KF QJnrn^U IGam ^t\\nn\ Hibtary KF ''s-8«?j'i';'"v.r,«. Ubri 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/cu31924018830202 A TEEATISE ON THE LAW OF SALE OF PERSONAL PROPERTY; WITH REFERENCES TO THE AMERICAN DECISIONS AND TO THE FRENCH CODE AND CIVIL LAW. >^.. .V^i By J. P. BENJAMIN, E^., Q. C, OF LINCOLN'S INN, BAEM5TEB-AI-14 THIRD AMEEICAN FROM LATEST ENGLISIT EDITION. BT EDMUND H. BENNETT. BOSTON: HOUGHTON, MIFFLIN AND COMPANY. 1881. jboi Copyriglit, 1881. By HOUGHTON, MIFFLIN & CO. Tht Eiverside Press, Cambridge : Printed by H. 0. Houghton and Company. ADVEBTISEMENT TO THE THIRD AMERICAN EDITION. The second American edition of Benjamin on the Law of Sale, prepared with elaborate notes by the Hon. J. C. Perkins, since deceased, was published in 1877. Its rapid sale and the favorable comments upon it from all quarters prove it has no competitor in the same branch of the law. The subject is so prolific of litigation that every new edi- tion must necessarily embrace much matter not contained in the preceding, and the present will be found to refer to over fifteen hundred cases not cited in any former edition. The Irish and Canadian Reports, not often referred to in any previous issue of the work, have been carefully exam- ined, and many valuable cases cited therefrom. The un- dersigned desires to express his great obligation to George R. Swasey, Esq., of the Suffolk Bar, without whose valu- able labors this edition could not have been so promptly and exhaustively prepared. EDMUND H. BENNETT. Boston, July 1, 1881. PEEFACE 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 the sale of goods, nothing further 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 recurring as that of sale. But, unfortunately for the Profession, Blackburn on Sales was intentionally restricted in its scope, and is confined to an examination of the effects 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 following Blackburn on Sales as a model for guidance in the treat- ment 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 else- where so readily accessible. Temple, August, 1868. TABLE OF CONTENTS. BOOK I. FORMATION OF THE CONTRACT. — « — PART I. AT COMMON LAW. CHAPTER I. SECTION The Contract of Sale of Personal Property, its Form, and Essen- tial Elements 1 CHAPTER II. The Parties 5 Sect. 1. — Who may Sell 6 2. — Who may Buy 21 CHAPTER III. Mutual Assent .......... 38 Sect. 1. — Of Mutual Assent 38 2.— CivU Law 62 American Law . . . . . • 64 CHAPTER IV. The Thing Sold 76 CHAPTER V. The Price 85 TABLE OF CONTENTS. PART II. UNDER THE STATUTE OF FRAUDS. CHAPTER I. SECTION What Contracts are within the Statute ..... 90 CHAPTER II. What are Goods, Wares, and Merchandise . . . .111 CHAPTER III. " Of the Price or Value of Ten Pounds " .... 134 CHAPTER IV. Acceptance and Receipt ........ 138 Sect. 1. — What is an Acceptance ... . 139 2. — What is an Actual Receipt .... 172 CHAPTER V. Earnest and Part Payment ....... 189 CHAPTER VI. The Memorandum or Note in Writing ..... 201 Sect. 1. — What is a Note or Memorandum in Writing . 221 2. — What is a sufficient Note of the Bargain made 232 CHAPTER VII. Signature of the Party to be charged 255 CHAPTER VIII. Agents duly authorized to sign 265 TABLE OF CONTENTS. XI BOOK 11. EFFECT OF THE CONTRACT IN PASSING PROPERTY. — »-^ CHAPTER I. SECTION Distinction between Contracts executed and executory . . 308 CHAPTER IT. Sale of Specific Chattels unconditionally ..... 313 CHAPTER III. Sale of Specific Chattels conditionally 318 CHAPTER IV. Sale of Chattel not Specific . 352 CHAPTER V. Subsequent Appropriation 358 CHAPTER VI. Reservation of the Jus Disponendi ...... 381 CHAPTER VII. Nature and Effect of a Sale by the Civil, French, and Scotch Law 400 BOOK III. AVOIDANCE OF THE CONTRACT. —* — CHAPTER I. Mistake, and Failure of Consideration 414 CHAPTER II. Fraud 428 Sect. 1. — In General 428 2. — On the Vendor 433 3:— On the Buyer 452 4. — On Creditors : Bills of Sale . ... 483 xii TABLE OF CONTENTS. CHAPTER III. SECTION Illegality 503 Sect. 1. — At Common Law 503 2.— By Statute 530 BOOK lY. PEEFORMANCE OF THE CONTRACT. PART I. Conditions 560 PART II. vendor's duties. CHAPTER I. Warranty 610 Sect. 1. — Express Warranty 610 2. — Implied Warranty of Title .... 627 3. — Implied Warranty of Quality .... 644 CHAPTER II. Delivery 674 PART III. buxee's duties. CHAPTER I. Acceptance ••........ 699 CHAPTER II. Payment and Tender ; ( g TABLE OF CONTENTS. Xlli BOOK Y. BREACH OF THE CONTRACT. PART I. RIGHTS AND KEMEDIES OP THE VENDOR. CHAPTER I. SECTIOJJ Personal Actions against the Buyer 758 Sect. 1. — Where Property has not passed . . . 768 2. — Where Property has passed .... 764 CHAPTER II. Remedies against the Goods — General Principles . . . 766 CHAPTER III. Remedies against the Goods — Resale 782 CHAPTER IV. Remedies against the Goods — Lien 796 CHAPTER V. Remedies against the Goods — Stoppage in transitu . . . 828 Sect. 1. — Who may exercise the Right. . . .830 2. — Against whom may it be exercised • 837 3. — When does the Transitus begin : and end . 839 4. — How is the Right exercised .... 859 5. — How may it be defeated .... 862 6. — What is the effect of StopTpage in transitu . 867 XIV TABLE OF CONTENTS. PART II. EIGHTS AND REMEDIES OF THE BUTEE. CHAPTER I. Before obtaining Possession of the Goods . Sect. 1. — Where the Contract is executory CHAPTER II. After receiving Possession of the Goods . Index .... SECTioir , 869 . 870 2. — Where the Property has passed . . .883 893 PAGE 903 TABLE OF CASES. Figures refer to Sections. Abat V. Atkinson 319 Abberger v. Marrin 511 Abbott V. Barry 48, 470 V. Blossom 835 V. Gilcbrist 95, 104, 109 V. Shepard 39, 41, 44, 68 Abell V. Church 898 a V. Howe 455 V. Warner 25, 26 Aberaman Iron Works v. Wiekens 430 Abraham v. Carter 81 Acebal v. Levy 85, 86, 160, 209, 247, 248, 265, 785 Aekland v. Paynter 17 Acraman v. Morris 326, 330, 357 Adair v. Malone 677 Adams v. Adams 683 V. Couillard 511 V. Foley 696, 697 V. Gay 557, 558 V. Graham 492 V. Hamell 557 V. Hayes 2 V. Lindsell 44, 45, 46, 66, 68 V. McMillan 211, 249, 255, 268 V. Mirick 788 V. Nelson 428 V. Nichols 570 V. O'Connor 320 V. Paige 429 V. Richards 900 i». Royal Mail Co 572 Adams Mining Co. u. Senter 319 Addinel's case 39 Adelphi Loan Association v. Fair- hurst 22 Adkins v. Watson 232 ^tna Ins. Co. v. Reed _ 429 Agra & Masterman's Bank v. Leigh- ton 902 Aguirre v. Parmele 843, 849, 854, 856 Aiken v. Appleby 684 V. Blaisdell 511, 535, 538 Aiken v. Hyde 595 Aitcheson v. Cook 566, 574 Albany Dutch Church v. Brad- ford 565 Albert v. Lindau 2, 748 Albertson v. HoUoway 902 Alderman v. Eastern R. R. 399 Alderson v. Langdale 736 V. Temple 499 Aldrich v. Cooper 865 V. Grimes 27 V. Jackson 607 V. Stockwell 902 Aldridge v. Johnson 360, 367, 368, 370, 371 Alewyn v. Prior 579 Alexander v. Brown 714 V. Button 620 V. Gardner 328, 365 V. Gibson 624, 625 V. Heriot 27 V. Smith 571 V. Vanderzee 593 V. Worman 55, 417 Alger V. Thacher 520, 521 Allan V. Ferguson 1 74 V. Gripper 853 V. Lake 602, 613 Allard v. Belfast 562 V. Greasert 134, 160 Allatt V. Carr 79 AUcott V. Boston Steam Flour Mill 39 Allen, ex parte 495 Allen V. Aguirre 111 V. Anderson 888 V. Bennett 226, 230, 235, 251, 255 V. Cameron 901 V. Carr 675 V. Delano 320 V. Deming 557, 558 V. Duffy 552 V. Edgerton 415 V. Gardiner 554, 557 V. Hammond 77 XVI TABLE OF CASES. Figures refer to Sections. Allen V. Hartfield 320 u. Hawks 529 530 V. Hopkins V. Jarvis 109, 758, 640 763 V. Leonard 137 V. Mercier 851 856 V. Pink 622 V. Polereczky V. Rostain 2 242 V. Sowerby V. Stephanes V. Thompson V. Williams 382 216 444 492 398 AUerton v. AUerton 453 466 AUingham r. O'Mahoney Allis V. Billings 319 26 u. Read 193 Allsop V. Day V. Wheatcroft 496 527 Alna V. Plummer 265, 268, 270 Alton V. Harrison 488 American Meroh. Un. Ex. Co. v. Willsie 433 Ames V. Jones 649 u. Quimby 87 Amory v. Brodrick 567, 878 V. Oilman 542 Amson v. Dreher 143 Ancona v. Rogers 489 Anderson v. Burnett 613 u. Chick 268 V. Clark 36 7 V. Harold 259 <;. Hillies 731 V. Radcliffe 529 V. Roberts 433 V. Scott 166 Andres v. Lee 641 Andrew v. Dieterich 440 Andrews v. Durant 335, 337, 351 V. Garrett 39 U.Hoover 870 V. Kneeland 624, 648 V. Lyons 780 V. AVheaton 902 Angel V. M'Lellan 24 Anger v. Thompson 765 Anglo- Egyptian Navigation Co v. Rennie 336, 337, 339, a Anglo-Italian Bank, Re 88 Anon. Dyer, 363 17 12 Mod. 621 8 3 Salk. 157 2 10 Low. Can. 340 490 Anthony v. Day 452 Apperson v. JNloore 81 Appleby i'. Meyers 570 Applegate v. Moffitt 624 Appleton V. Bancroft 174, 184, 675 V. Campbell 507 V. Hogan 788 Archbold v. Howth 463 Archer v. Baynes 228, 251 V. Marsh 526 V. O'Brien 488 V. The Adriatic 81.? Archibald v. Argall 730 Arendale v. Morgan 17 Argenbright M. Campbell 259 Argus Co. V. Albany 230 Armentrout v. St. Louis Ry. 362 Armington v. Houston 320 Armistead v. Brooks 748 Armitage v. Insole 567, 577, 679 Armour v. Pecker 320 V. Phillips 497 Armstrong v. Moodie 488 V. Toler 505, 506, 556 Armstrong Furniture Co. v. Kosure 415 Arnold v. Delano 315, 31 7, 319, 346, 767, 772, 776, 796, 798, 799, 806, 823, 835, 848 V. Prout 362, 399 Arnott n. Pittston Coal Co. 507 Arques !■. Wasson ' 79 Artcher v. Zeh 111, 142, 189 Arundel, Lady v. Phipps 486 Ascher v. Grand Trunk Ry. Co. 859, 860 Ash V. Abdy 90 V. Putnam 433, 440, 490, 828 Ashburn r. Poulter 713 Ashby w. James 711, 748 Ashcroft u. Morrin 247 Ashford v. Robinson 232 Ashlin V. Greaves 787 Astey V. Emery 137, 160 Aston V. Gwinnell 549 Atherton y. Newhall 160,170 Atkin u. Barwick 499, 500, 858 Atkins V. Boylston E. & M. Ins. Co. 684 u. Cobb 870, 901 U.Colby 841, 849,854, 862,868 Atkinson v. Bell 99, 100, 101, 102, 103, 105, 335, 337, 379 V. Handon 736 V. Horridge 620 V. Mailing 696 V. Ritchie 572 V. Smith 592 Atkyns v. Kinnier 522 Atlas Bank v. Nahant Bank 530 Attenborough v. Thompson 493 Attorney General v. Merrimack Manuf. Co. 2 TABLE OF CASES. XVll Figures refer to Sections. Attwood V. Clark 684 V. Emery 687 V. Small 429 , 430,455 618 Atwater v. Clancy 622, 649 V. I-Iough 109 Atwood V. Chapman 430 V. Cobb 245, 249, 683 V. Lucas 143, 168, 765 Aubert v. Maze 506 Aubuchon v. Pohlman 613 Auchterlonie v. Arms 562, 593 Audendried v. Betteley 780 Audenreid v. Randall 3> 862 896 Aultman v. Lee 742 V. Miller 595 V. Theirer 888 V. Wheeler 902 Aultman Co. v. Hetherington 905 Austen v. Craven 324 353 354 Austin V. Sawyer 126 Averill V. Hedge 68 Avery v. Boden 567 , 568 ,760 V. Stewart 684 Ayer v. Hawkins 748 Ayers v. Hewett 490 Azemar v. Casella 606 889 B. Babb V. Clemson 602, 675 Babcook v. Case 415 V. Lamson 433, 434 V. Libbey 429 V. Thompson 542 Bach V. Owen 189,355,878 Bache v. Proctor 53 Backentoss v. Speicher 440 V. Stabler 470 Backman v. Jenks 530 Bacon v. Brown 415 V. Conn 721 V. Frisbie 430 V. Sandley 242 Badger v. Phinney 22, 27 Badlam v. Tucker 696 Baglehole v. Walters 477 Bagot V. Arnott 509 Bagshaw v. Seymour 432 Bagueley v. Hawley 638 Baham v. Bache 470, 474 Bahia & San Francisco Railway Co. in re 417, 781 Bailey v. Bamberger 24, 27 V. Bensley 215, 354 V. Clay 870 V. De Crespigny b 571 Bailey v. Forrest 629 V. Goldsmith 597 V. Hudson River R. R. Co 399 V. Ogden 144, 