 3 Houst. (Del.) 581 ; Kern v. Thurber, 57 Ga. 172 ; Ohio & M. R. R. Co. v. Kerr, 49 111. 458; Chicago Dock Co. v. Fos- ter, 48 111. 507; Fawcett v. Osborn, 32 111. 411; Brundage v. Camp, 21 111. 330; Jennings v. Gage, 13 111. 614; s. c. 56 Am. Dec. 476; Bell v. Cafferty, 21 Ind. 411 ; Wood v. Yeat- man, 15 B. Mon. (Ky.) 270; Gibson V. Moore, 7 B. Mon. (Ky.) 92 ; Miles u. Oden, 8 Mart. (La.) N. S. 214 ; s. u. 19 Am. Dec. 177; Titcomb v. AVood, 38 Me. 561 ; Ditson u. Randall, 33 Me. 202; Hall v. Hinks, 21 Md. 406 ; Powell v. Bradlee, 9 Gill & J. (Md.) 220; Hoffman v. Noble, 47 Mass. (6 Mete.) 68 ; s. c. 39 Am. Dec. 711; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 312; s. c. 23 Am. Dec. 607 ; Cochran v. Stewart, 21 Minn. 435 ; Barnard v. Campbell, 58 N. Y. 73, 799; s. c. 17 Am. Rep. 208; Devoe V. Brandt, 53 N. Y. 462 ; Winne V. McDonald, 39 N. Y. 240; Western Trans. Co. v. Marshall, 4 Abb. App. Dec. (N. Y.) 575; s. c. 6 Abb. (N. Y.) Pr. N. S. 283 ; Penfield u. Dunbar, 64 Barb. (N. Y.) 250 ; Dows V. Greene, 32 Barb. (N. Y.) 490; Dows V. Rush, 28 Barb. (N. Y.) 157 ; Malcom v. Loveridge, 13 Barb, (N. Y.) 372 ; Hoyt v. Sheldon, 3 Bosw. (X. Y.) 267; Mowrey ;;. Walsh, 8 Cow. 639 *393 AVOIDANCE OF THE OONTKACT. [BOOK III. until he elects, if his vendee transfer the goods in whole or in l^art, whether the transfer be of the general or of a special ^n-op- erty in them, to an innocent third person for a valuable con- sideration, the rights of the original vendor will be subordinate to those of such innocent third person? If, on the contrary, the (N. Y.) 238; Craig v. Marsh, 2 Daly (N. Y.) 61 ; Beavers v. Lane, 6 Duer (N. Y.) 232; Danforth v. Dart, 4 Duer (N. Y.) 101 ; Lewis v. Palmer, Hill & Den. (N. Y.) 68; Moore u. Miller, 6 Lans. (N. Y.) 402 ; Durell v. Haley, 1 Paige Ch. (N. Y.) 492; Man- ufacturers' &c. Bank v. Farmers' &c. Bank, 2 T. & C. (N. Y.) 402 ; Saltus V. Everett, 20 Wend. (N. Y.) 267; s. c. 32 Am. Dec. 541 ; Andrew v. Dieterich, 14 "Wend. (N. Y.) 34 ; Root V. French, 13 Wend. (N. Y.) 570; s. c. 28 Am. Dec. 402 and note; Williams v. Merle, 11 Wend. (N. Y.) 80 ; s. c. 25 Am. Dec. G13 ; Harris v. Horner, 1 Dev. & B. (N. C.) Eq. 455; s. u. 30 Am. Dec. 182; Sinclair t'. Healy, 40 Pa. St. 417 ; s. o. 80 Am. Dec. 589; Thompson v. Lee, 3 Watts & S. (Pa.) 479 ; Hawkins o. Davis, 5 Baxt. (Tenn.) 698 ; Arendale v. Mor- gan, 5 Sneed (Tenn.) 703; Old Dominion St. Co. v. Burckhardt, 31 Gratt. (Va.) 664 ; Williams v. Givens, 6 Gratt. (Va.) 208 ; Shufeldt v. Pease, 16 Wis. 659; Rateau v. Bernard, 3 Blatchf . C. C. 248 ; Johnson u. Peck, 1 Woodb. & M. C. C. 334 ; In re Sime, 12 Nat. Bank. Reg. 318 ; Babcock v. Lawson, L. R. 4 Q. B. Div. 394; Moyce v. Newington, L. R. 4 Q. B. Div. 32; White v. Garden, 10 C. B. 919; s. c. 20L. J. C. P. 167; Kings- ford V. Merry, 11 Ex. 577 ; Pease v. Gloahec, 3 Moo. P. C. (N. S.) 556; Parker v. Patrick, 5 T. R. 175. 3 Attenborough v. London and St. Katherine's Dock Co., 3 C. P. D. 450, C. A. ; Babcock v. Lawson, 4 Q. B. D. 394; 5Q. B. D. 284, C. A. American authorities. — Williamson V. Russell, 39 Conn. 406; Meara u. Waples, 3 Houst. (Del.) 581; Kern V. Thurber, 57 Ga. 172; Nicol v. Crit- 640 tenden, 55 Ga. 497 ; Dickerson v. Evans, 84 111. 451 ; Henson v. West- eott, 82 111. 224; McNab v. Young, 81 111. 11 ; Ohio & M. R. R. v. Kerr, 49 111.458; Chicago Dock Co. ;;. Fos- ter, 48 111. 507 ; Jennings v. Gage, 13 111. 610; s. u. 56 Am. Dec. 476; Gregory v. Schoenell, 55 Ind. 101 ; Hutchinson u. Watkins, 17 Iowa, 475 ; Wilson v. Fuller, 9 Kans. 176 ; Tourtellott v. Pollard, 74 Me. 418 ; Titcomb t>. Wood, 38 Me. 561; Dit- son V. Randall, 33 Me. 202 ; Neal v. Williams, 18 Mc. 391 ; Hall v. Hinks, 21 Md. 406; Moody v. Blake, 117 Mass. 23, 26; s. c. 19 Am. Rep. 394; Hoffman v. Noble, 47 Mass. (6 Mete.) 73 ; s. c. 39 Am. Dec. 711 ; George v. Kimball, 41 Mass. (24 Pick.) 241; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 312; s. c. 23 Am. Dec. 607; Somes t-. Brewer, 19 Mass. (2 Pick.) 184; s. c. 13 Am. Dec. 406 Cochran v. Stewart, 21 Minn. 435 Bradley u. Obear, 10 N. H. 477 Devoe ;;. Brandt, 53 N. Y. 462 Paddon v. Taylor, 44 N. Y. 371 Crocker v. Crocker, 31 N. Y. 507 Smith !). Lynes, 5 N. Y. 40; West- ern Trans. Co. j'. Marshall, 4 Abb. App. Dec. (N. Y.) 575; Barnard v. Campbell, 65 Barb. (N. Y.) 286,292; Dows V. Greene, 32 Barb. (N. Y.) 490; Hunter v. Hudson River Iron Co., 20 Barb. (N. Y.) 493; Malcom V. Loveridge, 13 Barb. (N. Y.) 373; Williams v. Birch, 6 Bosw. (N. Y.) 299; Holbrook v. Vose, Bosw. (N. Y.) 104, 111 ; Mowrey v. Walsh, 8 Cow. (N. Y.) 238; Meacham u. Collignon, 7 Daly (N. Y.) 402 ; Craig v. Marsh, 2 Daly (N. Y.) 61 ; Bearers v. Lane, 6 Duer (N. Y.) 232 ; Keyser v. Har- beck, 3 Duer (N. Y.) 373 ; Caldwell V. Bartlett, 3 Duer (N. Y.) 341 ; Ash CHAP. II.J FRAUD. *393 intention of the vendor was not to pass the property, but merely to part with the possession of the goods, there is V. Putnam, 1 Hill (N. Y.) 302, 306, 307; Williamson <•. Mason, 12 Hun (N. Y.) 97 ; Anderson v. Roberts, 18 Johns. (N. Y.) 515; s, c. 9 Am. Dec. 235; Hoffman v. Carow, 22 Wend. (N. Y.) 318; Root ... French, 13 Wend. (N. Y.) 570; s. c. 28 Am. Dec. 428; Dean v. Yates, 22 Ohio St. 388; Sinclair v. Healy, 40 Pa. St. 417; s. c. 80 Am. Dec. 589; Hawkins v. Davis, 5 Baxt. (Tenn.) 698; Shufeldt v. Pease, 16 Wis. 699; Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. (Va.) 664; Williams v. Given, 6 Gratt. (Va.) 2C8. A bonajide purchaser from a fraud- ulent purchaser without notice of the fraud gets a good title as against the defrauded vendor who cannot recover the property from him. Paige u. O'Neal, 12 Gal. 483, 497; Sargent i'. Sturm, 23 Gal. 359; Williamson v. Russell, 39 Gonn. 406, 412; Lynch V. Beecher, 38 Gonn. 490 ; Mears v. Waples, 3 Houst. (Del.) 581, 620; aff'd 4 Houst. (Del.) 62; Kern v. Thurber, 57 Ga. 172; Nicol o. Crit- tenden, 55 Ga. 497 ; Holland v. Swain, 94 111. 154 ; Van Duzor v. Allen, 90 111. 499; Ohio & M. E. R. Go. ... Kerr, 49 111. 458; Chicago Dock Co. v. Foster, 48 111. 507; Brundage v. Camp, 21 111. 330; Bell v. Cafferty, 21 Ind. 411; Glaflin v. Gottman, 77 Ind. 58; Sharp v. Jones, 18 Ind. 314; Wilson V. Fuller, 9 Kans. 176 ; Arnett V. Cloudas, 4 Dana (Ky.) 299 ; Wood V. Yeatman, 15 B. Mon. (Ky.) 270; Lee V. Kimball, 45 Me. 172 ; Titcomb V. Wood, 38 Me. 561 ; Ditson v. Ran- dall, 33 Me. 202; Hall c: Hinks, 21 Md. 406, 418; Powell v. Bradlee, 9 Gill & J. (Md.) 220, 278; Sleeper v. Chapman, 121 Mass. 408; Moody v. Blake, 117 Mass. 26; s. c. 19 Am. Rep. 394 ; Easter v. Allen, 90 Mass. (8 Allen) 7 ; Coggill v. Hartford & N H. R. E., 69 Mass. (3 Gray) 545; Hoffman v. Noble, 47 Mass. (6 Mete.) 68; s. c. 39 Am. Dec. 711 ; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307; s. c. 23 Am. Dec. 607; Cochran v. Stewart, 21 Minn. 435; Lee v. Port- wood, 41 Miss. 109; Wineland u. Coonce, 5 Mo. 296; s. c. 32 Am. Dec. 320; Kingsbury v. Smith, 13 N. H. 109; Stevens v. Brennan, 79 N. Y. 254; Paddon v. Taylor, 44 N. Y. 371; Fassett v. Smith, 23 N. Y. 252 ; Saltus V. Everett, 20 Wend. (N. Y.) 267; s. c. 32 Am. Dec. 541 ; Combes u. Chandler, 33 Ohio St. 178; Dean v. Yates, 22 Ohio St. 388, 395; Swift 0. Holdridge, 10 Ohio, 230; s. u. 36 Am. Dec. 85; Sinclair v. Healy, 40 Pa. St. 417; s. c. 80 Am. Dec. 589; Hood r. Fahnestoek, 8 Watts (Pa.) 489 ; s. c. 34 Am. Dec. 489 ; Hawkins V. Davis, 8 Baxt. (Tenn.) 506 ; s. c. 5 Baxt. (Tenn.) 698; Gage v. Epper- son, 2 Head (Tenn.) 669; Arendale V. Morgan, 5 Sneed (Tenn.) 703; Old Dominion Steamship Co. v. Burckhardt, 31 Gratt. (Va.) 664, 678; Wickham v. Martin, 13 Gratt. (Va.) 427; Williams v. Given, 6 Gratt. (Va.) 268; Singer Manuf. Co. V. Sammons, 49 Wis. 316; The Schooner Mary Ann Guest, Olcott (tJ. S. D. C.) 501. But the pur- chaser in order to protect himself must show affirmatively that he paid value for the goods before notice of the fraud. Easter v. Allen, 90 Mass. (8 Allen) 10. No protection, under this rule, will be afforded to a bond, fide purchaser where his vendor pur- chased on condition that he was not to remove or sell the goods, and that the title was not to be his until they were paid for, because such a conditional vendee, cannot in viola- tion of the condition, vest a good title in a bond, fide purchaser from him. Carter v. Kingman, 103 Mass. 517. There are a class of cases, how- ever, which hold that an honest pur- 641 *393 AVOIDANCE OF THE CONTEACT. [BOOK III> no sale, and he who obtains such possession by fraud can convey no property in them to any third person, however chaser, under a defective title, holds against the true owner. Boyce v. Brockway, 31 N. Y. 493 ; Linnen v. Cruger, 40 Barb. (N. Y.) 033; Cobb V. Bows, 9 Barb. (N. Y.) 243 ; s. c. 10 N. Y. 339; Robinson v. Dauehy, 3 Barb. (N. Y.) 30; Caldwell v. Bart- lett, 3 Duer (N. Y.) 352 ; Ash v. Put- nam, 1 Hill (N. Y.) 300; Rawles v. Dishler, 28 How. (N. Y.) Pr. 69 ; be- cause an owner cannot be deprived of goods e.xcept by his own acts. Brower u. Peabody, 2 Abb. (N. Y.) Pr. 218; s. c. 11 How. (N. Y.) Pr. 492 ; Spaulding v. Brewster, 50 Barb. (N. Y.) 144 ; Ballard ,-. Burgett, 47 Barb. (N. Y.) 651 ; Blossom v. Cham- pion, 37 Barb. (N. Y.) 563; Van- amee v. Bank of Troy, 8 Barb. (N. Y.) 315; s. c. 5 How. (N. Y.) Pr. 104 ; Anderson v. Nicholas, 5 Bosw. (N. Y.) 130; Wilson v. Nason, 4 Bosw. (N. Y.) 168 ; Roberts v. Dil- lon, 3 Daly (N. Y.) 52; Piser c. Stearns, 1 Hilt. (N. Y.) 88 ; Weaver V. Barden, 3 Lans. (N. Y.) 340; Hoffman v. Carow, 22 Wend. (N. Y.) 318; Bassett v. Lederer, 3 T. & C. (N. Y.) 075; s. c. 1 Hun (N. Y.) 279. In those cases, however, where the owner of goods furnislies another with prima facie evidence of a power of disposal, a bona fide purchaser will acquire a good title as against him. McNeil V. Tenth Nat. Bank, 46 N. Y. 329; s. c. 7 Am. Rep. .341; Dows u. Greene, 10 Barb. (N. Y.) 78 ; Devlin U.Pike, 5 Daly (N. Y.) 103; Moore V. Miller, 6 Lans. (N. Y.) 102; Shearer v. Barrett, Hill & Den. (N. Y.) 72; Steelyards v. Singer, 2 Hilt. (N. Y.) 98. In order that a vendee may be pro- tected as a bond, fide purchaser, he must take the goods in the ordinary course of business paying, therefore, a valuable consideration for one to whom property has been delivered by the fraudulent vendee in payment of a precedent debt, or in perform- ance of an executory contract of sale made prior to the acquiring of pos- session thereof or of some evidence of title thereto by the latter, al- thougli a consideration was paid at the time of the contract is not a bontl fide purchaser for value, and cannot hold the property as against the vendor. Barnard v. Campbell, 58 N. Y. 73; s. c. 17 Am. Rep. 208; overruling Fenby v. Pritchard, 2. Sandf. (N. Y.) 151; disapproving Lee V. Kimball, 45 Me. 172, and Butters v. Haughwout, 42 111. 18; and distinguishing Winne v. McDon- ald, 39 N. Y. 232. See, also, Hyde v. Ellery, 18 Md. 496, 501; Sargent u. Sturm, 23 Cal. 359; Fletcher v. Drath, 66 Mo. 126 ; Pope v. Pope, 40 Miss. 516; Stevens u. Brennan, 79 N. Y. 254, 258; Weaver v. Barden, 49 N. Y. 286; Poor t>. Woodburn, 250 Vt. 235. Contra Sliufeldt v. Pease, 10 Wis. 659. An attaching creditor is not a bond, fide purchaser. Thomp- son V. Rose, 10 Conn. 71 ; s. c. 41 Am. Dec. 121 ; Jordan v. Parker, 56 Me. 557; Gilbert v. Hudson, 4 Sle, (4 Greenl.) .345 ; Whitman v. Merrill,. 125 Alass. 127 ; Atwood v. Dearborn, 83 Mass. (1 Allen) 483 ; s. c. 79 Am.. Dec. 765; Wiggin v. Day, 75 Mass. (9 Gray) 97 ; Buffington v. Gerrish,, 15 Mass. 156; s. c. 8 Am. Dec. 07; Naugatuck Cutlery Co. v. Babcock, 22 Hun (N. Y.) 481^ 485 ; Field v. Stearns, 42 Vt. 100 ; Hackett v. Cal- lender, 32 Vt. 97; Poor v. Wood- burn, 25 Vt. 234 ; Fitzsimmons u. Joslin, 21 Vt. 129; s. c. 52 Am. Dec. 48. A person buyinq with notice of the fraud of his vendor in obtaining the property is not a bond, fide holder for the value. Stearns v. Gage, 79 N. Y. 102; Meacham v. CoUignon, 7 Daly (N. Y.) 402; Rateau o. Bernard, 3 Blatchf. C. C. 244. 642 CHAP. II.] FRAUD. *394 innocent, for no property has passed to himself from the true owner.* § 519. To these common-law rules, there is one statutory exception. Where the fraud by which the goods are obtained from the vendor is such as to enable him to succeed in prose- cuting to conviction the fraudulent buyer as having been guilty of obtaining the goods by false and fraudulent pre- tences, he will be entitled, after such conviction, to recover his goods, even from a third person, who is a bond fide pur- chaser from the party committing the fraud. The statute and cases under it have already been reviewed, ante, Book I. Part I. Ch. 2, pp. 9, lO.i [It has, however, been recently decided that the statute has *no application to a case of false pre- [*394] tences where the property in the goods has passed. (^Vide Lindsay v. Cundy, 1 Q. B. D. 348; and Moyce v. Newington, 4 Q. B. D. 32, ante, page 10.) 2] The early cases are not universally in accord with the principles above stated, and in more than one of them the property was held to have passed, although it was very plainly the intention of the vendor to transfer the title, as well as the possession, of the goods. An assignee for the benefit of credi- Peabody, 13 N. Y. 121 ; Western tors is a bona fide purchaser and will Trans. Co. v. Marshall, 4 Abb. App. be protected. Eatcliffe v Sangston, Dec. (N. Y.) 575 ; Dean v. Yates, 22 18 Md. 383; Bussing .;. Rice, 56 Ohio St. 388; Decan v. Shipper, 35 Mass. (2 Cush.) 48; Belding v. Pa. St. 239; s. u. 78 Am. Dec. 334; Prankland, 8 Lea (Tenn.) 67, 72; Gurney w. Behrend, 3 EI. & Bl. 622; Donaldson v. Farwell, 93 U. S. (3 Kingsford ^. Merry, 1 H. & N. 503; Otto) 631; bk. 23, L. ed. 993; Mont- Lickbarrow v. Mason, 1 Smith Lead, gomery D. Bucyrus Machine Works, Cas. (7th Am. Ed.) 1147; s. c. 2 T. 92 U. S. (2 Otto) 257 ; bk. 23, L. ed. R. 63 ; 1 H. Bl. 357 ; 6 East, 21. 656. 1 Cundy v. Lindsay, L. R. 3 App. * As to who may sell see ante, bk. 1, Cas. 459 ; Babcock v. Lawson, L. R. ch. II. § 1. One in possession who 4 Q. B. Div. 394; Lindsay v. Cundy, has no title has no authority to sell ; L. R. 1 Q. B. Div. 338 ; Horwood v. thus a fraudulent holder of a, bill of Smith, 2 T. R. 750. lading cannot possess title to goods ^ Cochran v. Stewart, 21 Minn, by endorsing it to a purchaser of 435. See McNeil v. Tenth Nat. Bank, value without notice of the fraud. 46 N. Y. 327; s. c. 7 Am. Rep. 341 ; Kinsey v. Leggett, 71 N. Y. 387; Eassett v. Smith, 23 N. Y. 252, 366; Dows V. Greene, 24 N. Y. 638 ; Dows Mowrey v. Walsh, 8 Cow. (N. Y.) V. Perrin, 16 N. Y. 325; Brower v. 238. 643 *395 AVOIDANCE OF THE CONTEACT. [BOOK III. In Martin v. Pewtress,^ decided in 1769 ; Read v. Hutch- inson,* in 1813 ; Gladstone v. Hadwen,^ in the same year ; Noble V. Adams,** in 1816 ; and the Earl of Bristol v. Wils- more,^ in 1823, dicta are to be found as to the effect of fraud in preventing the property from passing to the purchaser, which are quite in opposition to the latter authorities, though in most, if not all, of these cases the decisions were quite correct. The last-mentioned case was one in which a cheque had been given by the buyer on a bank in which he had no funds, and was decided on the authority of Read v. Hutchinson, Noble V. Adams, supra ; and of Rex v. Jackson,^ in which a conviction for obtaining goods under false pretences (under the 30th Geo. II. Gh. 24) was upheld on proof that the accused had obtained the goods by giving in payment a cheque on a banker with whom he had no cash, and which he knew would not be paid. § 520. Duff V. Budd^ was an action by a vendor against a common carrier to whom he had delivered goods, to be for- warded to Mr. James Parker, High Street, Oxford. The goods had been ordered by an unknown person, and there was no James Parker in that street, but there was a William Parker, a solvent tradesman, who refused the parcel. Soon after, a person came to the defendant's office and claimed the parcel as his own, and on paying the carriage it was delivered to him. He had on previous occasions received goods from the same office, directed to Mr. Parker, Oxford, to be left till called for. One of the grounds of [*895] defence * taken by Pell, Serjeant, Avas that the prop- erty in the goods had passed out of the plaintiff to the consignee. Dallas C. J. and Burrough J. did not notice the point, but Park J. said that the ground taken did "not apply to a case bottomed in fraud in which there had been no sale," and Richardson J. said, "there was clearly a prop- 3 4 Burr. 2478. '1 B. & C. 514 ; and see Loughnan * 3 Camp. 352. „. Barry, Ir. R. C. L. 457. 6 1 M. & S. 517. 8 3 Brod. & B. 116. 6 7 Taunt. 59. i 3 B. & B. 177. 644 CHAP. II.J FRAUD. *396 erty in tlie plaintiffs entitling them to sue, as they had been imposed on by a gross fraud." § 621. A few years later, a case almost identical in its features came before the same Court. Stephenson v. Hart^ was, again, an action by a vendor against a common carrier. A purchaser bought goods from the plaintiff, and ordered them to be sent to J. West, 27 Great Winchester Street, Lon- don, and gave a spurious bill of exchange in payment. The vendor delivered the goods to the carrier to be forwarded to the above address. No person was found at the address, but a few days after the carrier received a letter signed " J. West," stating that a box had been addressed to him by mistake to Great Winchester Street, and asking that it should be forwarded to him at the Pea Hen, a public-house at St. Alban's. The box was so forwarded, and the person who sent for it, said it was for him, and stated its contents before opening it, thus showing that the box had reached the person to 2vhom it was addressed. One ground of defence, again, was that upon the delivery to the carriers the prop- erty ceased to be in the vendor, and was vested in the con- signee. Park J. held that the property had not passed, because West had never meant to pay for the goods, and the true question was " not what the seller meant to do, but what are the intentions of the customer. Did 7ie mean to buy?" Burrough J. said that the property had never passed out of the consignor, giving no reason except that the transaction of West was a gross fraud ; but Gaselee J. doubted strongly whether trover could lie when the carrier had delivered the goods to the person to whom they had been really consigned by the vendor. § 522. It is submitted that both these cases against the carriers are very doubtful authorities under the modern doc- trine, which clearly holds that the property does pass, when the *vendor intends it to pass, however fraudu- [*396] lent the device of the buyer to induce that inten- tion. ^ i 4 Bing. 476. treatise. It seems to be further jus- 1 This expression of doubt is not tified by the three cases since decided withdrawn in the third edition of this in the Exchequer, in all of which the 645 *397 AVOIDANCE OF THE CONTEACT. [BOOK III. In Heugh v. The London and North Western Railway Company,^ where the same question was involved under very similar circumstances, it was held that it was a ques- tion of fact for the jury whether the carrier had acted with reasonable care and caution with respect to the goods after their refusal at the consignee's address, and the Court refused to set aside a verdict for the defendant on that issue. In McKean v. Mclvor,^ the decision was also in favor of the carriers, and Bramwell B. expressed concurrence in the opinion of Gaselee J. who dissented in Stephenson v. Hart,* supra. § 528. In Irving v. Motley,^ the facts were, that one Dunn and a firm of Wallington and Co. had been engaged in a series of transactions, in which Dunn, as agent, purchased for them goods, on credit, and immediately resold at a loss, the purpose being to raise money for the business of Wallington and Co. Dunn Avas also an agent for the defendant Motley, who was entirely innocent of any knowledge of, or partici- pation in, the transaction, of Wallington and Co. Under these circumstances, Dunn, in behalf of Wallington and Co., applied to the defendant for an advance, which the latter agreed to make if secured by a consignment of goods. Thereupon Dunn, as agent of Wallington and Co., bought a parcel of wool from the plaintiff, on credit, and at once transferred it to Motley, as security for the advance. Wal- lington and Co. became bankrupt a few days after this trans- action, and the plaintiff brought trover against Motley for the wool. A verdict was given for the plaintiff, the jury finding that the transaction was fraudulent, and that Mot- ley knew nothing of the fraud, but that Dunn was [*397] his agent as *well as that of Wallington and Co. The Court refused to set aside the verdict, but the judges were not in accord as to the grounds. Tindal C. defence of the carriers was successful, ^ L. U. 5 Ex, 51. though the only one in which the " l j> g j;^. 36. point here suggested was taken into 4 4 Bing. 676. consideration was Clough v. London 1 7 Bing. 543. and North Western Railway Co., L. R. 7 Ex. 26, post, 400. 646 ■CHAP, n.j FRAUD. *398 J. said : " The ground set up here is that there was an acting and an appearance of purchase given to the transfer of these goods, which in truth and justice it did not really possess. Whether Dunn, as the agent of Wallington and Co., went into the market and got these goods into his possession, under such representation as may amount to obtaining goods under false pretences, it is not necessary to say, but it comes very near the case : it is under circumstances that place him and Messrs. Wallington in the light of conspirators to obtain possession of the goods. ... At all events, it was left to a jury of merchants, and though they have acquitted the defendants of fraud, yet they involved them in the legal con- sequences, as it was a fraud committed hy their agent with a vieiv to benefit them." Park J. agreed with the Chief Justice, but he expressed anxiety to explain Noble v. Adams, saying, that the Court did not hold, nor mean to hold in that case, that obtaining goods under false pretences was the only ground upon which the transaction could be held void. Gaselee J. was careful to confine the doctrine of the case before the court, to the special circumstances, saying : that it was "maintainable against the defendants, because they had constituted Dunn their agent, for the purpose of secur- ing themselves, by getting a consignment of wool made to them from Wallington and Co. ; and their agent having thought fit to procure that consignment by means of what the jury have found to be a fraud, however innocently the defendants may have acted, they cannot take any benefit from the misconduct of that agent." Alderson J. however, thought that the case was confused by treating it as one of principal and agent ; that Dunn and Wallington were prin- cipals in a conspiracy to get the goods from the plaintiff, and therefore no property passed out of 3Iessrs. Irving. § 524. In Ferguson v. Carrington,i goods were sold to defendant on credit, whereupon he immediately re- sold them at lower * prices, and the vendor brought [*398] assumpsit for the price before the maturity of the credit, on the ground that the defendant had manifestly 2 7 Taunt. 59. i 9 B. & C. 59. 647 *398 AVOIDANCE OF THE CONTRACT. [BOOK III. purchased with the preconceived design of not paying for them. Lord Tenterden C. J. non-suited the plaintiff, on the ground tliat by bringing an action on the contract, he affirmed it,^ and was, therefore, bound to wait till the end of the credit, but that " if the defendant had obtained the goods with the preconceived design of not faying for them, no jjroperty passed to him by the contract of sale, and it was competent to the plaintiff to bring trover, and treat the contract as a nullity, and the defendant not as a purchaser of the goods, but as a person who had obtained tortious possession of them." Park J. concurred in this view. It should not be overlooked that in this, as in several of the preceding cases, the action was between the true owner and the fraudulent buyer ; that the language of the judges was intended to apply only in the case before them, and was not, therefore, so guarded in relation to the effect of the con- tract in transferring the property, as it would doubtless have been if the rights of innocent third parties had been in question. § 525. In Load v. Green,i the buyer purchased the goods on the 1st of July, they were delivered on the 4th, and a fiat in bankruptcy issued on the 8th. It is uncertain whether the act of bankruptcy had been committed prior to 2 Ratijication hy suit for price. — 4 Eawle (Pa.) 273 ; s. c. 26 Am. Where, after discovery of the fraud, Dec. 131 ; Mackinley i\ McGregor, 3 the vendor brings an action for the Whart. (Pa.) 369 ; s. e. 31 Am. Dec. purchase price this is as matter of 522; Adier v. Fenton, 6-5 U. S. (24 law an affirmation of the sale, and How.) 407, 411 ; bit. 16, L. ed. 696 ; the vendor cannot thereafter set up Dibblee v. Sheldon, 10 Blatchf. C. C. title and claim the goods on the 178; Emma Silver Mining Co. Lim. ground of the original fraud. Bulk- o. Emma Co. of N. Y., 7 Fed. Rep. ley t. Morgan, 46 Conn. 393; Mor- 401, 424; s. c. 10 Rep. 551; Dalton ford V. Peck, 46 Conn. 380; Dellone v. Hamilton, 1 Hannay (N. B.) 422. V. Hull, 47 Md. 112 ; Connihan u. If after discovery of the fraud the Thompson, 111 Mass. 270, 272 ; But- vendor elects to avoid the contract, ler I'. Hildreth, 46 Mass. (5 Mete.) such election is conclusive. Powers 49 ; Peters v. Ballister, 20 Mass. (3 v. Benedict, 88 N. Y. 605, 609 ; Moller Pick.) 495; Kimball v. Cunningham, v. Tuska, 87 N. Y. 166; Morris v. 4 Mass. 502, 505 ; s. c. 3 Am. Dec. Rexford, 18 N. Y. 552 ; Pence v. 230; Stoutenburgh «. Konkle, 15 N. Langdon, 99 U. S. (9 Otto) 578, 582; J. Eq. (2 McCart.) 33, 41 ; Schiffer bk. 25, L. ed. 420 ; Orme v. Brough- V. Dietz, 83 N. Y. 300; Joslin v. ton, 10 Bing. 533. Cowee, 52 N. Y. 90 ; Marsh v. Pier, i 15 M. & W. 216. 648 CHAP. II.J FBAUD. «^398 the purchase. The jury found that the buyer purchased with the fraudulent intention of not paying for the goods ; and it was held, that even assuming the act of bankruptcy to have been committed after the purchase, "the plaintiff had a right to disaffirm it, to revest the property in the goods, and recover their value in trover against the bankrupt." ^ [In Ex parte Whittaker, the buyer had committed an act of bankruptcy on the 1st of December, a,nd on the 3d a 2 10 Ch. 446. A vendor purchasing goods with a preconceived design of not paying for them obtains no property in the goods, although there was no fraudulent misrepresentation or false pretences. Loeb V. Flash, 65 Ala. 526 ; Morrill V. Blackman, 42 Conn. .324 ; Ayres v. French, 41 Conn. 142 ; Thompson v. Rose, 16 Conn. 71 ; s. c. 41 Am. Dec. 121; Wabash St. L. &c. Ry. Co. v. Shryock, 9 III. App. 32.3; Oswego Starch Factory v. Lendrum, 57 Iowa, 573 ; Cross v. Peters, 1 Me. (1 Greenl.) 376; s. c. 10 Am. Dec. 78; Peters v. Hiles, 48 Md. 506 ; Harris o. Alcock, 10 Gill & J. (JId.) 226 ; s. u. 32 Am. Dec. 158; Kline v. Baker, 99 Mass. 253, 255 ; Dow v. Sanborn, 85 Mass. (3 Allen) 181, 182; Wiggin v. Day, 75 Mass. (9 Gray) 97; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307, 311, 312 ; s. c. 23 Am. Dec. 607 ; Shipman v. Seymour, 40 Mich. 274; Fox V. Webster, 46 Mo. 181 ; Bidault w. Wales, 19 Mo. 36; s. c. 59 Am. Dec. 327 ; Stewart v. Emerson, 52 N. H. 301; Wright «. Brown, 67 N. Y. 1 ; Goulding v. Davidson, 26 N. Y. 606; Hennequin o. Naylor, 24 N. Y. 139; Nichols r. Michael, 23 N. Y. 264 ; Hall v. Naylor, 18 N. Y. 588, 589; Nichols v. Pinner, 18 N, Y. 295 ; Dows v. Perrin, 16 N. Y. 333 ; Townsend v. Bogart, 11 Abb. (N. Y.) Pr. 355 ; Van Kleek v. Leroy, 4 Abb. (N. Y.) Pr. N. S. 433; Johnson v. Monell, 2 Abb. App. Dec. (N. Y.) 470 ; Barnard v. Campbell, 65 Barb. (N. Y.) 286; s.c. 58 N. Y. 73; 17 Am. Eep. 208 ; Roth v. Palmer, 27 Barb. 652; Buckley v. Artcher, 21 Barb. (N. Y.) 585 ; Van Neste v. Conover, 20 Barb. 548 ; Michell v. Worden, 20 Barb. (N. Y.) 253; Hunter ;;. Hudson River Iron & Mach. Co., 20 Barb. (N. Y.) 501; Wheaton v. Baker, 14 Barb. (N. Y.) 594; McKnight v. Morgan, 2 Barb. (N. Y.) 173; King V. Phillips, 8 Bosvv. 603 ; Meacliam v CoUignon, 7 Daly (N. Y.) 402; Big- elow u. Heaton, 6 Hill (N. Y.) 43 Ash V. Putnam, 1 Hill (N. Y.) 302 Ladd V. Moore, 3 Sandf. (N.Y.) 591 MacKinley v. McGregor, 3 Whart, (Pa.) 369; s. c. 31 Am. Dec. 522 Donaldson v. Farwell, 98 U. S. (3 Otto) 631 ; bk. 23, L. ed. 993 ; Biggs V. Barry, 2 Curt. C. C. 262; Parker V. Byrnes, 1 Low. C. C. 539, 542; Foot V. Jones (N. Y. Supre. Ct. Jan. 1870) 1 Alb. L. J. 123; Davis v. Mc- Whirter, 40 Up. Can. Q. B. 598 ; Ex parte Whittaker, L. R. 10 Ch. App. 446. Some of the courts hold, however, that a purchaser's knowledge of his insolvency, coupled with its conceal- ment, is not sufRcient to render the sale fraudulent and voidable, even where there is a distinct purpose not to pay for the goods ; unless there was actual artifice mtended to deceive the vendor. See Bell ! . Ellis, 33 Cal. 620; Nichols v. Michael, 23 N. Y. 274; s. c. 80 Am. Dec. 259; Backen- toss V. Speicher, 31 Pa. St. 324; Smith V. Smith, 21 Pa. St. 367. However, see Stewart v. Emerson, 52 N. H. 301. Concealment of insolvenci/. — If a purchaser, in order to obtain goods on credit, conceals his insolvency not 649 *d98 AVOIDANCE OF THE CONTRACT. [BOOK III. bankruptcy petition had been filed. On the 5th of Decem- ber the buyer purchased wool at an auction, and the vendor intending to pay for them, it will be a fraud on the vendor. See Nichols V. Pinner, 18 N. Y. 306; Buckley v. Artcher, 21 Barb. (N. Y.) 589 ; John- son V. Monell, 2 Keyes (N. Y.) 663; Chaffee u. Fort, 2 Lans. (N. Y.) 87 ; Eavvdon v. Blatchford, 1 Sandf. Ch. (K Y.) 347. But it is held in some cases that a mere knowledge on the part of the vendee that he was insol- vent and unable to pay for the goods, is not sufficient, but that there must exist an actual intention not to pay for them. See Morrill v. Blackman, 42 Conn, 324; Powell ^. Bradlee, 9 Gill & J. (Md.) 220; Cross v. Peters, 1 Me. (1 Greenl.) 378; s. c. 10 Am. Dec. 78 ; Morse r. Shaw, 124 Mass. 69; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307 ; s. c. 23 Am. Dec. 607 ; Shipman v. Seymour, 40 Mich. 274 ; Klein v. Rector, 57 Miss. 538; Henne- quin V. Naylor, 24 N. Y. 189 ; John- son V. Monell, 3 Abb. App. Dec. (N. Y.) 470 ; KUison v. Bernstein, 60 How, (N. Y.) Pr. 145 ; Fish v. Payne, 7 Hun (N. Y.) 586 ; Byrd v. Hall, 2 Keyes (N. Y.) 646; Lloyd v. Brew- ster, 4 Paige Ch. (N. Y.) 537 ; s. c. 27 Am. Dec. 88; Andrew v. Dieterich, 14 Wend. (N. Y.) 31 ; Talcott v. Hen- derson, 31 Ohio St. 162 ; s. c. 24 Am. Eep. 501; Biddle v. Black, 99 Pa. St. 380; Eodman v. Thalheimer, 75 Pa, St. 232 ; Backentoss t,. Speicher, 31 Pa. St. 324 ; Smith v. Smith, 21 Pa. St. 367; Eedington v. Roberts, 25 Vt. 694, 695; Hodgeden v. Hub- bard, 18 Vt. 504; s. c. 46 Am. Dec. 167 ; Garbutt v. Bank of Prairie du Chien, 22 Wis. 384; Biggs ,: Barry, 2 Curt. C. C. 259; Conyers v. Ennis, 2 Mason C. C. 2.36; Ontario Copper Lightning Rod Co. u. Hewitt, 29 Up. Can. C. P. 491. Yet it would seem that a failure to disclose insolvency when known will be evidence of an intent not to pay ; but such evidence is only pre- 650 sumptive and may be rebutted. Bur- rill V. Stevens, 73 Me. 395; s. c. 40 Am. Dec. 366; Klopenstein v. Mul- cahy, 4 Nev. 296 ; Wright v. Brown, 67 N. Y. 4; Nichols v. Pinner, 18 N. Y. 295; Schufeldt v. Schnitzler, 21 Hun (N. Y.) 462; Talcott v. Hen- derson, 31 Ohio St. 162 ; s. c. 27 Am. Eep. 501; Belding c'. Frankland, 8 Lea (Tenn.) 67; s. c. 41 Am. Rep. 630; Redington v. Roberts, 25 Vt. 686 ; Garbutt o. Bank of Prairie du Chien, 22 Wis. 384. An intent not to pay for gooas pur- chased may be established by evidence of other fraudulent purchases, part of the same scheme of fraud ; or by the turning of the property over to an- other creditor, by its secretion as soon as purchased, or by any other conduct or circumstances indicating a design to defraud. See Lynde v. McGregor, 95 Mass. (13 Allen) 172; Dow V. Sanborn, 85 Mass. (3 Allen) 181 ; Rowley v. Bigelow, 29 Mass. (12 Pick.) 307; s. c. 23 Am. Dec. 607 ; Moyce t/. Newington, 4 Q. B. Div. 35. Where the vendee purchases ivithout the intention of paying, the vendor may avoid the sale as fraudulent. Bell v. Ellis, 33 Cal. 620 ; Seligman v. Kalk- man, 8 Cal. 207; Ayres v. French, 41 Conn. 142, 153, 155; Thompson u. Rose, 16 Conn. 71, 81 ; s. c. 41 Am. Dec. 121 ; Mears v. Waples, 3 Houst. (Del.) 581 ; Allen v. Hartfield, 76 El. 358; Lane v. Eobinson, 18 B. Mon. (Ky.) 623; Burrill i. Stevens, 73 Me. 395; s. c. 40 Am. Eep. 366; Peters v. Hilles, 48 Md. 506, 512; Powell V. Bradlee, 9 Gill & J. (Md.) 220, 248, 278; Dow r. Sanborn, 85 Mass. (3 Allen) 181 ; Wiggin v. Day, 75 Mass. (9 Gray) 97; Shipman v. Seymour, 40 Mich. 274, 283; Doyle V. Mizner, 40 Mich. 160 ; Fox v. Web- ster, 46 Mo. 181 ; Bidault v. Wales, 19 Mo. 36 ; Klopenstein v. Mulcahy, CHAP. II.] FEAUD. *399 being unaware of his pecuniary circumstances, allowed him to remove it without paying the price. The buyer made no * representation at the time as to payment. [*399] Held, on these facts that it was Jiot clear that the buyer purchased with the intention of not paying for the goods, and that the vendor, therefore, was not entitled to have the contract rescinded.] § 526. In the early case of Parker v. Patrick,^ the King's Bench held, in 1793, that where goods had been obtained on false pretences, and the guilty party had heen convicted the title of the original owner could not prevail against the rights of a pawnbroker, who had made bond fide advances on them to the fraudulent possessor. This case has been much ques- tioned, but the only difficulty in it may be overcome by adopting the suggestion made by Parke B. in Load v. Green, namely, that the false pretences were successful in causing the owner to make a sale of the goods, in which event an innocent third person would be entitled to hold them against him. Several of the judges made remarks on the case, in "White V. Garden,^ and it was cited by the Court as one of the acknowledged authorities on this subject in Stevenson V. Newnham.^ § 527. In Powell v. Hoyland,i decided in 1851, Parke B. expressed a strong impression that trespass would not lie 4 Nev. 296; Stewart v. Emerson, 52 803; Davis v. McWhirter, 40 Up. N. H. 301, 318; Stoutenburgh v. Can. Q. B. 598. Konkle, 15 N. J. Bq. (2 McCart.) 33 ; A sale of goods tortiously obtained Wright V. Brown, 67 N. X. 1 ; Devoe without the owner's consent gives the V. Brandt, 53 N. Y. 462 ; Hennequin purchaser no title against the owner, V. Naylor, 24 N. Y. 139 ; Schufeldt v. although purchased for a fair consid- Schnitzler, 21 Hun (N. Y.) 462 ; eration in tl>e usual course of trade, Johnson v. Monell, 2 Keyes (N. Y.) and without any suspicious circum- 665; Byrd v. Hall, 2 Keyes (N. Y.) stances to awaken inquiry. Barker 646 ; Talcott v. Henderson, 31 Ohio v. Dinsmore, 72 Pa. St. 427 ; s. c. V-i St. 162 ; s. c. 27 Am. Rep. 501 ; MuUi- Am. Rep. 697. ken u. Millar, 12 R. I. 296; Belding i 5 T. E. 175. V. Frankland, 8 Lea (Tenn.) 67 ; s. c. 2 20 L. J. C. P. 167, and 10 C. B. 41 Am. Rep. 630 ; Donaldson v. Tar- 919. well, 93 U. S. (3 Otto) 631; bk 23, ^ 13 C. B. 285, and 22 L. J. C. P. L. ed. 993 ; Parker v. Byrnes, 1 Low. 110 ; and see Moyce v. Newington, 4 C. C. 539, 542; Davis v. Stewart, 3 Q. B. D. 35, ante, p. 10. McC. C. C. 174; =. c. 8 Fed. Rep. i 6 Ex. 67-72. 651 *400 AVOIDANCE OF THE CONTRACT. [BOOK III. for goods obtained by fraud, " because fraud does not trans- fer the property, though liable to be divested by the person deceived, if he chooses to consider the property as not having vested." In White v. Garden,^ the innocent purchaser from a fraud- ulent vendee was protected against the vendor, and all the judges expressed approval of the opinion given by Parke B. in Load v. Green. In Stevenson v. Newnham,^ in 1853, Parke B. again gave the unanimous opinion of the Exchequer Chamber, that the effect of fraud " is not absolutely to avoid the contract or transaction which has been caused by that fraud, but to render it voidable at the option of the party defrauded. The fraud only (jives a rifjlit to 7-escind. In the first instance, the propertij passes in the subject-matter. An [*400] * innocent purchaser from the fraudulent possessor may acquire an indisputable title to it though it is voidable between the original parties." § 528. This decision was not impugned, when the Ex- chequer Chamber, in Kingsford v. ]Merry,i in 1866, held that the defendant, an innocent third person, who had made ad- vances on goods, could not maintain a defence against the plaintiffs, the true owners. In that case, the party obtaining the advances had procured the delivery of the goods to him- self by falsely representing that a sale had been made to him by the owner's agents, the Court saying on these facts that the parties " never did stand in the relation of vendor and vendee of the goods, and there was no contract betATeen them which the plaintiffs might either affirm or disaffirm." This decision reversed the judgment of the Exchequer of Pleas,^ but it was explained by Bramwell B. in Higgins V. Burton, infra, and by Lord Chelmsford, in Pease v. Gloa- hec, infra, that this was only by reason of a changed state of facts, and that the principles on which both Courts pro- ceeded were really the same. 2 20 L. J. C. P. 167, and 10 C. B. 919. i n. & N. 503 ; 26 L. J. Ex. 83. 