187, 234, 245, 250 V. Smith 308, 315, 318, 319, 352, 353, 379, 765 208, 227, 252 20 V. Sweeting V, Walford Bainbridge v. Moss Baines v. Ewing V. Jevons V. Swainson Baird v. Matthews Bakeman v. Pooler Baker v. Arnot V. Booth V. Dening V. Firminger V. Fowkes V. Frobisher V. Gray V. Hall V. Higgins V. Lever V. Lyman V. Mair V. Stackpoole Baldey v. Parker Baldwin v. Bank o£ Newbury V. Williams Ball V. Gilbert V. Stanley V. Vason Ballantine v. Robinson Ballard v. Burgett V. Walker Ballou V. Parsons Baltimore & Ohio R. R. Glenn Baltimore & Ohio R. R. Co. v. Wilkens Banbury v. White Banchor v. Mansel Bancroft v. Dumas Bank v. Raymond 0. Shaw Bank of Bengal v. McLeod Bank of Br. N. Am. v. Simpson Bank of Cumberland v. Mayberry 557 Bank of Montreal v. McWhirter 334 Bank of Rochester B. Jones 399 Bank of Rutland v. Parsons 530 Bank of Toronto v. Eccles 489 y.McDougall 82, 497 Bank of United States v. Bank of Georgia 716 Bank of United States v. Owens 508 460 529 ^73 145 819, 820 615 713 641 562 256 699 €13 656 342 320 47 452 52, 600, 661 577 747 134, 135, 166, 187 219 111 542 716 81 758, 763 320 255 657 502 813 494 511 748 239 864 15 202 Co. V. 530, TABLE OF CASES. Figures refer to Sections. Bank of Up. Can. v. Killaly 339, 379 Bartholomew v. Bushnell 904 Bank of Watkins v. Miller 37 V. Finnemore 27 Bankart v. Bowers 592 V. Marwick 567, 763 765 Bannerman v. White 604 V. \Varren 17 Bannister v- Weatherford 567 Bartlett v. Blaine 429 Barbe v. Parker 2 u. Blanchard 903 Barbee v. Willard 592 V. Cowles 27, 415 Barber v. Brace 813 V. Drake 27, 415, 888 V. Meyerstein 863 V. Holmes 821 V. Morris 470 V. Hopkins 661 V. Taylor 688 V. Hoppock 657 Barden v. Keverberg 33 V. Pentland 743 Barham o. Turbevil e 22 V. Purnell 269 Barickman v. Kuydendal 245 u. Salmon 455 Baring v. Corrie 741 V. Wells 22 Barker v. Borzone 215 Bartram v. Farebrother 500 V. Cleaveland 898 Barwick v. Buba 568 V. Dinsmore 19, 433, 441 V. English Joint Stock V. Hodgson 571 Bank 462, 464, 465 467 V. Parkenhorn 714 V. Read 519 V. Windle 561 692 Bascom v. Manning 898 Barkley v. Rensselaer R. E. Co 144 Basford v. Pearson 91 Barnard v. Campbell 433 440 Bashore v. Whisler 641 V. Eaton 79 Bass V. White 709 765 V. Field 511 Bassett v. Brown 27 415 V. Kellogg 653 V. ColUs 620 Barnes v. Barnes 126 Basten v. Butter 898 V. Bartlett 438 677 Batchelder, in re 798, 803 V. Freeland 499 Batchelor v. Lawrence 831 V. Hathaway 29 Bateman v. Green 320 V. Perine 39 V. Phillips 213 Barnett v. Brandon 49 V. Pinder 26 Barney v. Brown 144 696 Bates V. Coster 109 315 Barr v. Gibson 76 646 657 Bath V. Sutton 492 V. Logan 796 Batterbury v. Vyse 576 V. Myers 682 Batterman v. Morford 68 Barrett v. Deere 741 V. Pierce 898 i^. Goddard 182, 186 311, 315, Batturs v. Sellers 259, 600, 621 622 319, 321 323 806 Batut V. Hartley 861 V. Hall 600 Bauendahl v. Horr 320 V. Hyde 82 Baum V. Stevens 613 V. Mead 82 Baumann v. James 211 222 V. Pritohard 320 767 796 Baxter v. Bush 22 V. Rapelje 38 V. Duren 607 u. Rogers 813 V. Earl of Portsmouth 29 V. Terry 896 Bayley v. Findley 788 V. Warren 6 Baylies v. Fettyplace 571 V. Western 429 Bayliffe v. Butterworth 624 Barringer v. Fisher 716 Bayliss v. Davis 2 Barron v. Mullin 765 Beach v. Bemis 429 V. Pettes 557 V. Raritan &c E. R. Co 44 Barrow v. Arnaud 758 870 Beales v. Tennent 492 V. Coles 345 Beall V. Brown 898 Barry v. Coombe 245 258 V. White 81 V. Law 234 Beals V. Olmstead 600, 613, 657 661 o. Palmer 320 362 V. Terry 870 Barstow v. Gray 255 Bean v. Atwater 561 TABLE OF CASES. XIX Figures refer to Sections. Bean v. Herrick 429 Bearce v. Bowker 6, 19, Beard u. Pennis 527 V. Webb 35 Beards v. Wheeler 488 Beams, in re 859 Beattie v. Lord Ebury 422 Beauchamp v. Comfort 557 Beaumont v, Brengeri 146, 184 V. Crane 679 Beavan v. M'Donnell 29 Beaver v. Lane 433 Beazeley v. Mitchell 6 Becker v. Smith 2 Beckwith t>. Cheever 41, 64 V. Talbot 211, 262, 264 Bedford i'. Bagshawe 432 Beebe w. Johnson 570 V. Robert 242, 648, 656, 899 <,. Saulter 490 ' Beecher v. Mayall 415, 675 Beeler v. Young 23, 24, 25 Beeman v. Buck 613, 615 Bee Printing Co. v. Hichborn 47 Beers v. Crowell 111 Begbie v. Levi 557 Begole V. McKenzie 319 Behaly v. Hatch 715 Behn V. Burness 561, 563, 564 Beirne v. Dord 648, 649 Belden v. Pitkin 629 Belding v. Keed 81 Bell V. Atkinson 99 V. Farrar 352 u. Howard 218 V. Moss 834, 835, 859 V. Smith 529 Beller v. Block 679 Belloe V. Davis 715 Bellows u. Smith 720 U.Wells 79,311 Belshaw v. Bush 730, 734, 756 Belt u. Marriott 154 Belton V. Hodges 26 Bement v. Smith 763, 765 Bemis u. Morrill 334,679 Benedict v. Field 578, 677 V. Ker 2 V. Schaettle 827 Benham v. Bishop 28 Benjamin v. Andrews 8, 14 Benner v. Puffer 320 Bennett v. Bartlett 614 V. Brumfitt 259 V. Buchan 616 V. Hull 93 V. Judson 455, 465 Bennett v. Piatt 835 V. Pratt 232 V. Simms 320 V. Tregent 622 Bensley v. Bignold 530 539 Benson v. Drake 557 Bent V. Cobb 265, 268 V. Manning 24 Bentall v. Burn 174, 175, 680,816,850 Benton v. Pratt 432 Bergheim v. Blaenavon Iron Co 882 Berndtson v. Strang 841, 844, 865 Berolles v, Kamsay 24 Berwick, Mayor of, v. Oswald 572 Bessey v. Windham 490 Best V. Boice 50 V. Osborne 620 Bethel Steam Mill Co. v. Brown 311, 315, 325, 326, 334, 696 Betterbee v. Davis 718 Betts V. Gibbons 805, 857 Bevans v. Rees 717 Bever v. Butler 216 Beverley v. Lincoln Gas Light Co. 597, 702 Bevis V. Heflin 742 Bexwellu. Christie 470 Bianchiu. Nash 597, 702 Bickford v. Gt. West. Ry. Co. 39 Bicknell v. Buck 765 Bidault V. Wales 440 Biddle v. Bond 781 u. Levy 445 Biddlecombe u. Bond 837 Bierne v. Dord 611 Bigelow V. Benedict 542 V. Boxall 661 V. Grannis 27 V. Heaton 440 V. Huntley 320 V. Wilson 684 Bigg V. Whisking 168 Bigge V. Parkinson 622, 657, 664 Biggs V. Barry 440, 837, 840, 847, 854 V. Lawrence 510 Bigler v. Hall 315 Bilbie v. Lumley 419 Bill D.Bament 159, 166, 175, 187, 221, 803 Binford, in re 320 Bingham v. MulhoUand 759, 759 a Binnard v. Spring 461 Bird V. Boulter 270 V. Biiwn 834, 837, 855 V. Foroeman 420 V. Mayor 657 V. Munroe 208, 221 XX TABLE OF CASES. Figures refer to Sections. 326, 327, 335, 430, 189, Bird V. Kiohardson Birdseye v. Frost Birge v. Edgerton Birkmyr v. Darnell Bishop V. Crawshay V. Honey V. Rowe V. Shillito V. Small Bissel V. Price Bissell V. Balcom Black V. Bakers of Glasgow V. Drouillard V. Smith Blackburn v. Smith Blackford v. Preston Blackhouse v. Harrison Blackmore v. Shelby Blacknall v. Parish Blackwell v. England Blades v. jVrundale V. Free Blair v. Ormond V. Wilson Blake v. Cole V. Crowninshield Blakeslee v. Rossman Blanchard u. Child V. Ely 874, V. Page 822,862, V. Sheldon Blanchet i'. Powell's Llantivit Col- liery Co Blanding v. Sargent Blanford a. Morrison Blasdell v. Souther Blen ('. Bear River &o. Co Blenkinsop v. Clayton 145, 185, Bligh V. James Blight V. Ashley Bliss V. Brainard V. Negus Blood V. French «. Hardy V. Palmer Bloomer v. Bernstein Bloss V. Kittredge Blount V. Harris Blow V. Russell Bloxam v. Morley V. Sanders 513, 425, 621, 216, 593, Bloxpome v. "Williams Bluett ('. Osborne Blum V. Marks Blunt V. Heslop Blydenburg v. Welsh 678, 700, 779, 783, 370, 249 616 679 230 378 611 735 343 613 813 193 413 320 718 415 518 15 83 265 493 17 41 194 731 526 684 502 320 903 863 2 813 526 536 335 452 191 511 714 530 899 641 265 598 759 611 493 718 769 769, 785 553 661 837 684 876 Blythe v. Speake 613 Boardman v. Spooner 142, 160, 174, 209, 215, 254, 259, 621, 622, 655, '675, 888 Board of Ordnance v. Lewis 686 Boast V. Firth 570 Bode !'. Stickney 74 7 Bodenham «. Purchas 748 Bodurtha v. Phelon 898 Bogert V. Gulick Frier Boggett V. Boggs V. Fowler Bog Lead Mining Co. v. Bogue V. Newcomb Bohtlingk v. Inglis Boisaubin v. Reed Boit V. Maybin Bold V. Rayner Bolden v. Brogden Montague 155, 37 33 17 40, 375 703 678,841,843, 844, 859 679 45, 899 213, 304 619 Bolders v. Lond. Loan Co. 488 Bolton V. Lancashire & Yorkshire Railway Co. Bolton V. Riddle Bonacina v. Seed Bond 1. Clark V. Greenwald V. Ramsay Bondurant v. Crawford Bonney v. Reardin Bonzi V. Stewart Boody V. McKenney Booher v. Goldsborough Booker v. Jones Boon V. Moss Booraem v. Crane Boorman v. Brown t'. Jenkins Booth V. V. Nash Hodgson 500, 806, 851 682, 683 483 613 370 429 461 24, 27 809 22, 27, 415 903 81 320 320 743 622, 648, 655, 656, 900 758, 759, 870 506 Spuyten Duyvil Rolling Co. Boothbay v. Plaisted Boothby v. Scales Borden v. Borden Born V. Shaw Borneman v. Sidlinger Borrekins v. Bevan Borries v. Hutchinson Borrowman v. Drayton u. Free Borrowscale v. Bosworth Bos V. Helsham Bosse V. Thomas Bostick V. Winton 600, 570, 871 530 624, 695 567, 714 502 2 648, 899 876, 877 589 376 144, 163 88 502 641 TABLE OF CASES. XXI Figures refer to Sections. Boston & Maine R. R. v Bartlett 39, Bradford v. Roulston 230 4 L, 65 V. Williams 564 Boston Ice Co. v. Potter 59 Bradley v. Coolbaugh 485 Bost. Music Hall Ass. v. Corey 675 V. Hale 39 490 Bostwick V. Burnett 488 V. Holdsworth 111 V. Leach 126 V. Obear 433 490 Boswell V. Carlisle 81 V. Pratt 23 V. Green 334 V. Rea 553, 554, 557, 558, V. Kilborn 324 758, 759 870 904 Bott V. McCoy 19 V. Wheeler 319, 326, 346, Bouchell V. Clary 23 679 Boughton V. Standish 452, 703, 896 Bradshaw v. Warner 320 Boulter v. Arnott 166 807 Brady v. Harrahy 192 Boulton V. Jones 41 ,59, 416 V. Oastler 217 874 Bourne v. Seymour 52 691 V. Todd 625 Boutelle u. Melendy 558 V. Whitney 49 Bowdell V. Parsons 65 567 878 Bragg V. Morrill 657 Bovven v. Burke 320, 796 Braggs V. Calverley 708 V. Owen 722, 723, 724 Bramwell v. Spiller 242 V. Sullivan 50 Brand v. Fetch 187 Bowers v. Anderson 142 V. Fockt 142 0. Johnson 455 Brandao v. Barnett 302 Bowes V. Foster 39, 490 Brandon v. Brandon 831 Bowker v. Hoyt 47, 690 V. Nesbit 610 Bowlby V. Bell 111 V. Newington 719 Bowman v. Carithers 429 V. Scott 725 V. Clemmer 641 Brandon Mfg. Co. v. Morse 707 Bowmanville Machine Co. V. Brandt v. Bowlby 344, 384 ,387 399 Dempster 745 V. Lawrence 593 880 Bowry V. Bennet 507 Brantom v. Griffits 489 675 Bowser V. Bliss 521 Brawley v. United States 691 Boyce v. Green 211 Breckenridge v. McAfee 6 V. Grundy 429 Breed v. Hurd 713 714 715 V. Washburn 126 V. Judd 23, 24 Boyd V. Brotherson 53 Breen v. Dewey 716 V. Browne 429 454 Brent v. Green 268 V. Eaton 137 Brenton v. Davis 657 V. Gunnison 682 Brett V. Carter 81 320, 502 V. Lett 592, 699 V. Clowser 455 V. Moyle 39 Brewer v. Salisbury 326 V. Si£Ekin 578 Brewster v. Bours 752 V. Wilson 648, 656 V. Burnett 415, 899 Boydell v. Drummond 210, 229 V. Kitchin 571 Boyden v. Boyden 2S i, 27 V. Taylor 142 V. Crane 91 V. Vail 17 Boyle V. Agawam Canal Co. 570 Bricker w. Hughes 126 Boynton v. Boyd 489 Brick Pres. Church v. New York 571 V. Hazleboom 476 Brickley v. Keenan 256 V. Libby 320 Bridge v. Wain 647, 876, 876 a V. Veazie 144, 326 696 Bridges v. Berry 735 V. Willard 6 V. Garrett 744 Boyson v. Coles 19 V. Stickney 877 Brabin v. Hyde 142, 193 Brig Sarah Ann, The 6 Brackett v. M'Nair 870 Briggs V. A Light Boat 337 351 Bradford v. Bush 613, 624 V. Boss 492 493 V. Manly 600, 622, 648 Brigham v. Maxey 641 V. Marbury 849 V. Mead 82 XXll TABLE OF CASES. Figures refer to Sections. 