3 13 C. B. 285, and 22 L. J. C. P. ^ n ex. 577 ; 25 L. J. Ex. 166. 110. 652 CHAP. II.] FRAUD. *401 § 629. In Clough v. The London and North Western Railway Conipany,i the Exchequer Chamber gave an im- portant decision upon several questions involved in the subject now under examination. The decision was prepared by Blackburn J. though delivered by Mellor 3? The facts were that the London Pianoforte Company sold certain goods to one Adams, on the 18th of May, 1866, for which he paid 68?. in cash, and gave his acceptance at four months for 135?. 8s., the whole residue of the price. He directed the vendors to forward the goods by the defendants' railway to the address of the plaintiff at Liverpool, whom he repre- sented to be his shipping agent. On the arrival of the goods in Liverpool the defendants could not find Clough at the address given by Adams, and in a letter to the vendors, the Pianoforte Company, the defendants stated this fact, and * asked for instructions. Almost at the same [*401] time the vendors learned that Adams was a bankrupt, and at 9.30 a.m., on the 22d of May, they sent notice to the defendants in London, to stop the goods in transitu; but before this notice reached Liverpool, the plaintiff had there demanded the goods, and the defendants had agreed to hold them as warehousemen for him, thus putting an end to the transitus. The vendors nevertheless gave an indemnity to the defendants, and obtained delivery of the goods to them- selves, so that they were the real defendants in the case. The plaintiff demanded the goods of the defendants, and on hearing that they had been returned to the vendors, brought his action on the 2d of June, in three counts : 1. trover ; 2. against them as warehousemen ; 3. as carriers. Up to the date of the trial, the vendors were treating the con- tract as subsisting, and relying on the right to stop in tran- situ ; but on the cross-examination of the plaintiff and Adams at the trial, the defendants elicited sufficient facts to show a strong case of concerted fraud between the two to get possession of the goods, in order to sell them at auction, and retain the proceeds without paying for them. They were 1 L. R. 7 Ex. 26. J. on the argument of a cause in the 2 So stated to the author by Mel- Exchequer Chamber, lor J. in the presence of Blackburn 653 *402 AVOIDANCE OF THE CONTRACT. [BOOK HI. allowed to file a plea to that effect, and the jury found that the fraud was proved. The Exchequer of Pleas decided in favor of the plaintiff, on the ground that the vendors had not elected to set aside the contract nor offered to return the cash and acceptance, before delivering the plea of fraud at the trial after the cross-examination, and had up to that time treated the con- tract as subsisting: and further, on the ground that the re- scission came too late after the plaintiff had acquired a vested cause of action against the defendants. § 530. On these facts it was held : — 1st. That the property in the goods passed by the con- tract of sale : that the contract was not void, but only void- able, at the election of the defrauded vendor. 2d. That the defrauded vendor has the right to this election at any time after knowledge of the fraud, until he has affirmed the sale by express words or unequivocal acts. [*402] * 3d. That the vendor may keep the question open as long as he does nothing to affirm the contract ; and that so long as he has made no election he retains the right to avoid it, subject to this — that if while he is deliberating an innocent third party has acquired an interest in the property, or if, in consequence of his delay, the position even of the wrong-doer is affected, he will lose his right to rescind. 4th. That the vendor's election was properly made by a plea claiming the goods on the ground that he had been induced to part with them by fraud, and there was no neces- sity for any antecedent declaration or act in pais. 5th. That the vendor was not bound in his plea to tender the return of the money and acceptance, because they had been received, not from the plaintiff, but from Adams, who was no party to the action. And, finally, that on the whole case the defendants were entitled to the verdict.^ 1 These principles were re-affirmed Ex. 197, rerersing the judgment of by the Ex. Ch. in Morrison v. The the Court of Exchequer, ib. 40. Universal Marine Ins, Co., L. R. 8 654 CHAP. II.] FRAUD. *40a § 531. It is not necessary that there should be a judgment of Court in order to effect the avoidance of a contract, when the deceived party repudiates it. The rescission is the legal consequence of his election to reject it, and takes date from the time at which he announces this election to the opposite party. Thus, in The Reese Eiver Company v. Smith,i the House of Lords held the defendant entitled to have his name removed from the list of contributory shareholders in the plaintiff's company, although his name was on the register when the company was ordered to be wound up ; on the ground that he had, prior to the winding-up order, notified his rejection of the shares, and commenced proceedings to have his name removed. On this ground the case was dis- tinguished from Oakes v. Turquand.^ § 532. In Higgins v. Burton,^ a discharged clerk of one of plaintiffs' customers fraudulently obtained from plaintiffs * goods in the name and as being for the [*403] account of the customer, and sent them at once to defendant, an auctioneer, for sale. Held, that there had been no sale, but a mere obtaining of goods from plaintiff on false pretences, that no property passed, and that defendant was liable in trover. Plainly in this case the plaintiffs, al- though delivering the possession, had no intention of trans- ferring the property to the clerk, and the latter, therefore, could transfer none to the auctioneer. In Hardman v. Booth,^ the plaintiff went to the premises of Gandell and Co., a firm not previously known to him, but of high credit, to make sale of goods, and was there received by Edward Gandell, a clerk, who passed himself off as a member of the firm, and ordered goods, which were supplied, but which Edward Gandell sent to the premises of Gandell and Todd, in which he was a partner. The plaintiff knew nothing of this last-named firm, and thought he was selling to " Gan- dell & Co." The goods were pledged by Gandell and Todd 1 L. E. 4 H. L. 64 ; 2 Ch. 604. 2 1 H. & C. 803; 32 L. J. Ex. 2 L. R. 2 H. L. 325. 105 ; Hollins ten * representations were a material part of the in- [*408] ducement to give credit. § 539. The effect of concealment or false representations made by the buyer with a view to induce the owner to take less for his goods than he would otherwise have done, does not appear to have been often considered by the Courts. Chancellor Kent carries the doctrine on the subject of fraud much further than could be shown to be maintainable by decided cases, and states it in broader terms than are deemed tenable by the later editors of his Commentaries.^ Under the head of " Mutual Disclosures," he lays down, in relation to sales, the proposition that, "as a general rule, each party is bound to communicate to the other his knowledge of the material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation." ^ § 540. The courts of equity even fall far short of this principle, and both Lord Thurlow and Lord Eldon held that a purchaser was not bound to acquaint the vendor with any latent advantage in the estate. In Fox v. Mackreth,i Lord Thurlow was of opinion that the purchaser was not bound to disclose to the seller the existence of a mine on the land, of which he knew the seller was ignorant, and that a Court of Equity could not set aside the sale, though the estate was * 25 L. J. C. P. 240. See, also, Bench v. Sheldon, 14 Barb. (N. Y.) Swan V. Phillips, 8 A. & E. 745; 66; Hadley v. Clinton Co., 13 Ohio Turnley v. McGregor, 6 M. & S. 46; St. 502; Butler's Appeal, 26 Pa. St. Pasley v. Freeman, T. R. 51. 63 ; Kintzing v. McElrath, 5 Pa. St. i2Kent, 540; Com. 483 (12th ed.). 467; Gartner u. Barnitz, 1 Yeates, '^ Vendor need not disclose to the (Pa.) 307 ; Fisher v. Budlong, 10 seller facts regarding which informs- R. I. 525; Howard v. Gould, 28 Vt. tion is equally open to both. Pres- 523 ; o. c. 67 Am. Dec. 728 ; Laidlaw cott V. Wright, 70 Mass. (10 Gray) v. Organ, 15 U. S. (2 Wheat.) 178; 461, 464 ; Dambmann v. Schulting, bk. 4, L. ed. 214. 75 N. Y. 55, 62; Smith v. Country- i 2 Bro. C. G. 400. For the judg- man, 30 N. Y. 655, 670, 681 ; Carpen- ment of Lord Thurlow, see 2 Cox, ter V. Danforth, 52 Barb. (N. Y.) 581 ; Eq. Cas. 320. Paul V. Hadley, 23 Barb. (N. Y.) 521 ; 661 *409 AVOIDANCE OP THE CONTRACT. [BOOK III. purchased for a price of which the mine formed no ingredi- ent.2 Lord Eldon approved this ruling in Turner v. Harvey.^ But in the latter case Lord Eldon, also, held that if the least word be dropped by the purchaser to mislead the vendor in such a case, the latter will be relieved; and his Lordship accordingly decided that the agreement for the sale in that case should be given up to be cancelled. The facts were that the purchaser of a reversionary interest had concealed from the seller that a death had occurred by which the value of the reversionary interest was materially increased. [*409] § 541. * At common law, the only case decided in banco, that has been found on this point is Vernon v. Keys,^ in which the declaration was in case, and a verdict was given for the plaintiff on the third count, which alleged that the plaintiff, being desirous of selling his interest in the business, stock-in-trade, &c., in which he Avas engaged with defendant, was deceived by the fraudulent representation of the defendant, pending the treaty for the sale, that the defendant was about to enter into partnership to carry on the business with other persons whose names defendant re- fused to disclose^ and that these jjersons Avovild not consent to give plaintiff a larger price than 4500Z. for his share, while the truth was that these persons were willing that the de- fendant should give as much as 5291Z. 8s. 6d. The judgment in favor of plaintiff was arrested, Lord EUenborough giving the opinion of the Court after advisement. His Lordship said that the cause of action as alleged amounted to nothina: more than a false reason given by the defendant for his lim- ited offer, and that this could not maintain the verdict, unless it was shown " that in respect of some considera- tion or other, existing between the parties to the treaty, or upon some general rule or principle of law, the party treating 2 Livingston v. Peru Iron Co., 2 527 ; Paddock ti.Strobridge, 29 Vt. 470; Paige Ch. (N. T.) 390; Butler's Ap- Howard v. Gould, 28 Vt. 523; s. ^. 67 peal, 20 Pa. St. 63 ; Harris r. Tyson, Am. Dec. 728 ; Laidlaw v. Organ, 15 24 Pa. St. 347 ; s. c. 64 Am. Dec. 661 ; U. S. (2 Wheat.) 178; bk. 4, L. ed. Kintzing v. McElrath, 5 Pa. St. 467 ; 214. Smith V. Beatty, 2 Ired. (N. C.) Eq. 3 Jacob, 178. 456. See Stevens u. Fuller, 8 N. H. i 12 East, 632, and in Ex. Ch. 4 463 ; Fisher v. Budlong, 10 R. I. 525, Taunt. 488. 662 CHAP. II.J FRAUD. *410 for a purchase is bound to allege truly, if he state at all, the motives which operate with him for treating, or for making the offer he in fact makes. A seller is unquestionably liable to an action of deceit if he fraudulently misrepresent the quality of the thing sold to be other than it is, in some par- ticulars which the huyer has not equal means with himself of knowing, or if he do so in such manner as to induce the huyer to forbear making the inquiries which, for his own secu- rity and advantage he would otherwise have made. But is a huyer liable to an action of deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity than the price which such proposed buyer offers? I am not aware of any case or recognized principle of law upon which such a * duty can be considered as incumbent upon a party [*410] bargaining for a purchase. It appears to be a false representation in a matter merely gratis dictum, by the bid- der, in respect to which the bidder Avas under no legal fledge or ohligation to the seller for the precise accuracy and correct- ness of his statement, and upon which, therefore, it was the seller's own indiscretion to rely, and for the consequences of which reliance, therefore, he can maintain no action." When the case came before the Exchequer Chamber,^ Pul- ler, in argument, insisted that the false representation made by defendant was on a matter of fact, not of opinion, and that there was no case in which it had been held that an ac- tion would not lie under such circumstances ; but the Court would hear no reply, and at once confirmed the judgment. Sir James Mansfield C. J. simply saying : " The question is whether the defendant is bound to disclose the highest price he chooses to give, or whether he be not at liberty to do that 2 4 Taunt. 488. U. S. (2 Wheat.) 178 ; bk. 4, L. ed. Fraudulent misrepresentation is u 214. But it is a question of law question for the, jury. — Dodd v. Mc- where the facts are ascertained. Craw, 8 Ark. 83 ; s. c. 46 Am. Dec. Brady v. Barnes, 42 Conn. 522 ; Ked- 301; Prescott v. Wright, 70 Mass. (4 field v. Buck, 35 Conn. 838; Lavette Gray) 461, 464 ; Bidault v. Wales, 19 v. Sage, 29 Conn. 589 ; Pettibone ^. Mo. 36; s. c. 59 Am. Dec. 327; Bris- Stevens, 15 Conn. 19; s. c. 38 Am. coe V. Bronaugh, 1 Tex. 328 ; s. c. 46 Dec. 57 ; Upton v. Tribilcock, 13 Nat. Am. Dec. 108; Laidlaw v. Organ, 15 Bank Keg. 181. 663 *411 AVOIDANCE OF THE CONTKACT. [bOOK ni. as a purchaser which every seller in this town does every- day, who tells every falsehood he can to induce a buyer to purchase." § 542. In Jones v. Franklin,^ coram Rolfe B. at Nisi Prius, the action was trove?; and the circumstances were that the plaintiffs, assignees of a bankrupt, were owners of a policy for 999Z., on the life of one George Laing, and early in 1840 had endeavored through their attorney to sell it for 40L, but could find no purchaser. Defendant knew this fact. On the 15th of August Laing became suddenly very ill, and he died on the 20th. On the 18th defendant em- ployed one Cook to buy the policy for the defendant, and to give as much as sixty guineas for it. The vendor asked Cook when he applied to buy it what he thought it would be worth, and Cook said about sixty guineas. Cook and the defendant both knew that Laing was in imminent danger, but did not inform the vendor, who was ignorant of it, and sold the policy at that price, supposing Laing to be in [*411] good health. * Rolf e B. said, "there could be no doubt such conduct was grossly dishonorable. But he had no difficulty in going further than this, and telling the jury that if they believed the facts as stated on the part of the plaintiffs, the defendant's conduct amounted to legal fraud, and he could not set up any title to the policy so acquired." § 543. It does not seem possible to reconcile this case with Vernon v. Keys. In both cases the purchasers made a false representation. But in Vernon v. Keys, the falsehood was volunteered, and misrepresented a. fact; whereas in Jones V. Franklin, the buyer's statement, tlu-ough his agent, that the policy was worth about sixty guineas, was only made in answer to a question of the vendor as to his oinnion, and according to Lord EUenborough, the buyer was " under no legal duty or obligation to the seller for the precise accuracy of his statement," and the seller could maintain no action for " the consequences of his own indiscretion in relying on it." 1 2 Moo. & R. 348. 664 CHAP, n.] FRAUD. *412 There was, perhaps, enough in the case to bring it within the principle of equity laid down by Lord Eldon in Turner v. Harvey,! but dishonorable and unfair as was the conduct of the buyer, it would be diiBcult to show, on authority, that it was in law such a fraud as vitiated the sale. § 544. In America it has been held, that if a purchaser make false and fraudulent representations as to his own solvency, and means of payment, and thereby induces the vendor to sell to him on credit, no right either of property or possession is acquired by the purchaser, and the vendor would be justified in retaking the property, provided he could do so without violence.-' [And the Supreme Court of the United States has decided that a purchaser of goods, who, without making any fraudu- lent representations as to his solvency, conceals from the vendor Ms insolvent condition, and thereby induces him to sell the goods on credit, is guilty of such a fraud as entitles *the vendor to disaffirm the contract and [*412] recover the goods ; if in the meantime no innocent person has acquired an interest in them.^ It would seem, therefore, that in America, as in England, the contract is treated as voidable and not void. Some of the decisions, however, given in the States, proceed upon the principle that where the buyer does not intend to pay for the goods, the contract. is absolutely void (except by estoppel as against the buyer, if the vendor chooses to affirm it), because it is not the intention of both parties to be bound by it.^ In both countries, however, the rights of innocent purchasers from a fraudulent vendee are protected, and it seems to be of no practical importance whether the protection is granted on the ground that the original contract of sale is valid until disaffirmed, or whether this result follows from the equitable^ 1 Jac. 169. also, Root v. French, 13 Wend. (N. Y.) iHodgedon «. Hubard, 18 Ver- 570. mont E. 504 ; Johnson v. Peck, 1 » Per Doe J. in Stewart v. Emer- Woodb. & M. C. C. .334; Mason o. son, 52 N. H. 301, at p. 318, where Crosby, 1 Woodb. & M. C. C. 342. all the authorities, English and Amer- 2 Donaldson v. Farwell, 93 TJ. S. ican, are discussed ; and see the re- (3 Otto) 631 ; bk. 23, L. ed. 993. See, marks of Cocbburn C. J. in Moyce v. Newington, 4 Q. B. D. 35, ante, p. 405. 665 *412 AVOIDANCE OF THE CONTRACT. [BOOK III. doctrine, that when one of two innocent parties must suffer from the fraud of a third, the loss should fall on the one who enabled the third party to commit the fraud.] Secti III. -FEAXID ON THE BUYER. § 545. In every case where a buyer has been imposed on by the fraud of the vendor, he has a right to repudiate the con- tract, a right correlative with that of the vendor to disaffirm the sale when he has been defrauded. The buyer under such circumstances may refuse to accept the goods, if he discover the fraud before delivery, or return them, if the discovery be not made till after delivery ; and if he has paid the price, he may recover it back on offering to return the goods, in the same state in which he received them.^ And this 1 Clarke v. Dickson, E. B. & E. 148, and 27 L. J. Q. B. 223; Murray V. Mann, 2 Ex. 538 ; Street v. Blay, 2 B. & Ad. 456. American authorities. — Pierce u. Wilson, 34 Ala. 596 ; Jemison v. Woodruff, .34 Ala. 143; Blen ,;. Bear River &c. Co., 20 Cal. 602 ; Buchenau V. Horney, 12 111. 336 ; Shaw v. Barn- hart, 17 Ind. 183 ; Gatling v. Newell, 9 Ind. 572, 577; Hoopes v. Stras- burger, 37 Md. 390, 391; Earris o. Ware, 60 Me. 482 ; Perkins v. Bailey, 99 Mass. 61, 62 ; King v. Eagle Mills, 92 Mass. (10 Allen) 551 ; Manahan V. Noyes, 52 N. H. 232; Butler v. Northumberland, 50 N. H. 39, 40; Getchell v. Chase, 37 N. H. 110; Wheaton v. Baker, 14 Barb. (N. Y.) 594; Anthony u. Day, 52 How. (N. Y.) Pr. 35; Dows v. Griswold, 4 Hun (N. Y.) 550 ; Van Liew u. Johnson, 4 Hun (N. Y.) 415 ; Earrell v. Cor- bett, 4 Hun (N. Y.) 128; Kinney .. Kiernan, 2 Lans. (N. Y.) 492 ; Gates V. Bliss, 43 Vt. 299; Downer ,: Smith, 32 Vt, 1 ; Poor v. Woodburn, 25 Vt. 234. See, also. Queen v. Sad- dler's Co., 10 H. L. Gas. 420, 421. Vendee must rescind a contract in toto the same as the Tender. See Miner v. Bradley, 39 Mass. (22 Pick.) 457 ; Preston v. Travelers' Ins. Co., 58 N. H. 76; Voorhees v. Earl, 2 Hill (N. Y.) 292; s. c. 38 Am. Dec. 588; Burton i,. Stewart, 3 Wend. (N. Y.) 236; s. c. 20 Am. Dec. 692; Vide ante, Rescission of Contract. He cannot at the same time retain the property and recover damages. Jun- kins V. Simpson, 14 Me. 304; Weeks V. Robie, 42 N. H. 316. See Eitz v. Bynum, 55 Cal. 459 ; Warren v. Tyler, 81 111. 15 ; Jennings v. Gage, 13 111. 610; s. c. 56 Am. Dec. 476; Gates V. Bales, 78 Ind. 285; Haase v. Mitchell, 58 Ind. 213; Heaton v. Knowlton, 53 Ind. 357 ; Gushing v. Wyman, 38 Me. 689; Cushman u. Marshall, 21 Me. 122; Seaver v. Dingley, 4 Me. (4 Greenl.) 306 ; Nor- ton V. Young, 3 Me. (3 Greenl.) 30 ; Mullen V. Old Colony R. R. Co., 127 Mass. 86; s. c. 34 Am. Rep. 349; Coolidge V. Brigham, 42 Mass. (1 Mete.) 550; Perley c. Balch, 40 Mass. (23 Pick.) 286; s. c. 34 Am. Dec. 56 ; Miner v. Bradley, .39 Mass. (22 Pick.) 457; Rowley ... Bigelow, 29 Mass. (12 Pick.) 307 ; s. c. 23 Am. Dec. 607; Kimball u. Cunningham, 4 Mass. 502; s. c. 3 Am. Dec. 230; Wood V. Garland, 58 N. H. 154; Benson u. Tilton, 58 N. H. 137 ; 666 CHAP. II.] PEAUD. *413 ability to restore the thing purchased unchanged in * condition is indispensable to the exercise of the right [*413] to rescind, so that if the purchaser has innocently changed that condition while ignorant of the fraud he cannot rescind.2 Moody V. Drown, 58 N. H. 45 ; Noyes V. Patrick, 58 N. H. 618 ; Spencer v. St Clair, 57 N. H. 9 ; Willoughby v. Moulton, 47 N. H. 205; Weeks v. Kobie, 42 N. H. 316; Sumner v. Parker, 36 N. H. 449; Cook u. Gil- man, 34 N. H. 556 ; Evans u. Gale, 21 N. H. 240 ; s. c. 43 Am. Dec. 614 ; Gould V. Cayuga Co. Bank, 86 N. Y. 75; Schiffer v. Dietz, 83 N. Y. 800; FuUager v. Keville, 3 Hun (N. Y.) 600 ; Pope o. Pictou Steamboat Co., 2 Old. (N. S.) 18; Hunt v. Silk, 5 East, 449. Depreciation of property will not affect the right to rescind. See Scott V. Perrin, 4 Bibb (Ky.) 360 ; Neblett V. Macfarland, 92 U. S. (2 Otto) 101, 104; bk. 23, L. ed. 471; Veazie v. Williams, 49 U. S. (8 How.) 134, 158; bk. 12, L. ed. 1018; Blake v. Mowatt, 21 Beav. 613. Election of vendee when once made with a full knowledge of all the facts and circumstances connected with the transaction will be binding upon him. Kingsley v. Wallis, 14 Me. 57; Brinley v. Tibbets, 7 Me. (7 Greenl.) 70; Weeks v. Eobie, 42 N. H. 316, 320; Drew ;.. Claggett, 39 N. H. 431; Brown o. Mahurin, 89 N. H. 156; Cook V. Gilman, 84 N. H. 556 ; Webb V. Stone, 24 N. H. 288; Allen c. Webb, 24 N. H. 278 ; Pierce v. Dun- can, 22 N. H. 18 ; Jenkins u. Thomp- son, 20 N. H. 457 ; Puller v. Little, 7 N. H. 585; Masson v. Bovit, 1 Den. (N. Y.) 69; s. u. 43 Am. Dec. 651. The purchaser may rescind for the breach of express warranty. Bryant v. Isburg, 79 Mass. (18 Gray) 607 ; s. c. 74 Am. Dec. 655. But the election to rescind must be made within a reasonable time. Brantley V. Thomas, 22 Tex. 270 ; s. c. 73 Am. Dec. 264; Christy v. Cummins, 3 McL. C. C. 886 ; 2 Kent Com. 480 ; Story on Contr. p. 931, section 844a. In those cases where the goods are worthless no return need be made in order to rescind. Jemison v. Wood- ruff, 34 Ala. 143; Merritt v. Robin- son, 35 Ark. 483 ; Fitz v. Bynum, 55 Cal. 459; Morrison v. Lods, 89 Cal. 881 ; Smith v. Bittenham, 98 111. 188 ; Jennings v. Gage, 13 111. 610 ; s. c. 56 Am. Dec. 476; Haase v. Mitchell, 58 Ind. 213; Rose v. Hurley, 39 Ind. 77 Shaw o. Barnhart, 17 Ind. 183 Bacon v. Brown, 4 Bibb (Ky.) 91 Perley u. Balch, 40 Mass. (23 Pick.) 283 ; s. c. 34 Am. Dec. 56 ; First Nat. Bank of Barnesville v. Yocum, 11 Neb. 328; Spencer u. St Clair, 57 N. H. 9 ; Manahan v. Noyes, 52 N. H. 232; Sanborn v. Batchelder, 51 N. H. 426, 434 ; Butler v. North- umberland, 50 N. H. 33 ; Willoughby V. Moulton, 47 N. H. 205 ; Weeks v. Robie, 42 N. H. 316, 322 ; Getchell v. Chase, 37 N. H. 106, 110; Baker v. Lever, 67 N. Y. 304; s. c. 23 Am. Eep. 117 ; Dows o. Griswold, 4 Hun (N. Y.) 550, 556 ; Van Liew v. John- son, 4 Hun (N. Y.) 415; Farrell u. Corbett, 4 Hun (N. Y.) 128 ; Brant- ley V. Thomas, 22 Tex. 270 ; s. c. 73 Am. Dec. 264; Wintz v. Morrison, 17 Tex. 372; s. c. 67 Am. Dec. 658; Gates V. Bliss, 43 Vt. 299; Downer ;;. Smith, 32 Vt. 1, 7; Pence u. Lang- don, 99 IJ. S. (9 Otto) 578; bk. 25, L. ed. 420. 2 Western Bank of Scotland v. Addie, L. R. 1 Sc. App. 145 ; cases, ante, at p. 870. Fraud in the vendee entitles the purchaser to rescind. Merritt o. Robinson, 35 Ark. 483; Bank of Woodland v. Hiatt, 58 Cal. 234; 667 *413 AVOIDANCE OF THE CONTRACT. [BOOK III. 5 546. But the contract is only voidable, not void, and if after discovery of the fraud he acquiesces in the sale by ex- press words or by any unequivocal act, such as treating the property as his own, his election will be determined, and he cannot afterwards reject the property .^ Mere delay also may have the same effect, if, while deliberating, the position al the vendor has been altered ;2 and the result will not be Morrison v. Lods, 39 Cal. 381 ; Cruess V. Eessler, 39 Cal. 336; Gifford v. Carvill, 29 Cal. 589; Warren v. Tyler, 81 111. 15; Hall v. Fullerton, 69 111. 448 ; Foulk v. Eckert, 61 111. 318; Prentiss v. Russ, 16 Me. 30; Waters Patent Heater Co. v. Smith, 120 Mass. 444; Perkins v. Bailey, 99 Mass. 61 ; Coolidge v. Brigham, 42 Mass. (1 Mete.) 547; Kimball v. Cunningham, 4 Mass. 502 ; s. c. 3 Am. Dec. 230; First Nat. Bank u. Yocum, 11 Neb. 328 ; Baker v. Lever, 07 N. Y. 304; Croyle u. Moses, 90 Pa. St. 250; Lovvry v. McLane, 3 Grant (Pa.) 333; Gates v. Bliss, 43 Vt. 299; Poor o. Woodburn, 25 Vt. 234; Pence v. Langdon, 99 U. S. (9 Otto) 578; bk. 25, L. ed. 420; Cushwa u. Forrest, 4 Cr. C. C. 37; Doggett V. Emerson, 3 Story C. C. 700; Cheongvvo v. Jones, 3 Wash. C. C. 359. But instead of rescinding the con- tract the vendee, after discovery of the fraud, may recover any damage for the fraud, and he may recoup dam- ages in an action by the vendor for the purchase price. An aflfirmance of the contract simply cuts off the right to rescind. Lilley v. Randall, 3 Colo. 298 ; Kellogg ti. Denslow, 14 Conn. 411 ; Foulk c. Eckert, 61 111. 318; Peck u. Brewer, 48 111. 55; Wright V. Lattin, 38 111. 298; Lunn V. Gage, 37 111. 19; Bates o. Court- wright, 36 111. 518 ; Sanger v. Fincher, 27 111. 347 ; Schuchmann v. Knoebel, 27 111. 175; Brigham v. Hawley, 17 111. 38; Stow V. Yarwood, 14 111. 424 ; Hoggins c. Becraft, 1 Dana (Ky.) .30; Herrin v. Libbey, 36 Me. 357; Manahan v. Noyes, 52 N. H. 232 ; Sanborn v. Batchelder, 51 N. H. 426 ; Butler v. Northumberland, 50 N. H. 39 ; Miller v. Barber, 66 N. Y. 558; Bordwell v. Collie, 45 N. Y. 494; Johnson v. Luxton, 41 N. Y. Super. Ct. (9 J. & S.) 481 ; Ely v. Mumford, 47 Barb. (N. Y.) 629; The Ilion Bank o. Carver, 31 Barb. (N. Y.) 235 ; Newbery v. Garland, 31 Barb. (N. Y.) 128; Van Epps v. Harrison, 5 Hill (N. Y.) 68; Allaire V. Whitney, 1 Hill (N. Y.) 485 ; s. c. 4 Den. (N. Y.) 555; Krumm v. Beach, 25 Hun (N. Y.) 293 ; Ranney V. Warren, 17 Hun (N. Y.) Ill; Lexow u. Julian, 14 Hun (N. Y.) 152 ; Boorman v. Jenkins, 12 Wend. (N. Y.) 566 ; s. c. 27 Am. Dec. 158 ; Waring v. Mason, 18 Wend. (N. Y.) 426 ; Weimer v. Clement, 37 Pa. St. 147 ; s. c. 78 Am. Dec. 411 ; 2 Kent Com. (5th ed.) 480, n. B. Partial restoration may be accepted by the vendee. Hammond v. Pen- nock, 61 N. Y. 145. See Masson v. Bovet, 1 Den. (N. Y.) 69; s. c. 43 Am. Dec. 651. ^ Acquiescence after discovery of the fraud waives the right to rescind. Thompson v. Lee, 31 Ala. 292, 303 ; Evans v. Montgomery, 50 Iowa, 325, 337 ; Kimball u. Cunningham, 4 Mass. 502 ; B. c. 3 Am. Dec. 230 ; Weeks v. Robie, 42 N. H. 316, 320 ; Learning V. Wise, 73 Pa. St. 173 ; Downer v. Smith, 32 "Vt. 1; s. c. 76 Am. Dec. 138; Grymes v. Sanders, 93 U. S. (3 Otto) 62 ; bk. 23, L. ed. 798. 2 Clough V. London & North West- ern Railway Co., ante, pp. 400-1. See, also, Davis v. Betz, 66 Ala. 206 ; 668 CHAP. 11.] EEAUD. "413 affected by the buyer's subsequent discovery of a new inci- dent in the fraud, for this would not confer a new right to rescind, but would merely confirm the previous knowledge of the fraud.^ § 547. These principles are well illustrated in the case of Campbell v. Fleming.^ The plaintiff, deceived by false representations of the defendant, purchased shares in a min- ing company. After the purchase he discovered the fraud, and that the whole scheme of the company was a deception. Collins 0. Townsend, 58 Cal. 608; Hall V. FuUerton, 69 111. 448; St. John u. Hendrickson, 81 Ind. 350; Rose V. Hurley, 39 Ind. 77 ; Catling V. Newell, 9 Ind. 572, 578; Willough- by V. Moulton, 47 N. H. 205 ; Weeks V. Robie, 42 N. H. 316 ; Hammond v. Pennock, 61 N. Y. 145; Ross v. Titterton, 6 Hun (N. Y.) 280 ; Parm- lee V. Adolph, 28 Ohio St. 10; Boughton 0. Standish, 48 Vt. 594; Matteson v. Holt, 45 Vt. 336 ; Whit- comb V. Denio, 52 Vt. 382 ; Pence v. Langdon, 99 U. S. (9 Otto) 578; bk. 25, L. ed. 420 ; Smith's Case, L. R. 2 Ch. App. 604 ; Heymann v. European Cent. R. Co., L. R. 7 Eq. 154 ; Central R. Co. V. Kisch, L. R. 2 H. L. 99. ' Right to avoid waived by delay. — The right to rescind must be exercised on discovering the fraud entitling to a rescission or the right to rescind will be waived. Collins v. Townsend, 58 Cal. 608, 614; Gifford v. Carvill, 29 Cal. 592 ; Blen v. Bear River &c. Co., 20 Cal. 602 ; Hall v. Fullerton, 69 111. 448 ; Evans v. Montgomery, 50 Iowa, 325, 337 ; Rawson v. Harger, 48 Iowa, 269, 274 ; Herrin v. Libbey, 36 Me. 357; "Willoughby w. Moulton, 47 N. H. 205 ; Burton v. Stewart, 3 Wend. N. Y. 236; Parmlee v. Adolph, 28 Ohio St. 10, 17. However, some cases hold with the text that simple delay will not deprive the defrauded buyer of the right to rescind in those cases where the seller's position has not been altered in the meantime. Dayton v. Monroe, 47 Mich. 193; Whitcomb v. Denio, 52 Vt. 382, 390. The right to rescind is seasonably exercised within a reasonable time after the discovery of the fraud. See Lane v. Latimer, 41 Ga. 171 ; Michigan Cent. R. R. Co. v. Dunham, 30 Mich. 128; Baker v. Lever, 67 N. Y. 304 ; Powell v. Woodworth, 46 Vt. 378; Gates v. Bliss, 43 Vt. 299; Esty V. Read, 29 Vt. 278. What is a reasonable time is a question for the jury. Baker v. Lever, 67 N. Y. 304; Rothschild v. Rowe, 44 Vt. 389 ; Esty V. Read, 29 Vt. 278 ; Belun v. West- ern Union Telegraph Co., 25 Int. Rev. Rec. 179; s. c. 7 Rep. 710, 720 ; 4 Cine. L. Bull. 334; Rodney v. Royal, 8 Rep. 27. But where the facts are undisputed whether a con- tract is rescinded within a reasonable time is a matter of law. Barbour v. White, 37 111. 164 ; Greene v. Dingley, 24 Me. 131 ; Hill v. Hobart, 16 Me. 164 ; Kingsley v. Wallis, 14 Me. 57 ; Williams v. Powell, 101 Mass. 467; s. c. 3 Am. Rep. 396 ; Pratt v. Earrar, 92 Mass. (10 Allen) 519; Spoor v. Spooner, 42 Mass. (12 Mete.) 281 ; Holbrook v. Burt, 39 Mass. (22 Pick.) 546, 555; Gilmore t. Wilbur, 29 Mass. (12 Pick.) 120; s. c. 22 Am. Dec. 410; Hedges <-. Hudson R. R. Co., 49 N. Y. 223 ; Newkirk v. New York & H. R. R. Co., 38 N. Y. 158 ; Healy v. Utly, 1 Cow. (N. Y.) 345 ; Morgan u. McKee, 77 Pa. St. 228; Leaming v. Wise, 73 Pa. St. 173. 1 1 A. & E. 40. 669 *414 AVOIDANCE OF THE CONTRACT. [BOOK ni. The action was brought to recover the purchase money that he had paid. But it appeared that subsequently to the dis- covery of the fraud, the plaintiff had treated the shares as his own, by consolidating them with other property in the formation of a new company, in which he sold shares, and realized a considerable sum. The plaintiff then endeav- ored to get rid of the effect of the confirmation of the con- tract, resulting from his dealing with the shares as his own, by showing that at a still later period he had discovered another fact, namely, that only 5000?. had been paid for the purchase of property by the mining company, although it was falsely represented to the plaintiff Avhen he took the shares that the outlay had been 35,000Z. The plaintiff was non- suited by Lord Denman, and on the motion for new trial all the judges held the nonsuit right. Littledale J. said: " After the plaintiff learned that an imposition had [*414] been practised on * him, he ought to have made his stand. Instead of doing so, he goes on dealing with the shares, and in fact disposes of some of them. Supposing him not to have had at that time so full a knowledge of the fraud as he afterwards obtained, he had given up his right of objection by dealing with the property after he had once dis- covered that he had been imposed upon." Parke J. said: " After the plaintiff, knowing of the fraud, had elected to treat the transaction as a contract, he had lost his right of rescinding it ; and the fraud could do no more than entitle him to rescind." Patteson J. concurred, and said: "Long after- wards he discovers a new incident in the fraud. This can only be considered as strengthening the evidence of the original fraud ; and it cannot revive the right of repudiation ivhich has been once waived ." Lord Denman C. J. said : " There is no authority for saying that a party must know all the incidents of a fraud before he deprives himself of the right of rescinding." ^ [The very recent case of Redgrave v. Hurd ^ before the Court of Appeal decides two important points with reference 2 See ante, p. 400, as to election, 7 Ex. 26, there cited. See Pierce v. and the case of Clough v. London Wilson, ,34 Ala. 596, 609. and North Western Railway Co., L. » 20 Ch. D. 1, C. A. (reversing the 670 CHAP. II.J FRAUD. *415 to the buyer's right to have a contract rescinded on the ground of fraud — 1. When the seller has made a false representation which from its nature might induce the buyer to enter into the contract on the faith of it, it will be inferred that the buyer was induced thereby to enter into the contract, and it does not rest with him to show that he in fact relied upon the representation.* In order to displace this inference the seller must prove either that the buyer had knowledge of facts which showed the representation to be untrue, or that he expressly stated in terms or showed by his conduct that he did not rely upon the representation but acted upon his own judgment, 2. Where the buyer relies on the seller's represen- tation, * he is not deprived of his right to relief be- [*415] cause he had the means of discovering that the rep- resentation was false.®] § 548. The rules of law defining the elements which are essential to constitute such fraud as will enable a purchaser to avoid a sale were long in doubt, and there was specially a marked conflict of opinion between the Court of Queen's Bench and the Exchequer, until the decisions of the Ex- chequer Chamber in Evans v. Collins,^ in 1844, and Ormrod V. Huth,2 in 1845, established the true principle to be that a representation, false in fact, gives no right of action if inno- cently made by a party who believes the truth of what he asserts ; and that in order to constitute fraud, there must be a false representation knowingly made, i.e., a concurrence of fraudulent intent and false representation. And a false repre- sentation is knowingly made, when a party for a fraudulent decision of Fry J.), where the opin- 157 ; Addington v. Allen, 11 Wend, ions of Lords Cottenham and Broug- (N. Y.) 381 ; James v. Hodsden, 47 ham and Earl Devon, in Attwood u. Vt. 137 ; Cabot v. Christie, 42 Vt. Small, 6 CI. & F. 232, relied upon in 121 ; s. c. 1 Am. Rep. 313. the court below, are considered and ^ Bank of Woodland v. Haitt, 58 explained by Jessel M. R. at pp. 14- Cal. 244; Jackson v. Collins, -39 Mich. 17. 557, 561 ; Baker v. Lerer, 67 N. Y. * Young V. Hall, 4 Ga. 95; Hoi- 304; s. c. 23 Am. Rep. 117; KendaU brook V. Burt, 39 Mass. (22 Pick.) v. Wilson, 41 Vt. 567, 571. 546, 552 ; Fishbaek v. Miller, 15 Nev. i 5 Q. B. 820. 428 : Sli.aw v. Stine, 8 Bosw. (N. Y.) 2 14 M. & W. 650. 671 *415 AVOIDANCE OF THE CONTRACT. [bOOK III. purpose states what he does not believe to he true, even though he may have no knowledge on the subject.^ These decisions bring back the law almost exactly to the point at which it was left by the King's Bench in the great leading cases of Pasley v. Freeman,* and Haycraft v. Creasy,^ decided in 1789 and 1801.6 5 Statement made without knowledge where untrue amounts to a fraudulent representation. Sledge v. Scott, 56 Ala. 202; DaLee v. Blackburn, 11 Kans. 190; King v. Eagle Mills, 92 Mass. (10 Allen) 551 ; Weimer v. Clement, 37 Pa. St. 147; s, c. 78 Am. Dec. 411 ; McFarland v. Newman, 9 Watts (Pa.) 55; s. u. 34 Am. Dec. 497. See, also. Cooper v. Lovering, 106 Mass. 77 ; Brown v. Castles, 65 Mass. (11 Cush.) 348; Stones. Denny, 45 Mass. (4 Mete.) 151; Small v. Atwood, Younge, 407, 461. However, it is held that the seller is not guilty of fraud in misrepresenting the con- dition of goods sold unless he knew that the representations were false. Bryant v. Crosby, 36 Me. 562; s. c. 68 Am. Dec. 767 ; Staines v. Shore, 16 Pa. St. 200; s. c. 55 Am. Dec. 492. But see Smith v. Beatty, 2 Ired. (N. C.) Eq. 456; s. c. 40 Am. Dec. 435; Ingram v. Morgan, 4 Hump. (Tenn.) 66 ; s. c. 40 Am. Dec. 626 ; Mitchell 0. Zimmerman, 4 Tex. 75, because there is no deceit without scienter. Kingsbury v. Taylor, 29 Me. 509 ; s. c. 50 Am. Dec. 607 ; Pearson v. Howe, 83 Mass. (1 Allen) 208 ; Webster v. Larned, 47 Mass. (6 Mete.) 527; Stone V. Denny, 45 Mass. (4 Mete.) 158; Page v. Bent, 43 Mass. (2 Mute.) 374 ; Tryon v. Whitmarsh, 42 Mass. (1 Mete.) 1 ; s. c. 35 Am. Dec. 339. Silence in case of latent and patent defects. — Mere silence of the vendor who has knowledge of a latent defect in a chattel sold, constitutes a deceit for whicn he is liable in damages ; proof of the scienter and a suppressio veri is sufficient. Case v. Edney, 4 Ired. (N. C.) L. 93 ; Cobb v. Fogal- man, 1 Ired. (N. C.) L. 440; Brown V. Gray, 6 Jones (N. C.) L. 103 ; s. c. 72 Am. Dec. 563 ; Wintz v. Morrison, 17 Tex. 372 ; s. c. 67 Am. Dec. 658. As to when suppressio veri constitutes fraud, see Beard i>. Campbell, 2 A. K. Marsh. (Ky.) 125 ; s. c. 12 Am. Dec. 362; Mills i'. Lee, 6 T. B. Mon. (Ky.) 91; s. c. 17 Am. Dec. 118; Bean v. Herrick, 12 Me. 262 ; s. c. 28 Am. Dec. 176; Durell v. Haley, 1 Paige Ch. (N. Y.) 492 ; s. c. 19 Am. Dec. 444 ; Mactier Adm'r v. Frith, 6 Wend. (N. Y.) 103; s. c. 21 Am. Dec. 262; McFarland v. Febiger, 7 Ohio, pt. 1, 194; s. c. 28 Am. Dec. 632; Robinson v. Justice, 2 Pen. &,. W. (Pa.) 19; s. c. 21 Am. Dec. 407; liaynie v. Hall, 5 Humph. (Tenn.) 290; s. c. 42 Am. Dec. 427. But the mere silence of the vendor who has knowledge of a patent defect in the chattel sold discoverable by the exer- cise of ordinary diligence does not make him liable in damages as for deceit. Brown v. Gray, 6 Jones (N. C.) L. 103; s. c. 72 Am. Dec. 563; Frenzel 6-. Miller, 37 Ind. 1 ; s. c 10 Am. Rep. 62 ; because it is a moral and not a, legal fraud. Howell v. Biddlecom, 62 Barb. (N. Y.) 131; there must be a misrepresentation or concealment, and proof of the scienter and a siigrjestio falsi. Brown v. Gray, 6 Jones (N. C.) L. 103 ; s. c. 72 Am. Dec. 563. But the seller is liable for the failure to disclose latent defects unknown to the buyer. Hoe v. San- born, 21 N. Y. 552; s. c. 78 Am. Dec. 163. 4 3 T. R. 51; 2 Sm. L. C. 66, 8th Ed. 5 2 East, 92. ^ Innocent misrepresentations are not fraudulent and will not avoid the sale. 672 CHAP. II.] FRAUD. *416 [The above rules must be taken subject to the qualification hereinafter noticed (j)ost, p. 423) with regard to reckless statements.] The effect of innocent misrepresentation as causing Mis- take or Failure of Consideration has been treated ante, p. 376 et seq. § 549. In the former of these cases it was held, that a false affirmation made by the defendant, with intent to defraud the plaintiff, whereby the plaintiff receives damage, is the ground of an action upon the case in the nature of deceit ; and that such action will lie, though the defendant may not benefit by the deceit, nor collude with the person who is to benefit by it. Pasley v. Freeman was an action brought against a party for damages, for falsely representing a third person to be one * whom the plaintiff could [*416] safely trust, the defendant well knowing that this was not true. In the latter case, Haycraft v. Creasy, it was held, that an action of deceit would not lie upon similar false representa- tions, though the party affirmed that he spoke of his own knowledge, if the representations were made bond fide with a belief in their truth. After a series of intervening cases, that of Foster v. Charles ^ came twice before the Common Pleas in 1830 and 1881, and was deliberately approved and followed by the Righter v. Roller, 31 Ark. 170, 174 Sanford v. Cloud, 17 Fla. 557, 572 Kimbell v. Moreland, 65 Ga. 164 Tone V. Wilson, 81 111. 529, 533 Sells, 3 Mo. App. 85; Pettigrew u. Chellis, 41 N. H. 95, 99 ; Page v. Par- ker, 40 N. H. 47 ; Hanson v. Edgerly, 29 N. H. 84M; Allen v. Wanamaker, Merwin v. Arbuckle, 81 111. 501; Bird 31 N. J. L. (2 Vr.) 370; Searing v. V. Forceman, 62 111. 212; Wheeler v. Lum, 5 N. J. L. (2 South.) 683; Nel- Randall, 48 111. 182; Clement o. son v. Luling, 46 How. (N. Y.) Pr. Boone, 5 111. App. 109; Gregory v. 355; Parmlee w. Adolph, 28 Ohio St. Schoenell, 55 Ind. 101 ; Rawson „. 10, 20 ; Taylor v. Leith, 26 Ohio St. Harger, 48 Iowa, 271 ; Lamm v. Port 428 ; Bigler v. Flickinger, 55 Pa. St- Deposit Homestead Assoc, 49 Md. 279, 283 ; Mason v. Chapell, 15 Gratt. 283, 240 ; s. c. 33 Am. Rep. 246 ; (Va.) 572 ; Marnlock v. Fairbanks, King „. Eagle Mills, 92 Mass. (10 46 Wis. 415; Lord v. Goddard, 54 Allen) 548; Merriam v. Pine City U. S. (13 How.) 198,211; bk. 14, L. Lumber Co., 23 Minn. 314; Klein v. ed. 111. Rector, 57 Miss. 538 ; Sims v. Eiland, i 6 Bing. 396, and 7 Bing. 105 57 Miss. 83, 607 ; Merchants' Bank v. 673 *417 AVOIDANCE OF THE CONTEACT. [BOOK III. Queen's Bench in Polhill v. Walter,^ in 1832. It was held in these cases unnecessary to prove " a corrupt motive of gain to the defendant, or a wicked motive of injury to the plaintiff. It is enough if a representation is made which the party making it knows to be mitrue, and which is intended by him, or which, from the mode in which it is made, is calcu- lated to induce another to act on the faith of it in such a way as that he may incur damage, and that damage is actually incurred. A wilful falsehood of such a nature is, in the legal sense of the word, a, frauds [And upon the question of motive the judgment in Polhill V. Walter is fully confirmed by the observations of Lord Cairns in Peek v. Gurney,^ who says, " In a civil proceeding of this kind all that your lordships have to examine is the question, Was there or was there not misrepresentation in point of fact? and if there was, however innocent the motive may have been, your lordships will be obliged to arrive at the consequences which properly would result from what was done."] § 550. While the authorities stood in this condition, the cases of Cornfoot v. Fowke,^ and Fuller v. Wilson,^ were de- cided, the former in the Exchequer, in 1840, and the latter in the Queen's Bench, in 1842, the judges in the latter case expressly declining to follow the ruling in the former, [*417] and * adopting in preference the dissenting opinion of Lord Abinger. Cornfoot v. Fowke,^ was a case in which the defendant refused to comply with an agreement to take a furnished house, on the ground that he had been defrauded by the plaintiff and others in collusion with him. The house had been represented to the defendant by plaintiff's agent as 2 3 B. & Ad. 122. 53 Am. Dec. 48; Ruggles v. General 3 L. R. 6 H. L. at p. 409, and see Int. Ins. Co., 4 Mason C. C. 74; s. c. Leddell v. McDougall, 29 W. R. 403, 25 U. S. (12 Wheat.) 408; bk. 6, L. C. A. ed. 674 ; Carpenter v. American Ins. 1 6 M. & W. 358. See Coddington Co., 1 Story C. C. 57 ; Shirley v. Wil- li. Goddard, 82 Mass. (16 Gray) 436; kinson, Doug. 306; Willes v. Glover, Bank of United States v. Davis, 2 4 Bos. & Pul. 14. Hill (N. Y.) 451, 461, 462 ; Fitzsim- 2 3 Q. B. 58. mons V. Joslin, 21 Vt. 129, 141 ; s. c. 3 6 M, & W. 358. 674 CHAP. II.] FEAUD. *418 being entirely unobjectionable, whereas the adjoining house was a brothel and a nuisance, which was compelling people in the neighborhood to leave their houses. This fact was known to the plaintiff, but was not known to his agent, who made the representation, and the plaintiff did not know that the representation had been made. All the cases, from the leading one of Pasley v. Freeman,* were cited in argument, and the majority of the Court, Rolfe, Anderson, and Parke, BB. held the defence unavailing, while Lord Abinger C. B. said that the opposite conclusion was so plain as not to admit a doubt in his mind, but for the dissent of his brethren. Rolfe B. held the question to be one as to the power of an agent " to affect his principal by a representation collateral to the contract. To do this, it is essential . . . to bring home fraud to the principal, and ... all the facts are consistent with the hypothesis that the plaintiff innocently gave no directions whatever on the subject, supposing that the intended tenant would make the necessary inquiries for himself." Alderson B. said: "Here the representation, though false, was believed by the agent to be true. He, therefore, if the case stopped here, has been guilty of no fraud. . . It is said that the knowledge on the part of the principal is sufficient to establish the fraud. If, indeed, the principal had instructed his agent to make the false statement, this would be so, although the agent would be innocent of any deceit ; but this fact also fails. ... I think it impossible to sustain a charge of fraud when neither principal nor agent has committed any, — the principal, because, though he knew the fact, he was not cognizant of the misrepresenta- tion being * made, nor even directed the agent to [* 418] make it ; and the agent, because, though he made a misrepresentation, yet he did not know it to be one at the time he made it, but gave his answer bond fide." Parke B. pointed out that the representation was no part of the contract, which was in writing, and, therefore, it could not affects the rights of the parties, except on the ground * 3 T. R. 51. 675 *419 AVOIDANCE OF THE CONTRACT. [BOOK III. that it was fraudulent. On the simple facts, each person was innocent, because the plaintiff made no false representa- tion himself, and although his agent did, the agent did it innocently, not knowing it to be false ; and the proposition seemed untenable that if each was innocent, the act of either or both could be a fraud. It was conceded that an innocent principal would be bound if his agent committed a fraud, but in the case presented, the agent acted without fraudulent intent. It was also conceded that "if the plaintiff not merely knew of the nuisance, but purposely employed an ignorant agent, suspecting that a question would be asked of him, and at the same time suspecting or believing that it would by reason of such ignorance be answered in the negative, the plaintiff would unquestionably be guilty of fraud." ^ His Lordship deemed it immaterial whether the making of such representations as were made by the agent was within the scope of his authority or not, as they could not affect the contract unless fraudulent. Lord Abinger C. B. gave an elaborate dissenting opinion, in which he held " that it is not correct to suppose that the legal definition of fraud and covin necessarily includes any degree of moral turpitude ; . . . the warranty of a fact which does not exist, or the representation of a material fact contrary to the truth are both said in the language of the law to be fraudu- lent, although the party making them suppose them to be correct;" that there was not a total absence of moral turpi- tude in the agent, even upon the presumption that he Avas wholly ignorant of the matter : that " nothing can be more plain than that the principal, though not bound by the repre- sentation of his agent, cannot take advantage of a [*419] contract made under the * false representation of an agent, whether that agent was authorized by him or not to make such representation ; " that it did not follow because the plaintiff was not bound by the representation of the agent, even if made without authority, that "he is there- fore entitled to bind another man to a contract obtained by the false representation of an agent. It is one thing to say 6 See Ludgater v. Love, 44 L. T. N. S. 694, C. A. post, p. 428. G76 CHAP. ir.J FKAUD. "419 that he may avoid a contract if his agent without his author- ity has inserted a warranty in the contract, and another to say that he maij enforce a contract obtained by means of a false representation made by his agent, because the agent had no authority." ^ (See observations in this case, post, p. 427.) § 651. In Fuller v. Wilson,^ v/hich was an action on the case for a false representation, the Queen's Bench, through Lord Denman C. J. declined to take any ground other than the broad proposition of Lord Abinger, which they adopted, "that whether there was a moral fraud or not, if the pur- chaser was actually deceived in his bargain, the law will re- lieve him from it. We think the principal and his agent are for this purpose completely identified, and that the ques- tion is not what was passing in the mind of either, but ^ See Putnam o, Sullivan, 4 Mass. 45; s. c. 3 Am. Dec. 206; North Elver Bank v. Aymar, 3 Hill (N. Y.) 262; Sanford v. Handy, 23 Wend. (N. Y.) 260; Fitzsimmons v. Joslin, 21 Vt. 129, 141 ; s. c. 53 Am, Dec. 48 ; Atwood V. Small, 6 CI. & Fin. 414; Bartlett v. Salmon, 6 De G. M. & G. 33, 39 ; Hern v. Nichols, 1 Salk. 289. ilisrepresentation bij ni/ent is a mis- representation of tlie principal where the latter adopts t)ie former's acts, although such misrepresentation was made without his instruction, or knowledge, or assent. Reed v. Peter- son, 91 111. 288 ; Durant l: Rogers, 87 111. 508; Madison & I. R. R. Co. v. Norwich Savings Co., 24 Ind. 457 ; Hornish v. Peck, 53 Iowa, 157; Gokey V. Knapp, 44 Iowa, 32 ; Lamm u. The Port Deposit Homestead Assoc, 49 Md. 233; s. c. 33 Am. Rep. 246; Jew- ett V. Carter, 132 Mass. 335; Kibbe V. Hamilton Ins.. Co., 77 Mass. (11 Gray) 163; Eberts v. Selover, 44 Mich. 519; s. c. 38 Am. Rep. 278; Lawrence v. Hand, 23 Miss. 103 ; . Bowers v. Johnson, 18 Miss. (10 Smed. & M.) 169 ; American Ins. Co. V. Kuhlman, 6 Mo. App. 522; Con- cord Bank o. Gregg, 14 N. H. .331; Fishkill Sav. Ins. v. Fishkill Bank, 80 N. Y. 162; s. c. 36 Am. Rep. 595; Indianapolis C. & P. R. Co. v. Tyng, 63 N. y. 653; AUerton v. AUerton, 50 N. Y. 670; Westfield Bank v. Cornen, 37 N. Y. 320, 322 ; Elwell v. Chamberlin, 31 N. Y. 611; Griswold V. Haven, 25 N. Y. 595; Bennett v. Judson, 21 N. Y. 238; Farmers' & Mechanics' Bank v. Butchers' & Drov- ers' Bank, 14 N. Y. 623; Graves ..■. Spire, 58 Barb. (N. Y.) 349 ; Chester V. Dickerson, 52 Barb. (N. Y.) 349 ; Sharp V. New York, 40 Barb. (N. Y.) 257 ; North River Bank u. Aymar, 3 Hill (N. Y.) 262 ; Craig v. Ward, 3 Keyes (N. Y.) 387; Mundorff u. Wickersham, 63 Pa. St. 87 ; ». u. 3 Am. Dec. 531 ; Tagg v. Tennessee Nat. Bank, 9 Heisk. (Tenn.) 479; Abell ;;. Howe, 43 Vt. 403 ; Fitzsim- mons V. Joslin, 21 Vt. 129; s. c. 53 Am. Dec. 48; DeVoss v. Richmond, 18 Gratt. (Va.) 338 ; Mihills Manuf. Co. V. Camp, 49 Wis. 130 ; Veazie v. Williams, 49 U. S. (8 How.) 134; bk. 12, L. ed. 1018; Doggett v. Emerson, 3 Story C. C. 700 ; Ferson v. Sanger, 1 Woodb. & M. C. C. 138 ; Warner v. Daniels, 1 Woodb. & M. C. C. 90; Brett V. Clowser, 5 C. P. Div. 376. 1 3 Q. B. 58. 677 *420 AVOIDAKCE OF THE CONTKACT. [BOOK III. whether the purchaser tvas in fact deceived by them or either of them." ^ The conflict of opinion cannot be more plainly stated. The Queen's Bench thought the sole test was whether the purchaser was deceived hy an untrue statement into jnakiiig the bargain. The Court of Exchequer thought it further neces- sary that the party making the untrue statement should know it to he untrue. Fuller V. Wilson was reversed in error,^ solely on the ground that the facts of the case did not show any misrepre- sentation on the part of the vendor, but only the purchaser's own misapprehension ; and Tindal C. J. in delivering the opinion, stated that the Court did " not enter into the ques- tion discussed in Cornfoot v. Fowke." § 552. In Moens v. Heyw-orth,^ in 1842, the question again came before the Exchequer of Pleas (the case of [*420] Fuller v. * Wilson not being yet reported), and Lord Abinger renewed the expression of his dissent from Parke B., and Alderson B., repeating that " the fraud which vitiates a contract, . . . does not in all cases necessarily imply moral turpitude." His Lordship instanced the sale of a public-house, and an untrue statement by the seller that the receipts of the house were larger than was the fact, but the untrue statement might be made without dishonest in- tent, as if proper books had not been kept. In such case his Lordship insisted that the purchaser might maintain an action on the false representation, even though the vendor did not know that it Avas false when made. The other judges held the contrary, Parke B. saying distinctly, that in such cases '* it is essential that there should be moral fraud." § 553. In the next year, 1843, Taylor v. Ashton,^ came before the same Court, and the judgment of the Queen's Bench in Fuller v. Wilson was relied on by the plaintiff, but Parke B. said when it was cited : " I adhere to the doctrine 2 A fraudulent representation made 589 ; Cook u. Castner, 62 Mass. (9 by a person acting not only as agent Cush.) 266. but as part-owner will ba binding 3 Wilson c. Fuller, 3 Q. B. 1009. upon other part-owners. White v. ^ 10 M. & W. 147. Sawyer, 82 Mass. (16 Gray) 586, i 11 M. & W. 401. 678 CHAP, n.] PEAUD. *420 that an action for deceit will not lie without proof of moral fraud, and Lord Denman seems to admit that to be so. If the party hond fide believes the representation he made to be true, though he does not Jenow it, it is not actionable." The learned Baron afterwards delivered the judgment of the Court, holding that " it was not necessary, in order to consti- tute fraud, to show that the defendants knew the fact to be untrue : it was enough that the fact was untrue if they com- municated that fact for a deceitful furfose ; ... if they stated a fact which was untrue for a fraudulent purpose, they at the same time not believing that fact to be true, in that case it would be both a legal and moral fraud." ^ § 554. In 1843, the Queen's Bench had before them the case of Evans v. Collins, ^ which was an action by a sheriff to recover damages against an attorney for falsely representing = Howard v. Gould, 28 Vt. 523, 526 ; s. c. 67 Am. Dec. 728 ; Evans v. Edmonds, 13 C. B. 777, 786 ; Polhill V. "Walter, 3 Barn. & Ad. 114; Reese River Silver Mining Co.'i;. Smith, L. R. 4 H. L. Cas. 64 ; Taylor v. Ash- ton, 11 M. & W. 401. Representations made recklessly, the party not knowing them to be true and made for the purpose of induc- ing the other party to purchase, are fraudulent and questionable. Ein- stein V. Marshall, 58 Ala. 153 ; s. c. 29 Am. Rep. 729; Sledge v. Scott, 56 Ala. 202 ; Blackman v. Johnson, 35 Ala. 252 ; Monroe c. Pritchett, 16 Ala. 785; s. c. 50 Am. Dec. 203; Mahone v. Reeves, 11 Ala. 345; Juzan V. Toulmin, 9 Ala. 662, 684; s. c. 44 Am. Dec. 448; Williams v. Cannon, 9 Ala. 348 ; Camp v. Camp, 2 Ala. 632; s. c. 36 Am. Dec. 423; Barnett v. Stanton, 2 Ala. 181; Young V. Harris, Admr. 2 Ala. 108; Ricks V. Dillahunty, 8 Port. (Ala.) 133; Smith v. Newton, 59 Ga. 113; Allen V. Hart, 72 III. 104 ; Frenzel v. Miller, 37 Ind. 1 ; s. c. 10 Am. Rep. 62 ; McKown v. Furgason, 47 Iowa, 636; Foard u. McComb, 12 Bush (Ky.) 723 ; Litchfield ■;. Hutchinson, 117 Mass. 498 ; Beach v. Bemis, 107 Mass. 498; Cooper v. Lovering, 106 Mass. 77; Fisher u. Mellen, 103 Mass. 503; Brown v. Castles, 65 Mass. (11 Cush.) 348; Stone v. Denny, 45 Mass. (4 Mete.) 151 ; Beebe v. Knapp, 28 Mich. 53 ; Sims V. Eiland, 57 Miss. 607; Estell v. Myers, 54 Miss. 174 ; Dulaney u. Rogers, 64 Mo. 201 ; Dunn v. Oldham, 63 Mo. 181 ; Hammond o. Pennock, 61 N. Y. 145, 151; Meyer V. Amidon, 45 N. Y. 169, 175 ; Marsh o. Falkner, 40 N. Y. 569; Meyer v. Amidon, 23 Hun (N. Y.) 563 ; Parm- lee V. Adolph, 28 Ohio St. 10, 21; Bovver v. Fenn, 90 Pa. St. 359 ; s. c. 35 Am. Rep. 662; Cabot v. Christie, 42 Vt. 121; s. c. 1 Am. Rep. 313; Cotzhausen v. Simon, 47 Wis. 103 ; Adamson v. Jarvis, 4 Bing. 66; Small V. Attwood, Young, 407, 461. Where representations literally true? made for the purpose of deceiving, the fact of their truthfulness affords no excuse where the other party was deceived. Denny v. Gilman, 26 Me, 149. 1 5 Q. B. 804. 679 *421 AVOIDANCE OP THE CONTRACT. [BOOK III. a certain person to be the person against whom a ca. sa. had. been sued out by tlie attorney, so that the sheriff had been induced to take the wrong person into custody, and had thereby incurred damage. The jury found that the [*421] defendant had probable * reason for believing that the person pointed out to the sheriff was really the person against whom the ca. sa. was issued, so that there was clearly a total absence of moral turpitude. It had, however, been previously held, in Humphrys v. Pratt,''^ in the House of Lords, that an execution creditor was bound to indemnify a sheriff who had seized goods pointed out by the creditor, and upon his requisition and false representation that they belonged to his debtor, although the counts in the declara- tion did not aver any knowledge or belief on the part of the execution creditor that his representation was false. On the authority chiefly of this decision in the House of Lords, Lord Denman C. J. held the action in Evans v. Collins maintain- able, but he added : " One of two persons has suffered by the conduct of the other. The sufferer is wholly free from blame : but the party who caused his loss, though charged neither with fraud nor with negligence, must have been guilty of some fault when he made a false representation. He was not bound to make any statement, nor justified in making any which he did not know to be true ; and it is just that he, not the party whom he has misled, should abide the consequence of his misconduct. The allegation that the de- fendant knew his representation to he false is therefore immate- rial : without it, the declaration discloses enough to maintain the action." § 655. This case was reversed in the Exchequer Cham- ber,^ after time taken for consideration, by the unanimous judgment of Tindal C. J., Coltman, Erskine, and Maule, JJ., and Parke, Alderson, Gurney, and Rolfe, BB. The Court stated the question to be distinctly " whether a statement or representation which is false in fact, hut not knoivn to he so hy the party making it, but, on the contrary, made honestly and in the full belief that it is true, affords a ground of action." 2 5 Bligh, N. S. 154. 1 5 Q. B. 820. 680 CHAP. II.J FEAUD. *422 The Court held, that on the whole current of authority, '•'■fraud must concur with the false statement in order to give a ground of action." The Court explained the decision in Humphrys v. Pratt,^ in which no reasons were as- signed for * the judgment, as having proceeded on [*422] the ground that the execution creditor in that case had made the sheriff his agent, and was bound to indemnify him for the consequences of acts done under the principal's instructions. § 566. The next case was Ormrod v. Huth,^ in the Exchequer Chamber, in 1845, on error from the Exchequer of Pleas, so that the judges of the Queen's Bench must have taken part in the judgment. Tindal C. J. laid down the rule, which he said was supported both by the early and later cases, so clearly as to render it unnecessary to review them, in the following words : " Where upon the sale of goods the purchaser is satisfied without requiring a warranty, (which is a matter for his own consideration), he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bot- tomed in fraud. If, indeed, the representation was false to the knowledge of the party making it, this would in general be conclusive evidence of fraud; but if the representation was honestly made and believed at the time to be true by the party making it, though not true in point of fact, we think this does not amount to fraud in law." ^ Finally the Queen's Bench abandoned their former doc- trine in express terms in 1846, Lord Denman C. J. deliv- ering the opinion in Bailey v. 'Walford,^ in these words : " The judgment which was given in this Court in Evans v. Collins (5 Q. B. 804) affirming the proposition that every false statement made by one person and believed by another, and so acted upon as to bring loss upon him, constituted a grievance for which the law gives a remedy by action, has been overruled by the Court of Exchequer Chamber, (5 Q. 2 5 Bligh, N. S. 154. ' v. Lorering, 106 Mass. 77 ; Pike v. 1 14 M. & W. 650. Fay, 101 Mass. 134, 137 ; Howell o. 2 See Bryant v. Crosby, 36 Me. Biddlecom, 62 Barb. (N. Y.) 135. 562 ; s. c. 58 Am. Dec. 767 ; Cooper ^ g Q, B. 197. 681 *423 AVOIDANCE OF THE CONTBACT. [BOOK IH. B. 829,) . . . and we must admit the reasonableness of the doctrine there at length laid down." § 557. The law thus settled has since remained unshaken, and in 1860 the Queen's Bench held that it was established by Collins v. Evans, and numerous other authorities, that "to support an action for false representation, the [*423] representation * must not only have been false in fact, but must also have been made fi'auduleatlij.''^ ^ [And in Dickson v. Renter's Telegram Company,^ Bram- well L. J. said : " The general rule of law is clear that no action is maintainable for a mere statement although untrue, and although acted on to the damage of the person to whom it is made, unless that statement is false to the knowledge of the person making it." § 558. But the rule thus laid down is subject to the important qualification, to which reference has already been made, ante, p. 415. A person without knowing that he is stating that which is false, may take upon himself to state that as true as to which he is ignorant, whether it be true or false, and he will then incur, in the event of the statement proving to be false, whatever may be his guilt in foro con- scientice,'^ the same legal responsibility as though he had made the statement with a knowledge of its falsity. An honest and well grounded belief in the truth of that which is stated affords the only claim to protection, and the absence of any reasonable grounds for such a belief will guide the Court to the conclusion that the belief Avas never honestly entertained. These reckless statements may be made either 1 Childers v. Wooler, 2 E. & E. not understand legal fraud. It has 287, and 29 L. J. Q. B. 129. See, no more meaning than legal heat or also, judgment of Lord Campbell, in legal cold, legal light or legal shade. Wilde V. Gibson, 1 H. L. C. 633. There never can be a well-founded 2 3 C. P. D. 1, 5, C. A. complaint of legal fraud, or anything 1 It is this distinction between the else, except where some duty is shown, moral complexion and the legal con- and correlative right, and some vio- sequences of a statement thathas given lation of that duty and right. And rise to the unfortunate expressions when these exist, it is much better " legal fraud " or " constructive that they should be stated and acted fraud," expressions which were de- on than that recourse should be had nounced by Bramwell L. J. in Weir to a phrase illogical and unmeaning, V. Bell, 3 Ex. D. at p. 343. " I do with the consequent uncertainty." 682 CHAP. II.] FRAUD. *424 in wilful ignorance of their truth or falsity, or may be due to forge tfulness of that which it is a man's duty to remember.^ * In either case the same consequences [*424] will result to the person making them. The Court will not enter into any question as to the state of a man's mind, if it be proved that the statement was untrue to his knowledge.^] § 559. In the Western Bank of Scotland v. Addie,^ the charge to the jury was, that "if the directors took upon themselves to put forth in their report statements of impor- tance in regard to the affairs of the bank, false in themselves, and which they did not believe^ or had no reasonable ground to believe to be true, that would be a misrepresentation and deceit." In the House of Lords, the Lord Chancellor (Lord Chelmsford) approved this direction, saying : " Suppose a person makes an untrue statement which he asserts to be the result of a bond fide belief of its truth, how can the bond fides be tested, except by considering the ground of such belief? And if an untrue statement is made founded upon a belief which is destitute of all reasonable grounds, or which the least inquiry would immediately correct, I do not see that it is not fairly and correctly characterized as misrepresentation and deceit." But Lord Cranworth thought this was going rather too far, and said : " I confess that my opinion was that in what his Lordship thus stated, he went beyond what principle warrants. If persons in the situation of directors of a bank make statements as to the condition of its affairs, which they bond fide believe to be true, I cannot think they can be guilty of fraud, because other persons think, or the 2 Burrowes v. Lock, 10 Ves. 470 ; suits as were applied at common law Slim V. Croucher, 1 De G. F. & J. 518. (see per Lord Chelmsford, in Peek v. From an early period equity exercised Gurney, L. E. 6 H. L. at p. 390 ; and a concurrent jurisdiction in cases of per Cotton L. J. in Schroeder v. false representation, and entertained Mendl, 37 L. T. N. S. 452, at p. 454) ; suits which were analogous to the but the question is one of only his- common law actions of deceit. Evans torical interest since the Judicature V. Bicknell, 6 Ves. 173, per Lord Acts. Eldon ; Eamshire v. Bolton, 8 Eq. ^ Hine v. Campion, 7 Ch. D. 344. 294. It seems clear that equity ^ L. E. 1 Sc. Ap. 145. applied the same principles to such 683 *425 AVOIDANCE OP THE CONTKACT. [BOOK III. Court thinks, or your Lordships think, that there was no sufficient ground to warrant the opinion wliich they had formed. If a httle more care or caution must have led the directors to a conclusion different from that which they put forth, this may afford strong evidence to show that they did not really believe in the truth of what they stated, [*-125] and so * that they were guilty of fraud. But this would he the consequence not of their having stated as true what they had not reasonable ground to believe to be true, but of their having stated as true what they did not believe to be true." § 560. In the Reese River Company v. Smith,i it was said by Lord Cairns, that the settled rule of law was, "that if persons take upon themselves to make assertions as to which they are ignorant whether they are true or not, they must in a civil point of view be held as responsible as if they had asserted that which they knew to be untrue." ^ In this Lords Hatherley and Colonsay concurred. § 561. [And in Weir v. Bell,^ Cotton L. J. stated it to be a well-established rule, that " in an action of deceit a de- fendant may be liable not only if he has made statements which he knows to be false, but if he has made statements which in fact are untrue, recklessly : that is, tviiJwut any reasonable grounds for helieving them to he true, or under cir- cumstances which show that he was careless whether they were in fact true or false." This statement of the law confirms the opinion of Lord Chelmsford in the Western Bank of Scotland v. Addie 1 L. R. 4 H. L. 64. Holden v. Daken, 4 Johns. (N. Y.) 2 False representations, made as an 421. Wliere a defence is set up that inducement to a contract, do not univer- the plaintiff falsely represented the sall^ constitute fraud it the other -piLTty articles sold to be of a particular liad art opportunitj' to detect the quality to support such defence, the falsehood. Bondurant v. Crawford, defendant must prove not only the 22 Iowa, 40, 47. It seems that to repi-esentations were untrue, but that render such misrepresentations fraud- ulent they must amount to a warranty. See Binnard v. Spring, 42 Barb (N. Y.) 470 ; Seixas v. Woods, 2 Cai (N. Y.) 48; s. c. 2 Am. Dec. 215; the plaintiff knew them to be so at the time. King v. Eagle Mills, 92 Mass. (10 Allen) 548. 1 3 Ex. D. 238, C. A. at p. 242. 684 CHAP. II.] FRAUD. *426 (vide supra'), and accurately defines the principle wHch runs through numerous decisions.^ § 562. Before leaving this branch of the subject, it is im- portant to observe that all the following circumstances must concur in order to support an action of deceit : — 1. The representation must be made to the plaintiff, or vi^ith the direct intent that it should be communicated to him, and that he should act upon it. 2. It must be false in fact. 3/ It must be false to the knowledge of the defendant, or made by him recklessly ; that is to say, without rea- sonable * grounds for believing it to be true or un- [*426] der circumstances which show that he was careless, whether it was in fact true or false.^ 4. It must be a material one. 5. The plaintiff must have acted upon the faith of it, and thereby suffered damage ; and where the meaning of the representation is ambiguous, it is for the plaintiff to show that he understood it in the sense in which it is false. The above propositions are established by the cases already referred to, and by the two recent decisions of the Court of Appeal in Arkwright v Newbold^ and Smith v. Chadwick.^ 2 Rawlins v. Wickham, 3 De G. & 2 17 ch. D. 301, C. A. J. 304, 816 ; Hart v. Swaine, 7 Ch. D. ^ 20 Ch. D. 27, C. A. 42; Leddell v. McDougall, 29 W. R. False affirmations made with intent 403, C. A.; Redgrave v. Hurd, 20 Ch. to defraud whereby the plaintiff sus- D. 1, C. A./ier Jessel M. R. at p. 12 ; tained damages are ground of an Smith V. Chadwick, ibid. 27, per eun- action upon the case in the nature rfejn, at p. 44, and;)e)- Cotton L. J. at of deceit. Medbury v. Watson, 47 p. 68; Mathias v. Yetts, 46 L.T.N. Mass. (6 Mete.) 246, 259; s. c. 39 S. 497, C. A. The rule had been Am. Dec. 726. And he may main- laid down to the same effect by t.iin an action for the injury sustained, Maule J. in Evans u. Edmonds, 13 although he has sold the property. C. B. 777 at p. 786. Medbury v. Watson, 47 Mass. (6 1 Einstein i: Marshall, 58 Ala. Mete.) 246; s. c. 39 Am. Dec. 726. 153, 1G2 ; s. c. 29 Am. Rep. 729 ; However, an exception exists in the Pike V. Fay, 101 Mass. 134 ; King case of mere naked assertions, al- V. Eagle Mills, 92 Mass. (10 Allen) though they are known to be false 548 ; Dulaney v. Rogers, 64 Mo. at the time. Medbury v. Watson, 47 201; Dilworth v. Bradner, 85 Pa. Mass. (6 Mete.) 246, 259; s. c. 39 Am. St. 238 ; Bokee v. Walker, 14 Pa. St. Dec. 726. 139; Dunn v. White, 63 Mo. 181; The effect of an action for deceit has Lord V. Goddard, 54 U. S. (13 How.) been held to be to affirm the sale. 198, 211; bk. 14, L. ed. 111. Bacon v. Bown, 1 Bibb (Ky.) 334; 685 *426 AVOIDANCE OF THE CONTRACT. [BOOK III. § 563. So much with regard to the action of deceit. As to the buyer's riglrt to rescind a contract induced by false representation, the principles adopted and applied by Courts of Equity had, before the Judicature Act, a much wider scope than those of the Common Law. At Common Law, except in the case of an innocent misrepresentation affecting the substance of the contract,^ the buyer's right to rescind was governed by the same considerations as would have entitled him to maintain an action of deceit, but it seems clear that to obtain relief in Equity, it was sufficient for the buyer to prove that the representation was a material one inducing the contract, and was false in fact? As we have already stated (awte, p. 403), relief was only granted where restitutio in integrum was possible, and where the buyer had s. c. 4 Am. Dec. 640; Kimball v. Cunningham, 4 Mass. 502 ; s. c. 3 Am. Dec. 230. Otlier cases, however, hold such an action is not necessarily an affirmance. Dayton v. Monroe, 47 Mich. 193; Lenox o. Fuller, 39 Midi. 268 ; Miller v. Barber, 66 N. Y. 558, 564; Hubbell v. Meigs, 50 N. Y. 480, 487; Hersey v. Benedict, 15 Hun (N. Y.) 282, 288; Emma Co. (Lim.) V. Emma Co., 7 Fed. Rep. 401, 420. ^ Ante, p. 376. 2 Eawlins v. Wickham, 3 De G. & J. .304 ; Leather i\ Simpson, 11 Eq. 398-406, per Malins V.