687, 709 2 696 49 68 434 126 45 Brighty v. Norton Brink v. Gould Brinley v. Spring Brinsmead v. Harrison Brisban v. Boyd Bristol, Earl of, v. Willsmore Britain v. McKay British & American Telegraph Company v. Colson British Columbia Sawmill Com- pany V. Nettleship 872, 874, 875 Britten v. Hughes Broadwell v. Howard Broderick v. Scale Broennenburgh v. Haycock Brogden v. Marriott Brokenbrough v. Ward Bromley v. Brunton Bronson v. Rodes V. Wiman Brooker v. Scott 0. Wood Brooklyn Bank v. DeGrauw Brookman v. Metcalf Brooks V. Martin V. Palmer V. StoUey V. Taylor V. Weaver Broughton i\ Silloway Brower v. Lewis Brown v. Adams V. Bateman V. Bellows V. Bigelow V. Brown V. Browne V. Burhans V. Burns V. Cannon V. Castles V. Cockburn V. Cole V. Coombs u. Corp. of Lindsay V. Duncan V. Dysinger V. Edgington V. Elkington V. Fitch V. Foster u. Gibson !'. Gilmore V. Hare V. Haynes V. Johnson V. Kewley 497 354 492 620 574 561 2 715 109 24 537 721 780 506 17 421 497 485 741 648 74S 80, 342 87 613, 616, 619,903 2 215 600 748 561 429, 430, 476 630 87 79 652 a, 702 533, 634 716 657, 661 620 320 215, 335, 565 870 713, 721 371, 372, 395, 399 320 684 734 Brown v. Leach V. London, Mayor of V. McCune V. Maxwell V. Montgomery V. Muller V. Murphee V. Olmstead V. Phelps V. Pierce V. Sayles V. Shaw V. Stanclift V. Thompson V. Tuttle V. Whipple Browning v. Halford V. Hamilton V. Magill Bruce v. Bishop V. Burr V. Pearson V. Tilson Brumley v. Smith Brundage v. Camp Brunner v. Brennan Brunskill v. Chumasero V. Mair Bryan v. Lewis Bryans v. Kix Bryant v. Biddeford V. Booze V. Crosby V. Isburgh V. Moore V. Osgood V. Pember V. Richardson V. Sears V. Whitcher Bryce v. Parker Brydon v. Whitehead Buchanan v. Anderson V. Horney V. Parnshaw Buck V. Albee V. Pickwell 126, 230, V. Spence Buckingham v. Osborne Buckley v. Artcher V. Beardsley V. Furniss '805,837, 856, V. Gross V. James Buckman v. Bryan V. Levi 126, 425. 430 571 22 22 430, 447 881 657 752 82 6 75 657, 661 38 120, 121 542 429, 613 234 550 319, 352 6, 7,14 6, 39 429 39, 426 567 570 320 641 742 683, 758 82 367, 368 558 68, 557 611, 613 888 624, 626 17 644, 899 24 600, 902 6, 7,17 613 521 592 452 615, 899 604 250, 254 588 143 440 232 849, 853, 857, 862 354 440 508 694 TABLE OF CASES. XXIU Figures refer to Sections. Buckmaster v. Consumers' Ice Co. 52 V. Smith 320 Bucknam v. Goddard 641, 903 Budd V. Fairmaner 615 Buddie V. Green 700 Buel V. Miller ■ 216 Buffington v. Gerrish 433 V. Ulen 315 Buffum V. Buff urn 721 V. Deane 17 V. Merry 597 Bulkley v. Andrews 2 Bull u. Griswold 126,675 V. Parker 723 V. Robinson 659, 693 Bullard v. Wait 174, 184, 675, 679, 803 Bullock V. Babcock 22 Bundy v. Johnson 271 Bunker v. MoKenney 820 Bunn V. Guy 521 V. Riker 542 Bunnell v. Whitlaw 600, 657 Bunney v. Poyntz 734, 806, 825, 857 Burbank v. Crooker 320 Burch V. Spencer 672 Burchfield v. Moore 424 Burdit V. Burdit 611, 615 Burfield v. De Pienne 33 Burge V. Cone 174 Burges v. Wickham 202 Burghart v. Hall 23 Burke v. Haley 268 V. McWhirter 17 V. Partridge 111 Burkhalter v. Second Nat. Bank 730 Burley v. Russell 22 Burlon v. Young 619 Burnby v. Bollett 662, 671, 672 Burnett v. McBean 375 V. Smith 898, 902 Burnham v. Allen 53 V. Brennan 502 V. Waddell 489, 675 V. Winsor 859 Burns v. Hill 22 V. Mays 319 Burnyeat v. Hutchinson 544 Burr V. Burr 748 V. Williams 334 U.Wilson 857,859,859 a Burrell v. Root 259 Burrows v. Whittaker 319 Burrus v. Kyle 81 Burt V. Dewey 641, 903 Burtis V. Thompson 669 Burton v. Curyea 354, 814, 815 V. Schermerhorn 902 V. Shotwell 41 V. Stewart 415, 902 V. Young 611 Bush V. Holmes 143 Bushel V. Wheeler 144, 163, 164 Bushnell v. Wood ' 485 Busk V. Davis 352, 354, 758, 808 Buson V Dougherty 320 Bustin V. Rogers 554, 558 Buswell u. Bicknell 597 Butler, ex parte 550 Butler's Appeal 448 Butler V. Cumpston 37 V. Hildreth 433 V. Horwitz 715 V. Lee 557, 558 V. Northumberland 452, 504, 896, 898, 9'02 V. Thompson 273 V. Tufts 641 Butt V. Ellett 81 Butterfield v. Burroughs 617 V. Clemence 17 Butters v. Glass 301 V. Stanley 370, 677 Butterworth v. McKinley 334 Button V. O'Neil 492 Buttrick u. Holden 567,684 Butts V. Dean 752 Buxton V. Bust 228, 230, 252 Byasse v. Reese 118, 126 Byerly v. Prevost 496 Byers v. Beattie 542 V. Chapin 400, 645 Byrd v. Curlin 490 Byrne v. Jansen 613, 644 V. Van Tienhoven 44, 46 a, 70, 75 Byrnside v. Burdett 641 By water v. Richardson 477, 615, 620, 622 Cabeen v. Campbell 840, 848, 849, 854 Cable V. Ells Cabot Bank v. Morton 242 607 Cadoiran v. Kennett 483 Cadwell v. Blake 561 Cahan v. Piatt 597 Cain V. M'Guire 127 Caine v. Coulson 710, 716 731 Caines v. Smith 567 Calahan v. Babcock 853 862 TABLE OF CASES. Figures refer to Sections. Calcutt V. Ruttan 696 Carlisle v. Burley 49 Calcutta Co. v. De Mattos 316, 317, V. Kinney 796 330, 374 Carlton v. Sumner 320 Calder v. Dobell 219, 238 V. Whitcher 505, 516 Caldwell V. Bartlett 433 V. Woods 137 505 V. Bridall 530 Carmichael v. Vandebur 430 *. Fifield 17 Carondelet Iron Works V. Moore 600 > V. Green 204 Carpenter v. Carpenter 22, 27 V. Shepherd 529 c. Dodge 2 V. ^Ventwortll 747 748 u. Hale 6 Calkins v. Falk 234 V. Minturn 426 V. Lockwood 80, 81 679, 696 Carr v. Clough 27 Call V. Gray 353 V. Duval 39 Callaghan v. Myers 85 u. Holliday 29 Callender v. Howard 711 V. Passaic Land Imp. & Calverley v. Williams 50 Building Co 249 Calvin v. Williams 111 Carrick v. Atkinson 841 Camac v. Warriner 610, 613, 657, Carrier v. Brannan 542 662 Carrington v. Roots 91, 109 Cameron v. Morrison 93 V. Smith 679 V. Peck 504 557 Carroll v. Blencow 32 V. Wells 684 V. Cowel! 250 Camidge i'. AUenby 732 ,735 739 V. Hayward 490 Cammell v. Sewell 18 V. \\'iggins 320 Camp V. Gullett 752 Carson v. Baillie 600 V. Hamlin 758 788 Carter v. Bingham 39 Camp's Appeal 2 V. Black 613 Campanari v. Woodburn 41 V. Cox 716 Campbell v. Findley 232 V. Crick 613 650 V. Fleming 453 V. Grimshaw 483 V. Frankem 430 V. Hamilton 202 V. Gittings 692 0. Kingman 677 V. Hassel 741 V. Stennet 899 V. Hill 29 V. Toussaint 185 187 V. Jones 861 V. Towne 431 V. Mersey Docks Co. 353, V. Walker 888 354, 371 V. Watkins . 502 V. Roots 124, 125 V. Willard 174, 184, 675, V. White 36 679 V. AVilcox 631 V. Wilson 81 Campbell's Estate, in re 2 Cartland v. Morrison 6 Canable v. Lynch 2 Cartwright v. Phcenix 679 696 Canal Bank v. Bank of Albany 242, Carver v. Lane 144 607 Gary v. Bancroft 720 Cannan v. Bryce 508 509 V. Gruman 888, 903 -V. Mcaburn 18 V. Hotailing 440 V. ^Vood 194 Case V. Hall 641 Cantrall v. Fawcett 902 V. Riker 511 Capel V. Thornton 741 Cashman v. Martin 713 Capron v. Porter 502 Cason V. Cheely 93, 94 Card V. Hope 518 Cassel V. Herron 430 Cardigan v. Page 516 Castle V. Beardsley 232 Cardinell !'. Bennett 308 320 V. Downton 492 Carew's Estate, Re 444 V. Playford 328 , 329 , 708 Carey v. Guillow 894 V. Sworder 151 , 152, 163, 156, Carking v. Savory 216 186 , 187 825 Carley v. Wilkins 600 615 904 Castleman v. GrifBn 429 TABLE OF CASES. XXV Figures refer to Sections. Gate V. Gate 904 Cathcart v. Haggart 748 V. Keirnaghan 270 Gatlett V. Irs. of M. E. Church 552 Gaton D. Caton 258, 264 Caton, in re 497 Catterall v. Hindle 742 Gaulkins v. Hellman 140, 144, 181, 213 Cent. Ohio Salt Co. v. Guthrie 520 Central Railway Co. v. Kisch 452 Chadsey v. Greene 616 Chadwick v. Butler 870 Chalmers, ex parte, in re Edwards 759 V. Harding 613 Chamberlain v. Smith 126, 597 Chamberlin v. Perkins 730, 765 Chamberlyn v. Delarive 194 Chambers v. Crawford 657 V. Davidson 798 V. Manchester & Mid- land Railway 530 V. Miller 316 Champenoes v. Fort 746 Champion v. Plummer 235 V. Short 39 Champlin v. Laytia 421 V. Parish 265 V. Rowley 47 Champney v. Blanchard 2 V. Smith 17 Chancellor v. Wiggins 627, 641 Chancy v. Overman 571 Chandelor v. Lopus 423 Chandler v. Fulton 837, 866, 868 V. Johnson 505 V. Simmons 27, 415 Channon v. Lusk 354 Chanter v. Dickinson 111 V. Hopkins 56, 57, 600, 610, 644, 657, 661 V. Leese 427 Chapin v. Pease 490 V. Potter 143, 677 Chaplin v. Clarke 39 V. Rogers 145, 182, 185, 696 Chapman v. Cole 6, 50, 414 V. Gwythe 615 V. Ingham 758 V. Morton 704 V. March 613 V. Searle 174, 358, 622, 781, 803 V. Shepard 311, 352, 353, 354, 774 V. Speller 423, 633, 635, 638 Chapman v. Zealand 813 Chappel V. Brookway V. Dunn 523, 527 219 V. Marvin 696 Chappie V. Cooper Chase V. Hall 23 627 V. Ingalls 320 V. Lowell 245 V. Pike 320 V. Snow 675 V. Washburn 354 V. Westmore 797 u. Willard 174,186,315,319, 696 Cheesman v. Nainby 520 Cheminant v. Thornton 723 Cheney v. Duke 511 Cheshire v. Barrett 27 Cheshire National Bank v. Jewett 1 7 Chester v. Dickerson 455, 466 Chevely v. Fuller 39 Chevey v. Palmer 602 Chicago V. Green 761 Chicago Dock Co.u. Foster 433, 814, 815 V. Kinzie 91 Chicago & Great Eastern Railway Co. V. Dana 41, 67 Chicago Packing Co. v. Tilton 215, 657 Chichester v. Cobb 258 Chidell V. Galsworthy 79 Child V. Morley 62 Childers v. Wooler 761 Childs V. North. Ry. of Canada 861 Chiles V. Nelson 68 Chinery v. Viall 49, 316, 783, 792, 793, 794, 870, 886 Chinnock v. Marchioness of Ely 39, 41 Chisholm v. Hawkins 79 u. Proudfoot 602,613,657 Chism V. Wood 641 Chissom v. Hawkins 320 Choate V. Crowninshield 813 Christie & Scott's Appeal 320 Church V. Abell 898 a Churchill v. Merchants' Bank 684 V. Palmer 624 City Bank v. Rome &c. R. R. Co. 813 V. Westbury 502 Claflin V. Boston & Lowell R. R. Co. 353, 358 V. Carpenter 126 Clap, in re ^52 Clapham v. Langton 202 XXVI TABLE OF CASES. Figures refer to Sections. Clapham v. Shillito 421 Clapton V. Cogart 429 Clark V. Alexander 711 V. Baker 215, 426, 652, 655 V. Barnwell 813 u. Bulmer 108 V. Chipman 862 V. Crandall 567 V. Davis 68 V. Draper 696, 796, 798 V. Everhart 429 V. Franklin 570 V. Gibson 542 V. Griffith 347 V. Hay ward 320 V. Jack 2 V. Lynch 320, 836, 862 V. Mauran 835 V. Morrell 488 V. New York Life Ins. & Trust Co 202 V. Nichols 109 V. Pease 557 V. Pinney 870 V. Protection Ins. Co. 508 V. Ralls 613 V. Ricker 505 V. Rose 372 V. Smith 741 V. Tarbell 502 V. Troper 871 V. Tucker 154, 193, 230 V. Weis 562 V. "Wells 320 V. Wright 145 Clarke v. Dales 870 V. Dickson 415, 452 V. Dixon 429 r. Foss 82, 542 u. Gardiner 44, 253 a V. Hart 780 V. Hutchins 694, 804 V. Marriott 14 2 V. Shee 48 V. Spence 337, 338, 339, 340, 351 u. Watson 575 17. Westroppe 87, 576 V. White 426 Clarkson v. Noble 145, 268 Clason V. Bailey 231, 255, 259 Clay V. Yates 99, 101, 102, 106, 109 Clayton's case 748 Clayton v. Andrews 93, 94, 96 Cleaveland v. Smith 53 Cleaves v. Foss 268 Clement v. Clement 561 Clement & Hawkes Manuf. Co. v. Meserole 758, 760, 763, 870 Clements v. Smith 900 V. Yturria 507 Clementson v. Grand Trunk Ry. 859, 862 Cleveland v. Sterrett 684 Clifford ti. Watts 570 Cline V. Myers 903 Clinton Nat. Bank v. Graves 557 Clippenger v. Hepbaugh 512 Clipsham w. Vertue 561 Clough V. Davis 557 V. Hoffman 577 V. London & North West- ern Railway Co. 433, 437, 442, 452,450 Clugas V. Penal una 510 Coate V. Terry 236, 270, 600 Coates V. Railton 843 V. Sangston 216, 689 V. Stevens 614 V. Wilson 21 Cobb V. Arundell 187 V. Cage 19 V. 111. Cent. R. R. Co. 397 Cobbold V. Caston 135 Coburn v. Odell 502 V. Pickering 486, 502 V. Ware 905 Cochran v. Ripy 813 V. Stewart 434 Cochrane v. Retberg 685 V. Willis 51, 76, 416 Cockburn v. Sylvester 19 Cockcraft v. N. Y. & Harlem R. R. 879 Cocker v. Franklin Hemp & Flax Manuf. Co. 