-C; Hart V. Swaine, 7 Ch. D. 42; Schroeder v. Mendl, 37 L. T. N. S. 452, per Cotton L. J. at p. 454 ; Kedgrare v. Hurd, 20 Ch. D. 1, C. A. American authorities. — Einstein v. Marshall, 58 Ala. 153; s. c. 29 Am. Dec. 729; Sledge v. Scott, 56 Ala. 202 ; Bower u. Fenn, 90 Pa. St. 354 ; s. c. 35 Am. Dec. 369; Loper v. Robinson, 54 Tex. 511. As to when third person will be responsible for fraudulent representations. Einstein 0. Marshall, 58 Ala. 153, 109; s. o. 29 Am. Dec. 729; Hall v. Bradbury, 40 Conn. 32 ; Corbett v. Gilbert, 24 Ga. 454 ; Harrison v. Savage, 19 Ga. 310 ; Smither v. Calvert, 44 Ind. 242; Tryon v. Whitmarsh, 42 Mass. (1 Mete.) 1; s. c. 35 Am. Dec. 339; Patton V. Gurney, 17 Mass. 182; Devoe v. Brandt, 53 N. Y. 462; Viele V. Goss, 51 N. Y. 624, affirming s. c. 49 Barb. (N. Y.) 96 ; Marsh v. Talker, 40 N. Y. 562; Zabriskie u. Smith, 13 N. Y. 322; s. c. 64 Am. Dec. 551 ; Morgan v. Skidmore, 55 Barb. (N. Y.) 263; Viele v. Goss, 49 Barb. (N. Y.) 96 ; Wakeman v. Dal- ley, 44 Barb. (N. Y.) 498; Shaw o. Stine, 8 Bosw. (N. Y.) 157; Ballard V. Lockwood, 1 Daly (N. Y.) 158; Bean v. Renway, 17 How. (N. Y.) pr. 90 ; s. c. 28 Barb. (N. Y.) 466 ; Upton 0. Vail, 6 Johns. (N. Y.) 181 ; s. c. 5 Am. Dec. 210; Van Bruck i'. Peyser, 4 Robt. (N. Y.) 514; Raymond ;;. Howland, 12 Wend. (N. Y.) 176; Addington v. Allen, 11 AVend. (N. Y.) 3~4 ; Rheem v. Naugatuck Wheel Co , 33 Pa. St. 358 ; Lord v. Goddard, 54 U. S. (13 How.) 198; bk. 17, L. ed. Ill; Russell o. Clark, 11 U. S. (7 Cr.) 69; bk. 3, L. ed. 271 ; Pasley V. Freeman, 3 T. R. 61 ; De Graves v. Smith, 2 Campb. 533; Corbett v. Brown, 5 Car. & P. 363; Haycraft v. Creasy, 2 East, 92; Hutchinson o. Bell, 1 Taunt. 558. 686 CHAP. II.] PEAUD. *427 elected to rescind within a reasonable time after discovering that the representation was false. § 664. The grounds of the doctrine in Equity were stated by the present Master of the Rolls in a very recent case.^ He says " It was put in two ways, either of which was suffi- cient. One way of putting the case was, ' a man is not to be allowed to get a benefit from a statement which he now admits to be false. * He is not to be allowed to [*427] say, for the purpose of civil jurisdiction, that when he made it he did not know it to be false ; he ought to have found that out before he made it.' The other way of putting it was this : ' even assuming that moral fraud must be shown in order to set aside a contract, you have it where a man, having obtained a beneficial contract by a statement which he now knows to be false, insists upon keeping that contract. To do so is a moral delinquency : no man ought to seek to take advantage of his own false statements. ' " ^ And now, since the Judicature Acts, the variance that existed between the rules of Common Law and Equity before these statutes came into operation, has disappeared, and the equitable rule will henceforth apply in all cases.^ § 565. It is necessary to guard the reader against conclud- ing that the case of Cornfoot v. Fowke,^ has remained un- questioned upon the point that the principal will not be lia- ble for the consequences of false representations made by his agent, with full belief in their truth, when the principal himself has a knowledge of the real facts. In The National Exchange Company of Glasgow v. Drew,^ it was commented on by Lords Cranworth and St. Leonards, the latter learned Lord saying, distinctly: "I should feel no hesitation, if I had myself to decide that case, in saying, that although the representation was not fraudulent, — the agent not knowing that it was false, — yet that as it in fact was false, and false 1 Redgrave v. Hurd, ubi supra, at ' Judicature Act, 1873; s. 25, p. 12. sub-s. 11. See per Jessel, M. R. 2 And see per Lord Blackburn in in Redgrave v. Hurd, 20 Ch. D. 1, Brownlie v. Campbell, 5 App. Cas. at C. A. at p. 12. p. 950. 1 6 M. & W. 358. 2 2 Macq. 103. 687 *428 AVOIDANCE OF THE CONTKACT. [BOOK III. to the knowledge of the principal, it ought to vitiate the con- tract;" [and the principle as thus stated was adopted by Lord Selborne in Ludgater v. Love.^] Lord Campbell, also, in Wheelton v. Hardisty,* said, " As to Cornfoot v. Fowke, which was brought before us to illustrate the liability of a principal for his agent, I am not called upon to say whether that case was well decided by the majority of the [*428] * judges in the Exchequer, although the voice of Westminster Hall was, I believe, rather in favor of the dissentient Chief Baron." And in Barwick v. The English Joint Stock Bank,^ Willes J. said, " I should be sorry to have it supposed that Cornfoot V. Fowke turned upon any thing but a point of pleading." § 566. [In Ludgater v. Love,^ the defendant's son, acting as the defendant's agent, had innocently represented that certain sheep which he sold to the plaintiff were sound. The defendant had previously instructed his son to represent that the sheep were sound, knowing that they were in fact affected with disease, but fraudulently withholding from his son knowledge of the truth. Held, by the Court of Appeal, following the dicta of the Judges (Rolfe, Alderson, and Parke, BB.) in Cornfoot v. Fowke,^ that the defendant was liable in an action for damages for the fraudulent misrepre- sentation. Lord Selborne cited at length (at p. 697) the observations of Lord St. Leonards in The National Exchange Company V. Drew,3 and pointed out that the case under consideration was identical with the one there suggested by that learned lord.] § 567. The subject was much discussed in Udell v. Ather- ton,i which, it is submitted, has been misunderstood to some extent.2 The facts were these: The defendant's traveller » 44 L. T. N. S. 694, C. A. post, 2 g m. & W. 358. P- 428. 8 2 Macq. 103, at p. 145. * 8 E. & B. 270; 26 L. J. Q. B. i 7 H. & N. 172; 30 L. J. Ex. 265-275. 337. « L. E. 2 Ex. 259 ; 36 L. J. Ex. ^ See note at p. 794 of Broom's 147. Leg. Max. (5th ed.) and 2 Sm. L. C. 1 44 L. T. N. S. 694, C. A. p. 92 (8th ed). 688 CHAP. II.] FEAUD. *429 sold a log of mahogany to tlie plaintiff, and warranted it sound, without authority, and knowing that it tvas defective. The buyers gave two bills of exchange for the price, at four and six months. The first bill was paid; before the maturity of the second bill, the plaintiff, who had been in possession of the log from the time of the sale, ordered it to be cut up, and then discovered that there was a defect, which reduced its value one half. This defect was patent on in- spection, * for it had been pointed out to the travel- [*429] ler on a previous occasion, when he attempted to sell the log to another person. The defendant was wholly inno- cent, knowing nothing either of the defect, or of the fraudu- lent representation of the traveller. The purchaser, on the defendant's refusal to make an allowance, brought an action for deceit. The Court was equally divided. Pollock C. B. and Wilde B. holding the action to be maintainable, and Bramwell and Martin BB. holding the contrary. But the two last-named judges dissented solely on the ground that the defendant was not liable in that form of action : and Martin B. very distinctly admitted that the buyer would have had the right to rescind the contract, on the ground of fraud committed by the agent, if the plaintiff had not de- prived himself of this remedy, by cutting up and using the log, so that he could not restore it. All the judges were of opinion that the fraud of the agent would affect the validity of the contract, but Martin B. pointed out, as the true dis- tinction, that " in an action upon the contract, the representa- tion of the agent is the representation of the principal, but in an action on the case for deceit, the misrepresentation or concealment must be proved against the principal." § 568. In the year 1867, two decisions, apparently not reconcilable, were rendered at about the same time by appellate Courts, each being ignorant of the case pending in the other. In Barwick v. The English Joint Stock Bank,i the case was argued in the Exchequer Chamber on the 8th of Feb- ruary, and the judgment rendered on the 18th of May by 1 L. E. 2 Ex. 259 ; 36 L. J. Ex. 147. 689 *430 AVOIDANCE OF THE CONTRACT. [BOOK HI. Willes J. in behalf of himself and Blackburn, Keating, Mel- lor, Montague Smith, and Lush, JJ. In the Western Bank of Scotland v. Addie,^ the case was argued in the House of Lords in the beginning of March, and judgment was rendered on the 20th of May, just two days after the decision in the Exchequer Chamber. § 569. In Barwick v. The English Joint Stock Bank, the fraud was committed by the manager of the defend- [*430] ant's bank * acting in the course of his business, and the third count in the declaration was for fraud and deceit by the defendants, to which they pleaded not guilty. Held, that the fraud committed by the manager was properly charged in the declaration, as the fraud of the defendants, and that the defendants were liable for the fraud of their agents. The fraud committed was the giving of a guaranty by the manager in behalf of the bank, he knowing and in- tending that the guaranty should be unavailing, and fraud- ulently concealing from the plaintiff the facts which would make it so. § 570. Willes J. in delivering the judgment (at p. 265) declared that in so deciding, " we conceive that we are in no respect overruling the opinions of my brothers Martin and Bramwell in Udell v. Atherton,i the case most relied on for the purpose of establishing the proposition that the principal is not answerable for the fraud of his agent. Upon looking at that case, it seems pretty clear that the division of opin- ion which took place in the Court of Exchequer arose, not so much upon the question whether the principal is answer- able for the act of an agent in the course of his business, a question which was settled as early as Lord Holt's time (Hern v. Mchols, 1 Salk. 289),^ but in applying that principle 2 L. R. 1 So. App. 146. in effecting a sale, which sale the 1 7 H. & N. 172 ; 30 L. J. Ex. 337. principal ratifies. Toledo W. & W, 2 A principal being liable for his E. Co. u. Kodrigues, 47 111. 188 agent's acts within the general scope of Minter v. Pacific R. R. Co., 41 Mo. his authority although contrary to his 503 ; Hill v. Miller, 76 N. Y. 32 private instructions, the principal Exchange Bank v. Monteath, 26 N. will be responsible for any fraudulent Y. 505 ; Scott v. McGrath, 7 Barb, misrepresentation made by an agent (N. Y.) 53 ; Commercial Bank 690 CHAP. II.] FRAUD. *430 to the peculiar facts of the case ; the act which was relied upon there as constituting a liability in the sellers, having been an act adopted by them under peculiar circumstances, and the author of that act not being their general agent in business as the manager of a bank is." As to the distinction here pointed out between the respon- sibility of the principal for the fraud of an agent employed to effect one sale, and that of an agent to do business gener- ally, it is not easy to appreciate how the principle can differ Norton, 1 Hill (N. Y.)501; Beals w. 21 "Wend. (N. Y.) 279; Jeffrey :.. Allen, 18 Johns. (N. Y.) 363; s. c. 9 Am. Dec. 221 ; Munn v. Commission Co., 15 Johns. (N. Y.) 44; s. c. 8 Am. Dec. 219; Lightbody v. North American Ins. Co., 23 Wend. (N. Y.) 18; Rossiter u. Rossiter, 8 Wend. (N. Y.) 494 ; s. c. 24 Am. Dec. 62 ; Winne v. Niagara Ins. Co., 13 N. Y. Week. Dig. 332 ; Hewitt v. Da vies, 7 N. Y. Week. Dig. 183; Reaney u. Culbertson, 21 Pa. St. 507 ; Butler v. Maples, 76 U. S. (9 Wall.) 760 ; bk. 19, L. ed. 822; Calais Steamboat Co. V. Van Petit, 67 U. S. (2 Black) 372 ; bk. 15, L. ed. 348 ; East India Co. u. Hensley, 1 Esp. Ill ; Todd v. Bmly, 7 Mees. & W. 427 ; Sykes v. Giles, 5 Mees. & W. 645 ; Flemyng v. Hector, 2 Mees. & W. 178. General and special agents. — There is an important distinction between general and special agency as affect- ing the liability of the principal. A general agent represents his principal in all matters generally pertaining to the business committed to him, but a special agent only represents his prin- cipal under a limited power for a par- ticular purpose. Toledo W. & W. R. Co. V. Rodrigues, 47 111. 188 ; Cruzan v. Smith, 41 Ind. 288 ; Minter v. Pacific R. R. Co., 41 Mo. 503; Shelton v. Merchants' Despatch Transportation Co., 59 N. Y. 258 ; Nelson v. Hudson R. R. Co., 48 N. Y. 498 ; Exchange Bank ti. Monteath, 26 N. Y. 505; Commercial Bank u. Norton, 1 Hill (N. Y.) 501; Anderson v. Coonley, Bigelow, 13 Wend. (N. Y.) 518 ; s. c. 38 Am. Dec. 476; Johnson v. South- worth, 3 N. Y. Week. Dig. 319; Whitehead v. Tuckett, 15 East, 400. Any act of a general agent within the scope of his authority, and any representation made by him will be binding upon the principal; but the authority of a special agent must be strictly pursued and his representa- tions must have been specially au- thorized to bind the principal. Thomp- son u. Stewart, 3 Conn. 172 ; s. c. 8 Am. Dec. 168; Stollenwreck u. Thacher, 115 Mass. 224; Snow v. Perry, 26 Mass. (9 Pick.) 539; Gor- don V. Buchanan, 5 Yerg. (Tenn.) 71 ; Talmage v. Third Nat. Bank, 91 N. Y. 531 ; Merchants' Bank v. Liv- ingston, 74 N. Y. 223; Martin v. Farnsworth, 49 N. Y. 555; McNeil V. Tenth Nat. Bank, 46 N. Y. 325; s. c. 7 Am. Rep. 341; Nixon u. Palmer, 8 N. Y. 398; Andrews v. Kneeland, 6 Cow. (N. Y.) 354; Davenport v. Buckland, Hill & Den. (N. Y.) 75 ; Collins v. Ralli, 20 Hun (N. Y.) 246 ; Beals v. Allen, 18 Johns. (N. Y.) 363; s. c. 9 Am. Dec. 221 Munn V. Commission Co., 15 Johns (N. Y.) 44; s. c. 8 Am. Dec. 219 Batty V. Carswell, 2 Johns. N. Y. 48 Deming v. Bailey, 2 Robt. (N. Y.) 1 Williams v. Walker, 2 Sandf. Ch. (N. Y.) 325; Delafield v. Illinois, 26 Wend. (N. Y.) 192; s. c. 2 Hill (N. Y.) 159; Blane v. Proudfit, 3 Call (Va.) 207 ; s. c. 2 Am. Dec. 546. 691 *431 AVOIDANCE OF THE CONTRACT. [BOOK III. in the two cases, if in each, the agent is acting in the busi- ness for which he was employed by the principal : but the observation of the learned judge on this point is of course no part of the decision in the cause. [*431] § 571. * [In that part of his judgment which immediately follows the foregoing passage, Willes J. lays down some general principles of law which have been fully recognized in subsequent cases. He continues : " But with respect to the question, whether a principal is answer- able for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can he drawn between the case of fraud and the case of any other wrong. The general rule is, that the master is answer- able for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved ; " and then, after illustrating the application of the principle to various cases, he adds : " In all these cases it may be said, as it was said here, that the master has not authorized the act. It is true he has not authorized the par- ticular act, but he has put the agent in his place to do that class of acts, and he must be ansiverable for the manner in which the agent has conducted himself in doing the business which it ivas the act of his master to place him in." These principles have been expressly adopted in a subse- quent series of cases including the two recent decisions of the Judicial Committee of the Privy Council in Mackay v. The Commercial Bank of New Brunswick, L. R. 5 P. C. 394; and in Swire v. Francis, 3 App. Cas. 106 ; and by Lord Selborne in Houldsworth v. The City of Glasgow Bank, 5 App. Cas. 317, post, p. 435. And in Weir v. Bell,i Bramwell L. J. while considering the reasoning of Mr. Justice Willes unsatisfactory on the ground that there is an obvious distinction between fraud and any other tort, viz., that fraud is wilful, and a mas- ter, as a rule, is not liable for the wilful wrong of his servant, yet considered that the rule laid down was a 1 3 Ex. D. 238, C. A. at p. 244. 692 CHAP. II.] FRAUD. *432 useful one and that the case might be supported on another ground, viz., that any person who authorizes another to act for him in the making of any contract, undertakes for the absence of fraud in that person in the execution of the authority given. * The principles, therefore, laid down by Willes J. [*432] may now be taken to be the recognized law upon the subject.] § 572. On the other hand, in the Western Bank of Scot- land V. Addie,! at the close of the argument on the 12th of March, the Lords intimated that " as the decisions conflicted, they would take time to consider the case, with a view to the laying down of some general rules" and it was not till the 20th of May that the decision was given. The plaintiff's action was based on the allegation that he had been induced to buy from the company a number of its shares by the fraudulent representations of its agents, the directors. The demand, according to the forms of the Scotch law, was in the alternative for a restitutio in integrum, or for damages. The principles governing the case were laid down by the Lord Chancellor (Lord Chelmsford), and by Lord Cranworth, in entire conformity with the opinion of Martin B. in Udell v. Atherton. Lord Chelmsford said : " The dis- tinction to be drawn from the authorities, and which is sanctioned by sound principle, appears to be this : — where a person has been drawn into a contract to purchase shares belonging to a company by fraudulent misrepresentations of the directors, and the directors in the name of the company seek to enforce that contract, or the person who has been deceived institutes a suit against the company to rescind the contract on the ground of fraud, the misrepresentations are imputable to the company, and the purchaser cannot be held to his contract, because a company cannot retain any benefit which they have obtained through the fraud of their agents. But if the person who has been induced to purchase shares by the fraud of the directors, instead of seeking to set aside the contract prefers to bring an action for damages for the 1 L. R. 1 Sc. App. 146. 693 *433 AVOIDANCE OF THE CONTKACT. [BOOK III. deceit, such an action caymot he maintained against the com- pany, hut only against the directors personally. ^^ " It may seem a hardship on the pursuer that he should be compelled to keep the shares, because, in ignorance of the fraud practised on him, he retained them until an event occurred which changed their nature, and prevented [*433] his * returning the very thing which he received. But he is not without remedy. If he is fixed with the shares, he may still have his action for damages against the directors, supposing he is able to establish that he Avas induced to enter into the contract by misrepresentations for which they are responsible." § 573. Lord Cranworth first concurred in deciding that the plaintiff had lost his right to rescind the contract, be- cause he was unable to put the adverse parties in the same situation in which they stood when the contract was entered into. On the other point, his Lordship said : " The appel- lants are not the persons who were guilty of the fraud. An incorporated company cannot in its corporate character be called on to answer in an action for deceit. But if by the fraud of its agents third persons have been defrauded, the corporation may be made responsible to the extent to which its funds have profited by those frauds. If it is supposed fi'om what I said when the case of Ranger v. Great Western Railway Company,^ was decided in this House, I meant to give as my opinion that the company could in that case have been made to answer as for a tort in an action for deceit, I can only say I had no such meaning. ... In what I said, I merely wished to guard against its being supposed that I assented to the argument, that there would be no means of reaching the company, if the fact of the fraud had been estab- lished. By what particular proceeding relief could have been obtained is a matter on which I did not intend to express, and indeed had not formed any opinion. " An attentive consideration of the cases has convinced me that the true principle is that these corporate bodies, through whose agents so large a portion of the business of the coun- ' 5 H, L. c. 72 694 CHAP. II.] FEAUD. *434 try is now carried on, may be made responsible for the frauds of those agents to the extent to which the companies have pro- fited from these frauds ; hut that they cannot he sued as wrong- doers, hy imparting to them the misconduct of those ivhom they have employed? A person defrauded by directors, if the sub- sequent acts and dealings of the parties have been such as to leave him no remedy but an action *for [*434] the fraud, must seek his remedy against the directors personally.''' The plaintiff was therefore held not entitled to recover on either ground.^ § 674. It is submitted that this being the tribunal of the last resort, this case must be considered as settling conclu- sively, that where a purchaser has been induced to buy through the fraud of an agent of the vendor, the latter being innocent, the purchaser may 1st. Rescind the contract, if he can return the thing bought in the condition in which he received it, but not otherwise : or he may- 2dly. Maintain an action for deceit against the agent personally; but 3dly. Cannot maintain that, or any action in tort, against the innocent principal. Further, that though he would have a claim against the principal for a return of the price to the extent to which the latter has profited by the fraud of his agent, his remedy would be in equity ; for it was admitted on all sides, in Udell V. Atherton, that if the action for deceit would not lie, the purchaser was remediless at law, when not in a condition to sue for a rescission, there being no form of action at law applicable to the case. 2 Kennedy v. McKay, 43 N. J. L. v. Ward, 3 Keyes (N. Y.) 393 ; Durst (14 Vr.) 288; s. c. 39 Am. Rep. 581 ; v. Burton, 2 Lans. (N. Y.) 137 ; s. c. Allerton v. AUerton, 50 N. Y. 670 ; 47 N. Y. 167 ; Sandford v. Handy, 23 Davis V. Bemis, 40 N. Y. 453 n. ; Wend. (N. Y.) 260 ; Western Bank of Elvvell V. Chamberlin, 31 N. Y. 619 ; Scotland v. Addie, L. R. 1 Sc. App. 146. Graves v. Spier, 58 Barb. (N. Y.) 387; ^ gee Kennedy v. McKay, 43 N. J. Chesterii. Dickerson, 52Barb. (N.Y.) L. (14 Vr.) 288; s. c. 39 Am. Rep. 349; Sharp v. New York, 40 Barb. 581. See, also, Udell v. Atherton, 7 (N. Y.) 257 ; Hunter v. Hudson River H. & N. 172 ; Western Bank of Scot- Iron Co., 20 Barb. (N. Y.) 493; Craig land v. Addie', L. R. 1 Sc. App. 146. 695 *435 AVOIDANCE OF THE CONTRACT. [BOOK HI. § 675. [It is necessary to reconsider the 3d principle above laid down in the light of more recent decisions. In Swift V. Winterbotham,! decided in 1873, the Court of Queen's Bench (Cockburn C. J. and Quain J.) following Barwick v. The English Joint Stock Bank, held the Glouces- tershire Banking Company liable for the false representation of its manager, made in the course of conducting the busi- ness of the bank. In Mackay v. The Commercial Bank of New Brunswick,^ decided in 1874, one Sancton, the cashier of the defendant bank, whose duty it was to obtain the acceptance of bills [*435] in which the *hanh was interested, sent a telegram to the plaintiffs whereby he falsely, but without the knowledge of the president and directors of the bank, made a representation to the plaintiffs, which, by omitting a mate- rial fact, misled them, and induced them to accept certain bills in which the bank was interested, which bills the plain- tiffs had to pay, and of which the defendant bank obtained the benefit, and it was held, contrary to the dicta of Lords Chelmsford and Cranworth in the case of The Western Bank of Scotland v. Addie, that the bank was liable in an action of deceit, the false representation having been made by Sanc- ton within the scope of his authority and for the benefit of the bank, and they having profited by it. Their lordships, however, refrained from stating what their decision would haye been — (1) If the plaintiffs had not proved that the bank had profited by the fraud of their agent ; (2) If they had not proved the representations of Sancton to have been made within the scope of his authority, but had proved that the defendants accepted the benefit of it with notice of the fraud. § 576. In Houldsworth v. The City of Glasgow Bank and Liquidators, decided in 1880,^ the plaintiff had bought from ^ L. R. 8 Q. B. 244, overruled general doctrine. Per Coleridge C. J. in Ex. Ch. L. R. 9 Q. B. 301 {sub at p. 312. nom. Swift u. Jewsbury) upon an- ^ l jj 5 p q 394, other point, without impugning the 1 5 App. Cas. 317. 696 CHAP. II.] FEAUD. *436 The City of Glasgow Bank a co-partnership registered with unlimited liability under the Companies Act, 1862, 4,000L of its stock in 1877. He was registered as a partner, received dividends, and acted as a partner until the liquidation. In October, 1878, the bank went into liquidation, and the plain- tiff was entered on the list of contributories and paid calls. In December, 1878, he brought this action, in the nature of an action of deceit, against the bank and its liquidators to recover damages in respect of the sum he had paid for the stock, the money he had already paid for calls, and the esti- mated amount of future calls. He found his claim to relief on the ground that he was induced to buy the stock by reason of the fraudulent misrepresentations and concealments of the manager and directors. He admitted that after the Avinding up had * commenced it was too [*436] late for him to claim rescission of his contract and restitutio in integrum. It was held by the House of Lords that the action was irrelevant and not maintainable. The distinction between shares in a company and any other chattels, viz., that a shareholder in a company is a partner in it, was pointed out, and it was shown that any attempt, while he remains a partner in the company, to throw upon the as- sets of the company and the other contributories the loss he had sustained was at variance with the contract he had entered into with his partners, viz., that the assets and con- tributions shall be applied in payment of the debts and liabilities of the company, which contract he had, by remain- ing in the company until its liquidation, chosen to affirm. The decision in The Western Bank of Scotland v. Addie was approved and followed. But, on the question whether a cor- poration can be called on to answer in an action of deceit by a person other than a sharehoder, the reader is referred to the judgments of Lord Selborne,^ and Lord Blackburn,^ where the previous cases are discussed, particularly Barwick V. The English Joint Stock Bank, The Western Bank of Scotland v. Addie, and Mackay v. The Commercial Bank of New Brunswick. 2 5 App. Cas. .326. = At p. 338. 697 *4S7 AVOIDANCE OF THE CONTRACT. [BOOK III. § 577. Lord Selborne,^ adopts the principle laid down by Mr. Justice Willes in the first of those cases, and adds, " That principle received full recognition from this House in The National Exchange Co. v. Drew^ and New Brunswick Railway Co. v. Conybeare,^ and was certainly not meant to be called in question by either of the learned Lords who decided The Western Bank of Scotland v. Addie. It is a principle not of the law of torts or of fraud or deceit, but of the law of agency, equally applicable whether the agency is for a corporation (in a matter within the scope of the corporate powers') or for an individual, and the decision in all these cases proceeded, not on the ground of any imputation of vicarious fraud to the principal, but because (as it was well put by Mr. Justice Willes in Barwick's case) " with respect to the question, whether a principal is answerable [*437] for the act of his agent in * the course of his master's business, no sensible distinction can be drawn be- tween the case of fraud and the case of any other wrong." And Lord Blackburn,* points out that Lord Chelmsford in The Western Bank of Scotland v. Addie, laid down no general position as to all contracts, and that his dicta and those of Lord Cranworth (who does use language applica- ble to all contracts) are reconcilable with Barwick's and Mackay's cases if confined to the particular and peculiar contract then under consideration, viz., a contract to take shares, adding, in conclusion,'^ " I do not say that the differ- ence of the contract from that to buy shares would dis- tinguish the case. All that I say is that if such a case arises, the consideration of the question whether it is decided by Addie v. The Western Bank is not meant to be prejudiced by anything I now say." § 578. The combined effect of the decisions in The Western Bank of Scotland v. Addie and Houldsworth v. The City of Glasgow Bank, is that the only remedy of a shareholder in a joint stock company, who has been induced to purchase 1 5 App. Cas. 326. * 5 App. Cas. 339. 2 2 Macq. 103. s At p. 341. 3 9 H. L. C. 711. 698 CHAP. II.] FEATJD. *437 shares by the fraud of the agent of the company, is rescis- sion of his contract and restitutio in integrum. If he is once debarred from seeking that relief by the declared insolvency of the company or from any other cause, there is no other remedy open to him except to bring a personal action against the agent who has been actually guilty of the fraud. It is submitted, therefore, that the 3d proposition above laid down (ante, p. 434) must be modified thus : — 3dly. The purchaser can maintain an action of deceit against the innocent principal, where the fraud of the agent has been committed within the scope of his authority, and where the principal has been benefited by it.^ 4thly. In this respect it makes no difference whether the principal be a corporation or an individual.^ 1 Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259; Mackay v. The Commercial Bank of New Bruns- wick, L. E. 5 P. C. 394 ; per Fry J. in Cargill v. Bower, 10 Ch. D. at p. 514. 2 Mackay v. The Commercial Bank of New Brunswick, ubi supra; Houlds- worth V. The City of Glasgow Bank, 5 App. Cas. 317, per Lord Selborne, at p. 326, and the more guarded remarks of Lord Blackburn, at pp. 339, 340. The liability of principal for deceit of agent. — The principal will he lia- ble for the deceit of his agent in an act within the scope of his au- thority. See Eeed v. Peterson, 91 111. 288, 298; Durant v. Rogers, 87 111. 508, 511 ; McBean v. Fox, 1 111. App. 177, 185; Linton ;;. Housh, 4 Kans. 535 ; Haskit v. Elliott, 58 Ind. 493 ; Fairfield Savings Bank v. Chase, 72. Me. 226,230; Lamm v. Port De- posit Association, 49 Md. 233, 241; s. c. 23 Am. Eep. 246 ; Tome v. Par- kersburg Branch E. E., 39 Md. 36, 71, 85 ; Coddington v. Goddard, 82 Mass. (16 Gray) 436, 441 ; Commonwealth v. Nichols, 51 Mass. (10 Mete.) 259; s. c. 43 Am. Dec. 432 ; Locke v. Stearns, 42 Mass. (1 Mete.) 560 ; s. c. 35 Am. Dec. 382 ; Lawrence v. Hand, 23 Miss. 103 ; Indianapolis, P. & C. Ey. Co. v. Tyng, 63 N. Y. 653, 655 ; Wakeman V. Dalley, 51 N. Y. 27 ; Davis v. Bemis, 40 N. Y. 453 (note) ; Elwell v. Cham- berlin, 31 N. Y. 611, 619; Griswold v. Haven, 25 N. Y. 595 ; Bennett v. Jud- son, 21 N. Y. 238; Craig <.. Ward, 3 Keyes (N. Y.) 387; Sandford v. Handy, 23 Wend. (N. Y.) 260, 268 ; Keough V. Leslie, 92 Pa. St. 424; Mundorff v. Wickersham, 63 Pa. St. 87;' s. c. 3 Am. Rep. 531; Tagg v. Tennessee Nat. Bank, 9 Keisk. (Tenn.) 479; Fitzsimmons v. Joslin, 21 Vt. 129; s. c. 52 Am. Dec. 48; Crump V. United States Mining Co., 7 Gratt. (Va.) 352, 369 ; ». c. 56 Am. 116; Law v. Grant, 37 Wis. 548, 557; Stockwell v. United States, 80 U. S. (13 Wall.) 531, 550 ; bk. 20, L. ed. 491 ; Cliquot's Champagne, 70 U. S. (3 Wall.) 114, 140; bk. 18, L. ed. 116; Barreda v. Silsbee, 62 U. 8. (21 How.) 146, 104 ; bk. 16, L. ed. 86; Veazie v. WiUiams, 49 U. S. (8 How.) 134, 157; bk. 12, L. ed. 1018; American Fur Co. v. United States, 27 U. S. (2 Pet.) 363, 368 ; bk. 7, L. ed. 450 ; United States v. Gooding, 25 U. S. (12 Wheat.) 460, 469; bk. 6, L. ed. 693; Erb o. Great Western R. Co., 3 Ont. App. 446. 699 *438 AVOIDANCE OF THE CONTRACT. [BOOK III. [*438] * 5thly. A shareholder in a joint stock company, who has been induced to purchase his shares by the fraud of the agent of the company, cannot bring an action of deceit against the company, so long as he is a member of it.-3] § 579. [In several cases, where shareholders in a company liave endeavored to render the directors of the company liable for false and fraudulent representations contained in prospectuses or other documents, it has become necessary to consider the relationship existing between the directors and the persons who have actually committed the fraud. In Peek V. Gurney,^ where the action was brought by a share- holder against the directors of Overend, Gurney & Co., for false and fraudulent representations contained in the pro- spectus of the company intended to carry on the business of the firm of Overend & Gurney, it was attempted on behalf of Barclay, one of the defendant directors, to relieve him from liability on the ground that he had taken no part in, and given no express authority for the preparation and publication of the fraudiilent prospectus which, in fact, he had never read until after the company had stopped pay- ment. But this defence was held unavailing, and Lord Chelmsford, in moving the judgment of the House of Lords, said (at p. 392), " The short answer to this defence is, that he was acquainted with all that the other directors knew ; he consented to become a director, knowing that a prospec- tus would, as a matter of course, be issued: he signed the memorandum and articles of association referred to in the prospectus ; and, upon receipt of the prospectus, he filled up and signed the form of application for shares, printed with and forming part of the prospectus. Can he, upon these facts, be heard to say that he did not authorize the prospec- tus, or sanction its publication ? " In Weir v. Bell,^ the defendant directors had been author- ized by the company to issue debentures. Afterwards, the 3 Western Bank of Scotland v. i L. K. 6 H. L. 377. Addie, L. R. 1 Sc. App. 146; Houlds- 2 3 Ex. D. 238, C. A.; s. u. sub worth V. The City of Glasgow Bank nom. Weir r. Barnett, ibid. 32. 5 App. C.TS. 317. 700 CHAP, ir.] FEATTD. *439 directors at a board meeting authorized the secre- tary of * the company to employ a firm of brokers [*439] to place the debentures. The secretary accordingly employed brokers on behalf of the company, who, without any express authority from the directors, issued a prospectus containing false and fraudulent statements, on the faith of which the plaintiff purchased debentures which proved to be worthless. The action was brought against several of the directors in the first instance, and the judgment of the Exchequer Divis- ion was in favor of them all, proceeding upon the ground that the brokers were the agents of the company, and not of the directors, and disregarding the finding of the jury upon this head as contrary to the evidence. The plaintiff appealed only against the judgment in favor of defendant Bell. It was held by the majority of the Court of Appeal, consisting of Cockburn C. J., Bramwell and Brett L.JJ., that, on the facts disclosed, the defendant was not liable. Cockburn C. J. based his judgment, which received the concurrence of Brett L. J. on the ground that the defendant Bell, although a party as director to the receipt of the money paid for the debentures, was not aware of the falsity of the statements contained in the prospectus, and derived no per- sonal benefit from the money so received.^ Bramwell L. J. based his judgment on the ground that the defendant Bell had been guilty of no moral fraud, and not being the principal of the brokers, could not be held to have impliedly undertaken for the absence of fraud in them in issuing the prospectus. Cotton L. J., on the other hand, delivered a powerful dis- sentient judgment, holding that the finding of the jury, that the brokers were the agents of the directors, was warranted by the evidence, that the brokers in preparing and issuing the prospectus discharged a part of the duty entrusted to * At p. 249 of the report, Cock- one of the questions left open by burn C. J. intimates that he would the Judicial Committee of the Privy have held the defendant liable if, Council in Mackay v. The Com- after knowledge of the fraud, he had mercial Bank of New Brunswick, derived benefit from it. This was ante, p. 435. 701 *440 AVOIDANCE OF THE CONTEACT. [BOOK III. the defendant as one of the directors by the resolution au- thorizing the issue of debentures, and that it was the [*440] defendant's duty as * director to ascertain whether the statements in the prospectus were true or false ; and he referred to the passage above cited from Lord Chelms- ford's judgment in Peek v. Gurney, as confirming this view. § 580. And in Cargill v. Bower,i Fry J. following the de- cision of the Exchequer Division in Weir v. Bell, in which the Court of Appeal had not then delivered their judgment, held that a director of a company is not liable for a fraud committed by his co-directors, or by any other agent of the company, "• unless he has either expressly authorized, or tacitly permitted its commission ; " and he reconciled this decision with the principle applied by the House of Lords to Barclay's case in Peek v. Gurney, on the ground that Bar- clay must be considered to have there impliedly authorized the commission of the fraud, inasmuch as he had given authority to his co-directors to issue a prospectus, although from his knowledge of the affairs of the firm of Overend & Gurney, he must have been aware that any prospectus would necessarily be fraudulent.^] § 581. It must not be concluded from this reviev/ of the authorities that the purchaser who has been induced by false representations to make the contract, is always without remedy because the vendor believed the statements to be true, and was innocent of any fraudulent intent. These 1 10 Ch. T>. 502. V. Dalley, 51 N. Y. 27; s. c. 10 Am. ^ Fraudulent representations — What Rep. 551. Where the director of a constitutes. — It would seem that in corporation knowingly issues or sane- order to maintain an action for fraud tions the circulation of a prospectus founded upon representations made containing false statements of ini- by the defendant, or his agent, that material facts, the natural tendency it must be made to appear that he of which is to deceive and to induce believed, or had reason to believe, at the public to purchase the corporate the time he made them, that the stock, is liable for the damages sus- representations were false or with- tained by one who, relying upon out knowledge, he assumed, or in- such representations, is induced to tended to convey the impression that make a purchase. Morgan v. Skiddy, he had actual knowledge, of their 62 N. Y. 319. See Wiloox v. Hender- truth, and that the plaintiff relied son, 64 Ala. 535. upon them to his injury. Wakeman 702 CHAP. II.] FKAUD. *441 cases only establish that the vendor has committed no wrong, and is therefore not liable in an action of deceit, or any other action founded on tort. But, in very many instances, a rep- resentation made by the vendor amounts in law to a war- ranty, and when this is the case, the purchaser has remedies on the contract, for breach of the warranty. The rules of law by which to determine when a representation is a war- ranty, and what are the rights of the buyer for a breach of this warranty, when the representation is false, are treated fos.t. Book IV., Part 2, Ch. 1, on Warranty. The law as to the effect of innocent misrepresentation of law or of fact, has been discussed, ante, p. 376. ^ § 582. *The case of Feret v. HilP has been [*441] omitted in the foregoing review, in order not to in- terrupt the exposition of the point directly under discussion, but the case well deserves consideration. It was in its facts the converse of Cornfoot v. Fowke. The defendant Hill was the owner of a tenement, and the plaintiff sent an agent to him to give assurances of the plaintiff's good character and reputation, in order to induce the defendant to let the prem- ises to the plaintiff. The agent was innocent, and was honest in his assurances of the plaintiff's good character, but in point of fact the plaintiff, who pretended that he wanted the premises for carrying on business as a perfumer, intended to convert them into a brothel. The plaintiff was let into possession and used the premises as a brothel, and the defendant discovering the fraud practised on him, ejected 1 Representation which amounts to a Kans. 190, that where the contract of warranty will render the party making sale is allowed to remain in full force it liable where it is false and is relied and each party retains all that he upon by the other party to the con- received under and by virtue of it, tract. Wilcox v. Henderson, 64 Ala. the vendor is liable to the vendee in .335; Bower «. Fenn, 90 Pa. St. 359, an action at law, for damages only 362 ; s. u. 35 Am. Rep. 652 ; Weimer where the statements are made fraudu- V. Clement, 37 Pa. St. 147 ; s. c. 78 lently, and that he is not liable where Am. Dec. 411; Jackson v. Wetherill, they are made innocently, honestly, 7 Serg. & R. (Pa.) 122; McFarland and in good faith. V. Newman, 9 Watts (Pa.) 55; s. c. i 15 C. B. 207; 23 L. J. C. P. 183. 34 Am. Dec. 497 ; Fisher o. Worrall, Commented on and distinguished in 5 Watts & S. (Pa.) 478. However, Milliken v. Thorndike, 103 Mass. 382, it is held in DaLee v. Blackburn, 11 386. 703 *442 AVOIDANCE OF THE CONTEACT. [BOOK III. the plaintiff forcibly from the apartments, after having given him a notice to quit, which he disregarded. The plaintiff then brought ejectment to recover possession of the apart- ments, and the jury found, first, that the plaintiff, at the time he entered into the agreement, intended to use the premises for a brothel ; and secondly, that he had induced the defendant to enter into the agreement hy fraudulent misrep- resentation as to Ms character^ and as to the pwpose for which he wanted the premises. The verdict was for the defendant, and Crowder J. reserved leave to the plaintiff to move to enter the verdict in his favor, if the Court should be of opinion that the agreement, notwithstanding this finding, was valid. The motion prevailed, and the plaintiff was held en- titled to enforce the agreement, on the ground that the mis- representation was of a fact collateral to the agreement, Jervis C. J. saying that there was no misrepresentation " as to the legal effect of the instrument which he (the defendant) exe- cuted, n,or as to what he was doing, or that he was doing one thing, when in fact he was doing another." The other judges, also, put the case upon the ground that the Court was not called on to enforce any agreement at all, but to [*442] replace premises in the possession of *a man who had an executed legal title to the possession : that it was impossible to say that nothing passed under the demise, simply because it was obtained by fraudulent misrepresen- tation. The effect of this decision seems to be, that a defrauded lessor, who has actually executed a demise, cannot treat it as a nullity, but must proceed to have it rescinded on the ground of the fraud by an appropriate tribunal, before treating it as non-existent : such appropriate tribunal not being a court of law, but one of equity. [And now, under the Judicature Acts, when such relief is sought by the plaintiff, the Chancery Division of the High Court is the appropriate tribunal. Judicature Act, 1873, s. 34, subs. 3, ante, p. 370.] § 583. In further illustration of the effect of fraudulent representations to the prejudice of the purchaser, the reader 704 CHAP. II.] FRAUD. *44S is referred to the series of decisions rendered in cases where shareholders in companies have attempted to relieve them- selves from responsibility by showing that they had been induced to take the shares through fraudulent representations of the directors. These cases are all reviewed in Oakes v. Turquand,! decided in the House of Lords in August, 1867, in which it was settled that such contracts are voidable only, not void, and that the defrauded shareholders cannot relieve themselves from responsibility to creditors, by disaffirming the contract after the company has failed, and has been ordered to be liquidated in Chancery, [and the same prin- ciple applies to a voluntary winding up.^] § 684. [By 30 & 31 Vict. c. 131, s. 88 (Companies Act, 1867), it is enacted, that " every prospectus of a company and every notice inviting persons to subscribe for shares in any joint stock company, shall specify the dates and the names of the parties to any contract entered into by the company, or the promoters, directors, or trustees thereof, before the issue of * such prospectus or notice, whether [*443] subject to adoption by the directors, or the company, or otherwise ; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the promoters, directors, and officers of the company knowingly issuing the same as regards any person taking shares in the company on the faith of such prospectus, unless he shall have had notice of such contract." ^ ' L. R. 2 H. L. 325. See, also, 96 TJ. S. (6 Otto) 328 ; bk. 24, L. ed. Tennent v. The City of Glasgow 818; Chubb v. Upton, 95 U. S. (5 Bank, 4 App. Cas. 615, and Houlds- Otto) 667; bk. 24, L. ed. 524 ; Upton worth V. The City of Glasgow Bank, v. Tribilcock, 91 U. S. (1 Otto) 45 ; 5 App. Cas. 317, ante, p. 435; and bk. 23, L. ed. 523; Ogilvie v. Knox Burgess' case, 49 L. J. C. H. 541. Ins. Co., 63 U. S. (22 How.) 380 ; bk. 2 Stone V. City and County Bank, 16, L. ed. 349; Thompson on Liability 3 C. P. D. 282, C. A. See, also, of Stockholders, sec. 142. Vreeland v. New Jersey Stone Co., ' Cornell v. Hay, L. R. 8 C. P. 29 N. J. Eq. (2 Stew.) 190i Scorill 328; Askew's case, 22 W. R. 762; V. Thayer, 105 U. S. (15 Otto) 143, Charlton u. Hay, 31 L. T. N. S. 437; 149 ; bk. 26, L. ed. 968 ; County of 23 W. R. 129 ; Cover's Case, 1 Ch. Morgan v. Allen, 103 U. S. (13 Otto) D. 182, C. A. ; Craig o. Phillips, 3 498, 509 ; bk. 26, L. ed. 498 ; Hawley^ Ch. D. 722 ; Phosphate Sewage Co. V. Upton, 192 U. S. (12 Otto) 314; v. Hartmont, 5 Ch. D. 394, C. A.; bk. 26, L. ed. 176 ; Pullman v. Upton, New Sombrero Co. v. Brlanger, 5 Ch. 705 *444 AVOIDANCE OF THE CONTRACT. [BOOK III. It would be beyond the scope of this work to examine all the cases which have been decided on the question what contracts must be set out under this section, as to which there has been a great divergence of opinion. The reader is referred to the note on this section in Mr. Buckley's work on the Companies Acts, 8d ed. p. 455.] § 585. It would, be an onerous and scarcely useful task to enumerate the various devices which, in adjudicated cases, have been held by the courts to be frauds on purchasers. The principles stated in this chapter have been illustrated in numerous decisions.^ Some of those which have most fre- quently occurred in practice will be presented as examples. In Bexwell v. Christie,^ it was held to be fraudulent in the vendor to bid by himself or agents at an auction sale of his own goods, where the published conditions were " that the highest bidder shall be the purchaser, and if a dispute arise, to be decided by a majority of the persons present." Lord Mansfield, also, in that case held it to be a fraud on the pub- lic, and therefore on the buyer, for the vendor falsely to describe his goods offered at auction as " the goods of a gen- tleman deceased, and sold by order of his executor." [*444] * The foregoing case was highly eulogized, and followed by Lord Kenyon and the King's Bench in Howard v. Castle ; ^ and the employment of " puffers " as they are termed, that is, persons engaged to bid in behalf of the vendor in order to force up the price against the public, has ever since been held fraudulent. D. 73, C. A.; 3 App. Cas. 1218; 3 Taunt. 274; Abbotts ^. Barry, 2 Bagnall v. Carlton, 6 Cli. D. 130; B. & B. 369. s. 0. in C. A, 6 Ch. D. 371 ; Twycross 2 i Cowp. 395. ^. Grant, 2 C. P. D. 469, C. A. ; SuUi- <* g T. R. 642. See, also, Wheeler van V. Mitcalfe, 5 C. P.D.455, C. A.; v. Collier, 1 M. & W. 123; Crowder Arkwright v. NewboW, 17 Ch. D. 301, v. Austin, 3 Bing, 368 ; Rex v. Marsh, C. A. 3 Y, & J. 331 ; Thornett v. Haines, 1 Early v. Garret, 9 B. & C. 928 ; 15 M. & W. 367 ; Green «.Baverstock, Duke of Norfolk v. Worthy, 1 Camp. 14 C. B, N. S. 204, and .32 L. J. C. P. 340; Hill v. Gray, 1 Stark. 434; 180. See, also, Darst c. Tliomas, 87 Jones V. Bowden, 4 Taunt. 847; HI. 221 ; Latham «. Morrow, 6 B. Mon. Barber v. Morris, 1 Mood. & R. 62; (Ky.) 630; Baham <,. Bach, 13 La. Tapp V. Lee, 3 B. & P. 367; Corbett 287 ; s. c. 23 Am. Dec. 561 ; Moncriefi u. Brown, 8 Bing. 33 ; Hill v. Perrott, v. Goldsborough, 4 Har. & McH. (Md.) 706 CHAP. II.] FRAUD. *445 § 586. In the case of Warlow «. Harrison, decided in Queen's Bench,^ and afterwards in the Exchequer Chamber,^ the law on the subject of the auctioneer's responsibility in such cases was examined on the following state of facts : — The defendant was an auctioneer, having a horse repositorj^, and they advertised for sale a mare, " the property of a gentleman, without reserve." The plaintiff attended the sale, and bid 60 guineas, and another person bid 61 guineas. The plaintiff, being informed that this last person was the owner, declined to bid further, and the horse was knocked down to the owner as purchaser at 61 guineas. The plaintiff at once informed the defendant and the owner that he claimed the mare as the highest bond fide bidder, the sale having been advertised "without reserve." The owner refused to let him have the mare, and he thereupon tendered to the defend- ant, the auctioneer, 60 guineas in gold, and demanded the mare. The plaintiff had notice of the conditions of the sale, among which were the following : — " First. The highest bidder to be the buyer, and if any dispute arise between two or more bidders before the lot is returned into the stables, the lot so disputed shall be put up again, or the auctioneer may declare the purchaser. Third. The purchaser being declared, must immediately give in his name and address, with, if required, a deposit of 5s. in the pound on account of his purchase, and pay the remainder before such lot is delivered. Eighth. Any lot ordered for this sale and sold by private contract by the owner, or *advertised [*445] 'without reserve,' and bought by the owner, to be 282; s. c. 1 Am. Dec. 407; Lee v. St. 251; s. c. 75 Am. Dec. 592; Lee, 19 Mo. 420 ; Towle v. Leavitt, 23 Staines u. Shore 16 Pa. St. 200 ; s. c. N. H. 360; Cotiover v. Walling, 15 55 Am. Dec. 492; Donaldson v. Mc- N. J. Eq. (2 McCart.) 173; Trust i;. Roy, 1 Browne (Pa.), 346; Veazie Delaplaine, 3 E. D. Smith, (N. Y.) «. Williams, 8 Story C. C. 611 ; s. c. 219 ; Wolfe v. Luyster, 1 Hall (N. Y.) 49 U. S. (8 How.) 184 ; bk. 12, L. ed. 146; Fisher i\ Hersey, 17 Hun (N. Y.) 1018; Dimmock v. Hallett, L. R. 2 370 ; National Fire Ins. Co. v. Loomis, Ch. App. 21, 29 ; Gilliat u. Gilliat, 11 Paige Ch. (N. Y.) 431; Woods L. R. 9 Eq. 60; Chimlain «. Bellow, V. Hall, 1 Dev. (N. C.) Eq. 411; 1 Ir. R. 1 Eq. 289; 2 Kent Com. 537, McDowell V. Simms, 6 Ired. (N. C.) 539; 1 Story Eq. Jur. sec. 293. Eq. 278 ; Yerkes u. Wilson, 81 Pa. ^ 28 L. J. Q. B. 18. St. 9 ; Backenstoss v. Stahler, 33 Pa. 2 i e. & E. 295 ; 29 L. J. Q. B. 14. 707 *445 AVOIDANCE OF THE CONTRACT. [BOOK III. liiible to the usual commission of 21. per cent." As the judgment of the Exchequer Chamber turned much upon the pleadings, it is necessary to state that the plaintiff's declara- tion, after alleging the advertisement for sale without reserve, went on to aver that he attended the sale and became the highest bidder, " and thereupon and thereby the defendant became and was the agent of the plaintiff to complete the contract ; and then charged a breach of the defendant's duty, to the plaintiff as the plaintiff's agent in failing to complete the contract in behalf of the plaintiff. The defendant pleaded : First, not guilty. Secondly, that the plaintiff was not the highest bidder. Thirdlj^, that the defendant did not become the plaintiff's agent as alleged. In the plaintiff's argument the following civil law author- ities were cited : Cicero de Officiis, lib. 3, s. 15, " Tollendum est igitur ex rebus contrahendis omne mendacium ; non lici- tatorem venditor, nee qui contra se liceatur,^ emptor appo- net : " and Huberus, lib. 18, tit. 2, s. 7, Prselectiones : " Sed hoc facile constabit, si venditor falsum emptorem inde ab initio subornet, qui plus aliis offerat, ut veris emptoribus prsemium maximae licitationis, vulgo, stryckgelt, quo nihil usitatius, intercipiat, dolo detecto, venditorem teneri ad prffiraium vero licitatori maximo prsestandum, quia hoc est contra fidem conventionis perfectse qua statutum est ut maximo licitatori prsemium daretur." § 687. Lord Campbell C. J. delivering the unanimous judgment of the Queen's Bench, holding : First. — That it was not true in point of law that the auc- tioneer is the agent of the purchaser until the acceptance of his bid as being the highest, which acceptance is shown by knocking down the hammer; and that till then the auc- tioneer is exclusively the agent of the vendor. Secondly. — That both parties may retract till the hammer is knocked down : that no contract takes place between 3 The better reading is, qui contra sion that the property is not worth reliceatur, " a person to bid back " what has been offered for it. The or lower than some one has already reading se liceatur is condemned by bid, in order to produce the irapres- Ziimpt. 708 CHAP. II.] FRAUD. *446 them * till that is done ; and that the auctioneer [*446] cannot be bound when both the vendor and bidder remain free. The learned Chief Justice then said in the name of the Court : Thirdly. — " We are clear that the bidder has no remedy against the auctioneer, whose authority to accept the offer of the bidder has been determined by the vendor before the hammer has been knocked down." § 588. Although this judgment of the Queen's Bench was not reversed in the Exchequer Chamber, because ap- proved on the pleadings as they stood, the third proposition above quoted was not affirmed, and the Court of Error gave leave to the plaintiff to amend, so as to enforce a liability against the auctioneer. The Exchequer Chamber, composed of Martin, Bramwell, and Watson, BB. and Willes and Byles, JJ. were unanimous in holding the auctioneer liable, and in giving leave to amend; but Willes J. and Bramwell B. without dissenting from the opinion of the majority, as delivered by Martin B. preferred putting their judgment on a different ground, on which they felt themselves more clearly justified in their conclusions. Martin B. first de- clared that the judgment of the Queen's Bench was right upon the pleadings, but the Court of Appeal being now vested with power to amend, and the object of the law being to determine the real question in controversy, the power ought to be " largely exercised " for that purpose ; and that upon the facts the plaintiff was entitled to recover. § 589. The learned Baron then proceeded as follows: "In a sale by auction there are three parties, namely, the owner of the property to be sold, the auctioneer, and the portion of the public who attend to bid, which of course includes the highest bidder. In this, as in most cases of sales by auction, the owner's name was not disclosed: he was a concealed principal. The names of the auctioneers, of whom the de- fendant was one, alone were published, and the sale was an- nounced by them to be '■without reserve.' This, according to all the cases both at law and in equity, means that neither 709 *447 AVOIDANCE OP THE CONTRACT. [BOOK III. the vendor nor any person on his behalf may bid at [■=^447] the auction, and that * the property shall be sold to the highest bidder, whether the sum bid be equiva- lent to the real value or not. For this position, see the case of Thornett v. Haines, 15 M. & W. 367. We cannot dis- tinguish the case of an auctioneer putting up property for sale upon such a condition from the case of the loser of property offering a reward; or that of a railway company publishing a time-table, stating the times when and the places at which the trains run. It has been decided that the person giving the information advertised for, or a passenger taking a ticket, may sue as upon a contract with him. Denton v. The Great Northern Railway Company, 5 E. & B. 860, 25 L. J. Q. B. 129. Upon the same principle it seems to us, that the highest bond fide bidder at an auction may sue the auctioneer as upon a contract that the sale shall be tvithout reserve. We think that the auctioneer who puts property up for sale upon such a condition, pledges himself that the sale shall be with- out reserve ; or, in other words, contracts that it shall be so, and that this contract is made with the highest bond fide bidder., and in case of a breach of it, he has a right of action agaijist the auctioneer. . . . We entertain no doubt that the owner may at any time before the contract is legally complete, interfere and revoke the auctioneer's authority, but he does so at his peril; and if the auctioneer has contracted any liability in consequence of his employment and the subse- quent revocation or conduct of the owner, he is entitled to be indemnified." § 590. In reference to the conditions of the sale, the learned Baron further said, as to the first condition, that the owner could not be the buyer, and the auctioneer ought to have refused his bid, giving for a reason, that the sale wao without reserve ; and that the Court were inclined to differ with the Queen's Bench, and to consider that the owner's bid was not a revocation of the auctioneer's authority. The eighth condition was construed as providing simply that if the owner acted contrary to the conditions of the sale, he must pay the usual commissions. The Court was therefore 710 CHAP. II.] FRAUD. *448 ready to give judgment for the plaintiff if he chose to amend his declaration. Willes J. and Bramwell B. preferred putting their * assent to the judgment on the grounds that the [*448] facts furnished strong evidence to show that the auctioneer had received no authority from the owner to advertise a sale " without reserve " ; and that the plaintiff ought to be allowed to amend by adding a count, alleging an undertaking by the auctioneer that he had such author- ity, and a breach of that undertaking. § 591. It was said at one time that the rule in equity differs from that at common law on the subject of puffers to this extent ; that in equity it is allowable to employ one puffer, but no more, for the purpose only of preventing the property from being sold below a limit fixed by the vendor. Willes J. in Green v. Baverstock,i however, expressed the opinion that the rule in equity was confined to sales under the order of the Court, in conformity with " an inveterate practice." But the existence of any such rule in equity appears to have been still a moot point, even in 1865, as is shown in the opinion of Lord Cranworth in Mortimer v. Bell.2 By the new Act, however, 30 & 31 Vict. c. 48, passed at the instance of Lord St. Leonards (but applicable only to sale of land), it is provided in the fourth section, that 114 C. B. N. S. 204; 32 L. J. s. c. 1 Am. Dec. 407; Phippen v. C. P. 180. Stickney, 44 Mass. (.3 Mete.) 387; 2 1 Ch. 10. Lee v. Lee, 19 Mo. 420; Wolfe o. The owner may employ a bidder to Luyster, 1 Hall (N. Y.) 146 ; National prevent sacrijice of his property under a. Fire Ins. Co. i). Loomis, 11 Paige given price, it seems, where he is Ch. (N. Y.) 431 ; Morehead v. Hunt, employed bond, fide to prevent a 1 Dev. (N. C.) Eq. 35; Woods v. sacrifice of the property; but where Hall, 1 Dev. (N. C.) Eq. 411; he is employed to enhance the price Troughton o. Johnston, 2 Hayw. by the pretended competition, it will (N. C.) 328 ; Tomlinson v. Savage, 6 be a fraud upon the purchasers, being Ired. (N. C.) Eq. 430; Walsh v. Bar- a mere artifice in combination to mis- ton, 24 Ohio St. 28 ; Pennock's lead the judgment and inflame the Appeal, 14 Pa. St. 446; Steele v. zeal of the bidders. See Latham v. Ellmaker, 11 Serg. & R. (Pa.) 86 ; Morrow, 6 B. Mon. (Ky.) 630; Jenkins v. Hogg, 2 Tread. '(S. C. Baham v. Bach, 13 La. 287 ; s. c. 23 Const.) 821 ; Reynolds v. Dechaums, Am. Dec. 561; Moncrieff z-. Golds- 24 Tex. 174; Veazie v. Williams, 3 borough, 4 Har. & McH. (Md.) 282; Story C. C. 622, 623. 711 *449 AVOIDANCE OF THE CONTRACT. [BOOK in. " whereas there is at present a conflict between lier Majesty's courts of law and equity in respect of the validity of sales by auction of land where a puffer has bid, although no right of bidding on behalf of the owner was reserved, the courts of law holding that all such sales are absolutely illegal, and the courts of equity under some circumstances giving effect to them, but even in courts of equity the rule is unsettled: and whereas it is expedient that an end should be put to such con- flicting and unsettled opinions : Be it therefore enacted, that from and after the passing of this Act, Avhenever a sale by auction of land would be invalid at law by reason of the em- ployment of a puffer, the same shall be deemed invalid in equity as well as at law." § 692. The statute further directs that where land is stated to be sold without reserve, it shall not be [*449] lawful for the seller to * bid, or the auctioneer to accept, a bid from him or any one employed by him ; and where the sale is subject to the right of a seller to bid, it shall be lawful for the seller or any one person in his behalf to bid.^ The act also forbids the courts of equity from continuing the practice of opening biddings in sales made under their orders ; so that in future the highest bond fide bidder at such sales shall be the purchaser, in the absence of fraud or im- proper conduct in the management of the sale. In a case,^ just before the passing of this Act, it was announced that the sale was "■without reserve," ami that the parties interested had liberty to bid. It was held by Lords Justices Turner and Cairns that on these terms, a purchaser was bound by his bid for 19,000?., the only bids higher than 14,000Z. having been made by the purchaser and a mortgagee in possession of the estate. § 593. In The Queen v. Kenrick,^ the fraud on the pur- chaser, for which the defendant was convicted as being guilty of false pretences, was telling the buyer that the horses offered for sale had been the property of a lady de- 1 See Gilliat v. Gilliat, 9 Eq. 60, 2 Dimmock v. Hallett, 2 Ch. 21. as to the construction of tliis clause. ^ 5 Q. B. 49. 712 CHAP. II.] FRAUD. *449 ceased, were then the property of her sister, and never had been the property of a horse-dealer, and that they were quiet and tractable; all these statements being false, and the vendor knowing that nothing but a belief in their truth would induce the buyer to make the purchase. § 694. In Dobell v. Stevens,^ the fraud consisted in falsely telling the buyer that the receipts of a public-house were 160Z. per month, and the quantity of porter sold seven butts per month, and that the tap was let for 821. per annum, and two rooms for 271. per annum, whereby the 1 3 B. & C. 623. See, also, Boyn- Horn, 45 N. H. 421 ; Page v. Parker, ton V. Hazelboom, 96 Mass. (14 Allen) 107; Dobell v. Stevens, 3 Barn. & Cres. 623 ; Pilmore c. Hood, 5 Bing. N. R. 97 ; s. u. 1 Arnold, 390; 6 Scott, 827; 7 D. (P. C.) 136; Bowring v. Stevens, 2 Car. & P. 337; Dobell h. Stevens, 5 Dowl. & Ry. 490 ; Pearson v. Wheeler, R. & Moo. 303 ; Hatchinson «. Morley, 7 Scott, 341. See Newell v. Horn, 45 N. H. 421 ; Peaslee v. Gee, 19 N. H. 279 ; Sargent v. Cutterson, 13 N. H. 473 ; Clark V. Baird, 9 N. Y. 183; Whit- ney 0. Allaire, 1 N. Y. .305; s. c. 4 Den. (N. Y.) 554 ; Ward i: Wiman, 17 Wend. (N. Y.) 193; Harlow ^. Green, 34 Vt. 379. As to the effects of a material mis- take of the facts of the contract, see Richmond u. Gray, 85 Mass. (3 Allen) 25; Old Colony R. R. v. Evars, 72 Mass. (6 Gray) 25, 36; s. c 66 Am. Dec. 394; Western R. li. V. Babcock, 44 Mass. (6 Mete.) 346, 352. A misrepresentation of a material fact not within the observation of the opposite party, which is known by the partv making it at the time to be untrue, and made for the purpose of inducing a purchase, is fraudulent and will avoid the sale. Brown v. Castles, 65 Mass. (11 Cush.) 348; Medbury v. Watson, 47 Mass. (6 Mete.) 2i6; s. c. 39 Am. Dec. 726; Lobdell V. Baker, 44 Mass. (3 Mete.) 201 ; s. 0. 35 Am. Dec. 358 ; Newell r. 40 N. H. 69 ; s. c. 43 N. H. 369 ; 80 Am. Dec. 172; Whitney v. Allaire, 1 N. Y. 305; Monell v. Colden, 13 Johns. (N. Y.) 395 ; Wardell u. Fos- dick, 13 Johns. (N. Y.) 325; s. c. 7 Am. Dec. 390; Sandford v. Handy, 23 Wend. (N. Y.) 260; PolhiU v. Walter, 3 Barn. & Ad. 114; Dobell v. Stevens, 3 Barn. & C. 623; Lang- ridge V. Levy, Murph. & H. 139; s. c. 2 Mees. & W. 531 ; 7 D. (P. C.) 27 ; s. c. affirmed 2 Horn. & Hurlst. 325; 4 Mees. & W. 337 ; Small v. Attwood, Young, 461 ; Watson v. Poulson, 15 Jur. Ill ; s. c. 7 Eng. L. & Eq. 588. ** Trade statements " or " banter." — This rule, however, does not apply to mere " trade statements " concerning the value of the thing sold from offers for it and the like ; neither will it apply in those cases where the party damaged by false aflSrmation made by tlie vendor, when by vigi- lance and attention the vendor might have ascertained that the statement upon which he acted was false. Brown V. Castles, 65 Mass. (11 Cush.) 348. See Moore v. Tubeville, 2 Bibb (Ky.) 602; s. c. 6 Am. Dec. 642; Starr v. Bennett, 5 Hill (N. Y.) 303; Saun- ders V. Hatterman, 2 Ired. (N. C.) L. 32; s. c. 37 Am. Dec. 404; Lytle V. Bird, 3 Jones (N. C.) L. 222; Baily v. Merrell, 3 Bulst. 94; Ver- non V. Keyes, 4 Taunt. 494 ; ». c. 12 East, 632; Harvey v. Young, Yelv. 21. 713 *450 AVOIDANCE OF THE CONTRACT. [BOOK III. plaintiff was induced to buy ; and similar deceits were employed in Lysney v. Selby,^ and Fuller v. Wilson.^ § 595. In Schneider v. Heatli,i a vessel was sold, "hull, masts, yards, standing and running rigging, with all [*450] faults,^ as they *now lie." There was, however, a false statement, that " the hull was nearly as good as when launched," and means were taken to conceal the defects that the vendor knew to exist. This was held by Sir James Mansfield to be a fraud on the purchaser ; but in Baglehole v. Walters,^ Lord EUenborough was decided in his rejection of the purchaser's attempt to repudiate the sale of a vessel under exactly the same description, "with all faults," where the seller, although knowing the latent defects, used no means for concealing them from the pur- chaser. In this decision, Lord EUenborough expressly over- ruled Mellish V. Motteux,* and in Pickering v. Dowson,^ the Common Pleas followed Lord EUenborough's decision, as one " never questioned at the bar ; " and concurred in over- ruling Mellish V. Motteux. Baglehole v. Walters was also followed by the King's Bench in deciding Bywater v. Richardson,^ in 1834. § 596. In Horsfall v. Thomas, ^ the defence to an action on a bill of exchange was that the buyer had been defrauded in the purchase of a steel gun, for which the bill 2 2 Lord Raymond, 1118. Ired. (N. C.) L. 49, 61 ; Smith v. An- 3 3 Q. B. 58. See, also. Nelson u. drews, 8 Ired. (N. G.) L. 6 ; Schneider "Wood, 62 Ala. 175; Cruess u. Fes- u. Heath, 3 Campb. 506 ; Shepherd u. sler, 39 Cal. 336 ; Mather v. Robin- Kain, 5 Barn. & Aid. 240. son, 47 Iowa, 403; Hale r. Philbrick, 3 3 Camp. 154. 47 Iowa, 217 ; Crosland v. Hall, 33 * Peake, 115. N. J. Eq. (6 Stew.) Ill ; Bower u. « 4 Taunt. 779. Fenn, 90 Pa. St. 359; s. c. 35 Am. « 1 a. & E. 508. See, also, Eree- Eep. 662. man v. Baker, 5 B. & Ad. 797; Ward 1 3 Campb. 506. v. Hobbs, 4 App. Cas. 13; s. c. 3 Q. 2 See Whitney v. Boardman, 118 B. D. 150, C. A., OYerruling 2 Q. B. B. Mass. 242, 247; Gossler v. Eagle 331. Sugar Co., 103 Mass. 331; Henshaw 1 1 H. & C. 90, and 31 L. J. Ex. V. Robbing, 50 Mass. (9 Mete.) 83, 322. 90; B. u. 43 Am. Dec. 367; Boardman As to failure to point out defects, V. Spooner, 95 Mass. (13 Allen) 353, see Toole v. Davenport, 63 Ga. 160; 359; Hanson v. Edgerly, 29 N. H. Howell ti. Biddleeom, 02 Barb (N. Y). 343, 353; Pearce u. Blackwell, 12 131. 714 CHAP. II.] FRAUD. *451 was given. The gun was made by defendant's order, and he was informed when it was ready, but made no exam- ination of it, and sent the bill of exchange in part payment. There was a defect in the gun, and a metal plug was inserted, which would have concealed the defect from any person inspecting the gun. It was received by the defend- ant, fired several times, answered the purpose as long as it was entire, but afterwards burst in consequence of the defect. Held, that the defendant had not been influenced in his acceptance of the gun hy the artifice used, for he had never examined it : that the mere statement by the plaintiffs to the defendant that the gun was ready for him, even if they knew the existence of a defect which would make the gun worthless, and failed to inform of it, was not a fraud. The learned judge, Bramwell B. who delivered the judg- ment of the Court, * said that " fraud must be com- [*451] mitted by the affirmance of something not true within the knowledge of the affirmant, or by the suppression of something which is true and which it is the duty of the party to make known." In the case before the Court there was no affirmance ; and there was no duty on the part of the maker to point out a defect where the buyer has an opportunity for inspection and does not choose to avail himself of it.^ This decision is questioned and disapproved by Cockburn C. J. in Smith v. Hughes (L. R. 6 Q. B. 597), and it cer- tainly seems that the artifice used to conceal the defect comes within the definition usually given of fraud. § 597. The case of Hill v. Gray,i decided by Lord Ellen- borough at Nisi Prius in 1816, would seem to conflict with the general rule in relation to concealment. The facts were that the agent employed by plaintiff to sell a picture was pressed by the defendant to tell him whose property it was : the agent refused. The same agent was at the time selling also pictures for Sir Felix Agar, and the defendant, "misled 2 See Keates v. Earl Cadogan, 10 i 1 Stark. 434. C. B. 591, and 20 L. J. C. P. 76 ; also, Hill V. Gray, 1 Stark. 434. 715 *452 AVOIDANCE OF THE CONTRACT. [BOOK III. by circumstances, erroneously supposed " that the picture in question also belonged to Sir Felix Agar, and under this misapprehension bought it. The agent "knew that the defendant labored under this delusion, but did not remove it." The price was lOOOZ., the picture being said to be a Claude, and proof was offered that it was genuine, and that after the defendant knew that it Avas not one of Sir Felix Agar's pictures he had objected to paying on the ground that it was not genuine, but not on the ground of any deception. Lord Ellenborough said: "Although it was the finest jm- ture that Claude ever painted, it must not be sold under a deception. The agent ought to have cautiously adhered to his original stipulation, that he should not communicate the name of the prox^rietor, and not to have let in a suspicion on the part of the purchaser ivhich he kneiv enhanced the price. He saw that the defendant had fallen into a delusion [*452] in supposing the picture to be Sir Felix * Agar's, and yet he did not remove it. . . . This case has arrived at its termination, since it appears that the purchaser labored under a deception, in which the agent permitted him to remain, on a point which he thought material to influ- ence his judgment." This judgment, on a first perusal, seems certainly not reconcilable with the received principles on the subject, but in Keates v. Earl Cadogan,^ the case was explained by the Common Pleas by construing the language of Lord Ellenborough in the italicized jjassages as intimating that there "had been a positive aggressive deceit." It is, indeed, quite possible that it was the act of the agent in put- ting the picture with those of Sir Felix Agar that created the belief, Avhich the agent perceived, and did not remove. § 698. Li the earlier case of Jones v. Bowden,i an action upon the case for deceit in a sale was maintained under the following circumstances : — The defendant bought pimento at an auction sale, as sea-damaged. It is usual in such sales 2 10 C. B. 591, at p. 600; 20 could be so interpreted, but attributes L. J. C. P. 76. And see per Lord the explanation to the anxiety of the Chelmsford in Peck v. Gurney, L. E. Court to reconcile the case witli 6 H. L. at p. 390, who doubts established principles, whether the mere silence of the agent ^ 4 Taunt. 847. 716 CHAP. II. J FRAUD. *453 of this article to declare it to he seordamaged, and when noth- ing is said, it is supposed to be sound. Defendant then re- packed it, and it was included in a catalogue of the auction sale, as "187 bags pimento, bonded," and at the foot was stated, "the goods to be seen as specified in the catalogue, and remainder at No. 36, Camomile Street." Defendant drew fair samples, which were exhibited to the bidders, by which the article appeared to be dusty, and of inferior qual- ity ; but no one could tell from the samples that the goods had been sea-damaged or repacked, either of which facts depreciates the value in the market. The catalogues were not distributed till the day before the sale, and no one had inspected the goods. The auctioneer made no addition nor comment on what was stated in the catalogue, and the plaintiff * became the purchaser at IBd. per [*453] pound, which was not more than a reasonable price, after taking into consideration the fact that it had been sea- damaged and repacked. The jury said : " That the state of the goods ought to have been communicated by the defend- ant to the plaintiff," and found a verdict for him, subject to the point whether the action was maintainable. A rule to set aside the verdict was discharged. The grounds are not very intelligently given, but it may be fairly inferred from the language of Mansfield C. J. that he considered the ver- dict of the jury as establishing a usage which imposed on the vendor the duty of disclosing the defect, thus bringing the case within the general principle stated by Bramwell J. in Horsfall v. Thomas.