251, 683 Cockerell v. Aucompte 691 V. Smith 903 Cockrill V. Kirkpatrick 716 Cocks V. Izard 444 Coddington i'. Goddard 209, 212, 234, 245, 254, 259, 273, 278, 294, 430, 455 Coddington v. Paleologo 684 Codman v. Freeman 79 Coe u. Bicknell 679 V. Turner 421 Coffey V. Quebec Bank 358 a, 360, 375 Coffman v. Campbell 215 V. Hampton 135 Cofield V. Clark 678, 870 Cogel V. Kniseley 478 a Coggill 0. Hartford & New Haven R- R. Co. 320, 382 Cohen v. Armstron"' 27 TABLE OF CASES. XXVll Figui'es refer to Sections. Cohen V. Piatt 870 Coloook V. Goode 641 Cole V. Blake 726 V. Cheovenda 870 V. Davies 487 V. Hester 561 V. Kernott 491 V. Kew 698 V. Mann 319 V. Milmine 82 V. Pennoyer 26 V. Sackett 752 Coleman, in re 19, 815 V. McDermot 358, 372, 379 V. Waller 497 Coles 0. Clark 6 V. Hulme 53 V. Trecothick 272 Collamer v. Day 542 CoUard v. South Eastern Railway Co. 871 Collins V. Blantern 504 V. Collins 88 V. Dennison 454 V. Gibbs 65 V. Locke 520 V. Merrell 137 V. Taggart 486 Colton V. Good 657, 870 Columbus, The 873 Comfort V. Kiersted 319 Commonwealth v. Clark 2 V. Weiher 26 Compta, The 871 Comstock V. Hutchinson 903 Conard v. Atlantic Ins. Co. 602, 862 Conaway v. Shelton 27 Concord v. Delaney 504 Concord Bank v. Gregg 455 Cone V. Baldwin 15 Congar u. Chamberlain 611 Congreve v. Evetts 79 Conklin v. Ogboru 27 Conley v. Perrine 624 Conlin v. Cantrell 37 Conn V. Coburn 27 Connell v. M'Clean 870 V. Miller 488 Conner v. Henderson 415, 888, 899 Connor v. Trawick 2 Conover v. Walling 470 Constantia, The 838 Constantinople & Alexandria Ho- tels Co. in re, Keidpath's case 74 Converseville Co. v. Chambersburg Woollen Co. 2 Conway u. Bush 320, 677, 788 Conway v. Edwards 675 Conybeare v. The New Brunswick & Canada Railway Co. 429 Conyers v. Ennis 440, 837, 858 Cooch V. Maltby 728 Cook V. Anderson 255 V. Castner 898, 902 V. Clayworth 30 V. Drais 684 V. Field 529 t>. Gilman 415, 452, 899 V. Gray 684 V. Hendry 485 V. Jarvis , 490 V. Lister 756 V. Mosely 613, 615 Cooke V. Millard 109 V. Oxley 41, 42, 43, 44, 64, 65, 66 t'. Riddelien 896 V. Tombs 137 Coolidge i). Brigham 415, 452, 641, 903 V. Melvin 484, 485, 486, 502 Coombs V. Bristol & Exeter Rail- way Co. 151, 155 V. Emery 530 V. Gorden 7, 17 Cooper, ex parte 489 Cooper V. Bill 178, 325, 327, 827, 828, 847 V. Dedrick 232 u. Elston 143 V. Law 725 V. Lovering 429, 430, 460 V. Merritt 429 V. Phibbs 419 V. Shepherd 49 V. Shuttleworth 87, 88 V. Smith 226, 235, 251 V. Willomatt 19 Cope V. Rowlands 530, 534, 535 Copeland v. Bosquet 320 V. Copeland 780 Coppen V. Craig 742 Copper Company v. Copper Min- ing. Company 871 Coppin V. Walker 742 Corbett v. Brown 470 Corinth i\ Underwood 215 V. Cotter 684 Cork & Youghal Railway, in re 530 Corking v. Jarrard 48 Corlies v. Gardner 320 Cornelia v. Ellis 24 Cornell v. Moulton 684 Cornfoot v. Fowke 455, 456, 462, 468 XXV 111 TABLE -OF CASES. Figures refer to Sections. Corning v. Abbott 511, 513, 530 Cornish v. Abbinn-ton 55, 417 Cornwall u. Haio-ht 592, 796 Corrigan v. Sheffield 701 Corry v. Lucas 431 Cort V. Ambergate Railway Co. 567, 699, 760 Cory V. Thames Iron Works Co. 873 Cossitt V. Hobbs 264 Costar V. Davies 752 Cothay V. Tute 694 Cothers v. Keever 902, 903 Cottam V. Partridge 711 Cotterell v. Apsley 108 Cotterill V. Stevens 193 Cottle u. Wilson 899 Cotton V. Godwin 719 Couch v. Ingersoll 561 County of Montgomery v. Robin- son 39 County of Simcoe v. Wade 661 Couper V. Elston 93 Coursin's Appeal 351 Courtis i'. Cane 6 Courtright v. Stewart 94, 109 Couse V. Tregent 320 Cousinery v. Pearsall 648, 649, 788 Couston (.. Chapman 135, 413, 651, 652, 702 Couturier i'. Hastie 743 Covas V. Bingham 585 Covell ;;. Hitchcock 847, 848, 854, 862 Coventry v. Gladstone 852, 864 V. M'Eniry 703, 894 Cowasjee c. Thompson 731, 824, 845 Cowell I'. Simpson 797 Cowie V. Remtry 292 Cowles V. Watson 430 Cox V. Jackson 39, 490 V. Jones 352, 683, 703 V. Long 600 V. Prentice 415 Coxe V. Hardin 384 V. State Bank at Trenton 716 Coxwell V. De Vaughn 748 Cozzins v. Whitaker 611, 641, 899 Craft V. Hurtz 682 V. McConoughy 520 M. RoUand 37 Craig V. Harper 41 V. Marsh 433 t/. Miller 611 V. Smith 319 V. Ward 455, 466 Crane v. London Dock Co. 6, 8, 9, 10 V. Powell 229 V. Pratt 710 Cranson v. Goss 554, 557, 558 Crary v. Hoffman 613 Craven v. Ryder 386, 774, 775, 779, 824, 845 Crawford v. Beard 715 V. Forristall 675 u. Morrell 137 V. Smith 315, 352, 358 V. Wick 621 Crawshay v. Edes 806, 853, 856, 857 V. Homfray 797 Creesy v. Holly 813 Creightou v. Comstock 691, 902 Cressey v. Sabre 79 Orill «. Doyle 308 Cripps I'. Hills 24 V. Smith 891, 902 Crisp V. Churchill 507 Crist V. Kleber 2 Crocker v. Crocker 19, 433 V. GuUifer 320, 597 V. New. London, Willi- mantic & Palmer R. R. Co. 39 Crockett v. Scribner 109 Crofoot V. Bennett 319, 346, 353 Croft V. Lumley 746 Croker v. Lawder 859 o Crombie v. Overholtzer 557 Crommelin v. The New York & Harlem Railway Co. 796 Crompton v. Pratt 320, 748 Croninger v. Crocker 686, 689, 695, 701 Croockewit v. Fletcher 561 Crook V. Jadis 15 Crooks V. More 788 Crookshank v. Burrell 104, 109 V. Rose 505, 544, 748 V. White 675 C'room V. Shaw 624 Cropper v. Cook 219, 293 Crosby v. Grant 15 V. AV'adsworth 118, 121, 124, ' 125 Cross V. Eglin 691 V. Gardner 613 V. O'Donnell 160, 181, 868 V. Peters 440 Crouch w. Culbreath 619 V. Currier 502 V. Great Northern Rail- way Co. 870 Crowder v. Austin 470, 474 Crowe V. Clay 730, 736 Crowley's case 90 CruU u. Dodson 111 TABLE OF CASES. XXIX Figures refer to Sections. Cuddee v. Kutter 884 CufE V. Penn 216 Culliford V. De Cardenell 648 Cumberland Bank v. Hann 502 Cumberland Bone Co. v. Andes Ins. Co. 352 Cuming V. Brown 866 Camming v. Roebuck 282, 294, 301 Cummings v. Arnold 216 V. Dennett 95, 104, 109, 232 V. Griggs 315 V. Powell 24, 26 U.Putnam 216 Cummins v. Grigg 334 Cundell V. Dawson 536 CunlifEe v. Harrison 164, 376, 689 Cunningham v. Ash brook 87, 311, 327 V. Hall 661 V. Soules 242 Curd V. Miller 502 Currie v. Anderson 148, 152 V. White 315 Currier v. Knapp 320 Curry v. Powers 2 Curtin V. Patton 27 Curtis V. Hannay 888 0. Hubbard 752 V. Leavitt 504, 505, 511 V. Pugh 161 Cusack i'. Robinson 152, 155, 157, 158, 160, 181, 186, 187, 693, 804 Gushing v. Breed 174, 334, 352, 354, 679, 697 V. Wyman 452 Cushman v. Holyoke 334, 350, 659, 693 V. Jewell 320 V. Marshall 452 Cutler V. Gilbreth 888 V. Pope 126 V. Welsh 508 Cutter V. Powell 560, 561, 668, 699, 888, 891, 898 Cutting V. Grand Trunk K. R. Co. 758, 870, 871 V. Jackson 487 D. D'abny v. Sharp 502 Daggett V. Johnson 565 Daily v. Green 600 Dakin v. Williams 520 Dalby v. India Life Insurance Co. 542 Da Lee v. Blackburn 454 Dalgleish v. Conboy 111 u. Tennent 482,497 Dalton V. Hamilton 60, 59 Dame v. Baldwin 6, 7 Damon v. Osborn 143, 319 Dana v. Boyd 616 V. Fielder 213, 758, 870 V. Hancock 210, 216 V. King 566, 592 V. Short 39 Dane v. Kirkwall 29 Danforth v. Walker 143 Daniel v. Mitchell 421 Daniels v. Nelson 502 Danks, ex parte 714 Dannefelser v. Weigel 320 Danube Railroad Co. v. Xenos 568 D'Aquila v. Lambert 828 Darden v. Lovelace 3, 334 Darst V. Brock way 641 V. Thomas 470 Darvill v. Terry 488 Datei; v. Earle 511 Davidson v. Nichols 431 Davies u. McLean 679 Davis V. Bemis 466 V. Bigler 502 V. Bradley 320, 813, 863 v. Browne 781 V. Burney 520 V. Caldwell 23, 24, 25 V. Gary 571 V. Eastman 143 V. Emery 320 V. Goodman 489 V. Handy 50 V. Hedges 899 u. Hill 319, 353 V. Hunt 641 V. McLean 679 V. McWhirter 440, 834 V. Mason 621 v. Moore 143, 193, 208 V. Murphy 670 V. Ney 2 V. Richardson 870 V. Rowell 110 u.' Russell 815 V. Shields 209, 245, 254, 255, 259, 758, 870 V. Smith 671 V. Turner 502 Davis Sewing Machine Co. v. Buckles 748 Davis Sewing Machine Co. v. McGinnis 707 Dawes v. Cope 502, 675 xxs TABLE OF CASES- Figures refer to Section8< Dawes V. Peck 181, 399, 693, 804 Des Brisay v. Mooney 2 Dawson V. CoUis 888, 891 Descadillas v. Harris 752 V. Graham 429 De Sewhanberg v. Buchanan 616 V. Remnant 544, 748 Deshon v. Bigelow 320, 677 Day V. Bassett V. Elmore 320 Desmond i'. Norris 531 232 Deutsch V. Reilly 490 V. McAllister 557, 558 Devaux v. Connolly 426 V. N. Y. Cent. R. R 91 V. Steinkeller 446 V. Pool 661, 888, 899, 901 Devlin v. O'Neill 820 V. Rao;uet 648, 649 Devoe v. Brandt 433 Daylight Burner Co. v. Deady v. Goodenough Deal V. Maxwell dlin 743 De Voss V. Richmond 455 174, 814 De Wahl v. Braune 34 109 Dewey v. Erie Borough 595 Dean v. Dean's Estate 2 De Wol£ V. Babbett 320 V. Emerson 527 V. Gardner 19, 367, 398, 399 V. James 717 V. Lindsell 831 V. Mason 611, 621 Dexter v. Norton 308, 319, 570 V. Morey 620 Dey V. Dox 758, 870 V. Thatcher 17 Dibble v. Corbett 783 V. Yates 433 Dibblee v. Sheldon 439 Dearborn v. Turner 597 Dick V. Cooper 444 Dearman v. Radcliffe 490 V. Lindsay 444 Deason v. Boyd 27 Dickenson i;. Gay 648 De Beil v. Thompson 245 V. Naul 640 De Cew v. Clark 87, 575, 576 Dickerson v. Evans 433 Decker v. Furniss 319 V. Seelye 813 De Cordova v. Smith 255 Dickey v. Linscott 570, 571 Deering v. Chapman 505 Dickinson v. Boyle 870 Defenbaugh v. Weaver 901 V. Central Bank 675 Deflfell V. White 493 V. Dickinson 169 De Gaillon v. L'Aigle 32, 33 V. FoUett 620. De Kidder v. McKnight 311 V. Gay 215 651, 655 Delamater v. Chappell 595, 703 V. Gupp 615 Delaney v. Root 126 V. Hall 425 Delaware, The 813 V. Jordan 657 JDellone v. Hull 440, 765 V. Lee 430 De Medina v. Norman 699 V. Lilwall 273 Demill v. Hartford Ins. Co. 577 V. Richmond 554 Deming o. Foster 644 657 , 661, 666 V. Shee 713 V. Grand Trunk R. R. Co. 758, Dickman v. Williams 862 870, 871 Dickson v. Jordan 661 De Montmorency v. Devereu X 27 0. Zizinia 622,666 Dempsey v. Carson 377, 797 Diggle V. Higgs 542 V. Gardiner 675 Dilk V. Keighley 26 Den V. Monjoy 490 Dill V. O'Ferrell 415, 899 Denman v. Cherokee Iron Co 700 Dillard v. Moore 616 Denmead v. Glass 160 Dilworth v. Bradner 429 Dennis v. Alexander 319,334 Dimech v. Corlett 561, 564 Denny v. Gilnian 458 Dimmock v. Hallett 470, 475 V. WiUiams 142 ,144 ,311,334 Dingle v. Hare 624, 903 Dent V. Dunn 736 Ditson V. Randall 433 Denton v. Great Northern Rail. Co. 472 Dittmar v. Norman 2 De Peyster v. Pulver 568 Divine v. McCormick 670 Derbyshire's Estate 351 Dix V. Shaver 41 De Oleaga v. West Cumberland Dixie V. Abbott 505 Iron Co. 687 Dixon V. Baldwin 50] , 840, 847 De Roo V. Foster 22 V. Bovill 776 TABLE OF CASES. XXXI Figures refer to Sections. Dixon V. Buck 696 V. Clarke 719 V. Fletcher 376, 689,' 701 V. Myers 323 V. Olmstead 504 »'. Paul 899 V. Watkin 728 !/. Yates 308,315,675,764, 775, 779, 805, 806, 807, 825, 835, ^37, 857, 862 Doak V. Johnson 488 Doane v. Dunham 215, 600, 703 Dobell V. Hutchinson 229 V. Stevens 476 Dock V. Hart 137 Dodd V. Farlow 215, 624, 655 V. Kirk 656 Dodds V. Durand 2 Dodge V. Greely 567 Dodsley !