^ § 599. In Smith v. Hughes,^ the action was by the plain- tiff, a farmer, to recover the price of certain oats sold to the defendant, an owner and trainer of race-horses. The plain- tiff's account of the transaction was that he took a sample of the oats to the defendant and asked if he wished to buy oats, to which the latter answered, " I am always a buyer of good oats." The plaintiff asked thirty-five shillings a quarter, 2 1 H. & C. 90; 31 L. J. Ex. case of Laidlaw v. Organ, 15 IT. S. 322. See, also, Parkinson v. Lee, 2 (2 Wheat.) 178; bk. 4, L. ed. 214; East, 314. before the Supreme Court of the 1 L. E. 6 Q. B. 597 ; and see the United States. 717 *454 AVOIDANCE OF THE CONTRACT. [BOOK 111. and left the sample with the defendant, who was to give an answer next day. The defendant wrote to say he would take the oats at thirty-four shillings a quarter, and they were sent to him by the plaintiff. But the defendant's account was that, to the plaintiff's question he answered, " I am always a buyer of good old oats : " and that the plain- tiff then said, " I have some good old oats for sale." There was no difference of testimony as to the other facts ; and it was further sworn by the defendant that as soon as he dis- covered that the oats were new, he sent them back : that trainers use old oats for their horses, and never buy new when they can get old. There was also evidence to the effect that thirty-four shillings a quarter was a very [*454] high price for new oats, more than a * prudent busi- ness man would have given, and that old oats were then very scarce. § 600. The judge told the jury that the question was whether the word "old" had been used in the bargain as stated by the defendant, and if so the verdict must be for him ; but if they thought the word " old " had not been used, then the second question would be " whether the plaintiff believed the defendant to believe or to be under the impression that he was contracting for the purchase of old oats." If so, the verdict would also be for the defendant. The jury found for the defendant. The question for the Queen's Bench was whether the second direction to the jury was right, for they had not answered the questions sepa- rately, and it was not possible to say on which of the two grounds they had based their verdict. In testing the second question it was plainly necessary to assume that the word "old" had not been used, and on that assumption the Court ordered a new trial. Cockburn C. J. said, that assuming the vendor to know that the buyer believed the oats to be old oats, but that he had done nothing directly or indirectly to bring about that belief, but simply offered his oats and exhibited his sample, the passive acquiescence of the vendor in the self-deception of the buyer did not entitle the latter to rescind the sale. 718 CHAP. II.] FRAUD. *455 Blackburn J. concurred, saying that "whatever may be the case in a court of morals, there is no legal obligation on the vendor to inform the purchaser that he is under a mistake, not induced by the act of the vendor." The learned judge further doubted whether the jury had been made to understand the difference between agreeing to take the oats under the belief that they were old (for in that case there would be no defence), and agreeing to take the oats under the belief that the plaintiff contracted that they were old, for in this case the parties would not be ad idem as to their bar- gain, and there would therefore be no contract. Hannen J. also thought that the second question was probably misunderstood by the jury, and concurred with Blackburn J. in the distinction above pointed out. He * said, that to justify a verdict for the defendant [*455] it was not enough for the jury to find that " the plain- tiff believed the defendant to believe that he was buying old oats," but that what was necessary was, to find that "the plaintiff believed that the defendant believed that the plain- tiff was contracting to sell old oats." In the following very exceptional case, where the fraud of the vendor was committed not on the buyer, but by collusion with the buyer against another person, the vendor was not permitted to recover against the buyer. § 601. In Jackson v. Duchaise,^ the facts were that the plaintiff sold the goods in a house to the defendant for 100?., but she could not raise the money ; she applied to one Walsh, to aid her in the purchase, and he at her request agreed to buy them from the plaintiff for 70?., which he did, taking a bill of sale to himself. By agreement between the plaintiff and the defendant, she was to pay the deficiency of 30Z. to him, in two notes, of 15?. each, and this was concealed from Walsh. On action brought by plaintiff on one of the two notes. Lord Kenyon, at Nisi Prius, and the Court in banc afterwards, held the transaction to be a fraud on Walsh, 1 3 T. R. 551. See Webb v. Odell, 133 ; Gompertz v. Bartlett, 2 EI. & 49 N. Y. 583 ; Gurney v. Womersley, Bl. 849 ; ». c. 75 Bng. C. L. 849 ; Aze- 4 El. & Bl. 133; s. c. 82 Eng. C. L. mar v. Caselle, L. R. 2 C. P. 677. 719 *456 AVOIDANCE OF THE CONTRACT. , [BOOK III. and that plaintiff could not recover. The principle was the same as that on which secret agreements to give one creditor an advantage over others as an inducement to sign a compo- sition in insolvency, are held fraudulent and void.^ In the Supreme Court of the State of Vermont it was held to be fraudulent in a vendor to sell a horse having an inter- nal malady of a secret and fatal character, not apparent by any external indications, but known to the seller, and known by him to be unknown to the buyer, if the malady was such as to render the horse of no value.^ [*456] * Section IV. — featjd on creditors — statute OF ELIZABETH. § 602. Sales made by debtors in fraud of creditors are usually considered as being governed by the statute 13 Eliz. c. S,-"- and the decisions made under it; but other statutes had been previously passed on the same subject, and in Cad- ogan V. Kennett,^ Lord Mansfield said that "the principles ' Delgleish v. Tennent, L. R. 2 Q. mere unintentional concealment or B. 49. omission to disclose facts which are * Paddock v. Strobridge, 29 Ver- known to the vendor will not be mont, 470. fraudulent. Hanson v. Edgerly, 29 Concealment will be fraudulent where K. H. 343; Stevens v. Fuller, 8 N. H. it is willful. Carpenter v. Phillips, 2 463; Harris v. Tyson, 24 Pa. St. 347; Houst. (Del.) .024; Hanks «. McKee, s. c. 64 Am. Dec. 661; Kintzing v. 2 Litt. (Ky.) 227 ; s. c. 13 Am. Dec. McElrath, 5 Pa. St. 407 ; Fisher v. 265; Atwood v. Chapman, 68 Me. 38, Budlong, 10 K. I. 527, 528 ; Howard 40 ; s. c. 28 Am. Rep. 5 ; Prentiss v. v. Gould, 28 Vt. 523 ; s. c. 67 Am. Euss, 16 Me. 30 ; Patterson ,;. Kirk- Dec. 728 ; Laidlaw v. Organ, 15 U. S. land, 34 Jliss. 423, 431; Hanson v. (2 Wheat.) 178; bk. 4, L. ed. 214. Edgerly, 29 N. H. 343, 359; Gough w.' -i Statutes have been passed in Dennis, Hill & Den. (N.Y.) 55; Croyle various states regulating sales in V. Moses, 90 Pa. St. 250 ; s. c. 35 Am. fraud on creditors such as Califor- Dec.654; KrurabUaar i;. Birch,83Pa. nia, Delaware, Nebraska, Indiana, St. 426, 428 ; Cornelius u. MoUoy, 7 Iowa, Maryland, Minnesota, Missouri, Pa. St. 293, 299; Maynard v. May- New York, Wisconsin. See Harter w. nard, 49 Vt. 297 ; Paddock v. Stro- Donahoe (Cal.), 9 Pac. Rep. 651 ; bridge, 29 Vt. 470, 473; Bank of Bassinger v. Spangler, 9 Colo., 176; United States v. Lee, 38 tJ. S. (13 s. c. 10 Pac. Rep. 800, 818; McKee v. Pet.) 107, 119; bk. 10, L. ed. 81; Bassick Min. Co., 8 Colo. 392; s. c. Blydenburgh o. "Welsh, Baldw. C. C. 8 Pac. Rep, 501 ; O'Gara u. Lowry, 5 331. But see Beninger v. Corwin, 24 Mont. 427 ; 2 Schouler on Personal N. J. L. (4 Zab.) 257, 264 ; Cassel v. Property, § 616. Herron, 5 Clarke (Pa.), 250. But a 2 Cowp. 482. 720 CHAP. II.J FRATTD. H56 and rules of the common laAv, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes 13 Eliz. c. 5, and 27 Eliz. c. 4. The former of these statutes relates to creditors only : the latter to pur- chasers. These statutes cannot receive too liberal a con- struction, or be too much extended in suppression of fraud." The 13 Eliz. c. 5, was intended "for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts, grants, alienations, &c., &c., as well as of lands and tenements, as of goods and chattels . . . devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud cred- itors ^ ... to the overthrow of all true and plain deal- ing, bargaining, and chevisance between man and man, without the Avhich no commonwealth or civil society can be maintained or continued." The statute, therefore, provides that all alienations, bar- gains, and conveyances of lands and tenements, or goods and chattels, made for any such intent and purpose as is ' See Freeman v. Burnham, 36 Conn. 469 ; Gridley v. Watson, 53 111. 186 ; Stewart v. Rogers, 25 Iowa, 395 Lowry v. Fisher, 2 Bush (Ky.) 71 Mitchell V. Berry, 1 Met. (Ky.) 602 Enders v. Williams, 1 Met. (Ky.) 346 Kuhn -0. Stansfield, 28 Md. 210 EUinger v. Crowl, 17 Md. 361 ; Filley I'. Register, 4 Minn. .391 ; s. c. 77 Am. Dec. 522 ; Pomeroy v. Bailey, 43 N. H. 118; Coolidge v. Melvin, 42 N. H. 531 ; Babcock ;;. Eckler, 24 N. Y. 623; Reade v, Livingston, 3 Johns. Ch. (N. Y.) 481 ; s. c. 8 Am. Dec. 620 ; Van Wyck v. Seward, 6 Paige Ch. (N. Y.) 62; Loeschigk v. Hat- field, 5 Robt. (N. Y.) 26 ; Chambers V. Spencer, 5 Watts (Pa.) 404 ; Hun- ters ,;. Waite, 3 Gratt. (Va.) 26; Church V. Chapin, 35 Vt. 223 ; Skarf V. Soulby, 1 Mac. & G. 304 ; Mackay v. Douglas, L. R. 14 Eq. 106; Cross- ley V. Elworthy, L. E. 12 Eq. 158; Freeman v. Pope, L. E. 9 Eq. 206; s. c. L. E. 5 Ch. App. 538; Reese River Silver Mining Co. v. Atwell, L. E. 7 Eq. 347 ; Lush v. Wilkinson, 5 Ves. 387. Story on Sales (4th ed.) § 513; 1 Story Eq. Jur. § 360. But otherwise where the sale is made bondjide and under circumstan- ces showing plainly that there was no intention to defraud creditors. Kent V. Riley, L. R. 14 Eq. 190. The reason for avoiding a contract in favor of an existing creditor, is because of a presumption that credit is given on apparent ownership of the property conveyed and for that reason does not apply to subsequent creditors with the notice of the transfer. Converse !•. Hartley, 31 Conn. 372, 380. Whether the transfer was fraudu- lent or bonU fide is a question for the jury. Pomeroy v. Bailey, 43 N. H. 118. The presumption arising from the fact that the party indebted at the time of the transfer may be re- butted. Gilbert v. Lewis, 1 DeG. J. 6 S. 38. 721 *457 AVOIDANCE OP THE CONTRACT. [BOOK III. above expressed, shall be " deemed and taken, (only against that person or persons, his or their heirs, successors, execu- tors, administrators, and assigns, and every of them whose actions, suits, debts, accounts, damages, penalties, for- feitures, heriots, mortuaries and reliefs, by such guileful,, covinous, or fraudulent devices and practices as is [*457] aforesaid, * are, shall, or might be in anywise, dis- turbed, hindered, delayed, or defrauded,) to be clearly and utterly void, frustrate, and of none effect." This stat- ute was confirmed by 14 Eliz. c. 11, s. 1, and made perpetual by 29 Eliz. c. 5, s. 2. And it seems that it protects against fraudulent sales, subsequent creditors, as well as those hav- ing claims at the date of the fraudulent conveyance.* § 603. In Twyne's case,i the celebrated leading case on this subject, the debtor had made a secret conveyance to Twyne by general deed of all his goods and chattels, worth 300/., in satisfaction of a debt of 400/., pending an action brought by another creditor for a debt of 200Z. The debtor continued in possession of the goods, and sold some of them : and shore the sheep and marked them with his own mark. The second creditor took the goods in execution, but Twyne resisted the sheriff, and Coke, the Queen's Attorney-General,, thereupon filed an information against him in the Star Chamber. The learned author says in his report that " In this case divers points were resolved : " 1. That this gift had the signs and marks of fraud, be- cause the gift is general without exception of his apparel, or of any thing of necessity, for it is commonly said, quod dolosus versatur in generalibus. " 2. The donor continued in possession, and used them as. ^ Graham v. Purber, 14 C. B. in Robson on Bankruptcy, p. 153, ed. 410, and 2.3 L. J. C. P. 51. It is 1881. See, also. Carter v. Grimshaw,. now settled that subsequent creditors 49 N. H. 100; McLane v. Johnson, 43 may, under certain circumstances, Vt. 48 ; Bank British North America maintain an action to set aside a v. Rattenbury, 7 Grant (Ont.) 383; fraudulent conveyance, and are in Bonacina c. Seed, 3 Low. Can. 446; any case entitled to share in the Spirrett v. Willows, 3 De G. J. & S. benefit of proceedings taken by credi- 293. tors having claims at the date of the i 3 Coke, 80 ; 1 Sm. L. C. 1. conveyance. The cases are collected CHAP. II.] FRAUD. *458 his own; and by reason thereof he traded and trafficked with others, and defrauded and deceived them.^ " 3. It was made in secret, et dona clandestina sunt semper suspiciosa. " 4. It was made pending the writ. " 5. Here was a trust between the parties, for the donor possessed all, and used them as his proper goods, and fraud * is always apparelled and clad with a trust, [*458] and trust is the cover of fraud. " 6. The deed contains that the gift was made honestly, truly, and bond fide ; et dausulce inconsuetce semper inducunt suspicionem. § 604. "Secondly, it was resolved that notwithstanding here was a true debt due to Twyne, and a good consideration of the gift, . . . yet it is not bond fide, for no gift shall be deemed to be bond fide . . . which is accompanied with any trust." Lord Coke therefore advises : " Reader, 2 Retention of possession by the seller of chattels is evidence more or less conclusive of the fact of fraud upon third parties. See Gilbert v. Decker, 53 Conn. 401; Capron u. Porter, 43 Conn. 383; Eobbins v. Oldham, 1 Duv. (Ky.) 28; Fartield Bridge Co. V. Nye, 60 Me. 372; Ingalls v. Her- rick, 108 Mass. 351 ; Coburn v. Picker- ing, 3 N. H. 415; =. c. 14 Am. Dec. 375; Clow v. Woods, 5 Serg. & R. rPa.~) 275; s. c. 9 Am. Dec. 346; Rothchild v. Rowe, 44 Vt. 389. But such evidence is only prima facie evidence of fraud. See Jones v. Simpson, 116 U. S. 609 ; bk. 29, L. ed. 742. A transfer fraudulent as to existing creditors may be avoided by subse- quent creditors ; but where there is no fraud as to existing creditors the sale can be avoided by subsequent creditors only by showing that it was made with a view to incurring their own or similar liabilities. Kerksey V. Snedecor, 60 Ala. 192; Dodd v. Adams, 125 Mass. 398; Day v. Cooley, 118 Mass. 524; Wadsworth i'. Wil- liams, 100 Mass. 126, 130 ; Winchester V. Charter, 94 Mass. (12 Allen) 606, 609; Thacher v. Phinney, 89 Mass. (7 Allen) 146 ; Carpenter u. Carpen- ter, 25 N. J. Eq. (10 C. E. Gr.) 194 ; Graham v. La Crosse & M. R. R. Co., 102 U. S. (12 Otto) 148, 155 ; bk. 26, L. ed. 106 ; Smith v. Vodges, 92 U. S. (2 Otto) 183; bk. 23, L. ed. 481; Mattingly v. Nye, 75 (J. S. (8 Wall.) 370; bk. 19, L. ed. 380; Sexton v. Wheaton, 21 U. S. (8 Wheat.) 229; bk. 5, L. ed. 603. Some cases hold, however, that the transfer is void only as against those it was intended to defraud, and that ordinarily subse- quent creditors cannot avoid the sale as fraudulent. Donley v. McKiernan, 62 Ala. 34; Lloyd v. Bunce, 41 Iowa, 660 Sanders v. Chandler, 26 Minn. 273, Shand v. Hanley, 71 N. Y. 310; Arrowsraith v. O'SuUivan, 44 N. Y. Super. Ct. (12 J. & S.) 573; Harlan V. Maglaughlin, 90 Pa. St. 293, 297 ; Monroe v. Smith, 79 Pa. St. 459; Mullen 1.. Wilson, 44 Pa. St. 413; Snyder v. Christ, 39 Pa. St. 499, 506; Lemberg <^. Biberstein, 51 Tex. 457. 723 *459 AVOIDANCE OF THE CONTRACT. [BOOK III. when any gift shall be made to you in satisfaction of a debt, by one who is indebted to others also : 1. Let it be made in a public manner, and before the neighbors, and not in private, for secrecy is a mark of fraud. 2. Let the goods and chat- tels be appraised by good people to the very value, and take a gift in particular in satisfaction of your debt. 3. Imme- diately after the gifts, take the possession of them, for con- tinuance of possession in the donor is the sign of trust. . . " And because fraud and deceit abound in these days more than in former times, it was resolved in this case by the whole Court, that all statutes made against fraud should he liberally and beneficially expounded to suppi'ess the fraud : ' Quaeritur, ut crescunt tot magna volumina legis In promptu causa est, cresoit in orbe dolus. ' " § 605. In the application of the statute, a question of fact for the jury is constantly presented ; namely, whether the transfer of the goods was bond fide, or fraudulent, that is, "with the end, purpose, and intent to delay, hinder, or defraud creditors," ^ as the Act expresses it. It was, indeed, held in some early cases, of which the leading one is Ed- wards V. Harben,^ that under certain circumstances this was a question of law for the Court. The decision Avas given in that case by Buller J. who said: "This has been argued by the defendant's counsel as being a case in which the [*459] want of * possession is only evidence of fraud, and that it was not such a circumstance per se as makes 1 See O'Brien i;. Chamberlain, 50 L. J. 127 ; Brooks v. Weaver, 3 Alb. Cal. 285; Harris v. Burns, 50 Cal. L. J. 283; Cook u. Hendry, 7 Up. 140; Nicol ..•. Crittenden, 55 Ga. Can. C. P. 354; Fowler ». Hendry, 7 497 ; Bradley v. Coolbaugh, 91 111. Up. Can. C. P. 350 ; Wight v. Moody, 148; Sibley u. Tie, 88 111. 287; 6 Up. Can. C. P. 502. Nimmo v. Kuykendall, 85 111. 476 ; Fraud is nerer presumed and the Bushnell v. Wood, 85 111. 88 ; Mat- burden of proving it in such cases is tingly 0. Wulke, 2 111. App. 169; upon the plaintiff. Hamilton's Adm. Powell V. Powell, 71 N. Y. 71 ; Hoi- v. Blackwell, 60 Ala. 545; Tompkins den V. Burnham, 63 N. Y. 74 ; John- ;;. Nichols, 53 Ala. 197 ; Erb c. Cole, son a. Carley, 53 How. (N, Y.) Pr. 31 Ark. 554 ; Jewett v. Cook, 81 111. 320; Stacy u. Deshaw, 7 Hun (N. Y.) 260; Morgan v. Olvey, 53 Ind. 6; 440 ; HoUacher v. O'Brien, 5 Hun Elliott v. Stoddard, 08 Mass. 145. (N. Y.) 277 ; Eerris v. Irons, 83 Pa. 2 2 T. R. 587, and see post, p. 461. >U. 179; McDonalds ... Titus, 6 Alb. 724 CHAP. II.] FRAUD. *460 the transaction fraudulent in point of law : that is the point which we have considered, and we are all of opinion that if there he nothing hut the ahsolute conveyance ivithout the posses- sion, that, in point of law, is fraudulent." ^ As this case does not appear ever to have been overruled,* though frequently mentioned unfavorably, it may be assumed that the law Avould be held to be the same at the present time ; but it is to be observed that, in the guarded form in which the prin- ciple is announced, a case could scarcely arise in which it would be applicable, for it is difficult to suppose that an action would be tried where nothing would be shown beyond a bare conveyance without possession : where something of the relations of the parties, and the circumstances of their dealings, would not appear. Apart from this very excep- tional case, the authorities are all in accordance in treating the question of Fraus vel non, as one of fact for the jury, even where the vendor remains in possession. § 606. In Latimer v. Batson,i an execution had been levied on the household furniture, wine, &c., of the Duke of Marl- borough at Blenheim, and an officer remained in possession some time, and then executed a bill of sale to the execution creditor, but the Duke prevailed on the latter to leave him in possession. The execution creditor afterwards sold the goods to the plaintiif Latimer for TOOL, and the plaintiff put a man-servant into the house. The Duke, also, remained there, and used the goods, as if no execution had been put in ; but the execution was known in the neighborhood. The goods were then seized by a second creditor, and carried away. On these facts, Jervis contended that the judge ought to have directed the jury that if they thought * the Duke remained in possession, the sale was void [*460] 5 See, also, Paget v. Perchard, 1 ''It was said to be good law by Esp. 205 ; Martin v. Perchard, 2 W. Lawrence J. in Steel v. Brown, 1 Bl. 702 ; Ingalls v. Herrick, 108 Mass. Taunt. 382 ; see, however, the re- 351, 854 ; Putnam v. Osgood, 52 N. H. marks of Lefroy C. J. in the Irish 154; Coolidge o. Melvin, 42 N. H. case of Macdona v. Swiney, 8 Ir. C. 510 ; Garman v. Cooper, 72 Pa. St. L. E. 73, at pp. 84-86. 32 ; Young v. McLure, 2 Watts & S. i 4 B. & C. 652. (Pa.) 147; Rothchild v. Kowe, 44 Vt. 389. 725 *-160 AVOIDANCE OP THE CONTRACT. [BOOK III. citing Wardall v. Smith,^ where Lord Ellenborough said that " to defeat an execution by a bill of sale there must appear to have been a bond fide substantial change of posses- sion. It is a mere mockery to put in another person to take possession jointly with the former owner of the goods. A concurrent possession with the assignor is colorable. There must be an exclusive possession under the assignment, or it is fraudulent and void as against creditors." But the Court refused a new trial, affirming the propriety of the judge's charge, he having told the jury that if they thought the sale to the plaintiff was bona fide, and the purchase-money really paid by him, he was entitled to a verdict; but if the pur- chase-money was really paid by the Duke, and the sale to the plaintiff colorable, thej^ should find for defendant. Bayley J. also held, in conformity with Leonard v. Baker,^ Watkins V. Birch,* and Jezeph v. Ingram,^ that " if f/oods seized under an execution are bona fide sold, and the buyer sniffers the debtor to C07iti7iue in jyossessio^i of the goods, still they are protected against subsequent executions, if the circumstances under ivhich he has the possession are known in the neighborhood." § 607. Li Martindale v. Booth,^ all the judges were of opinion that the continuance of possession in the vendor is not of itself sufficient to render void a sale of goods as fraud- ulent, especially where the possession is consistent with the deed which provides only for the future entrj- into possession by the purchaser, conditioned on the vendor's default ; and in addition to the numerous cases there cited, those in the note^ sufficiently establish the proposition that the continued possession by the vendor of goods sold, is a fact to he con- sidered by the jury as evidence of fraud, and is not in laiv a fraud per se.^ 2 1 Camp. 332. ^Retention of possession h>j Ike ven- 8 1 M. & S. 251. dor, we have seen, may be evidence » 4 Taunt. 823. of fraud {vide ante, sec. 003, note 2), s 8 Taunt. 838, § 607. but is not per se fraudulent. See 1 3 B. & Ad. 498. Crawford r. Kirksey, 50 Ala. 590, 2 Lady Arundel v. Phipps, 10 Ves. 598; s. c. 55 Ala. 282, 285 ; Mayer v. jr. 115 ; per Buller J. in Hazelington Clark, 40 Ala. 259, 209 ; George i'. V. Gill, 3 T. R. 620, note 1 ; Linden Norris, 23 Ark. 121, 128; Hempstead V. Sliarp, M. & G. 895-898; Pennell «. Johnson, 18 Ark. 123, 1.34 ; s. c. 65 o. Dawson, 18 C. B. 355. Am. Dec. 458 ; Collins v. Taggart, 57 726 CHAP. II.J FKATJD. *461 § 608. * That the notoriety of the sale is a strong [*461] ■circumstance to rebut the presumption of fraud even Oa. 355; Carter v. Stanfield, 8 Ga. 49; Peck v. Land, 2 Ga. 1; Rose V. Colter, 76 Ind. 590; Bentley v. Dunkle, 57 Ind. 374 ; Leasure v. Co- "burn, 57 Ind. 274; Kane v. Drake, 27 Ind. 29; Nutter v. Harris, 9 Ind. 88; Phillips v. Reitz, 16 Ivans. 396, 400 ; Devonshire v. Gauthreaux, 32 La. An. Il.'i2; Spivey v. Wilson, 31 La. An. 053 ; Richardson u. Cramer, ■28 La. An. 357 ; Baltimore & 0. R. R. u. Glenn, 28 Md. 287, 324 ; Webster V. Anderson, 42 iVIich. 554; s. p. 36 Am. Rep. 452 ; Carpenter v. Graham, 42 Mich. 191 ; McLaughlin ;;. Lange, 42 Mich. 81; Webster v. Bailey, 40 Mich. 641 ; Molitor ./. Robinson, 40 Mich. 200; Vose v. Stickney, 19 Minn. 367, 369 ; Hilliard < . Cagle, 46 Miss. 309 ; Summers v. Roos, 42 Miss. 749; s. c. 2 Am. Rep. 653; Comstock V. Rayford, 20 Miss. (12 Smed. &M.) 369; Rankin v. HoUoway, 11 Miss. (3 Smed. & M.) 614 ; Carter V. Graves, 7 Miss. (6 How.) 9 ; Miller V. Morgan, 11 Xeb. 121 ; Densmore V. Tomer, 11 Neb. 118; Morgan v. Bogue, 7 Neb. 429 ; Robinson v. Uhl, « Neb. 328 ; Miller r. Pancoast, 29 N. J. L. (5 Dutch.) 250 ; Hall v. Snow- hill, 14 N. J. L. (2 J. S, Gr.) 8; Run- yon V. Groshon, 12 N. J. Eq. (1 Beas.) 86; Blaut v. Gabler, 77 N. Y. 461; Tilson u. Terwilliger, 56 N. Y. 273; May v. AValter, 56 N. Y. 8; Mitchell V. West, 55 N. Y. 107 ; Van Buskirk r. Warren, 4 Abb. App. Dec. (N. Y.) 457 ; Bissell v. Hopkins, 3 Cow. (N. Y.) 166, 188 ; s. c. 15 Am. Dec. 259; Betz t-. Conner, 7 Daly (N. Y.) 550; lianford v. .Artcher, 4 Hill (N. Y.) 271; Buller v. Tan Wyck, 1 Hill (N. Y.) 438, 450; Tate V. McCormick, 23 Hun (N. Y.) 218; Schoonmaker ^. Vervalen, 9 Hun (N. Y.) 138; HoUacher u. O'Brien, 5 Hun (N. Y.) 277 ; Sturte- vant u. Ballard, 9 Johns. (N. Y.) 337 ; s. c. 6 Am. Dec. 281 ; Smith v. 727 Acker, 23 Wend. (N. Y.) 653 ; Beek- man v. Bond, 19 Wend. (N. Y.) 444; Randall v. Crook, 17 Wend. (N. Y.) 53 ; Boone v. Hardie, 83 N. C. 470 ; Rea V. Alexander, 5 Ired. (N. C.) L. 644 ; Collins v. Myers, 16 Ohio, 547, 552 ; Hombeck v. Vanmetre, 9 Ohio, 153 ; Burbridge v. Seely, Wright (Ohio) 359 ; Rogers v. Dare, Wright (Oliio) 130; McCuUy v. Svvack- hamer, Oreg. 438 ; Moore v. Floyd, 4 Oreg. 101 ; Sarle v. Arnold, 7 R. I. 528, 587 ; Anthony v. Wheatons, 7 R. I. 490, 498 ; Smith v. Henry, 2 Bail. (S. C.) 118; Terry v. Belcher, 1 Bail. (S. C.) 568; Pulmore v. Bur- rows, 2 Rich. (S. C.) Eq. 96; Tennes- see Nat. Bank i'. Ebbert, 9 Heisk. (Tenn.) 153 ; Gait v. Dibrell, 10 Yerg. (Tenn.) 146 ; Maney v. Kilbough, 7 Yerg. (Tenn.) 443 ; Young ,.'. Pate, 4 Yerg. (Tenn.) 164; Darwin u. Handley, 3 Yerg. (Tenn.) 502 ; Scott V. Alford, 53 Tex. 82, 92; Kerr v. Hutchins, 46 Tex. 384; Green v. Banks, 24 Tex. 508 ; Gibson o. Hill, 21 Tex. 225; Sipe v. Earman, 26 Gratt. (Va.) 563; Dance v. Seaman, 11 Gratt. (Va.) 778; Forkner u. Stewart, 6 Gratt. (Va.) 197; Davis v. Turner, 4 Gratt. (Va.) 422 ; Williams V. Porter, 41 Wis. 422; Bullis v. Borden, 21 Wis. 1.30 ; Smith v. Welch, 10 Wis. 91 ; Whitney v. Brunette, 3 Wis. 021 ; Sterling v. Ripley, 3 Chand. (Wis.) 106; Robinson v. Elliott, 89 U. S. (22 Wall.) 513, 523 ; bk. 22, L. ed. 758 ; Warner v. Norton, 61 U. S. (20 How.) 448, 460; bk. 15, L. ed. 950; Hamilton c. Russell, 1 Cr. C. C. 97. Reservation of power of sale. — In all instances where power of sale is retained with the possession of the goods it is fraudulent, unless such sale is to be made by the former possessor as the agent of and for the buyer, in which case the transaction will be perfectly valid. Goodheart H61 AVOIDANCE OF THE CONTKACT. [BOOK III. where the yendor retains possession, is shown by the cases quoted in the above opinion, delivered by Bayley J. in Lati- mer V. Batson, to which may be added Kidd v. Rawlinson,i Cole V. Davies ^ [and Macdona v. Swiney ^] . In Hale v. Metropolitan Omnibus ComjDany,* Vice-Chan- cellor Kindersley expressed the modern doctrine in these terms : " It was at one time attempted to lay down rules that particular things were indelible badges of fraud, but in truth every case must stand upon its own footing, and the Court or the jury must consider whether, having regard to all the circumstances, the transaction was a fair one, and intended to pass the property or a valuable consideration." § 609. It is well settled that the mere intention to defeat the execution of a creditor will not avoid a sale as fraudulent, if it be made bond fide for a valuable consideration.^ Nor is it a fraud to mortgage personal property for money actually lent to the mortgagor, even though the mortgagor's inten- tion may be thus to defeat the expected execution of a judg- u. Johnson, 88 111. .58 ; Barnet v. Per- Jordan, 88 111. 602; Nimmo v. Kuy- gus, 51 111. 352 ; Hughes v. Cory, 20 Iowa, 399; Joseph v. Levi, 58 Miss. 843 ; Harman u. Hoskins, 56 Miss. 142 ; Hewson v. Tootle, 72 Mo. 632 ; Weber c. Armstrong, 70 Mo. 217; Southard v. Benner, 72 N. Y. 424; Freeman v. Rawson, 5 Oliio St. 1 ; Scott V. Alfortl, 53 Te.x, 82, il5; Rob- inson V. Elliott, 80 U. S. (22 Wall.) 513, 524; bk. 22, L. ed. 758; Brett v. Carter, 2 Low. C. C. 408; Contra, Russell V. Winnc, .37 N. Y. 591, 595; Edgell I . Hart, N. Y. 213 ; s. c. 59 Am. Dec. 532; Griswold u. Sheldon, 4 N. Y. 581; Collins )-. Myers, 16 Ohio, 547 ; Tennessee Nat. Bank c. Ebbert, 9 Heisk. (Tenn.) 153, 159. 1 2 Bos. & P. 59. 2 1 Ld. Raym. 724. 3 8Ir. C. L. R. 73. 4 30 L. J. Ch. 777. 1 Wood u. Dixie, 7 Q. B. 892; Riches v. Evans, 9 C. & P. 640 ; Hale V. Metropolitan Omnibus Co., 30 L. J. Ch. 777. See, also, Ingraham i\ Wheeler, 6 Conn. 277 ; Matthews v. kendall, 85 111. 476 ; Francis v. Ran- kin, 84 111, 169; Morris u. Tillson, 81 111. 607; Storey v. Agnevv, 2 111. App. 353; Gray i>. McCallister, 50 Iowa, 497 ; Bostwick u. Burnett, 74 N. Y. 317; Dudley!). Danforth, 01 N, Y. 620 ; Hauselt v. Vilmar, 2 Abb. (N. Y.) N. C. 222 ; Archer r. O'Brien 7 Hun (N. Y.) 146 ; Stacy r. Dibliaw, 7 Hun (N. Y.) 449; Alton r. Harrison, L. R. 4 Ch. App. 622; Spencer v. Slater, L. R. 4 Q. B. Div. 13; Bold- ero 1'. London Loan and Discount Co., 5 Ex. Div. 47 ; McKay r. Farish, 1 Up. Can. Ch. Rep. (1 Gr.ant) 33:!; Clark V. Morrell, 21 Up. Can. (j. B. .j'.)(i ; Armstrong v. Moodie, 6 Up. Can. Q. B. (0. S.) 538; Hooker r. Jarvis, 6 Up. Can. Q. B. (0. S.) 439; Dalglish V. McCarthy, 19 Grant (Ont.) 578; Dock V. Johnston, 2 Kerr (X. B.) 319 ; Hayward v. White, 2 Kerr (N. B.) 304; Kinnear v. White, 2 Kerr (N. B.) 235; Connell v. Millar, 1 Kerr (N. B.) 302. 728 CHAP. II.J FRAUD. *461 ment creditor ; ^ nor to confess a judgment in favor of one creditor for the purpose of giving him a preference over another who is on the eve of issuing execution on a judg- ment previously obtained.^ 2 Darvill v. Terry, 6 H. & N. 807, and 30 L. J. Ex. 355. 8 Holbird v. Anderson, 5 T. R. 235. See, also, Evans v. Hamilton, 56 Ind. 34; Beards v. Wheeler, 11 Hun (N. Y.) 539; Frazer v. Thatcher, 49 Tex. 26. Sale by insolvent debtor in good faith and for an adequate consideration is valid. Erb v. Cole, 31 Ark. 554 Bowden v. Bowden, 75 111. 14-3, 147 Miller v.' Kirby, 74 111. 242, 246 Herkelrath v. Stookey, 63 III. 486 Hessing v. McCloskey, 37 HI. 352 Wood V. Shaw, 29 111. 444 ; Ewing v. Runkle, 20 111. 448; McConnell Wilcox, 2 111. (1 Scam.) .344. Pa tticipation in fraud bi/ purchaser. — A sale to be fraudulent as to cred- itors must be made with the intent to hinder, delay, or defraud them, in which purpose the purchaser must participate by purchasing with a view and aim to aid and forward it. Erb V. Cole, 81 Ark. 554; Galbreath v. Cook, 30 Ark. 417 ; Christian v. Green- wood, 28 Ark. 258 ; s. c. 17 Am. Dec. 104 ; Dardenne v. Hardwick, 9 Ark. 482 ; Bodwen u. Bodwen, 75 111. 143, 147; Gridley v. Bingham, 51 111. 158; Myers v. Kinzie, 26 III. 86; Brown v. Eiley, 22 111. 45. The participation in the fraud upon the part of the grantee will be shown by establish- ing the fact that he had knowledge of the grantor's fraudulent purpose, or knowledge of such other facts and circumstances as ought to have put the vendee upon such inquiry as would have led to an ascertainment of the truth ; or that the purchaser purposely or negligently omitted to make such inquiries as an ordinarily prudent man in the circumstances would make. Christian c. Green- wood, 23 Ark. 258; s. c. 79 Am. Dec. 104; Kellogg v. McGann, 48 Iowa, 299 ; Drummond v. Couse, 39 Iowa, 442; Steele v. Ward, 25 Iowa, 535; Hopkins v. Langton, 30 Wis. 379. The fact that the vendee knew that the vendor intended to hinder, delay, and defraud his creditors, however, is not conclusive evidence of the for- mer's intent to aid the latter in an intent to defraud his creditors, so as to render the sale fraudulent. Actual in- tent of the vendee and the true charac- ter of the transaction, are questions of fact to be left to the jury with other facts, and to be determined by them upon the consideration of all the cir- cumstances. Brown u. Foree, 7 B. Mon. (Ivy.) 357 ; s. u. 46 Am. Dec. 510. Wliere the consideration is valuable ♦ and adequate the title of the grantee may be good notwithstanding the fraudulent intent of the grantor, if the grantee did not participate there- in. Parton v. Yates, 41 Ind. 459; Carlisle v. Gaskill, 4 Ind. 219 ; Hutch- inson V. Horn, 1 Smith (Ind.) 242 ; s. c. 50 Am. Dec. 470. A creditor may purchase bond fide of his debtor although he knew the object of the latter in making the sale was to defeat other creditors. Worland v. Kimberlin, 6 B. Mon. (Ky.) 608; s. c. 44 Am. Dec. 785; Young v. Stallings, 5 B. Mon. (Ky.) 307 -, Pearson c. Rockhill 4 B. Mon. (Ky.) 299; Ford c. Williams, 3 B. Mon. (Ky.) 550. An innocent purchaser who has bought in n bond fide manner at a fair price cannot be deprived of his property because the object of the seller was to defraud his creditors. See Massie r. Enyart, 32 Ark. 251; Paige V. O'Neal, 12 Cal. 498 ; Mich- igan C. R. R. Co. u. Phillips, 60 111. 729 ►461 AVOIDANCE OF THE CONTRACT. [BOOK III. 197 ; Fawcett v. Osborn, 32 111. 423 ; Kellogg . Rus- sell, 5 U. S. (1 Cr.) 309, 316 ; bk. 2, L. ed. 118; AVilliams i-. Rapelje, 8 Up. Can. C. P. 186; Ranney v. Moody, 6 Up. Can. C. P. 471. » 2 Kent, 521. 732 CHAP. II.] PEAUD. *462 in law unless possession accompanies and follows the deed ; and in a recent case * it was even decided that the lona fides of the transaction between the parties, and the fact that possession remained with the vendor for justifiable purposes, would not suffice to render the sale valid. This seems also to be the doctrine of the State Courts in Virginia,^ South Carolina, Pennsylvania, Illinois, New Jersey, Vermont, and Connecticut, while the English rule pervades the other States. § 611. [The legislation with reference to bills of sale has rendered obsolete a part of the law under the statute of 13 Eliz. c. 5. so far as relates to the transfer of chattels. The statutes now in force are the 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878), and the 45 & 46 Vict. c. 43 (Bills of Sale Act (1878), Amendment Act, 1882). By the Bills of Sale Act, 1878, the 17 & 18 Vict. c. 36 (Bills of Sale Act, 1854), and the 29 & 30 Vict. c. 96 (Bills of Sale Act, 1866), were repealed, except as to bills of sale executed before the 1st of January, 1879 (the day when the Act came into operation), and even as to such bills of sale the rules Avith respect to construc- tion, and to the renewal of registration, were to be those of the Act of 1878. The object of the legislation on this subject is thus stated in the preamble to the Act of 1854 : — " Whereas frauds are frequently committed upon creditors by secret bills of sale of personal chattels, Avhereby persons are enabled to keep up the appearance of being in good circumstances and possessed of property, and the grantees or holders of such bills of sale have the power of taking possession of the property of such persons to the exclusion of the rest of their credi- tors."] * The Romp, Olcott's Adm. 196, See the Baltimore and Ohio Railroad cited in note at p. 520, 2 Kent. Com. Co. < . Glenn, 28 Md. 287, at pp. 324, (12th ed.) 325, where the Virginian authorities ^ The English doctrine, it would are reviewed, seem, is now established in Virginia. 