>. Varley 188, 771, 779 Dodson V. Harris 557 V. Wentworth 847 Doe V. Mulrass 1 7 V. Oliver 55, 417, 780 V. Hugely 571 V. Thorn 17 Doe dem. Roberts v. Roberts 490, 504 Doggett V. Emerson 421, 429, 454* 455 Dolan V. Green 511, 530 Dole V. Lincoln 2 V. Olmstead 354 • V. Stimpson 142, 144 DoUard v. Potts 145, 600 Domestic Sewing Machine Co. v. Arthurhultz 320 Don V. Law 759 a, 858 Donald v. Hodge 870 V. Suckling 769, 793 Donaldson v. Benton 716 V. M'Roy 479 Donallen v. Lenox 505 Donath v. Broomhead 835, 859 Doneber v. Roop 429 Donovan v. Willson 104, 109 Dooley v. Gallagher 644 Doolin V. Ware 444 Doolittle V. Lyman 513 Dorman v. Bigelow 232 Dorr V. Fisher 415, 641, 888, 898 Dorsey v. Wagman 749 Doty V. Wilder 265 Douglas V. Douglas 2 V. Howland 232 V. Patrick 714, 718, 725 V. Shumway 126, 796 Douglass V. M'AUister 870 V. Spears 255 Douglass Axe Manuf. Co. v. Gard- ner 899, 900 Dounce v. Dow 600, 661, 899, 901 Dow V. Sanborn 440 V. Worthen 193 Downer v. Smith 452 V. Thompson 353 Downes v. Thompson 319 Downey v. O'Donnell 565 Downing v. O'Brien 37 Downs V. Ross 93, 94, 109 Dows V. Greene 433, 862 i;. Griswold 452 V. Montgomery 188 V. Perrin 862, 866 Dox V. Dey 561 Doxey v. Miller 542 Doyle V. Dixon 526 V. Hart 429 V. Lasher 675, 696 , Dracachi v. Anglo-Egyptian Navig. Co. 863, 864 Drake v. Sears 903 V. Wells 126, 679 Drakeford v. Piercy 745 Draper v. Cole 901 u. Jones 320 V. Pattani 231, 259 Dresden, School Dist. in, v. ^tna Ins. Co. 743 Dresel v. Jordan 255 Dresser v. Ainsworth 641 Dresser Manufacturing Co. v, Wa- terston 320 Drew V. Kimball 780 V. Smith 320 V. Towle 902 Drinkwater v. Goodwin 741, 742 Driscoll V. Barker 562 Driver v. Jenkins 81 Drury v. Defontaine 552, 553 V. Hervey 320 Dubois V. Kelly 126 Dubose V. Wheddon 23 Dudley v. Abner 320 V. Danforth 488 V. Little 444 Duff V. Budd 435 V. Williams 429 Duffany v. Ferguson 429 Duffee V. Mason 613 Dugan w. Nichols 311 Duke V. Andrews 39 V. Asbee 616 Dula V. Cowles 90 Dunbar v. Ragles 320 Duncan v. Blair 187 XXXll TABLE OF CASES. Figures refer to Sections. Duncan i\ Stone V. Topham Duncroft v. Albrecht Dunham v. Jackson Dunlap V. Dunlap V. Epler ('. Gregory Dunlop i;. Grote 320 44, 687 111 713 490 502 521 762 Higgins Lambert 44, 45, 46, 877 181, 363, 374, 399, 693,804 Dun more v. Alexander 74 Dimn V. Fredericton Boom Co. 752 Dunne I). Ferguson 121,126 Dunning v. Gordon 352 c. Mead 502 Durant v. Rogers 455 Durbrow v. McDonald 679 Durgin v. Dyer 530 Durgy Cement Co. u. O'Brien 834, 837, 854, 862 Durkee v. Vermont Central Rail- road 44 Durnford v. Messiter 62 Durrell o. Evans, 260, 262, 267, 268 Durst V. Burton 466 Dustan v. McAndrew 788 Dutclier v. Swartwood 502 Dutchess Co. V. Harding 600 Dutton V. Gerrish 661 u. Solomonson 362, 399 Dwight V. Hamilton 521 Dwinel v. Howard 564, 567, 593 D'Wolf V. Rabaud 232 Dyer v. Homer 490 u. Libby 166, 311, 315, 319 D.Pearson 19 Dykers v. Townsend 219, 239 Dyston, ex parte 275 E. Eadie v. Ashbough Eagle V. Smith Eames u. Savage V. Sweetser Earl V. Peck Earle v. Hopwood u. Reed Early v. Garrett V. Smith 624 39 577 24 899 529 23, 26 470, 611, 630 268 Eastern K. R. Co. v. Benedict 219, 239 East India Co. v. Tritton 419 Easterlin v. Rylander 87 Eastland v. Longshorne 721 Easton v. Worthingtoa 7 Eaton V. Cook V. Hill Ebb V. Cole Eckstein v. Frank V. Reynolds 835 22 485 22 721 Eclipse Windmill Co. v. Thorson 741 Eddy V. Clement 571 Edelen v. Gough 232 Eden v. Blake 202 V. Dudfield 144, 173, 802 V. Parkinson 623 Edgar V. Can. Oil Co. 601 Edgerton v. Hodge 190 Edick V. Crim 641 Edmunds v. Downs 213 Edwards v. Brewer 835 V. CoUson 903 V. Cottrell 2 t'. Grand Trunk Railway Co. 93,97,106,10^,126, 142, 152 V. Harben 485, 502 V. Stinson 484 Egerton v. Mathews 246 Eichelberger v. McCauley 94 Eichholtz V. Banister 423, 629, 635, 641, 893 Einstein v. Chapman 502 Eldridge v. Benson 598 0. Wadleigh 641, 903 Elfe V. Gadsden 254 Elgee Cotton Cases, The -308 Eliason v. Henshaw 39 Ellen V. Topp 504, 567 Ellershaw v. Magniac 390, 393, 399, 830 Elliot V. Bradley 399 V. Ince 29 Elliott's case 53 Elliott V. Edwards 335, 337, 351 V. Giese 232 V. Hewitt 561, 562 I.. Pybus 380 V. Richardson 497, 528 V. Stoddard 485 V. Thomas 168, 596 V. Von Glehn 561 Ellis u. Andrews 614 V. Deadman 245, 249 V. Grooms 607 V. Grubb 126 V. Hammond 557 u. Hunt 678, 696, 841, 858 V. Jones 521 V. Mortimer 695 V. Thompson 683 V. AVild 607 TABLE OF OASES. XXXUl Figures refer to Sections. Ellis V. Willard 813 Ellison V. Brigham 126 V. Kerr 268 Elmore v. Kingscote 209 247 V. Stone 183, 184 185 Elphick V. Barnes 597 Elting Woollen Co. v. Martin 593 Elton V. Brogden 619 V. Jordan 619 Elves V. Crofts 527 Elvidge V. Richardson 89 Elwell V. Chamberlin 455, 466 V. Martin 22 Ely V. Ormsby ] 84 V. Webster 511 Emerson ti. Brigham 641,670, 671, 904 Emery's Sons v. Irving Nat. Bank 382,813 Emmerson v. Heelis 122, 135, 268 Emmerton v. Matthews 657, 663, 670, 671, 672 Emmet v. Dewhirst 216 Ender v. Scott 600, 613 England v. Cowley 243 V. Mortland 679 Engles V. Marshall 502 English V. Marston 62 Enlow V. Klein 2, 320 Eposito V. Bowden 572 Erie County Savings Bank v. Roop 780 Erie Railway Co. v. Union Loco- motive & Express Co. 527 Erskine v. Plummer 126 Eskridge v. Glover 39, 41, 64 Espy t). Harrison 216 Essan v. Dunn 747 Eubanks v. Peake 27 Evans v. Collins 454, 459, 460 V. Edmonds 458 V. Gale 452, 899 V. Hamilton 488 V. Judkins 723 V. Montgomery 452 V. Nicholson 45 V. Roberts 118, 121, 122, 124, 127 V. Trueman 809 Evanson v. Parker 38 Everett v. Collins 731 V. Hall 320 V. Parks 181, 693 Ewing V. Bailey 684 Eyles V. Ellis 710 Ezell V. Franklin 624 Fabbrizcotti v. Lannitz 898 Fackler v. Ford 505 Faikney v. Reynous 506, 508 Fairbanks v. Phelps 320 Fairfield Bridge Co. v. Nye 342, 675 Fairlie v. Fenton 242 Falcke v. Gray 884 Fales V. Roberts 320 Falk, ex parte 848 a, 857, 860, 866 a t). Fletcher 397 Fall River Nat. Bank v. Buflington 780 Falls V. Gaither 41, 68 V. Miller 186 Falmouth, Earl of, v. Thomas 118, 132, 137 Farebrother v. Simmons 268 Farina v. Home 174, 176, 803, 816, 817, 822, 823 Parish v. McKay 488 Farlow U.Ellis 320 Farmeloe v. Bain 770, 778, 779, 798 Farmer v. Robinson 305 Farmers' & Mechanics' Bank o. Butchers' & Drovers' Bank 455 Farmers' Bank v. Atkinson 391 V. Brown 391 w.ErieRy.Co. 215, 864 V. Logan 391 Farmers' Nat. Life v. Teeters 490 Farnum v. Perry 334 Farr v. Sumner 27 Farrall v. Hunt 41 Farrant v. Barnes 431 V. Thompson 17 Farraru. Countess of Granard 33 V. Nightingale 77 Farrell v. Corbett 452 Farris v. Ware 452 Farrow v. Wilson 571 Farwell v. Davis 871 V. Rogers 684 Fatman v. Thompson 623, 655 Faulkner v. Heberd 41, 64 V. Lowe 570 Favenc v. Bennett 743, 750 Favor v. Philbrick 538 Fawcett v. Osborn 7 Fawkes v. Lamb 202, 219, 242 Fay V. Oliver 415 V. Richmond 624 V. Wheeler HI, 169 Fearon v. Bowers 861 Featherston v. Hutchinson 505 Feeham v. Lee 497 Feehan v. Bank of Toronto 589 XXXIV TABLK OF CASES. Figures refer to Sections. Feehan v. Hallinan 871 Feise v. Wray 830, 835 Felthouse c. Bindley 40, 785 Felton y. Fuller 315 Fenly v. Stewart 250 Fenn v. Harrison 625 Fennell o. Ridler 553 Fenner v. Tucker 444 Fenton v. HoUoway 30 Feret !>. Hill 468 Ferguson u. Carrington 320, 439, 7(;5 V. Clifford 320, 513, 677 V. C'liijioration of Gait 575 K Hiisier 901, 903 V. Louisville City Bank 352, 354 V. Norman Ferrey v. Baxter Ferris v. Irons Ferson v. Sanger Fessenden v. Mussey Fetrow v. Wiseman Futtyplace v. Dutch ~ ■ . Caballero Swift 421, Feuntis v Fickett V. Field V. Brackett V. Carr V. Lelean V. INIoore V. Stearns Fielder v. Starkin Fifield ('. Elmer Fifth Nat. Bank of Bayley Figlia INlagsiorc, The Filkins V. Whyland Filson V. Himes Finacnne's case Finch V. Brook V. Mansfield Findon v. Parker Finley v. Quirk Finn V. Donahue Finney v. Apgar First Nat. Bank 534 752 485 455 259 26, 27 69i; 903 109 571 748 213, 798 334, 352, 353 433 899, 900 32U Chicago V. 399, 864 863 315, 334, 622 505 74 713 511, 530 529 553 558 95 353 61« Crowley V. Grindstaff V. Mass. Loan Co. 639 V. No. Railroad 6'.ni V. Thomas 7 First Nat. Bank of Cairo v. Crock- er 6, 398, 399, 696, 697 First Nat. Bank of Green Bay «. Dearborn 367, 399, 697, 864 Fi.-ber v. Saniuda 900 FischcU V. Scott 580 Fish V. Kempton 741 V. Payne 440 Fisher v. Budlong 446 V. Essex iJank (,. Hersey u. Kuhn V. Marsh V. Blellen V. Pollard V. Rieraan V. Sharp Fisk V. Hicks V. Tank Fitch c. Burk Fitt V. Cassanet Fitts V. Hall Fitzgerald v. Reed Fitzhugh V. Wiman Fitzmaurice v. Bayley Fitzsimmons v. Joslin V. Woodru Flagg V. Mann Flander v. People Flanders v. Maynard V. Putney Flarty v. Odium Fleenian v. McKean Fleet V. Murton Fletcher r. Drath r. Heath V. Howard u. Tayleur c. Willard Flight V. Leman Flint V. Corbett ('. Lyon Flintoft V. Elmore Flood V. Patterson Floyd [>. Browne Foard <■. McComb Fogart V. Blackweller Fogg V. Willcutt Foley V. Mason FoUansbee v. Adams Folsom V. Batchelder Fonblanque v. Lee Fondren v. Durfee Fontaine v. Col. Ins. Co Foos V. Sabin Foot V. Bentley V. Jones V. Marsh Foote V. Emerson Forbes v. Marsh Ford V. Beech I'. Chambers V. Cotesworth V. Johnston , 448, 482, 613 675 470 254 242 429 616 607 902 903 657 311, 334 785 22 29 813 210, 229, 232, 265 433, 455 iff 702 89 2 320, 334 47 519 677 219, 240 641 809 675 872,873 622 529 109 600 146, 234, 268 7 49 429 613 C27 213 567, 759 19 492 619 18 600, 758 622 440 347, 352 504, 512 320 370 334 571 488 TABLE OF CASES. XXXV Figures refer to Sections. Ford V. Noll 723 V. Phillips 27 V. Yates 206, 797 Fore V. McKenzie 641 Fores v. Johns 504 Forkner v. Stewart 502 Forman v. Wright 422 Forster v. Rowland 39 V. Taylor V. Thurston 530, 539 504 Forsyth v. Jervis Forsythe v. Ellis Forth V. Parsley 2 641 17 Fosdick V. Car Co. 320 V. Schall 320 !;. Van Husan 716 V. McTaggart V. Rendican Foss V. Lowell Five Cents Sav. Bank 2 Foster w.- Caldwell 613 V. Charles 454 V. Frampton 143, 850, 854 V. McGraw 748 V. Rockwell 181, 590 V. Ropes 311, 314, 318, 319, 334 V. Smith 57, 610 V. Thurston 504, 511 V. Wallace 502 Foulger v. Taylor 492 Foulk V. Eckart 452 Fowke «. Bowie 747 Fowler v. Hendry 485 V. HoUins 243 843 211 Fox V. Harding 877 V. Mackreth 448 V. Northern Liberties 49 !