733 *463 AVOIDANCE OF THE CONTEACT. [BOOK III. [*463] * Section V. — pkatjd on creditors — ^ bills of sale. § 612. [By reason of the passing of the Bills of Sale Acts, 1878 and 1882, since the second edition of this treatise, a large portion of the law under the Act of 1854 has been rendered obsolete. The editors have therefore found it necessary to re-write this portion of the work ; and, in doing so, have deemed it advisable to treat the subject under a separate section. It has been thought well to set out in full the main provisions of the Act of 1878, with the principal decisions thereunder, briefly noticing the alterations oc- casioned by the Act of 1882. ^ Those portions of the Act of 1878 which were not contained in the previous Act of 1854 are printed in italics. § 613. By the 4th section, " The expression ' bill of sale ' is to include bills of sale, assignments, transfers, declarations of trust without transfer, inventories of goods with receipt thereto attached, or receipts for purchase-moneys of goods, and other assurances of personal chattels, and also powers of attorney, authorities, or licenses to take possession of personal chattels as security for any debt, and also any agreement, ivhether intended or not to he followed hy the execution of any other instrument, hy which a right in equity to any personal chattels, or to any charge or security thereon, shall he conferred, but is not to include the following documents ; that is to say, assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale of goods in foreign parts or at sea, bills of lading, India warrants, warehouse-keepers' cer- tificates, warrants or orders for the delivery of goods, or any other documents used in the ordinary course of busi- ness as proof of the possession or control of goods, or author- izing or purporting to" authorize, either by indorsement or by ^ This Act only received the Royal this edition were passing through the Assent at the time when the sheets of press. 734 CHAP. II.] FRAUD. *464, *465 * delivery the possessor of such document to transfer [*464] or receive goods thereby represented." In the case of AUsopp v. Day,^ a receipt for money given by a husband to the trustees of his wife's settlement " for the purchase of my household goods and effects con- tained in the enclosed inventory " was held under the Act of 1854 not to be a bill of sale ; and this decision was followed in Byerley v. Prevost.^ But the authority of these cases had been questioned before the Act of 1878 in Ex parte OdelP and Ex parte Cooper,* and now they are expressly within the words of the above section. § 614. The effect, however, of the section is much restricted by the late decision of the Court of Appeal in Marsden v. Meadows,-"^ where it was decided that an inventory of goods with a receipt for the purchase-money given to a purchaser by a sheriff who had seized under a writ of fi. fa. does not amount to a bill of sale under this section, and need not be registered. The restriction intended to be put upon the words of the enactment appears to be that inventories and receipts to be within the Act must operate as assurances, or to use Lord Justice Cotton's words, must be " documents on which the title of the transferee of the goods depends, either as the actual transfer of the property, or an agree- ment to transfer, or as a muniment or document of title taken, to use an expression found in some of the cases, at the time as a record of the transaction." Here the claimant had a complete title to the goods, before the receipt by the sheriff was given. The receipt was mere surplusage. The words " any agreement ... by which a right in equity to any chattels shall be, conferred " are declaratory of the law as laid down in cases before the Act.^ As to transfers of shares in ships, reference should be * made to the Merchant Shipping Act, 1854 (17 [*465] 1 7 H. & N. 457 ; 31 L. J. Ex. 105. Woodgate o. Godfrey, 5 Ex. D. 2i, 2 L. R. 6 C. P. 144. C. A. ; s. c. 4 Ex. D. 59, decided 8 10 Ch. D. 76, C. A. under the Act of 1854. * Ibid. 313, C. A. ^ Ex parte Mackay, 8 Cli. 643 ; £x 1 7 Q. B. D. 80, C. A., following parte Conning, 16 Eq. 414. 735 *466 AVOIDANCE OF THE CONTEACT. [BOOK III. & 18 Vict. c. 104, ss. 55, 57, 81). And a ship built for a foreigner, and which, therefore, could not be registered as a British ship, is witliin the exception. ^ As to transfers of goods in the ordinary course of business, the reader is referred to the cases below cited.* Foreign parts include Scotland.^ § 615. In Ex parte Crawcour,i it was held under the Act of 1854 that an agreement for the hire and conditional pur- chase, by instalments, of furniture, whereby the property in the furniture was to remain in the latter until the payment of all the instalments, and he was to have jjower to seize the fur)iUure upon failure to fay any of the instalments, did not amount to a bill of sale by the hirer to the letter, inasmuch as no pi'operty in the furniture passed to the hirer until the payment of the full amount of the instalments. By the 4th section it also provided, that " The expression ' personal chattels ' shall mean goods, furniture, and other articles capable of complete transfer by delivery, and Qwhen styarately assigned or charged') fixtures and growing crops, but shall not include chattel interests in real estate, 7ior fixtures (except trade machinery as hereinafter defined) when assigned together with a freehold or leasehold interest in any land or building to ivhich they are affixed, nor grouping crops ivhen assigned together with any interest in the land on ivhich they grow, nor shares or interests in the stock, funds or securities of any government, or in the capital or property of incor- porated or joint stock companies, nor choses in action, nor any stock or produce upon any farm or lands which Ijy virtue of any covenant or agreement or of the custom of the coun- try ought not to be removed from any farm where the same are at the time of making or giving of such bill of sale : " and by the 7th section, which should be read together with it, " No fixtures or groiving crops shall be deemed, [*466] under * this Act, to be separately assigned or charged ^ Union Bank v. Lenanton, 3 C. P. fen, 11 Ir. E. Eq. 586; Ex parte W:it- T). 2i:), C. A. son, 5 Cli. D. 35, C. A. ■* Ex parte North Western Bank, '^ Coot v. Jecks, 13 Eq. 597. 15 Eq. 09; Ex parte Conning, 16 Eq. i 9 Oh. D. 419. 414 ; Merchant Banking Co. v. Spof- 736 CHAP. 11.] PRATJD. *467 ly reason only that they are assigned hy separate words, or that power is given to sever them from the land or building to which they are affixed, or from the land on which they grow, without otherwise taking possession of or dealing with such land or building, or land, if hy the same instrument any freehold or leasehold interest in the land or building to ivhich such fixtures are affixed, or in the land on which such c^-ojis grow, is also con- veyed or assigned to the same persons or person." ^ Growing crops were held under the Act of 1854 not to be personal chattels within the meaning of that Act,^ but upon severance the crops became personal chattels, and therefore subject to the provisions of the Act.* A consideration of the case of Meux v. Jacobs,^ together with the two sections above cited, will show what the words "when separately assigned or charged" were intended to cover. Trade machinery is dealt with separately by the 5th section, post, p. 470, and any mortgage of trade machinery must (it would seem) be registered as a bill of sale, whether it is sepa- rately assigned or not.^ § 616. By the 4th section it is further provided, that " Personal chattels shall be deemed to be in the ' apparent possession ' of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, ware- house, building, works, yard, land, or other premises occu- pied by him, or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof may have been taken by or given to any other person." This, with the exception of a slight verbal alteration, is identical with the definition of " apparent possession " given in the 7th section of the Act of 1854. The 8th section, post, p. 472, deals with the effect of goods * comprised in an unregistered bill of sale [*467] remaining in the possession or apparent possession of the grantor. 2 This section is made retrospec- * Ex parte National Mercantile tive. Bank, 16 Ch. D. 104, C. A. 3 Brantom v. GriflSts, 2 C. P. D. 212, 5 l. R. 7 H. L. 481. C. A. ; affirmed, s. u. 1 C. P. D. 349. « As to the law previous to the 737 *467 AVOIDANCE OF THE CONTRACT. " [BOOK III. The latter words of the clause qualify what precedes them, and therefore if more than formal possession has been taken by the grantee, the clause does not apply.'' What is required, in order to constitute a more than for- mal possession, has not been judicially defined, but in the note infra,^ will be found some of the cases which have been decided on this head. It is, in general, a question of fact for the jury to decide. § 617. A difficulty was felt as to taking more than formal possession of growing crops, and it was laid down in Sheridan V. Macartney,^ that so long as they are upon land occupied by the grantor, they must be in his apparent possession. This case, however, has not met with approval in the English courts,^ and in Ex parte Arnison ^ (which was, however, a case of distress for tithe-rent charge) it was intimated that, after possession of growing crops has once been taken, a notice to inform the public would be sufficient. Upon the word '' occupied " it has been held that actual de facto occupation is meant.* If the grantor does not per- sonally occupy the premises, the goods are not in his apparent possession.^ Occupation by liim as a servant to the grantee is sufficient.^ In Seal v. Claridge,^ the goods were in the grantor's house, of which the grantor possessed a key. He did not sleep there, but went in and out as he pleased. Held, that this amounted to a personal occupation by the grantor, and that the goods were in his apparent possession. § 618. Possession by a bailee on behalf of the grantor was held in Ancona v. Rogers,-' to be his possession, al- Act, see Mather v. Fraser, 25 L. J. i 11 Jr. C. L. Rep. 506. Ch. .361; Waterfall u. Penistone, 6 E. ^ See remarks by Bramwell B. in & B. 876, and 26 L. J. Q. B. 100. Gough ;;. Everard, ubi supra, at p. 12, ' Gough V. Everard, 2 H. & C. 12 ; and Brett J. in Brantom v. Griffits, 1 Ex parte Lewis, 6 Ch. 626. C. P. D. at p. 355. 8 Ex parte Jay, 9 Ch. 697 ; Ex » L. R. 3 Ex. 56. parte Homan, 10 Eq. 63 ; Smitli u. ^ Robinson v. Briggs, L. R. 6 Ex. 1. Wall, 18 L. T. N. S. 182; Davies v. 6 Gough v. Everard, ubi supra. Jones, 10 W. R, 779; Emmanuel «. ^ Pickard v. Marriage, 1 Ex. D. Bridger, L. R. 9 Q. B. 286; Ancona 364. Vide ante, p. 41, § 47, note (15). V. Rogers, 1 Ex. D. 285, C. A, ; Ex ' 7 Q. B. D. 516, C. A. parte Fletcher, 5 Ch. D. 809, C. A.; i 1 Ex. D. 205, C. A. Seal V. Claridge, 7 Q. B. D. 516, C. A. 738 CHAP. II.J PKATJD. *468 though the * grantee had attempted ineffectually, [*468] owing to the refusal of the owner of the house where the goods were, to get access to them. But it is otherwise if the bailee holds on behalf of some third party.^ In Ex parte Saffery,^ it was held that goods in the actual visible possession of the sheriff under an execution are not in the apparent possession of the grantor, and the earlier case of Ex parte Mutton,* was not followed. In this connection reference should be made to the doc- trine of " reputed ownership " under the Bankruptcy Laws. By s. 44, sub-s. 3, of the new Bankruptcy Act of 1883 (46 & 47 Vict. c. 52), it is provided that the property of a bankrupt divisible among his creditors shall include inter alia : — " All goods being, at the commencement of the bankruptcy, in the possession, order or disposition of the bankrupt, in Ms trade or business, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof ; provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business, shall not be deemed goods within the meaning of this section." This provision replaces the " order and disposition " clause of the Bankruptcy Act of 1869 (82 & 33 Vict. c. 71, s. 15, sub-s. 5), but differs from it in two important particulars: — 1. The distinction between traders and non-traders is abolished ; the clause applies to all bankrupts alike.^ 2. To come within its operation the goods must be in the bank- rupt's possession, order, or disposition in his trade or business. As regards furniture and other household and domestic goods and chattels not connected with the bankrupt's busi- ness, the title of the grantee of the bill of sale will now prevail against the trustee in bankruptcy.^ 2 Market Banking Co. v. SpofEen, were excluded from the operation of 11 Ir. E. Eq. 587. the clause in the Act of 1869. 3 16 Ch. D. 668, C. A. « See Ex parte Lorering, 24 Ch. * 14 Eq. 178. D. 31, C. A., as to the evidence re- 5 Farmers, graziers and others quired to connect goods with the business. 739 *469 AVOIDANCE OF THE CONTRACT. [BOOK III. The Bills of Sale Act, 1854, contained no provision [*469] with * regard to goods in the possession of a bank- rupt, and it was decided under that Act that where the grantor was a trader, goods comprised in a bill of sale, even although registered, remained until demand in his order and disposition, and in the event of his bankruptcy vested in his trustee. The Act of 1878 made an important alteration in the existing law by providing (s. 20) that " chattels comprised in a hill of sale which has been and continues to he duly registered under this Act shall not he deemed to he in the possession, order, or disposition of the grantor of the hill of sale within the mean- ing of the Bankruptcy Act, 1869." § 619. Then came the Act of 1882 expressly repealing (s. 15) the above section, and reviving, so far as relates to bills of sale given by way of security, the doctrine of reputed ownership. The effect of this is to restore the authority of the cases decided previous to 1879, the most important of which are given in the note.^ § 620. The following are the chief points of distinction between the doctrine of " reputed ownership " under the Bankruptcy Act, 1883, and that of apparent possession under the Bills of Sale Acts, 1878 and 1882,^ keeping in view the important effect of s. 15 of the Act of 1882 upon the latter doctrine : 1. Under the reputed ownership clause it is necessary that the true owner should consent, and a demand of the goods by him excludes its application : in the case of apparent pos- session his consent is immaterial, and an actual and not a merely attempted possession on his part is necessary.^ 2. The only person who is favored by "reputed owner- ship " is the trustee in bankruptcy or liquidation, whereas 1 Freshney v. Carrick, 1 H. & N. i Based upon Williams on Bank- 653 ; Reynolds v. Hall, 4 H. & N. 519 ; ruptcy, p. 123, ed. 176. The altera- Badger v. Shaw, 2 E. & E. 472 ; Staus- tions occasioned by the Bills of Sale field V. Cubitt, 2 De G. & J. 222 ; Act, 1875, and the Bankruptcy Act, Spackman v. Miller, 12 C. B. N. S. 1883, are taken into consideration. 659 ; Ex parte Harding, 15 Eq. 223. - See Ancona v. Kogers, 1 Ex. D. 285 C. A. 740 CHAP. n.J FRAUD. *470 any unregistered bill of sale', to which the doctrine of appar- ent possession applies, is also void as against an execution creditor. *3. Reputed ownership applies to personal chat- [*470] tels incapable of complete transfer by delivery, e.g. shares, stocks and trade debts ; whereas the Bills of Sale Acts do not. 4. Reputed ownership does not apply to fixtures, includ- ing within that definition trade machinery, whereas the Bills of Sale Acts apply to trade machinery in all cases, and also to other fixtures "when they are separately assigned or charged." 5. Reputed ownership applies, although the goods are neither in the possession nor the apparent possession of the bankrupt, whereas by the Bills of Sale Acts they must be in the grantor's possession or apparent possession. 6. Reputed ownership does not apply when the goods come into the bankrupt's possession after the commencement of the bankruptcy, whereas the words in the Bills of Sale Act, 1878, are " at or after the time of filing the petition for bankruptcy." The combined effect of ss. 8 and 15 of the Bills of Sale Act, 1882, which is to render absolutely void unregistered bills of sale given by way of security, makes an inroad upon the doctrine of apparent possession; but it having been settled that the repeal contained in s. 15 is limited in its operation to that class of bills of sale ^ the doctrine remains in force with regard to unregistered bills of sale given by way of absolute transfer, and with regard to unregistered bills of sale given by way of security and executed before the 1st of November, 1882. On the other hand, the doctrine of re- puted ownership, which alone applies to bills of sale given by way of security, and registered after that date, is under the " order and disposition " clause of the new Bankruptcy Act limited in its application to bills of sale given over goods which, at the time of the grantor's bankruptcy, are in his possession in his trade or business.* 3 Swift V. Pannell, 24 Ch. D. 210 ; * See Ex parte Lovering, 24 Ch. D. Keeves v. Barlow, 11 Q. B. D. 610. 31, C. A. 741 *471 AVOIDANCE OF THE CONTRACT. [BOOK III. § 621. By the 5th section, " Trade machinery shall, for the 2)urposes of this Act, he deemed to be personal chattels, and any mode of disposition of trade machinery iy the owner thereof which woidd be a bill of sale as to any other personal chattels shall be deemed to be a bill of sale within the meaning of this Act." [*471] * The section proceeds to define what is comprised within the term "trade machinery"; as to which, see ante, p. 466. The limiting words, "for the purposes of this Act," are important. Independently of the Act fixed trade machinery is not goods and chattels, and, therefore, not within the doc- trine of reputed ownership under the Bankruptcy Act. § 622. By the 6th section, " Every attornment, instrument, or agreement, not being a mining lease, whereby a power of dis- tress is given or agreed to be given by any person to any other person by ivay of security for any present, future, or contingent debt or advance, and whereby any rent is reserved or made pay- able as a mode of providing for the payment of interest on such debt or advance, or otherwise for the purpose of such security only, shall be deemed to be a bill of sale, ivithin the meaning of this Act, of any piersonal chattels ivhich may he seized or taken under such power of distress. Provided, that nothing in this section shall extend to any mortgage of any estate or interest in any land, tejiement, or hereditament which the mort- gagee, being in possession, shall have demised to the mortgagor as his tenant at a fair and reasonable rent." An attornment clause Avas not uncommonly inserted in mortgage deeds, and it was until lately generally supposed that a mortgagee might avail himself of such a clause without incurring the responsibilities of a mortgagee in possession. But from recent decisions ^ it appears that under an attorn- ment clause the mortgagee is under the same liability to account as a mortgagee in possession would have been. Recent cases in which the effect of an attornment clause was discussed are referred to in the note.^ ' In re Stockton Iron Co., 10 Ch. parte Punnett, 16 Ch. D. 226, C. A. ; D. 335, C. A.; per James L. J. p. per Jessel M. R. p. 235. 356 ; per Bramwell L. J. p. 357 ; Ex • ^ jn re Stockton Iron Co., ubi 742 CHAP. II.] FRAUD. *472 These cases arose under deeds executed before the Act of 1878, and were decided under the 34th section of the Bank- ruptcy Act, 1869, which empowers a landlord to distrain for one year's rent accrued due prior to the date of the order of adjudication. In the case of In re Stockton Iron Conipany,i it was held that the clause was not a "licence or authority to * take possession of chattels " within the [*472] Bills of Sale Act, 1854. But now, under this section, every mortgage deed containing an attornment clause must be registered, in order to render that clause valid as against the trustee in bankruptcy or the execution creditor.^ In Ex parte Harrison,* it was held, by the Court of Appeal, that the proceeds of distress for rent levied under an attornment clause are, in the absence of any provision in the deed to the contrary, applicable to payment of principal as well as of interest. § 623. By the 8th section, "Every bill of sale to which this Act applies shall be duly attested, and shall be registered under this Act within seven days after the making or giving thereof, and shall set forth the consideration for which such hill of sale was given, otherwise such bill of sale, as against all trustees or assignees of the estate of the person whose chat- tels, or any of them, are comprised in such bill of sale under the law relating to bankruptcy or liquidation, or under any assignment for the benefit of the creditors of such person, and also as against all sheriffs' officers and other persons seizing any chattels comprised in such bill of sale, in the execution of any process of any Court authorizing the seizure of the chattels of the person by whom or of whose chattels such bill has been made, and also as against every person on whose behalf such process shall have been issued, shall be deemed fraudulent and void so far as regards the property in or right to the possession of any chattels comprised in supra ; Ex parte Jackson, 14 Ch. D. ^ Per Baggallay L. J. in Ex parte 725, C. A. ; and see Ex parte Punnett, Jackson, 14 Ch. 1). at p. 733 ; Robson ubi supra; Ex parte Isherwood, 46 L. on Bankruptcy, 543, Ed. 1881. T. N. S. 539 ; and Ex parte "Williams, * 18 Ch. D. 127, C. A. where 7 Ch. D. 138, C. A. Hampson v. Fellows, 6 Eq. 575, was not followed. 743 *473 AVOIDANCE OF THE CONTRACT. [BOOK III. such bill of sale which, at or after the time of filing the peti- tion for bankruptcy or liquidation, or of the execution of such assignment, or of executing such process (as the case may be), and after the expiration of such seven days, are in the possession or apparent possession of the person making such bill of sale (or of any person against whom the process has issued under or in the execution of which such bill has been made or given, as the case may be "). The 15th section of the Act of 1882 repeals this section. The 8th section of the same Act is a substantial re- [*473] enactment * of it, but contains this further important provision, that bills of sale to which the Act applies will, on failure to comply with the requisites as to attesta- tion, registration, and statement of consideration, be rendered absolutely void. The extent and effect of this repeal is noticed, post, p. 487. Under the Act of 1854 attestation was unnecessary. As to the mode of attestation required by the Act of 1878, see post, p. 479. § 624. There are four classes of persons as against whom an unregistered bill of sale is by this section declared to be void — 1st. The grantor's trustee in bankruptcy or insolvency ; 2d. His assignees in any assignment for the benefit of creditors ; 3d. Sheriffs' officers and others seizing under execution ; and 4th. All persons in whose behalf process of execution has issued. The liquidator of a company is not comprehended in these provisions as being an assignee in bankruptcy or insolvency,-'- because he acts not only for creditors but for contributories and for the company. The rule in bankruptcy contained in this section is not applicable under the 10th section of the Judicature Act, 1875, to the case of the administration by the Court of an 1 Ee Marine Mansions Co., 4 Eq. 601. 744 CHAP. II.] FRAUD. *474 insolvent's estate.^ The principle of the decisions is that the 10th section of the Judicature Act, whilst introducing new rules for the administration of assets, does not enlarge or diminish the assets to be administered. The new provision as to setting forth the consideration for the bill of sale has already given occasion for numerous decisions which are not at all reconcilable, and some of the earlier of which do not seem now to retain much authority. The cases decided on this point are now referred to in order of date. § 625. *ln Ex parte Carter,i where the bill of [*474] sale recited in effect that 400Z., the amount of the consideration, had been advanced to the grantor, whereas in fact 2401. was advanced to the grantor and his partner jointly, and the dates of the several advances were also mis- recited, it was held by the Chief Judge that, although the transaction was an honest one, the consideration was not truly stated, and the bill of sale void. In Hamlyn v. Betteley,^ where the statement of the con- sideration was " the sum of 182L 3s. now paid by the grantee to the grantor," and that sum was paid at the grantor's request, partly to pay out executions on the grantor's goods, partly to the attesting solicitor for money lent and costs due to him from the grantor, and the balance in cash to the grantor, it was held that the statement of the consideration was sufficient in th% absence of any suggestion of fraud. In Ex parte National Mercantile Bank,^ it was held, by the Court of Appeal, that a collateral agreement between the grantor and the grantee as to the application of the con- sideration does not require to be stated. § 626. In Ex parte Charing Cross Advance and Deposit Bank,^ the consideration was stated in the operative part of 2 Re Knott, 7 Ch. D. 549, note ; i 12 Ch. D. 908. The decision is Re D'Epineuil, 20 Ch. D. 217. See, questioned by Baggallay L. J. in also, per James L. J. in Re Withern- Ex parte National Mercantile Bank, sea Brickworks Co., 16 Ch. D. 337, 15 Ch. D. at p. 55. C. A. at p. 341, where he points out ^ 5 c. P. D. 327. the limitation to be put upon the 10th ^ 15 Qh. D. 42, C. A. section of the Judicature Act. 1 16 Ch. D. 35, C. A. 745 *475 AVOIDANCE OF THE CONTRACT. [BOOK III. the bill of sale as 1201. In fact, 90?. was paid to the grantor, 30Z. being retained by the grantee for interest and expenses. At the foot and after the attestation clause there was a receipt setting forth the actual facts. It was held, that the receipt Avas not part of the deed, and that the consideration was not truly set forth therein. Ex parte National Mercantile Bank was distinguished upon the ground that in that case there was a bond fide debt existing, independently of and previous to the transaction of loan. In Garrard v. Meek,^ the bill of sale was expressed to be "in consideration of the payment of 811. 18s. by the grantee to the grantor, and in further consideration of 161. 3s. [*475] by the * grantee to the sheriff of Surrey for and at the request of the grantor." The former sum was a past paj-ment and the latter a present payment to discharge an execution. Held, that the consideration was sufficiently set forth. § 627. In Ex parte Berwick,^ the consideration for a bill of sale dated the 4th of June, 1879, was stated to be the " sum of Q51. now paid " by the grantee to the grantor. The 651. was in fact advanced by instalments, the first of which was on the 16th of April, 1877, and the last on the 16th of October, 1878. It was held by the Chief Judge in Bank- ruptcy that the consideration was not truly stated. In Ex parte Challinor,^ it was held that the bill of sale was not vitiated because a part of the sum stated as the con- sideration was retained by the grantee to pay the costs of the solicitor in the preparation of the deed and of the auctioneer for the valuation of the property. Ex parte Charing Cross Bank was distinguished upon the ground that there a sum was colorably retained for interest when no interest could have been due at the time. But in Hamilton v. Chaine,^ where there was a deduction for commission upon the loan, and. the statement of the consideration was the whole amount of the loan without 2 50 L. J. Q. B. 187; 29 W. E. = 16 Ch. D. 260, C. A. But see 244. Ex parte Firth, infra. 1 4.3 L. T. N. S. 576; 29 W. R. s 7 Q. B. D. 319, C. A., affirming 292, sed qucere. s. c. ib. 1. 746 CHAP. II.J FRAUD. *476 deducting the commission, the Court of Appeal held that the consideration was not truly stated, and Ex parte National Mercantile Bank and Ex parte Challinor were distinguished ; at the same time Brett and Cotton L. JJ. expressed a doubt as to the correctness of those decisions. § 628. In the Credit Company v. Pott^ it was held that the consideration for a bill of sale had been truly set forth, where upon a statement of accounts it was found that the grantor was indebted to the grantee to the amount of £7,350, and the bill of sale recited that the grantee had agreed to lend £7,350 to the grantor, and the consideration was stated to be £7,350 then paid by the grantee to the grantor. * In Ex parte Winter,^ the bill of sale recited that [*476] the mortgagor was indebted to the mortgagee in the sum of 1,444L 14s. Sd., and that the mortgagor had agreed to execute the mortgage deed in order to induce the mortgagee not to institute proceedings. The facts were that a few days previous to the execution of the bill of sale the mort- gagee had given the mortgagor a cheque for the full amount, but on hearing rumors as to the mortgagor's insolvency, stopped payment of it at the bank. Two days later the stop was withdrawn on the distinct irnderstanding that good security should be given, and the cheque was accordingly paid a few hours prior to the execution of the bill of sale, but no proceedings had been threatened by the mortgagee. Held, that the consideration was properly set forth. Jessel M. R. said : " I wish to add that a small inaccuracy in the statement of the consideration will not be sufficient to avoid a bill of sale, otherwise valid. That Act was never intended to defraud creditors. Substantial accuracy is suffi- cient to satisfy its requirements." § 629. In Ex parte Rolph,^ where out of an ostensible consideration of £50 the sum of £25 had been retained by the grantee under an agreement with the grantor to apply it in payment of the future rent of the grantor's house, the 1 6 Q. B. T). 295, C. A., aff. s. c. reported sub nom. Ex parte Ord, 43 42 L. T. N. S. 592. L. T. N. S. 637. 2 44 L. T. N. S. 323, C. A., aff. s. c. i 19 Ch. J). 98, C. A. 747 *477 AVOIDANCE OF THE CONTRACT. [BOOK III. agreement being made with a view to better the grantee's secvirity, the Court of Appeal held that the consideration was not truly stated, and Ex parte National Mercantile Bank and Ex parte Challinor were explained and distin- guished. Finally, in Ex parte Firth,^ the same Court held that the consideration was not truly stated when a small sum was retained by the grantee for the expenses attending the attestation of the deed, on the principle that the costs were not an actual debt of the borrower, until after the transaction was completed. The result is, that the earlier decisions of the Court in Ex parte National Mercantile Bank and Ex parte Challinor are only binding authorities for the [*477] future in * cases which come within the principle laid down in Ex parte Firth, and which was enunciated by James L. J. in Ex parte Challinor ^ as forming the ground of those decisions.* § 630. The following rules may be extracted from the foregoing decisions : — 1. The first question to determine in every case is, whether the consideration stated in the bill of sale is in substance and in truth the consideration received by the grantor, or whether the statement is a merely colorable one, rendering the bill of sale void as a sham transaction, and a small inaccuracy will not be sufficient to avoid a bill of sale otherwise valid.^ 2. In the absence of fraud it is not essential that the con- sideration stated to be paid should pass from the grantee to the grantor at the time of the execution of the bill of sale. The grantee may retain the whole or deduct a part of the amount stated in satisfaction of a pre-existing debt due to himself from the grantor,^ or may apply it, with the consent 2 19 Ch. D. 419, C. A. Another i Ex parte National Mercantile decision, only reported while this Bank, 15 Ch. D. 42, C. A.; Ex parte work was passing through the press, Charing Cross Bank, 16 Ch. D. 35, is Ex parte Popplewell, 21 Ch. D. C. A. ; Ex parte Challinor, ibid. 260, 73, C. A. C. A. ; Ex parte "Winter, 44 L. T. N. 8 16 Ch. D. at p. 266. S. 323, C. A. ; and see Collis v. Tuson, » See per Brett L. J. in Ex parte 46 L. T. N. S. 387. Firth, 19 Ch. D. at p. 430, and per 2 Credit Co. ;;. Pott, 6 Q. B. D. 295; Jessel M, R. at p. 428. Carrard v. Meek, 50 L. J. Q. B. 187. 748 CHAP. IT. J FRAUD. *478 and by the direction of the grantor, in discharge of debts actually due from the grantor to third persons.^ 3. A collateral agreement as to the application of the consideration does not require to be set out in the bill of sale.* 4. The retention of a part of the consideration stated to meet debts of the grantor to accrue due after the date of the execution of the bill of sale, either to third persons or to the grantee, as interest on his loan, will invalidate the bill of sale.* 5. The expenses incurred in the preparation of the bill * of sale, not being a debt actually due from [*478] the grantor at the time of the execution of the bill of sale, the grantee is not entitled to deduct them from the amount of the consideration stated to be paid.^ § 631. By the 9th section, " Where a subsequent bill of sale is executed within or on the expiration of seven days after the execution of a prior unregistered bill of sale, and comprises all or any part of the personal chattels comprised in such prior bill of sale, then, if such subsequent bill of sale is given as a security for the same debt as is secured by the prior bill of sale, or for any part of such debt, it shall to the extent to which it is a se- curity for the same debt or part thereof, and so far as respects the personal chattels or part thereof comprised in the prior bill, be absolutely void, unless it is proved to the satisfaction of the Court having cognizance of the case that the subsequent bill of sale was bond fide given for the purpose of correcting some mate- rial error in the prior bill of sale, and not for the purpose of evading this Act." Under the earlier Act the practice extensively prevailed of executing successive bills of sale, each within the twenty-one days then allowed for registration, the effect being that the security remained valid, and at the same time the bill of sale ' Hamlyn v. Betteley, 5 C. P. D. as to the authority now of this de- 327 ; Carrard v. Meek, ubi supra ; Ex cision. parte Firth, 19 Ch. D. 419, C. A.; ^ Ex parte Charing Cross Bank, Ex parte Berwick, 43 L. T. N. S. 16 Ch. D. 35, C. A.; Ex parte Rolph, 676 ; 29 W. R. 292, seems to be in- 19 Ch. D. 98, C. A. consistent with these decisions. ^ Ex parte Firth, ubi supra, prac- * Ex parte National Mercantile tically overruling on this point Ex Bank, 15 Ch. D. 42, C. A. ; but guaire, parte Challinor, 16 Ch. D. 260, C. A. 749 *479 AA'OIDANCB OF THE CONTRACT. [BOOK III. was kept off the register. The object of the section is to check this practice.-^ In bankruptcy these contrivances had been held invalid as a fraud on the bankruptcy laws.^ This section does not affect a subsequent bill of sale exe- cuted after the expiration of the seven days.^ § 682. By the 10th section, "A bill of sale shall be attested and registered under this Act in the following manner : (1.) The execution of every hill of sale shall he attested hy a solicitor of the Supreme Court, and the attestation shall state that hefore the execution of the hill of [*479] sale * the effect thereof has heen explained to the grantor hy the attesting solicitor.^ (2.) Such bill, with every schedule or inventory thereto annexed or therein referred to, and also a true copy of such bill and of every such schedule or inventory, and of every attestation of the execution of such bill of sale, together with an affidavit of the time of such bill of sale being made or given, and of its due execution and attestation, and a description of the residence and occupation of the person making or giving the same (or in case the same is made or given by any person under or in the execution of any process, then a description of the residence and occupation of the person against whom such process issued), and of every attesting witness to such bill of sale, shall be presented to and the said copy and affidavit shall be filed with the registrar within seven clear days after the making or giving of such bill of sale, in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed." ^ See the law as laid down in ' Carrard v. Meek, 50 L. J. Q. B. Smale v. Burr, L. R. 8 C. P. 64, and 187 ; 29 W. E. 244. confirmed by the Ex. Ch. in Rams- ^ Repealed by the 10th section of den V. Lupton, L. R. 9 Q. B. 17. the Act of 1882. 2 Ex parte Stevens, 20 Eq. 786 ; Ex parte Furber, 6 Ch. D. 181. 