/. Nott 863 V. Turner 39 V. Webster 440 Frao-ano v. Long 181, 328, 363, 365, ° 379, 693, 804 Fraley v. Bispham 600 France v. Gaudet 876 Francis v, Rankin 488 Franklin v. Claflin 484 V. Long 77, 216, 888 V. Miller 567 S'ranklyne v. Lamond 242 Franks, ex parte 32 Franks v. De Pienne 33 Eraser v. Witt 844 Frazeru. Boss 2, 752 V. Gladstone 489 V. HiUiard 315, 770 V. Robinson 557 Prazier v. Harvey 611 Frazier v. Hilliard 83, 770 Frechette v. Corbett 399 Fredericton Boom Co. v. McPher- son 748 Freedom, The 812, 863 Freeman v. Baker 477, 613 V. Clute 600, 651, 652, 874 V. Cooke 55, 417, 780 V. East India Co. 9, 1 8 V. Nichols 677 Freeport v. Bartol 211 Freeth v. Burr 593, 769 French u. Freeman 179,827 V. Vining 429, 430, 431, 644, 661, 670 Freyman v. Knecht 888 Fricker v. Tomlinson 159 Frisbie v. Fitzsimmons 429 Frost u. Belmont 512 V. Blanchard 622 V. Knight 569, 760, 881, 882 V. Plumb 553 V. Woodruff 319 Frostburg Mining Co. v. New Eng- land Glass Co. 140, 144, 148, 152, 160 Fuentes v. Caballero 888 V. Montis 20, 817, 818,820 Fugate V. Hanford 230 Fulke V. Fletcher 299 FuUager v. Reville 452 Fuller V. Abrahams 444 V. Bean 87, 89, 311, 319, 320, 327, 332, 334, 353 V. Brown 571 V. Buswell 2 V. Dame 512 V. Hooper 219, 239 V. Little 713 V. Reed 137 V. Wilson 455, 456, 457, 458, 476 Fultz V. WycofE 904 Furley v. Bates 31 6, 332, 333 Furlong v. Polleys 870, 876 Furman v. Tufts 430 Furness v. Meek 214 Furniss u. Somers 320 Fydell v. Clark 739 G. Gabarron v. Kreeft Gadd V. Houghton Gadsden v. Lance Gagier u. Mieville 385, 399 219, 242 111 15 3XXT1 TABLE OF CASES. Figures refer to Sections. Gaines v. McKinley 624 Gainsford v. Carroll 758 Gaitskill V. Greathead 544 Gale V. Burnell 79 V. Kalamazoo 520 V. Nixon 208 V. Kead 520 Gallagher v. Waring 648, 656, 657 Gallop V. Newman' 696 Galloway, Lord, v. Matthew 62 Galpin v. Atwater 111 Gallon V. Emnos 444 Galvin v. Bacon 6, 19 Gamage v. Alexander 335 Gambling v. Read 320 Gammell v. Gunby 61 Ganson v. iMadigan 758, 765 Garbutt V. Bank of Prairie &c. 440 V. Watson 93, 96, 97, 104, 109 Gardiner v. Gray 649, 656, 661 V. Morse 444 V. Tate 415 Gardner v. Clark 677 u. Corson 561 V. Dutch 852, 354 V. Grout 143 u. Rowland 696, 862 V. Joy 109 V. Lane 1, 50, 77, 315, 353, 414 Garforth v. Fearon 516, 548 Garland u. Lane 362, 399 Garman i: Cooper 485, 502 Garment V. Barrs 619 Garretson v. Selby 693 Gassett v. Andover 722 Gates V. Bliss 452, 888 V. McKee 232 t;. Thompson 18 Gatling v. Newell 452 Gault V. Brown 47, 134, 167, 193, 216, 426 Gauly V. Ledwidge 8 Gautier v. Douglass Manuf. Co. 901 Gay V. Ballon 27 V. Hardeman 766 Gaylord v. Soragen 511 Gaylord Manuf. Co. v. Allen 600, 652, 656, 657 Gazley v. Price 592 Geary v. Physic 231, 269 Gee V. Lancashire & Yorkshire Railway Co. 871, 877 Geller v. Seixas 752 George v. George 567 V. Glass 683, 788 George v. Joy 213 V. Kimball 433, 490 V. Skivington 431, 904 u. Stubbs 311, 320 Georgian Bay Co. v. Thompson 902 Gerhard v. Bates 432 Grest V. Jones 518 Getchell V. Chase 352, 415 i\ Jewett 255 Getty V. Roundtree 657 Gibb.s V. Benjamin 139, 142, 144, 319, 324, 325, 327, 332 V. Jones 320 V. Merrill 22 Gibson v. Carnthers 829 V. Holland 113, 221, 230 V. Love 502 D. McKean 311,319 V. Soper 27, 415 V. Stevens 144, 696 Gifford V. Belts 903 Gilbert v. N. Y. Cent. R. R. Co. 318 I V. Thompson 320 Giles V. Edwards 423, 426 ! V. Simonds 126, 679 Gilkes V. Leonino 588 Gill V. Bicknell 268, 270 V. Cubitt 15 V. Kaufman 652 a, 666 Gillard v. Brittan 791, 792, 794, 886 Gillespie v. Gillespie 490 Gillett V. Hill 353, 781 Gilliat V. Gilliat 470, 475 V. Roberts 143 Gillighan v. Boardman 232 Gillis V. Hall 521 Gilman v. Dwight 521 V. Hill 93, 95, 109, 134, 154, 167, 193, 319 t. Kibler 232 Gilmore v. Holt 714 V. Newton 6,19 V. Woodcock 542 Gilmouru. Supple 316, 317, 325 Gilpins V. Consequa 571, 870 Gilson V. Bingham 600, 897 V. Spear 22 Gimson v. Woodfall 13 Girard v. Taggart 758, 783, 788 Girardey v. Richardson 507 Gittings V. Carter 899 V. Nelson 78, 79 Gladstone v. Hadwen 434 Glaholm v. Hays 661 Glasgow !'. Nicholson 697 Glass V. Whitney 815 Glave V. Wentworth 490 TABLE OF CASES. Figures refer to Sections. Glazebrook w. Woodrow 562 Gleason v. Drew 415, 675 V. Knapp 311 Glover V. Coles 127 V. Hutson 903 w. Ott 24 Glynn u. East India Dock Co. 815, 822 Goad V. Johnson 671 Godbold's case 550 Godchaux w. Mulford 502 Goddard v. Bebout 571 V. Binney 104, 109, 314, 334 V. Cox 747 Godfrey v. Brown 1 7 Godolphin v. Tudor 548 Godts V. Rose 177, 369, 371, 803 Godwin V. Francis 271 Golder V. Ogden 352 Golding Davis & Co. ex parte 848, 848 a, 866 a Goldrioh v. Ryan 671 Goldshede v. Cottrell 729 Goldsmith v. Bryant 320 Gompertz v. Bartlett 424, 608 !). Denton 888, 891 Gooch V. Holmes 111 Good V. Harper 600 V. Winslow 2 Goodallu. Skelton 189, 191, 807 Goodenough u. City Bank 812 Gooderham v. Dash 99, 379 V. Marlatt 2 Goodheart v. Johnson 502 Goodman v. Griffiths 209, 248 V. Harvey 15 Goodrich v. Longley 216 V. Michael 502 V. Tracey 739 Goodridge u. Ross 27 Goodwin v. Boston & Lowell R. R. Co. 320, 677 V. Clark 505 V. Fielding 230 V. Holbrook 682 V. Morse 898, 902, 903 V. Wells 689 Goodwyn v. Douglas 399 Goodyear v. Mayor of Weymouth 575 V. Ogden 622 Gookin V. Graham 641 Groom v. Aflalo 284, 286, 295, 296 Gordon v. Dix 36 V. Ellis 725 V. Harper 678 V. Norris 379, 758, 763, 765, 788, 870 Gordon v. Parmelee 430 V. Sims 268 «. Strange 710 V. Waterous 622, 703, 898 Gore V. Gibson 30 Gorham v. Fisher 94, 109, 154 Gorrisen v. Perrin 580 Gosbell V. Archer 265, 272 Gosling V. Birnie 781, 795 Gosman v. Cruger 37 Goss V. Lord Nugent 216, 218 V. Quinton 341, 342 V. Whitney 657 Gossler V. Eagle Sugar Refinery 600. 661 V. Schepeler 830 Gottwalls V. MulhoUand 497 Gough V. Edelen 354 Gould V. Mansfield 137 V. Steinburg 490 Gowans v. Consol. Bank 335, 379, 379 a Go wen v. Klous 249 Gower V. Graves 490 V. Van Dedalzen 660 Gowing V. Knowles 39, 704 Grace v. Hale 24 Grady v. Crook 39 Graeme v. Wroughton 550 Grafi' «. Fitch 334,675 V. Foster 649 Grafton u. Armitage 99,100,101, 102, 103, 105 Graham v. Fretwell 266 V. Furber 483 V. Musson 265, 266, 267 V. Nawlin 429 V. Smith 859 a V. Thompson 542 V. Wiley 2 Granberry v. Frierson 788 Grand Trunk Ry. v. Lees 489 Grandy v. McCleese 592 Grant v. Cad well 657 V. Fletcher 283, 286, 301 V. McLester 516 V. Shaw 492 V. Vaughan 15 Grantham v. Hawley 78 Grassy v. Schneider 716 Gratitudine, The 18 Graves v. Legg 564, 588, 624 V. Spier 455, 466 U.Weld 128 Gravett !>. Mugge 319 Gray v. Billington 425 ~ ^ " " 565 V. Cent. ll. R. Co. XXXVIU TAB LM, V b' UASKS. Fi ^ures refer to Sections. Gray v. Cox 1 . Uavis 657 661 Griswold u. Haven 455 142 V. Sabin 758 D. Hm-pfr 213 Grizewood v. Blanc 542 V. Hook 516, 548 Groat u.Gile 334 ,346 357 V. iMcCallister 488 Groff V. Belche 370 V. Sullivan 502 Grose v. Hennessey 627 903 V. White 738 Gross V. Kierski 627, 641 Greaner v. Mullen 858 Grosvenor v. Phillips 399 Great Western Railway Co. ]. Grott V. Story 202 Redmayne 871, 877 Grout V. Hill 490, 500, 851, 858, Greaves r. Ashlin 700, 783 796, 797 868 V. Hepke 331 Grove V. Donaldson 567 Green, in re 542 u. Dubois 743 Green v. Armstrong 126 Grover v. Cameron 170 V. Baverstock 470 474 V. Grover 2 V. Church 320 Groves v. Buck 93, 95, 97 104 V. Collins 607 511 Guerand v. Dandelet 521 526 V. Gilbert 571 Guerreiro v. Peile 2 I/. Godfrey 557 Guilford V. Smith 348 ,840 853 V. Gosden 430 Guion V. Doherty 730 V. Haythorne 774 Gulick V. Ward 444 512 V. Merriara 184 Gumm V. Tyrie 399 V. Price 505 527 Gunby V. Sinter 429 V. Rowland 675 Gunmakers, Master &c. of v. Fell 620 V. Stuart 425 Gunn V. Bolckow 770,823 a Greene v. Bateraan 39, 51 Gurney v. Atlantic Ry. Co. 901 V. Dingley 684 V. Behrend 864 Greenebaum v. Wheeler 502 V. Howe 710 Greenough u. Baloh 508 u. Womersley 423 608 Greenthal v. .Schneider 600 , 613 703 Gustine v. Phillips 837 Greenwood v. Curtis 504 Guthing V. Lynn 52 Gregg V. Wyman 553 Guthrie v. Morris 23, 26 Gregory v. Logan 232 i;. Murphy 24 V. McDowell 870 Gwillin V. Daniell 692 V. Morris 797 V. Sehoenell 433 440 V. Stryker 335 H. Gregson v. Rucks 301 Greneaux v. Wheeler 15 Haak v. Lindermaa 675 Greville r. Atkins 549 Haase v. Mitchell 415 452 Grice V. Kendrick 742 V. Nonnemacher 597 Griel I'. Lehman 81 Hackett v. Callender 433 Grier v. Stout 2 Hackleman v. Harrison 641 Griffin V. Colver 870 874 Haden v. Coleman 566 V. Pugh 320 Hadley v. Baxendale 871, 872, 873, Griffith V. Fowler 7, 17 875 V. Grogan 752 V. Clinton &o. Co. 611 V. Hodges 723 V. Psather 611 V. Ingledew 399 Hagar v. King 109 Griffiths i>. Owen 194 730 Hagedorn v. Laing 783 , 786 V. Perry 730, 758, 773, 775, Hagee v. Grossman 429 779, 787, 794, 814, 867, Hagerman v. Smith 748 870 879 Hahn c. Doolittle 613 Grim u. Byrd 429 V. Fredericks 319 353 Grimes v. Van Vechten 160 Haig V. AVallace 359 a Grimoldby v. Wells 652 a Haight V. Molnnis 489 Griswold V. Griswold 753 Haille v. Smith 367 TABLE OF CASES. XXXIX Figures refer to Sections. Haine^ v. Tucker 567, 568, 593, 758, 760, 763, 788 Hakes v. Hodgkiss 202 Haldeman v. Duncan 353 Hale t;. Gerrish 27 V. Huntley 319, 326 V. Metropolitan Omnibus Company 487, 488 V. Rawsou 583 V. Smith 641 Hall u. Belknap 897 V. Boston & Worcester K. R. 347, 352, 354 V. Coleman 899 V. Conder 611, 632, 635 V. Corcoran 557 V. Costello 557 V. FuUerton 452 V. Gaylor 490, 502, 693 V. Hale 15 V. Hinks 433 V. Jackson 807 V. Naylor 440 V. Richardson 315 V. Weir 24 V. Wright 570 Hallen v. Runder 127 Hallett V. Fowler 627 V. Oakes 29 Halliday v. Holgate 1, 16, 793 Hallock II. Commercial Ins. Co. 44, 65, 68, 75 Halloran v. Whitcomb 780 Hallowell v. Milne 320 Hallowell & Augusta Bank v. How- ard 716 Hallows V. Fernie 429 Halsa V. Halsa 232 Halterline v. Rice 99, 146, 334, 335 Ham V. Van Orden 142 Hambright v. Storer 616 Hamilton v. Ganyard 656 V. Hamilton 444 V. Lycoming Ins. Co. 68 V. McDonell 126 h. Myles 703 V. Rogers 79 V. Russell 502 Hamilton's Adm. v. Blackwell 485 Hamlett v. Tallman 81 Hamlyn v. Betteley 489 Hammatt v. Emerson 429, 454, 902 Hammett v. Linneman 320 Hammond v. Anderson 331, 774, 805, 857 V. Buckmaster 415 V. Pennock 452 Hammonds v. Barclay 796 Hams, Re 493 Hanauer v. Bartels 314 V. Doane 507 V. Gray 505 Hancock v. Fairfield 219 V. Gibson 677 Hands v. Burton 2 V. Slaney 24 Hanington v. Cormier 319 Hanks v'. McKee 656 V. Pulling 84 Hanna v. Harter 870 V. Rayburn 429 Hansard v. Robinson 736 Hansett v. Vilmar 488 Hanson v. Armitage 160 V. Edgerly 429, 430, 477, 482 V. King 613 U.Meyer 321, 371, 678, 774, 806, 808 V. Millett 2 Harding v. Com. Loan Co. 716 V. Davis 714 V. Meitz 320 V. Tifft 748 Hardingham v. Allen 720 Hardman v. Belhouse 710 u. Booth 60, 443 Hardwick v. Burtz 81 Hardy v. Fairbanks 600 V. Metzgar 7 V. Potter 679 V. Waters 26 Hargans v. Stone 657 Hargous v. Stone 648, 649 Harlow v. Putnam 425, 632 Harman v. Anderson 175, 803, 806 V. Fisher 499 V. Reeves 93, 137 Harmer v. Killing 27. Harmony !). Bingham 570,571 Harms v. Parsons 521 Harney v. Owens 24 Harnor v. Graves 426 Harpell v. Collard 600 Harper v. Clark 531 V. Dotson 627 V. Goodsell 1 Harralson v. Stein 47, 758 Harrell v. Miller 126 Harrington u. Du Chastel 517, 518 V. Reynolds 425 V. Stratton 898, 902 Harris's case 45 Harris v. Burnes ] 485 V. Evans 17 x\ TABLE OF CASES. Figures refer to Sections. Harris v. Fowle 2 .. Hart 849, 862 V. Johnston 622 V. Pepperell 416 u. Pratt 840, 848, 849 V. Runnells 511, 530 V. Simmerman 741 V. Smitli 320, 677 V. Tyson 448, 482 V. Waite 657 V. Wall 27 V. Williams 567 Harris Manuf. Co. v. Marsh 758 Harrison v. Balfe 613 V. Colton 558 V. Elving 256 V. Jackson 265 V. Kloprogge 650 V. Luke 2 V. Shanks 641 Harrow v. Groves 210 Hart V. Bush 160, 181, 693, 804 V. Carpenter 320 V. Frontino Gold Mining Co. 781 V. Hammett 213 V. Middleton 684 i>. Mills 47, 376, 689, 701 V. Nash 194 V. Prater 24 V. Sattley 160 V. Tallmadge 429 V. Woods 268 V. Wright 657,661, 671 Hartfield d. Roper 22 Hartford & N. H. R. R. Co. v. Jackson 39 Hartford & Sorghum Manuf. Co. h. Brush 595 Hartley v. Wharton 27, 213 Hartly v. Cummings 526 Hartop V. Hoare 9 Harty v. Gooderham 44 Harvey v. Grabham 216, 218 V. Plarris 50 V. Stevens 234, 235, 250, 268 V. Varney 490 Harvie v. Clarkson 697 Hasbrouck v. Loundsbury 320 Haskell v. Hunter 758 V. Rice 767, 774, 805 Hasket v. AV^^otan 542 Plaskins v. Warren 215, 314, 320, 677 Hasloek v. Ferguson 446 Hassell v. Borden 6 Hastie v. Couturier 76 Hastings v. Lovering 600, 648 Hastino-s, Marquis of, v. Thorley 722 Hatch V. Bayley 174, 354, 679 u. Lincoln 174,186,364,360, 675, 696 Hathaway v. Haynes 864 Hatson v. Browne 55 Hatstat V. Blakeslee 502 Hatton V. English 492 V. Sanson 981 Haule V. Hemying 577 Hause v. Judson 862 Hausman v. Nye 160 Havana R. R. Co. v. Walsh 239 Hawes v. Forster 287, 288, 291, 297, 298, 299 V. Humble 578 V. "Watson 187, 781 Hawkins v. Berry 430, 613 V. Chace 255, 259, 260, 265 V. Davis 433 V. Pemberton 600, 611 V. Rutt 710 Hawley v. Keeler 142, 190, 193 Hawse v. Crowe 739 Haycraft v. Creasy 454 Hayden v. Demets 679, 696, 788 Haydon v. Crawford 120 Hayes o. McClurg 752 V. Nesbitt 215 V. Porter 431 Hayman v. Flewker 20 Haynes v. Crutchfield 444 V. Fuller 216 o. Nice 137, 748 0. Sherrer 704 Haynes, in re 489, 492 Hays V. Mouille 835, 840, 848, 856, 862 Hayward v. Soougall 580, 692 V. White 488 Hazard v. Day 553, 554, 558 V. Irwin 429, 430 V. Loring 622, 714 V. New England Ins. Co. 39 V. Wells 737 Hazelington v. Gill 486 Heacock v. Walker 7 43, 66 Goodwin 79, 80 V. Tattersall 599, 900 Headrick v. Brattain 79 I-Ieald I'. Builders' Ins. Co. 78 Heard v. Lodge 567 ,v. Pilley 265 Heath v. Mahoney 22 V. Randall 126, 320 V. West 27 Head v. Diggon TABLE OF CASES. xli Figures refer to Sections. Heatherly v. Record 216 Heaton v. Knowlton 452 Hebb's case 68 Heckle v. Lurvey 6 Hedge v. Lowe 521 Heelas v. Slevin 721 Heermance v. Taylor 152 155 V. Vernoy 641 Hefifernan v. Berry 677 783 Pleflin V. Bell 320 Hegan o. Fredericton Boom Co. 781 Hegler v. Eddy 320 Heiehew v. Hamilton 521 Heilbutt V. Hickson 311 a, 564, 651, 667, 705,890,896 Heine v. Anderson 679 Heinecke v. Erie 499, 500 Heineman v. Newman 490 Helms V. Kearns 753 Helps V. Glenister 539 V. Winterbottom 730 Helshaw v. Langley 256 Helyear v. Hawke 624, 625 Hemmenway «. Wheeler 17 Hemmer v. Cooper 430 Henderson v. Barnewell 307 V. Cotter 202 V. Johnson 232 V. Laoon 432 V. Lauck 320, 677 Henkel v. Pape 44 V. Welsh 703 Hennequin v. Sands 320 V. Taylor 440 Henniker v. Wigg 748 Henry v. Cook 320 V. Jones 684 0. Philadelphia Warehouse Co. 812 V. Root 22 Henshaw v. Bank of Bellows Falls 79 V. Robins 430, 600, 613, 618, 622, 648 Hensley v. Baker 641 Henson v. Wescott 433 Henwood V. Oliver 723 Hepburn v. Auld 721 V. Griswold 715 V. Jewell 49 Hern v. Nichols 465 Herrick v. Borst 837 V. Whitney 607 Herrin v. Libbey 452 Herring v. Hoppock 320 V. Willard 320 Hersee v. White 497 Hersey v. Benedict 429, 433 Hersom'u. Henderson 622 Heseltine u. Siggers 111 Hesketh v. Fawoett 719 Hess V. Young 415, 430, 899 Hestal V. Myles 502 Heugh V. The Lond. & N. W. Ry. Co. 437 Heward v. Mitchell 489 Hewer v. Cox 493 Hewes v. Jordan 142, 143, 149, 152 Hewison v. Guthrie 798 Hewitt V. Clark 433 V. Miller 758 Heydecker v. Lombard 600 Heyman v. Neale 275, 280, 282, 294, 295 Heymann v. European Central Railway Co. 452 Heyward's case 359, 360 Heyward v. Barnes 39 Heyworth v. Hutchinson 889, 892, 896 V. Knight 292, 300 Hibbert v. Carter 813 Hibblewhite v. McMorrin 82 Hickman v. Haynes 216 Hicks V. Cleveland 190 V. Cram 780 V. Skinner 641 Higdon V. Thomas 255, 259 Higgius V. Bicknell 429 V. Burton ' 440 V. Chessman 319 V. Del. R. R. Co. 593, 679 V. Murray 94, 109, 335, 693 V. Pitt 497 V. Senior 219, 239 Higgons V. Burton 60, 443 High V. Kistner 430 Highland Chem. Co. v. Matthias 689 Hight V. Bacon 661 V. Ripley 93, 96, 104, 109 Hildreth v. O'Brien 622 Hill V. Anderson 24, 27 V. Balls 671, 904 V. Beebe 752 II. Dunham 557, 558 V. Freeman 320 V. Gray 470, 478, 479 V. Hobart 684 V. Hovey 561, 567 V. Kirkwood 489 V. McKenzie 320, 677 V. North 616 V. Perrott 48, 445, 470 V. Pine River Bank 490 V. Rewee 213 xlii TABLE OF CASES. Figures refer to Sections. Hill V. Robbins V. Smith V. Soiithwick V. Spe. Turquand V. Watts V. Wetherill V. Woolley Jacob V. Kirke Jagger Iron Co. v. Walker James u. Burchell V. Griffin 499, 500, 849, 850, V. Josselyn V. Lichfield 1 592, 699 544 429 94 482, 497 714, 741 748 226, 251 27 444 849, 850, 854 211 39 187 611 7 235, 258 752 681 S40, 841, 851, 854 530 430 TABLE OF CASES. xlv Figures refer to Sections. James v. Morgan 572 V. Muir 85, 247 V. Vane 728 V. Williams 730 Jameson v. Gregory 511, 597 Janvrin u. Maxwell 182 Jarrett v. McDaniel 81 Jarvis v. Peck 505 Jeffcott V. No. Br. Oil Co. 247, 290 Jefford V. Ringgold 22 Jeffrey v. Bigelow 465, 904 Jellison v, Jordan 91 Jamison v. Woodruff ' 452 Jendwine v. Slade 613, 614 Jenkins v. Beetham 88 V. Brown V. Frink V. Hogg V. Jarrett V. Reynolds u. Temples Jenkyns v. Brown V. Usborne Jenner v. Smith 1 444 268, 444, 474 314 232 520, 521 391, 399 818, 831 375 Jenness v. Mount Hope Iron Co. 89, 210 V. Wendell 134, 135, 379, 426 Jennings v. Boughton V. Flanagan 421 429 357 V. Gage V. Gratz 433, 452 600 V. Gray V. Hart 320 470 V. Merrill 19 V. Throgmorton Jervis v. Tomkinson 507 572 Jessopp V, Lutwyche Jewan v. Whitworth 542 810 Jewett V. Cook 485 V. Warren 319 679 696 770 Jezeph V. Ingram Johns V. Bailey Johnson v. Babcock 486 557 17 V. Buck 211, 222, 225, 234, 245, 250 , 265 ,268 270 V. Carley V. Credit Lyonnais Co. 485 19 V. Cummins 87 V. Cuttle 142 144 ,160 V. Dodge 265 V. Dodgson 160, 181, 262, 267 693 804 V. Farnham 797 V. Gallagher 37 V. Granger V. Harder 254 85 Johnson v. Holloway 502 V. Hudson 532, 533 V. Hunt 335 V. Johnson 426, 652 V. Lancashire Ry. Co. 319 V. Lansley 542 V. Lines 24 u. Luxton 452 V. Macdonald 579, 686 V. McLane 595 I'. Monell 440 V. Peck 451 V. Pye 22 V. Reed 561 V. Royal Mail Steam Pack- et Co. 62 V. Spies 2 V. Stephenson 39 V. Stoddard 362, 399 V. Titus 415, 899 V. Vail 37 Johnston v. Barker 630 V. Brown 2 V. Browne 2 V. Cope 611 V. Fessler 89, 41 V. Field 490 V. Kershaw 689 u. La Motte 444 V. NichoUs 39 V. Stear 16, 793, 821 V. Wilson 39 Joliff V. Bendell 620 Jonassohn v. Young 564, 593 Jones V. Arthur 716, 727 V. Barkley 561 V. Bowden 470, 480, 655 V. Bright 657, 661 V. Bryant 490 V. Caswell 444 V. Cliff 714 V. Flint 122 V. Franklin 450 V. Gibbon 683, 700 V. Giles 540 V. Gretton 746 V. Harris 492 V. Hetherington 490 V. Hodgskins 19 V. Jones 806, 857 V. Judd 571 V. Just 657, 903 V. King 484 V. Lees 524, 5-27 V. Littledale 242 V. Lock 2 V. M'Neil 49 xh TABLE OF CASES. Figures refer to Sections. Jones V. Marsh 592 0. Mechanics' Bank 142, 160 V. iSIevers 487 V. PaUiier 232 V. Pearce 319 V. Quinn 474 V. Ki.jhardson 79, 8U u. Ptyde 607, 608 V. Ryder 423 V. St. John's College 673 V. United States 565 V. Waite 505 V. AVasson 649 V. Yates 725 Jordan v. Dobson 111 V. Easter 320 0. James 854, 868 V. Norton 39, 40 V. Parlier 433 V. A\'arren Ins. Co. 18 Joseph V. Adkins 14 Joshua Barker, The 18 Joslin V. Cowee 433 Josling V. Irvine 870 1. Kingsford 605, 645, 649 Joslyn V. Grand Trunk Ry. 813 Josselyn v. Edwards 429 Jowers V. Blandy 320 Joy V. Hopkins 870 V. Sears 696 Joyce u. Adams 315, 357 V. Swan 38, 85, 316, 894, 395, 399 Judd V. Day 41 Judson t'. Griffen 715 Junkins i'. Simpson 452 Justice V. Lang 255 Juxton V. Morris 548, 550 K. Kain v. Old 602, 621 Kaitling v. Parkin 211 Kalus V. Jlergert 497 Kane v. Hood 561 Kappes u. \\'hite Hardwood Lum- ber Co. 752 Kase V. John 888 Kaufman v. Austin 788 ('. Stone 319 Kay V. Curd 245, 249, 250 V. Duchess de Pienne 33 Kaye o. Brett 741 IvL-avney v. Taylcjr 444 Kearon v, Pearson 571 Kuarslake v. Morgan 194, 730 Keatfs V. Cadogan, Earl Keele v. Wheeler Keeler r. Goodwin 773 r. Vandervere Keen v. Sprague Keil (J. Healy Kein v. Tupper '"47 Kekewich v. Manning Kellam v. McKinstry Kellogcr V, Barnard V. Denslow V. Hyatt V. Larkin V. Page V. Turpie t). Witherhead Kelner v. Baxter Kelsea o. Haines 319, 899, 478, 479 50 347, 353, 354, 779, 828, 840 319 242 27 334, 352 2 679 649 900 902 627 716 433, 765 109, 155 244 47, 311, 326, 331, 334 320 , 37 274 683, 870 862 Kelsey v. Kendall Kelso !'. Tabor Kemble v. Atkins V. Darrow Kemp V. Canovan V. Knickerbocker Ice Co. 570 V. Watt 729 Kempson v. Boyle 304 t'. Saunders 424 Kendall v. May 29 Kendrick v. Lomax 730 Kennedy v. Doyle 26 t. Jones 6 75 i'. Panama Mail Co. 420, 422, 608 0. Robinson 126 Kenner v. Harding 430, 613, 616 Kent V. Buck 320 V. Huskisson 147 Ken worthy v. Schofield 110, 211, 22.5, 246, 268 Kern v. Thurber '433 Kerr v. Coleman 497 u. Connell 126 Kerr v. Shaw 232 Kershaw v. Ogden 333 Kessel v. Albertis 109 Ketchum v. Wells 615 Keuss V. Picksley 253 Key c. Vather 529 Kej-s (I. ETarwood 2 Keyser v. Harbeck 433 V. Suze 817 Kibbe v. Hamilton Ins. Co. 455 Kidd V. Rawlinson 487 Kiddell V. Burnard 619, 620 V. Farnell 72 TABLE OF CASES. xlvii Figures refer to Sections. Kidder v. Norris 748 Kline u. Bebee 27 Kidwelly v. Brand 685 V. L'Amoureaux 24 Killniore v. Howlett 109, 126 Khnitz t!. Surrey 142, 143, 180 Kimball o. Cunningham 415, 888 Knight V. Abbott 713 V. Leland -2 V. Bean 570, 571 V. Moreland 429 V. Bowyer 629 V. The Anna Kimball 752 V. Comber 542 Kimball Manuf. Co. v. Vroman 888 V. Crockford 260 Kimberly v. Patchin 346, 347, 352, V. Fitch 542 354 U.Mann 139, 142, 144, 155, Kinder v. Shaw 6 159, 186 King (I. Andrews 746 V. New England Worsted V. Bailey 502 Co. 127, 661, 562, 677 V. Bates 320 Knight, in re 848 a V. Brown 91 Knights V. Wiffen 778, 781 V. Eagle Mills 429, 452, 454, Knoblauch o. Kronsohnabel 703 461 Knowles v. Adams 490 iv. Green 504, 557 V. Dabney 571 V. Phillips 440 Knox V. King 211 King, The, a. Inhabitants of Chil- V. Lee 715 lesford 22 Koch V. Godshaw 870 V. Waddington 514 Kohl V. Lindley 319 Kinghorne v. Montreal Tel. Co. 39 Kornegay v. White ' 619, 899 Kingman v. Perkins 2 Koster v. Holden 562 King Philip Mills v. Slater 561 Kottwitz V. Alexander 505, 608 Kingsbury v. Kirwin 542 Konntz v. Kirkpatrick 86 , 870,876 V. Taylor 611, 904 Kraft V. Dulles 759 Kingsford v. Merry 433, 441 , 443,819 Kreiss v. Seligman 511 Kingsley v. Holbrook 121 , 124, 126 Kreuzer v. Cooney 502 V. Wallis 684 Kribs V. Jones 216 , 570, 870 Kingston-upon-Hull, Governor &o. Kruger v. Blanck 589, 657 of 0. Petch 40 Krulder v. Ellison 362 Kinley v. Pltzpatrick 613 Krumbhaar v. Birch 627, 628 Kinloch v. Craig 835 , 833,835 Kugler V. Wisemann 667 I'. Savage 230, 249 Kurtz V. Cummings 211 Kinnear v. White 488 Kyle V. Buffalo Ry. Co. 813 Kinney v. Bradlee 597 V. Kavanagh 50, 421 V. Farnsworth 780 I/. Kiernan 452, 899 Kinsey v. Leggett 320, 433 L. Kintzing v. McElrath 448, 482 Kipp V. Meyer Kirby v. CahiU V. Duke of Marlborou 702 Labaree v. Colby 36 17 Lacker v. Rhoades 320 gh 747 Lackington v. Atherton 175, 803, 862 V. Johnson 144, 182 Kirk V. Gibbs 571 Ladd V. Dillingham 505 Kirkpatrick v. Alexander V. Bonsall 686 V. King 216 642 V. Rogers 554 , 557, 568 V. Gowan 600 Lai V. Stall 552 Kirtland v. Snow 602 Laidlaw v. Organ 448, 482 Kisch V. Central Venezuela Rail- Laidler v. Burlinson 338 way Co. Kissock V. Jarvis 429 489 Laing v. Fidgeon V. Lee 667, 661 232 Kitchen v. Spear Klein v. Seibald 862 6 V. McCall u. Mender 507 726 Klinck V. Kelley 696 Laifd V. Pirn 567, 768, Iti-z Kline v. Baker 362, 440 •T '* V. Townsend 0/1 xlviii TABLE OF CASES. Figures refer to Sections. Lake v. Morris Lakeman v. Pollard Lalor V. Burrows Lamb V. Crafts Lambert v. Heath Lamert v. Heath 679 571 871 109, 600, 621 609 425 Lamm v. Port Deposit Homestead Ass. 455 Lamond u. Davall 609, 758, 783, 786, 794 Lamprell v. Billericay Union 749 Lamprey v. Sargent 353 Lamson u. Patch 675 Lane v. Dudley 624 V. Jackson 858 ■u. Melville 93 V. Stookwell 484, 502 Lanfear v. Sumner 675 Lang V. Smith 15 V. Stockwell 487 Lang's Appeal 351 Langdon v. Doud 780 V. Goole 53 Lange v. Werk 520, 527 Langford v. Tyler, Adm's of 356 Langfort v. Tiler 338, 783 Langridge v. Levy 431, 668 Langton n. Higgins 330, 370 V. Horton 81 V. Hughes 506, 507, 508 V. Waring 16 Lanier v. Auld 666 Lansing v. Cole 255 L'Apostre v. L'Plaistrier 631, 636 Lapp V. Firstbrook 429 Larey v. Taliaferro 561, 617 Larned v. Andrews 535, 538 Lassiter v. Cole 490 V. AVard 904 Latham v. Atwood 129 V. Morrow 470, 474 u. Sumner 320 Lathrop V. Amherst Bank 529 V. Otis 648 Latimer v. Batson 486, 487 La Touche v. La Touche 37 Lattin V. Davis 870, 888, 903 Laubach v. Laubaoh 758 Laughter's case 570 Law V. Henry 567 V. Hodson 539 u- Law 517,548 V. Southerland 747 Lawrenoe'u. Gallagher 273 V. Hand 455 V. Kidder 521, 523, 527 V. Knowles 699 Lawrence v. Taylor Laws V. Purser Lawson v. Lovejoy Lawton v. Keil Laycoek v. Pickles Layng v. Paine Laythoarp v. Bryant Lea V. Barber V. Early Leask v. Scott 265 425, 427 27 208, 613 748 550 229, 246, 255 137 746 868 Leather Cloth Co. v. Hieronimus 91, 208, 252 V. Lorsont 527 Leatherdale u. Sweepstone 713 Leavitt u. Blatchford 505 V. Palmer 505 Ledwich v. McICim 607 Lee V. Bayes 6, 13, 14 ii. Clark 81 V. Griffin 41, 99, 102, 103. 