750 CHAP. II.J FRAUD. *480 Under the Act of 1854 attestation was unnecessary. § 633. The 8th section of this Act provides that the bill of sale shall be " duly attested," and the 10th section (sub- sect. 1) explains due attestation to be an attestation by a solicitor of the Supreme Court; and (sub-sect. 2) contains the requisites for valid registration, and provides that the bill of sale, and a copy together ^yith an affidavit of the " due execution and attestation " of the bill of sale, shall be filed. It was decided under this Act that want of attestation did not render the bill of sale void as between grantor and grantee ; ^ but the 8th section of the Act of 1882 now ren- ders all bills of sale to which the Act applies absolutely void <^post, p. 488). Under the Act of 1878 it had been held that the solicitor acting for both parties was a competent attesting witness,^ * and so was the solicitor acting for the [*480] grantee ; ^ but that the grantee himself, although a solicitor, could not be the attesting witness.* As to the explanation, it had been decided that though the attestation clause must state that the bill of sale had been explained to the grantor by the attesting solicitor, yet no such explanation need in fact have been given, and its omis- sion would not invalidate the bill of sale.* The effect of these decisions was to render the provisions of the 1st sub-section practically valueless, and it is now formally repealed by the 10th section of the Act of 1882. The affidavit of " due execution and attestation," filed with the bill of sale, must state that the bill of sale was duly attested, i.e., that the attesting witness was present and wit- nessed its execution. A mere verification of the signature of the witness to the attestation clause is defective and will invalidate the registration.^ These decisions are still of 1 Davis u. Goodman, 5 C. P. D. C. A., following upon this point 128, C. A., overruling s. c. ibid. 20. Freshfleld v. Reed, 9 M. cSb W. 404. " Vernon v. Cooke, 49 L. J. C. P. ^ Ex parte National Mercantile 767. Bank, 15 Ch. D. 42, C. A. ; and see 3 Penwarden o. Roberts, 9 Q. B. Hill v. Kirkwood, 28 W. R. 358, C. A. D. 137. « Sharpe v. Birch, 8 Q. B. D. Ill ; 4 Seal V. Claridge, 7 Q. B. D. 516, Ex parte Knightley, 46 L. T. N. S. 751 *481 AVOIDANCE OF THE CONTRACT. [BOOK III. importance with regard to all bills of sale registered before the 1st of November, 1882, and possibly with regard to abso- lute bills of sale (to which the new Act does not apply) registered after that date. § 634. With respect to the description of the residence and occupation of the grantor, the decisions under the stat- utes have established that the objects of the forms and requisites prescribed was to affoi'd to creditors and parties interested a true idea of the position in life of the grantor, and to give such a description of the residence and occupa- tion of the grantor and witnesses as would enable persons interested in the matter to trace out who is the person giv- ing the bill of sale, and who the witnesses are, so as to ascer- tain the bona fides of the transaction.^ [*481] *Any misdescription or non-description in these particulars will therefore vitiate the bill of sale. Among the very numerous cases which have been decided on this point the following are selected as fair examples : — It has been held insufficient to describe as " gentleman " only a clerk in the Audit office,^ or an attorney's clerk,^ or a silk buyer.* But such a description was held sufficient where the party had no occupation.^ § 635. How far the bill of sale may be read together with the affidavit in order to supply omissions or deficiencies in the latter is a question not from difficulty. 776; Ford v. Kettle, 9 Q. B. D. 139, 27 L. J. Ex. 293 ; Beales u. Teunent, C. A. 29 L. J. Q. B. 188. 1 Per Wightman J. in Hewer v. * Adams v. Graham, 33 L. J. Q. B. Cox, 3 E. & E. at p. 433; per Black- 71. burn J., ibid. p. 436 ; per eimdem in 5 Morewood v. South Yorkshire Briggs u. Boss, L. R. 3 Q. B. 268- Railway Co., 3 H. & N. 798 ; 28 L. J. 279; per eundem in Larchin v. North Ex, 114; Sutton v. Bath, 3 H. & N. "Western Deposit Bank, L. R. 10 Ex. 382; 27 L. J. Ex. 388; Nicholson v. 64 ; per Coleridge C. J. in Murray v. Cooper, 3 H. & N. 384 ; London Loan Mackenzie, L. R. 10 C. P. at p. 628; Co. v. Chace, 12 C. B. N. S. 730; 31 per Cockbuni C. J. in Jones v. Harris, L. J. C. P. 314 ; Grant v. Shaw, L. R. L. R. 7 Q. B. at p. 160. 7 Q. B. 700 ; Broderick v. Scale, L. R. 2 Allen V. Thompson, 1 H. & N. 6 C. P. 98; Smith „, Cheese, 1 C. P. 16; 25 L. J. Ex. 249. D. 60 ; Castle v. Downton, 5 C. P. D. 3 Tuton V. Sanoner, 3 H. & N. 280 ; 56 ; Ex parte Wolfe, 44 L. T. N. S 752 CHAP, ir.j FRAUD. *482 As a general rule the description of the grantor's residence and occupation should be repeated in the afQdavit. In Hatton v. English,^ the bill of sale gave a complete description of the i-esidence and occupation of the grantor, but the affidavit contained no description of his occupation and no reference (apparently) to the description given in the bill of sale ; held that it was necessary that the descrip- tion should be filed along with the bill of sale, and that the fact that the bill of sale contained it was not a compliance with the statute. In Pickard v. Bretts,^ the affidavit described the grantor as " the said J. B., of No 9, George Street, in the said bill of sale mentioned," but omitted his occupation of hotel- keeper. The bill of sale accurately described his residence and occupation, but there was nothing in the affidavit which * verified the description given in the bill of [*482] sale ; held that the bill of sale could not be referred to in order to supply the want of any description of his occu- pation in the affidavit. But in Jones v. Harris,^ where the residence was incom- pletely but accurately stated in the affidavit as " Dynevor Lodge," and was completely stated in the bill of sale as " Dynevor Lodge in the parish of Llanarthney, in the county of Caermarthen," it was held that the ambiguity arising from the incompleteness of the affidavit might be cured by refer- *ence to the bill of sale. The question of sufficiency is always one of degree, and as was said by Blackburn J. in Jones v. Harris,* " Chatsworth " would be a sufficient description of the residence of the Duke of Devonshire, and possibly "Scotland" of the Duke of Buccleuch. The general rule, therefore, seems to be modified to this extent that it is allowable by a reference to the bill of sale to supplement the description given, but not to supply a description omitted, in the affidavit. 321 ; aff. sub mm. Ex parte Chap- 2 5 H. & N. 9; 29 L. J. Ex. 18. man, 45 L. T. N. S. 265, C. A. « L. K. 7 Q. B. 157. 1 7 B. & B. 94; 26 L. J. Q. B. « L. E. 7 Q. B. at p. 164. 161. 753 *483 AVOIDANCE OP THE CONTRACT. [BOOK III. A variance, however, between the description given in the bill of sale and that given in the affidavit is fatal.^ § 636. The residence of the witness has been held suffi- ciently indicated by giving his place of business, without describing the place where he sleeps,^ or conversely by giv- ing his private abode without his place of business.^ A residence described as "New Street, Blackfriars, in the county of Middlesex," without adding the " city of London," was held sufficient,^ and so was a residence described as " in the county of Chester," which was in fact situate within the county of the city of Chester.* And in Briggs v. [*483] Boss,^ the attesting witness stated : " I reside at * Han- ley, in the county of Stafford, and am an account- ant," and this was held sufficient both as to residence and occupation, although it was proven that Hanley was a borough containing 40,000 inhabitants, and although the deponent Avas a clerk of an accountant residing in Man- chester, whose name was over the door of the place of busi- ness in Hanley ; these facts being overcome by proof, first, that hundreds of letters reached the deponent addressed Hanley only : and, secondly, that although he was only a clerk at Hanley for the Manchester accountant, he Avas allowed by his employer to do business occasionally on his own account : but in a later case before the Queen's Bench the same description " accountant " was held to be an insuffi- cient description of the occupation of a clerk in the account- ant's department at Euston Station, although he worked for other people after office hours, in bookkeeping and matters of account, and the Court characterized Briggs v. Boss as an extreme decision.^ 6 Murray o. Mackenzie, L. E. 10 < Ex parte M'Hattie, 10 Ch. D. C. P. 625. 398, C. A. 1 Attenborough v. Thompson, 2 "^ L. R. 3 Q. B. 268 ; 37 L. J. H. & N. 559; 27 L. J. Ex. 23; Q.B.lOl. See, also, Blackwell i;. Eng- Blackwell v. England, 8 E. & B. 56; land, 8 E. & B. 541; 27 L. J. Q. B. 27 L. J. Q. B. 124. 124; Re Hams, 10 Jr. Ch. Rep. 100; 2 Yardley v. Jones, 4 Dowl. B. C. 1 L. T. N. S. 467. 45, sed qiicere. * 6 Larchin v. North Western De- 8 Hewer ;;. Co.Y, 3 E. & E. 428 ; posit Bank, L. R. 10 Ex. 64. 30 L, J. Q. B. 73. 754 CHAP. II.J FRAUD. *484 An affidavit describing the grantor's residence and occu- pation to the " best of the belief " of the witness, was held sufficient by the Excheq^uer of Pleas, in Roe v. Bradshaw.^ § 637. In Shears v. Jacobs,^ it was held that a trading company is competent to give a bill of sale, and that an affidavit describing the company as "The Glucose Sugar and Coloring Company," and giving the address of its principal office, was a sufficient compliance with the Act. . It was further heM in this case and in Deffell v. White,^ that directors attesting the seal of the company were not witnesses within the meaning of the Act whose residences it is necessary to state. The description of the residence and occupation of the grantor required is the description of such residence and occupation at the ^ate of the affidavit, and not at the time of making or giving the bill of sale.^ * There is nothing in the Act which necessitates [*484] the name of the grantor being correctly given, so far as regards the validity of the registration. It is sufficient if he can be identified from the name, residence and occupa- tion given, and an error in the christian name is of no impor- tance.* § 638. In Marples v. Hartley,^ decided under the Act of 1854, the facts were that a bill of sale was given on the 27th of June, and a creditor's execution levied on the 5th of July, within the twenty-one days then allowed for registration. The grantee did not register at all. Held that his title under the bill of sale was good : the Count declaring that "two things are required before the requirements of the statute need be complied with : the apparent possession of the goods and the lapse of the twenty-one days. The as- ' L. R. 1 Ex. 106; 35 L. J. 12 C. B. N. S. 730; but see Ex parte Ex. 71.- Kahen, 46 L. T. N. S. 856. 1 L. R. 1 C. P. 51S ; 35 L. J. C. P. * Ex parte M'Hattie, 10 Ch. D. 241. ♦ 398, C. A. 2 L. R. 2 C. P. 144. 1 1 B. & S. 1 ; 30 L. J. Q. B. 92 ; s Button V. O'Neill, 4 C. P. D. see also Banbury v. White, 2 H. & C. 354, C. A., dissenting from London 300; 31 L. J. Ex. 258; and Ex parte and Westminster Loan Co. u. Chase, Kahen, supra, 755 *485 AVOIDANCE OP THE CONTRACT. [BOOK III. signee has the period of twenty-one clays within which he may complete his title by registering the bill of sale : but, if he takes possession under it in the meantime, he need not resfister at all. Here, it was not invalidated at the time the goods were received by the sheriff. It therefore gave the claimant a good title to the goods till he had so seized them or had registered it within the twenty-one days." The principle of this decision would now apply under the Acts of 1878 and 1882, substituting seven for twenty-one days. § 639. By the 10th section (sub-s. 3) : "If the bill of sale is made or given subject to any defeasance or condition, or declaration of trust not contained in the body thereof, such defeasance, condition, or declaration shall be deemed to be part of the bill, and shall be written on the same paper or parchment therewith before the registration, and shall be truly set forth in the copy filed under this Act therewith and as part thereof, otherwise the registration shall be void." This provision is substantially the same as that contained in the 2d section of the Act of 1854. [*485] * In Robinson v. Collingwood,^ it was held under the Act of 1854 that the section applied only to declarations of trust between the grantor and the grantee, not to one between the grantee and a stranger to the grantor. In Ex parte Southam,^ it was held that a prior parol agree- ment not appearing in the bill of sale, by which the debt was to be paid off by small weekly instalments, amounted to a defeasance or condition within the meaning of the section, and must be registered. § 640. Further, by the 10th section, " In case two or more bills of sale are given, comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registration respectively as regards such chattels," and "a transfer or assignment of a registered bill of sale need not be registered." It has now been decided by the Court of Appeal in Conelly 1 17 C. B. N. S. 777; 34 L. J. Collins, 10 Ch. 367; Ex parte Odell, C. P. 18. 10 Ch. D. 76, C. A. ; Ex parte Pop- ? 17 Eq. 578. See, also, Ex parte plewell, 21 Ch. D. 73, C. A. 756 CHAP. II. J FRAUD. *486 V. Steer ^ in opposition to Lyons v. Tucker,^ that priority is given by registration whether or not bankruptcy or execu- tion has supervened. In other words, this clause must be read not with, but independently of, the 8th section. The effect, therefore, of the clause is to alter the law as laid down in Meux v. Jacobs,^ and other cases which followed that de- cision. Whether the holder of a second bill of sale will lose the priority given by registration, if he has had notice of a prior unregistered bill of sale at the time when he advanced his money, according to the doctrine of Le Neve v. Le Neve,* has not yet been decided. * The reader, however, is referred to Edwards v. [*486] Edwards,^ where it was held that the fact that an execution creditor was at the time when his debt was con- tracted aware that his debtor had given a bill of sale, did not prevent his availing himself of the objection that it had not been registered. The principle of that decision, as expressed by James and Mellish L. JJ., is that it would be dangerous to engraft an equitable exception upon a modern Act of Parlia- ment. On the other hand, in Graves v. Tofield,® to the decision in which James L. J. was a party, an annuity deed not regis- tered under 18 & 19 Vict. c. 15, s. 12, was held valid as against all subsequent encumbrancers who took with notice of the annuities. Edwards v. Edwards was not cited, but the principle of the decision in Graves v. Tofield was that the wording of the section was similar to that employed in the old Registry Acts, under which notice had been held fatal to the subsequent registered encumbrancers, and that therefore the legislature must be taken to have used the 1 7 Q. B. J). 520, C. A. 285 ; Edwards v. English, 7 E. & B. 2 6 Q. B. D. 660, where all the 564; Ex parte Cochrane, 3 Ch. D. previous cases are discussed by -324 ; s. c. 4 Ch. D. 23, C. A. ; Ex Lindley .1. After the decision of parte Payne, 11 Ch. D. 539. the Court of Appeal in Conelly v. * 2 W. & T. L. C. in Eq. 32, Steer, the case was reversed, 7 Q. B. ed. 1877. D. 523, C. A. ^>2 Ch. D. 291, C. A. ; Maxwell 3 L.' R. 7 H. L. 481. See, also, on Statutes, 233, ed. 1875. Richards v. James, L. R. 2 Q. B. ^ 14 Ch. D. 563, C. A. 757 *487 AVOIDANCE OF THE CONTRACT. [BOOK III. words in the later Act in the sense given to them by the decisions under the earlier Acts, otherwise they would have used the words " any notice notwithstanding," which appear in some of the other sections. It is therefore submitted that notice of the existence of a prior unregistered bill of sale would not, under this section, prejudice the title of a second bill of sale holder who had duly registered. As to a transfer of a registered bill of sale, see Home v. Hughes.^ § 641. By the 11th section, " The registration of a bill of sale must be renewed once at least every five years, and if a period of five years elapses from the registration or renewed registration of a bill of sale without a renewal or further renewal (as the case may be), the registration shall become void." This section is retrospective. It has been decided that the registration must [*487] be renewed * within the required period, although in the meantime the bill of sale has been transferred to a third person, and the assignee, if the registration is not renewed, has no title as against an execution creditor.^ § 642. The Bills of Sale Act (1878) Amendment Act, 1882, which is to be construed, so far as is consistent with its tenor, as one with the Act of 1878, therein called " the prin- cipal Act," came into operation on the 1st of November, 1882. The Act, unless the context otherwise requires, is not to apply to any bill of sale duly registered before that date, so long as the registration is not avoided by non-renewal or otherwise. The provision, however contained in sect. 13, which requires an interval of five clear days before the removal or sale of goods seized under a bill of sale is ex- pressly retrospective, and that contained in sect. 7 for an application and order to restrain such removal or sale has ' 6 Q. B. D. 676, C. A. i Karet o. Kosher Meat Supply Association, 2 Q. B. D. 361. 758 CHAP. II.] FRAUD. *488 been held to be impliedly so,^ but in other respects the Act is not retrospective. It applies only to bills of sale given by way of security for the payment of money — a very important limitation — and is not to apply to any debentures issued by any mortgage loan or other incorporated company, and secured upon the company's capital, stock, or goods, chattels and effects (sect. 17). The 10th and 15th sections of the Act expressly repeal the 8th and 20th sections, and a portion of the 10th section of the Act of 1878, as well as any pro- visions of the earlier Act, vs^hich are inconsistent with those of the later ; but the effect of the 3d section being to limit the scope and operation of the Act to bills of sale given by way of security, the appeal is confined in its application to that class of bills of sale, leaving bills of sale, given by way of absolute transfer, subject to all the provisions of the Act of 1878.2 xhis is a result * which probably [*488] the Legislature did not contemplate, but one which, if so minded, it might have easily avoided, by expressly pro- viding that the repealing sections should have a general application. It follows from this construction of the Act that goods comprised in a bill of sale, registered under the Act of 1882, and given by way of absolute transfer, are not in the order and disposition of the grantor within the mean- ing of the Bankruptcy Act.^ § 643. The following are the chief provisions of the new Act: — I. Every bill of sale given by way of security is absolutely void, unless — 1. Made in accordance, i.e., substantially in accordance, with the form in the schedule annexed to the Act (sect. 9). The object of the statute, as carried out by this section, is twofold : 1st, that the borrower may understand the nature of the security which he is about to give for the debt due fr<.'.ri him ; and 2dly, that a creditor upon merely searching the register may be able to understand the position of the 1 Ex parte Cotton, 11 Q. B. D. 210 ; Reeves v. Barlow, 11 Q. B. D. 301. 610. 2 Swift V. Pannell, 24 Ch. D. 3 gwift ,;. Pannell, 24 Ch. D. 210. 759 *488a avoidance of the contract. [book hi. borrower, and may not be compelled to go to a solicitor in order to get counsel's opinion as to the meaning of a security already created by the borrower.^ The form in the schedule, which is very carelessly framsd, contains a covenant for the repayment of the principal sum advanced, with interest thereon, distributed ratably over the period during which the bill of sale runs, and it provides that the chattels assigned shall not be liable to seizure, or to be taken possession of for any cause other than those speci- fied in the 7th section. Accordingly the Court of Appeal has recently held a bill of sale to be void, which provided that upon breach by the grantor of any of the covenants contained therein all moneys secured thereby, including the principal sum borrowed, and the capitalized interest thereon, should be at once paid to the grantee. The bill of [*488a] sale * also contravened the provision of sect. 7, by including causes of seizure additional to, and vary- ing from, those mentioned in that section.^ 2. Duly attested, that is to say, attested by one or more credible witnesses, not being a party or parties thereto (sects. 8 and 10). Sect. 10 repeals sect. 10, sub-s. 1, of the Act of 1878 (ante, p. 478), and renders attestation and explanation by a solicitor no longer necessary. Decisions under the earlier Act, to which we have already referred,^ had rendered this attempted safeguard of no value. 3. Registered under the Act of 1878 within seven clear days, if executed in England, or where the execution has taken place out of England, within seven clear days after the bill of sale would have reached Eng- land in course of post, if posted immediately after its execution (sect. 8). This section is not retrospective, and does not therefore invalidate an unregistered bill of sale executed more than seven clear days before the Act came into operation.* 1 See per Brett M. R. in Davis v. » See ante, p. 480. Burton, 11 Q. B. D. at p. 539. i Hickson v. Darlow, 23 Ch. D. 2 Davis V. Burton, 11 Q. B. D. 537, 690; Swire v. Cookson, 48 L. T. N. C. A.; affirming s. c. 10 Q. B. D. 414. S. 877. 760 CHAP. II.] FRAUD. *489 4. The consideration which, as under the Act of 1878, must be truly set forth,^ is at least 30Z. (sects. 8 and 12). § 644. II. Every bill of sale given by way of security is to be void, except as against the grantor, in respect of any per- sonal chattels : — 1. Comprised in the bill of sale, and not specifically de- scribed in the schedule annexed thereto (sect. 4) ; 2. Specifically described in the schedule, but of which the grantor was not the " true owner " at the time of the execution of the bill of sale (sect. 5). * Growing crops actually growing at the time of [*489] the execution of the bill of sale, and fixtures, plant, or trade machinery substituted for any of the like fixtures, plant, or machinery specifically described in the schedule, are excepted from the operation of sects. 4 and 5 (sect. 6). The object of these sections seems to be to prevent a per- son for the future from contracting to assign after-acquired property to the detriment of his creditors. Under the earlier Acts assignments were continually made of after-acquired property, and especially of stock-in-trade, which might at any time during the continuance of the security be upon the debtor's premises, and applying the rule laid down in equity in Holroyd v Marshall,^ it was held in several cases that such assignments operate to give a title to stock-in-trade acquired after the date of the bill of sale.^ § 645. III. Personal chattels assigned under a bill of sale given by way of security are only to be liable to seizure by the grantee for any of the five following causes (sect. 7) : — 1. Default in payment of the sum Secured at the due date, or in the performance of any covenant or agreement contained in the bill of sale, and necessary for main- taining the security ; ^ See the cases under the earlier ^ Leatham v. Amor, 26 W. R. 730 ; Act, collected at pp. 474 et seq. 47 L. J. Q. B. 561 ; Lazarus c. 110 H. L. C. 191; ante, p. 80. Andrade, 5 C. P. D. 318; but the As to the way in which equity viewed charge must relate to specified prop- these contracts to assign, see per erty, Belding v. Eeed, 3 H. & C. Jessel, M. E. in Collyer v. Isaacs, 955; Ee D'Epineuil, 20 Ch. D. 758. 19 Ch. D. at p. 351, C. A. 761 *489a avoidance of the contract. [book hi. 2. The bankruptcy of the grantor, or his suffering the goods to be distrained for rent, rates, or taxes. It is difficult to see how it was intended to give effect to the right of seizure upon the bankruptcy of tlie grantor, seeing that by virtue of the repeal contained in sect. 15 the goods are in that event within the grantor's order and dispo- sition and pass to his trustee. It is very important, however, to remember that sect. 44, sub-sect. 3, of the new Bankruptcy Act, 1883, which [*489a] is * cited ante, p. 468, only applies when the goods are "in the possession, order, or disposition of the bankrupt in his trade or business." It follows, therefore, that furniture and other household goods forming the subjects matter of so many bills of sale will, for the future, not pass to the bankrupt's trustee, unless they happen to form part of the bankrupt's stock-in-trade. The grantee of a bill of sale over chattels of this description will, therefore, be entitled to seize them under this section on the grantor's bankruptcy, and to this extent the repeal contained in sect. 15 of the Bills of Sale Act, 1882, would appear to be avoided by the operation of the Bankruptcy Act. 3. The grantor's fraudulently removing or suffering the goods to be removed from the premises ; 4. The grantor's failure, without reasonable excuse, to pro- duce upon the written demand of the grantee his last receipt for rent, rates, and taxes. The effect of this provision is not to authorize a seizure upon the mere non-payment of rent. Thus, where it is the custom for the landlord not to demand, and the tenant not to pay, the rent until some time after it falls due, the tenant has in the interval a reasonable excuse for the non-production of the receipt for the rent.^ A covenant by the grantor that he will produce the re- ceipts on the grantee's demand "in writing or otherwise," which would permit of a verbal demand, will invalidate the bill of sale.* 5. Execution levied on the goods under a judgment. ' Ex parte Cotton, 11 Q. B. D. * Davis v. Burton, 11 Q. B. D 301. 537, C. A. 762 CHAP. II.] FRAUD. *490 And even where seizure has taken place for any onp of the foregoing causes, the Court, or a judge may, on the appUca- tion of the grantor, within five days from the seizure, restrain the grantee from removing or selling the goods, if satisfied that by payment or otherwise the cause of seizure no longer exists (sect. 7) ; and in order to give time for such an * application, the goods seized are not to be removed [*490] or sold until the expiration of five clear days from the seizure (sect. 13). Since sect. 13, as to seizure and removal, applies to chattels comprised in any bill of sale, whether registered before or after the commencement of the Act, an application or order may be made under sect. 7 to restrain a sale of goods com- prised in a bill of sale registered under the Act of 1878.^ The Court of Appeal has construed this section very strictly in deciding that the inclusion in the bill of sale of an unauthorized cause of seizure, or one which is inconsistent with those authorized, is fatal to its validity.^ The Act contains a number of minor provisions. By sect. 11, the local registration in the County Courts of abstracts of bills of sale to which the Act applies, in addition to the registration in London under the Act of 1878 is pro- vided for. By sect. 14, a bill of sale to which the Act applies is to be no protection in respect of personal chattels included therein against poor and parochial rates ; and by sect. 16, the right to inspect and take extracts from registered bills of sale is defined and limited. The stringent provisions of this Act to which the Courts have already evinced a determination to give the strictest interpretation, have gone far to destroy the security hitherto afforded by bills of sale, and the rapid and continuing diminution in the number of bills of sale registered since the Act came into operation testifies to tlie want of con- fidence which is now naturally felt in this class of securities. § 646. It is to be observed that neither the statutes of Elizabeth nor the earlier Bills of Sale Acts rendered 5 Ex parte Cotton, 11 Q. B. D. <> Davis u. Burton, 11 Q. B. D. 301. 537, C. A. 763 *491 AVOIDANCE OF THE CONTRACT. [BOOK HI. [*491] the contract * void between the parties,'^ and the 8th section of the Act of 1878 carefully enumerates those third persons who shall remain unaffected by the contract, where the forms and requisites rendered necessary by the Act have not been complied with. Without these provisions, however, it would not be competent to either party to im- peach the provisions of such a contract on the ground that it was intended as a fraud on creditors,^ for the general prin- ciple of law that no man shall set up his own fraud as the basis of a right or claim for his own benefit would clearly apply.^ But even as to creditors, such conveyances are not void, but voidable, and the creditors must, as in all analogous cases, elect whether they will treat their debtor's conveyance as valid or defeasible. If the transferee makes a conveyance to a bond fide third person for a valuable consideration, before the bill of sale is impeached by creditors as being in fraud of their rights, the title of such bond fide third person will not be disturbed.* But the assignee for value of a bill of sale is not protected as a bond fide third person unless he renew the registration within the five years, as required by 29 & 30 Vict. c. 96.5 1 Davis V. Goodman, 5 C. P. D. Allison »', Hogan, 12 Nev. 38 ; Phipps 128, C. A., overruling Diy. Ct. ibid. 20. v. Boyd, 54 Pa. St. 342; Boyle v. 2 Bessey v. Windham, 6 Q. B. 166 ; Rankin, 22 Pa. St. 168, 170 ; Telford Doe c?. Roberts w. Roberts, 2 B. & Aid. v. Adams, 6 Watts (Pa.) 429, 4-34; 367. Brooks v. Martin, 69 U. S. (2 Wall.) 8 Ibid. Philpotts v. Philpotts, 10 70 ; bk. 17, L. ed. 732. C. B. 85; 20 L. J. C. P. 11. Who maii impeach fraudulent convey- ^ Morewood v. South Yorkshire ance. — 1. Eristinr; creditors. — Yolvca- Eailway Co., 3 H. & N. 799; 28 L. J. tary conveyances are void as to ex- Bx. 114. isting creditors. Eeade c. Livingston, 5 Karet v. Kosher Meat Supply 3 Johns. Ch. (N. Y.) 481 ; s. c. 8 Am. Association, 2 Q. B. D. 361. Dec. 250. But such evidence is not A fraudulent transfer, although fraudulent per se Pence v. Croan, 51 void as to creditors, is valid between Ind. 336 ; Gwyer v. Figgins, 37 Iowa, the parties. Ybarra v. Lorenzana, 53 517 ; Place «. Rhera, 7 Bush (Ivy.) Cal. 197; Burleigh y. White, 04 Me. 588; Grant v. Ward, 04 Me. 239; 23; Harvey v. Varney, 98 Mass. 118; Warner v. Dove, 33 Md. 579; Lerow Mudge V. Oliver, 83 Mass. (1 Allen) v. Wilmarth, 91 Mass. (9 Allen) 386 ; 74 ; Gary r. Jacobson, 55 Miss. 204 ; Wilson v. Kohlheim, 46 Miss. 346 ; s. c. 30 Am. Eep. 514 ; Maher ti. Swift, Seward v. Jackson, 8 Cow. (N. Y.) 14 Nev. 324; Evans v. Herring, 27 406; Thacker u. Saunders, Bush. N. J. L. (3 Dutch.) 243; Ruckman r. (N. C) Eq. 145; Arnett v. Wanett, 6 Euckman, 32 KT. J. Eq. (5 Stew.) 259 ; Ired. (N. C.) L. 41 ; Clark v. Depew, 764 CHAP. n.J FRAUD. *491 § 647. The Act of 1882 lias made an important change in this respect. It repeals the 8th section of the Act of 1878, 25 Pa. St. 509 ; s. u. 64 Am. Dec. 717 ; Greenfield's Estate, 14 Pa. St. 489; Posten V. Posten, 4 Whart. (Pa.) 27 ; Nicholas v. Ward, 1 Head (Tenn.) 323; s. c. 73 Am. Dec. 177; Hester V. Wilkinson, 6 Humph. (Tenn.) 215; s. c. 44 Am. Dec. 303 ; Dewey v. Long, 25 Vt. 564; Brackett v. Waite, 4 Vt. .389; Hoxie v. Price, 31 Wis. 82; Smith V. Vodges, 92 U. S. (2 Otto) 183; bk. 23, L. ed. 481. 2. Subsequent creditors. - — Convey- ances made to defraud existing cred- itors is generally held fraudulent as to subsequent creditors. Nicholas v. Ward, 1 Head (Tenn.) 323 ; s. c. 73 Am. Dec. 177. As to where voluntary conveyance is fraudulent as to subsequent credi- tors, see Huggins c. Perrine, 30 Ala. 396; s. c. 68 Am. Dec. 131; Hinton . JWiggan, 35 N. H. 421 ; s. c. 69 Am. Deo. 551 ; Satterthwaite v. Elmey, 4 N. J. Eq. (3 H. W. Gr.) 489 ; s. c. 43 Am. Dec. 618 ; Denn v. Sparks, 1 N. J. L. (Coxe) 356; s. c. 1 Am. Dec. 188; Jackson v. Town, 4 Cow. (N. Y.) 599; s. ^. 15 Am. Dec. 40; Wood v. Jackson, 8 Wend. (N. Y.) 9; e. u. 22 Am. Dec. 603 ; Jones v. Young, 1 Dev. & B. (N. C.) L. 352; s. c. 28 Am. Dec. 569 ; Squires v. Riggs, 2 L. Repos. (N. C.) 274 ; s. c. 6 Am. Dec. 564; Lancaster v. Dolan, 1 Rawle (Pa.) 231; s. c. 18 Am. Dec. 625; Dougherty v. Jack, 5 Watts (Pa.) 456 ; s. c. 30 Am. Dec. 335 ; Howard M.Williams, 1 Bail. (S. C.) 575; s. c. 21 Am. Dec. 483; Blake v. Jones, 1 Bail. (S. C.) Eq. 141 ; s. c. 21 Am. Dec. 530; Hamilton v. Greenwood, 1 Bay (S. C.) 173 ; s. c. 1 Am. Dec. 607 ; Jenkins v. Clement, 1 Harp. (S. C.) Eq. 72; b. c. 14 Am. Dec. 698; Eigle- berger v. Kibler, 1 Hill (S. C.) Eq. 113; s. c. 26 Am. Dec. 192; Hudnal V. Wilder, 4 McC. (S. C.) 294 ; s. c. 17 Am. Dec. 744; Hudnal v. Teasdall, 1 McC. (S. C.) 277 ; s. c. 10 Am. Dec. 671 ; Martin v. OUiver, 9 Humph. (Tenn.) 561; s. c. 49 Am. Dec. 717 ; Hester u. Wilkinson, 6 Humph. (Tenn.) 215; s. c. 44 Am. Dec. 303; Hutchinson v. Kelly, 1 Rob. (Va.) 123 ; s. c. 39 Am. Dec. 250. See Mil- ler V. Miller, 23 Mc. 22 ; s. c. .39 Am. Dec. 597; Cramer v. Reford, 17 N. J. Eq. (2 C. E. Gr.) 383; Holmes u. Clark, 48 Barb. (X. Y.) 237; Mead v. Gregg, 12 Barb. (N.Y.) 656; Watson ..■. Le Row, 6 Barb. (ST. Y.) 490 ; Les- chigk V. Addison, 3 Robt. (N. Y.) 349; Hutchinson v. Kelly, 1 Rob. (Va.) 123; s. c. 39 Am. Dec. 253; Lockhard v. Beckley, 10 W. Va. 105. But subsequent creditors stand upon a different footing from that of ex- isting creditors as to their right to avoid voluntary conveyances. As to existing creditors, the fraud is an inference of law; but as to the lat- ter, there must be fraud in fact. Kirksey v. Snedecor, 60 Ala. 192 ; Wil- liams J'. Avery, 38 Ala. 115; Huggins V. Perrine, 30 Ala. 396 ; Hall v. Sands, 52 Me. 355 ; Winchester v. Charter, 94 Mass. (12 Allen) 606 ; Parkman v. Welch, 36 Mass. (19 Pick.) 231 ; Car- lisle V. Rich, 8 N. H. 44 ; Allaire v. Day, 30 N. J. Eq. (3 Stew.) 231; 765 *492 AVOIDAJSrCE OF THE CONTKACT. [bOOK III. above referred to, and renders any bill of sale given by way of mortgage absolutely void, unless it complies with the pro- visions contained in the 8th, 9th and 12th sections of the Act. Under the statute of Elizabeth it was held in various cases that as the transfer was good not only between the parties, but as against strangers, not creditors, the sheriff would be held liable as a trespasser if he seized the goods on execution against the vendor, unless he put in evidence the writ to show that he was acting for a creditor;^ and in [*492] White v. * Morris,^ it was held overruling Bessey v. Windham,^ that it was necessary for the sheriff to produce, in evidence, the judgment as well as the writ, in order to defend himself in such cases. A bill of sale being a security for a debt becomes void when the debtor has been released by a discharge in bankruptcy.* Cook i>. Johnson; 12 N. J. Eq. (1 Beas.) 51, 54; s. c. 72 Am. Dec. 381; Eeade t. Livingston, 3 Johns. Ch. (N. Y.) 481; s. c. 8 Am. Dec. 520; Burdick v. Gill, 2 McC. C. C. 486. 3. An executor or administrator may impeach a conveyance for fraud. See Judson v. Connolly, 4 La. An. 169 ; Welsh v. Welsh, 105 Mass. 229 ; Tenney v. Poor, 80 Mass. (14 Gray) 500; s. c. 77 Am. Dec. 340; Chase v. Redding, 79 Mass. (13 Gray) 413; Holland v. Cruft, 37 Mass. (20 Pick.) .331 ; Gibson v. Crehore, 22 Mass. (5 Pick.) 154; Martin v. Root, 17 Mass. 22 ; Morris v. Morris, 5 Mich. 171; Brown o. Finley, 18 Mo. 375; Cross i;. Brown, 51 N. H. 486; Bate V. Graham, 11 N. Y. 240 ; Henderson V. Brooks, 3 T. & C, (N. Y.) 448; Loomis v. Tifft, 16 Barb. (N. Y.) 545 ; Huntington v. Gilmore, 14 Barb. (N. Y.) 248; McKnight v. Morgan, 2 Barb. (N. Y.) 171 ; Babcock v. Booth, 2 Hill (N. Y.) 181 ; s. c. 38 Am. Dec. 578 ; Whitney v. Kenyon, 7 How. (N. Y.) Pr. 458 ; Bouslough v. Bous- lough, 68 Pa. St. 495 ; Stewart v. Kear- ney, 6 Watts (Pa.) 453 ; s. u. 31 Am. Dec. 482 ; McLane v. Johnson, 43 Vt. 48. Contra Coltraine u. Causey, 3 Ired. (N. C.) Eq. 246 ; s. o. 42 Am. Dec. 168; Hart i'. Rust, 46 Tex. 574; Hunt r. Butterworth, 21 Tex. 133 j/j Connell v. Chandler, 13 Tex. 5 ; o. u. 62 Am. Dec. 445; Martin v. Martiny , 1 Vt. 91 ; 3. c. 18 Am. Dec. 675. 4. A wife may attack a fraudulent^ . convei/ance (see Eeigley v. Feigley, 7 Md. 537 ; s. c. 61 Am. Dec. 375), par-' ticularly where she has a judgment for alimony. Chase u. Chase, 105 Mass. 387. 1 Doe d. Roberts v. Roberts, 2 B. & Aid. 367; Bessey v. Windham, 6' Q. B. 166; Glave v. Wentworth, 6 Q. B. 173, n. = 11 C. B. 1015, and 21 L. J. C. P. 185. 3 See note (2), ante, p. 491. * Thompson v. Cohen, L. R. 7 Q. B. 527 ; Cole v. Kernott, ibid. 534 ; and see CoUyer v. Isaacs, 19 Ch. D. 342, C. A. 766