104, 105, 106, 107, 109 0. Hills 210 t). Kilburn 837 V. Kimball 862 i^. Lee 470, 474 V. Maboney 211 Leedom v. Phillips 320, 677 Leeds v. Wright 847 Leeming v. Snaith 692 Leeque v. Waring 752 Lees V. Richardson 320 Leeson v. No. Br. Oil Co. 568 Lefaver v. Mires 675 Leffingwell V. Elliott 903 Lefils V. Sugg 23 Leflore w. Justice 657, 661 Legg V. Willard 696 Lehman v. Warren 314 Leicester v. Rose 497 Leigh V. Hind 522 V. Mobile & Ohio K. R. 308, 319, 320 V. Patterson 759 Leighton v. Stevens 320 V. Wales 621 Leisherness v. Berry 696 Leitner v. Goodwin 895 Lenox o. Eldred 37 Lent V. Padelford 255, 577 Leonard v. Baker 486 V. Davis 679 V. Dyer 561, 570 V. Fowler 648, 654 V. New York &c. Tel. Co. 44 V. Vredenburgh 232 V. Wall 592, 679 Lerned v. Johns 219 TABLE OF CASES. xlix Figures refer to Sections. Lerned v. Wannemacher 208, 211 Leroux v. Brown 91, 113, 230 Lespard V. Vankirk 657 Lestapies v. Ingraham 606 Lester D. East 308,311,314,315,319 V. Garland 684 V. Palmer 425 L'Evesque de Worcester's case 8 Levetu. Creditors 557 Levin I). Smith 320, 677 Levy V. Burgess 565 V. Cohen 68 V. Green 376, 689, 701 V. Lowndes 334, 352 V. Merrill 232 V. TurnbuU 856 Levystein v. Whitman 746 Lewis, ex parte, re Henderson 489 Lewis V. Gibbons 703 i;. Hubbard 599 a V. Knox 516 V. Littlefield 22, 542 V. Lofley 81 V. Lyman 78 V. Lyster 732 V. M'Lemore 421, 454 V. Mason 835, 859 a V. Peake 903 V. Pease 748 V. Welch 508, 538 Lexon v. Julian 452 Libby v. Downey 530 V. Ingalls 864 V. Tie 485 Lichfield, Guardians of, ». Green 731, 732, 735, 739 Lickbarrow v. Mason 813, 841, 861, 863, 864 Liddard u. Kain 616 Lidderdale v. Montrose 519 Lietrim u. Stewart 570 Lightburn v. Cooper 888 Lightfoot V. Tennant 507, 539 Lilley v. Eandall 452 Lillywhite D. Devereux 145,173,802 Lincoln v. Buckmaster 29 V. Johnson 3 Linden v. Sharp 486 Lindsay v. Cundy 11, 60, 434, 443 Lines v. Smith 641 Linforth, in re 2, 598 Lingham v. Eggleston 311, 319, 331, 334 Link V. Clemmens 557 Linn Boyd Tobacco Warehouse Co. V. Terrill 268 Linton v. Butts 174, 803 Linton v. Porter 627 Litt V. Cowley 859, 860 Littauer v. Goldman 607 Litterel v. St. John 320 Little V. Page 320 V. Pool 536 Littler v. Holland 216 Liverpool Borough Bank v. Eccles 253 Liverpool, Corporation of, v. Wright 518 Livingston v. Peru Iron Co. 448 V. Whiting 711 Lloyd u. Brewster 433, 440 V. European & N. Am. Ry. Co. 79 V. Guibert 571 V. Johnson 507 !'. Lord Say and Seale 53 V. Wright 160 Load V. Green 440, 441 Lobb V. Stanley 27, 213, 260 Lobdell V. Baker 19, 431, 607 V. Hopkins 682 Lock V. Sellwood 1 7 Locke V. Smith 23 V. Stearns 465 Lockerson v. Stillwell 490 Lockett V. Nicklin 206, 797 Lockhart v. Pannell 319 !.. Reilly 831 Lockwood V. Ewer 16 Lockyer v. Jones 713 Loder v. Kekule 872 Loeschman u. Machin 19 Logan V. Brown 542 a V. Le Mesurier 311, 324, 332, 357 Lomi V. Tucker 615 London Loan Co. v. Chace 492 London & N. W. Ry. Co. v. Bart- lett 399, 854 Lonergan v. Stewart 2 Long V. Anderson 641 V. Hartwell 265 V. Hickingbottom 641 u. Hicks 616 V. Warren 430 Longmeid v. Holiday 432, 668 Loome V. Bayley 540 Loomis V. Newhall 91 V. Wainwright 2 Loose V. Loose 422 Lord V. Belknap 562, 567, 592 V. Goddard 429 V. Grow 611 V. Wheeler 570, 571 TABLE OF CASES. Figures refer to Sections. Loring v. Boston 39 V. Cooke 721, 726 V. Mulcahy 6 Lorymer v. Smith 594, 648, 701, 896 Loughnan v. Barry 438, 739 Lovatt V. Hamilton 578 Love V. Oldham 902 Lovejoy v. Murray 49 V. Whipple 557 Lovering v. Buck Mountain Coal Co. 570, 571 Low V. Pew 78, 79, 84 Lowell u. Boston & Lowell R R. Co. 504, 538 Lowry v. Mehaflfey 255 Loyd V. Malone 444 Lucas V. Campbell 320 V. Dorrien 175, 781, 803, 817 u. James 41 V. Nichols 682 V. AVilkinson 756 Lucy V. Bundy 320, 415, 567, 677 V. Mouflet 596, 652 a Ludlow V. Bowne 399 Ludwig D. Fuller 675,696 Lull V. Korf 575 Lunn V. Thornton 79 Lupin V. Marie 320 Lyde v. Barnard 446 Lyman v. Robinson 39 Lynch i-. Bencher 433 V. O'Donnell 359, 375 Lyon V. Bertram 415, 606, 888 V. Culbertson 215, 542 a V. King 526 ('. Lamb 232 V. Strong 553, 557 Lyons V. Barnes 69 7 V. De Pass 8, 10 Lysney i\ Selby 476 Lytle ti. Bird 430 M. Maber v. Maber Maberley v. Sheppard Maberly j;. Shepherd Mabley v. Letts M' Allen u. Churchill McAndrew v. Chappie McBean v. Fox McBlair V. Gibbes McBride v. Silverthorne McCabe r. Morehead V. Robertson McCandlish v. Newman 194 187 146 502 505 561 429, 433 506, 55i; So, 203 641 2 87, 334 M'Cann v. Kirlin 592 , 677 McCarthy v. Nash 143 !■. Oliver 126 McCarty v. Kearnan 29 IMcClartey v. Gokey 685 McClellan o. Scott 430 McClung V. Kelley 311, 318 319 656 McClure v. Williams 903 McCollum V. Church 899 M'Comb V. Wright 259 268 M'Combs V. jM'Kennan 788 McConihe v. McMann 511 M'Conihe v. N. York & Erie R. R. 351 McConnell v. Brillhart 245 V. Hughes 87 328 V. Kilgallon 570 V. Murphy 692 V. Stettinius 752 jM'Cord V. Wright 242 McCormick v. Basal 595 V. Dunville 900 V. Hadden 320 675 l: Littler 29 V. Sarson 600 652 V. Vanatta 871 McCoy !'. Artcher 641 McCrae i: Young 319 M'CriUis V. Bartlett 29, 30 V. How 23 McCulloch V. Eagle Ins. Co. 65, 75 McCully V. Swackhamer 502 McDaniel v. Barnes 746 V. Ferrell 870 I\IcDerniid v. Redpath 870 McDona v. Swiney 486 McDonald v. Hewett 319 677 V. Lonijbottom 213 V. Snelling 431 u. Trafton 429 McDonalds v. Titus 485 Mc'Donough v. Webster 642 McDougall V. Elliott 352 McDowel V. Chambers 231, 259 McDowell V. Blackstone Canal Co. 747 ['. Simms 470 McElroy v. Buck 254 McEwan v. Smith 733, 776 779 814 jMcEwen v. Morey 85 M'Earland v. Newman 454 613 IMacfarlane v. Taylor 666 IMcFarrow's Appeal 254 M'Farson's Appeal 255 IMcGavock V. Puryear 508 509 Mc(;ibbon v. Schlessinger 788 McGrann v. New Lebanon R. R. Co. 216 McGrath v. Brown 39 TABLE OF CASES. Figures refer to Sections. McGraw V. Fletcher McGregor v. Brown V. Penn McGrew v. Browder M'Guinness v. Hunter McGuire v. McGuire McHose V. Fulmer Mcintosh V. Brill Mclntyre v. Kennedy 0. Kline V. Parks Mackaness v. Long- 666 126 613 6 615 36 870, 876 39 752 335 511 1, 677 Mackay v. Commercial Bank 466 McKean v. Mclvor 437 McKee v. Garcelon 696, 813 V. Judd 696 V. Manice 542 McKeithen v. Pratt 81 MoKellar v. Wallace 711 McKelvey v. Jarvis 748 McKercher v. Curtis 870 McKibbin v. Brown . 39 McKinley v. Watkins 39 McKinnell v. Robinson 508 McKnight v. Devlin 641, 690, 898, 899 V. Dunlop 47, 143, 167 McKown V. Ferguson 429 McLane v. Johnson 483 Maclay v. Harvey 39, 44, 68 McLea v. Robinson 87 Maclean v. Dunn 265, 304, 758, 784, 786, 794 McLean v. Grant 696 V. Nicolle 245 V. Richardson 788 McLeod V. Jones 679 V. National Bank 433 McLester v. Somerville 81 McMahon v. Grover 640 a V. Sloan 19 McMarter v. Babcock 521 McMartin v. Moore 679, 696 McMaster v. Geddes 429 V. Gordon 149, 150 II. McPherson 679 M'Minn v. Phipps 444 V. Richmond 23 M'Mullen v. Helberg 294 McNab V. Young 433 McNamara v. Edmister 679 McNaught V. Dodson 758 McNaughton v. Joy 670 NcNeal v. Emerson 126, 679 Macnee v. Gorst 810 M'Neece v. Gibson 505 McNeil V. Keleher 322 McNeil ?>. Tenth Nat. Bank of New York 320 Macomber v. Parker 311, 319, 331, 334, 353, 679 McParlin v. Boynton 901 McPherson v. Cameron 39 V. Fredericton Boom Co. 358 V. Gale 354 Mactier's Administrators v. Frifth 68 McTyer v. Steele 813 McWhorter v. McMahan 265 Maddock v. Stock 89, 707 Mader v. Jones 600 Madison & Ind. R. R. v. Norwich Saving Co. 455 Magee v. Badger 15 V. Billingsley 679 V. Street 666 Magrath v. Tinning 320, 433, 765 Magraw v. Loy 6 1 Magruder v. Gage 181, 399, 693 Mahalen v. Dublin Distillery Co. 245, 247, 249 ]\Iahan v. United States 2 Mahler v. Schloss 2 Mahone v. Reeves 41 5 Mahurin v. Harding 904 Maillard v. Duke of Argyle 729 Makin v. London Rice Mills Co. 701 V. Watkinson 577 Malcolm v. Loveridge 433 Malcomson v. Morton 215, 561, 600 Mallalieu v. Hodgson 497 Mallan v. May 505, 527 V. Radloff 615, 657, 661 Mallory v. Lord 758, 870 Malone v. Reynolds . 2 Manahan v. Noyes 415, 452 Manby v. Scott 29 Manchester v. Sahler 37 Mandel v. Battles 900 Maneely v. McGee 752 Mann v. Everston 657 Manning's case 17 Manning v. Albee 430 V. Gill 29 V. Johnson 22 V. Lunn 725 Mansfield v. Trigg 426, 600, 652, 888 Maple V. Kuasart 7^0 Marble j;. Moore 311, 315, 319, 331, 334, 349 March v. First Nat. Bank 430 Marchesseau v. Chaffee 870 Margetson v. Wright 617 Marie Mansions Co. Re 489 lii TABLE OF CASES. Figrures refer to Sections. Marine Bank v. Buffalo 864 Marine Bank of Chicago v. Wright 399 Market Overt, case of 8 Markham v. Jaudon 173, 679 Markland v. Creditors 849 Markle v. Hatfield 607 Marks v. Cass Co. Mill Co. 2 Marland v. Stanwood 690 Marner v. Banks 8 Marples v. Hartley 494 Marryatt y. White 747 Marsden v. Goode 721 Marsh V. Hutchinson 33 U.Hyde 143, 159, 167, 170, 208, 675 V. Keating 6, 13 V. Low 888 V. Pedder 731 o. Rouse 142, 179, 187, 679 V. Titus 2 ti. Webber 904 Marshall I/. Beeber 19,640 a V. Duke 641 V. Ferguson 126 , V. Fowler 429 V. Green 118, 126, 145, 155 V. Jamieson 39, 372 V. Lynn 216 V. Peck 670 V. Perry 215, 599 o, 900 ». Pierce 780 V. Ruton 31, 33 V. Thurston 542 Marston v. Baldwin 320, 677 V. Boynton 752 V. Knight 888 u. Marston 2 Martin v. Adams 1, 315, 597, 679, 802 V. Black 41 V. Funk 2 V. Mathiot 320 V. Mayo 27 V. ]\Iitchell 41 V. Perchard 485 V. Pewtresa 434 V. Eanlett 444 V. Reid 16 V. Roberts 415 V. Terrell 542 Martindale v. Booth 486 V. Smith 316, 764, 783, 794,825,826,867 Martineau v. Kitching 328, 329, ^08 Marvin v. Wallis 156, 184, 185, 807 Maryland Fertilizing Co. v. Lor- entz 564 Mason v. Bickle 320 V. Brunskill 202 V. Chappell 657 V. Crosby 421, 429, 430, 451 V. Decker 255 V. Great West. Ry. Co. 382, 399 V. Hatton 799 V, Johnson 320 V. Lickbarrow 678 V. MacDonald 79, 81 V. Raplee 429 V. Kowe 615 V. Thompson 319, 353, 370 17. Wright 24, 26 Massey v. Sladen 709 Massie v. Crawford 904 Masson v. Bovet 415 Masters, Re 529 Masterton v. Mayor of Brooklyn 877 Matasce v. Hughes 752 Mather v. Fraser 496 t. Robinson 429 Matheson v. Kelly 713 Matteson v. Holt 453, 888 Matthewman's, Mrs., case 37 Matthews v. Bliss 430 V. Cowan 22 V. Hartson 657 V. Jordan 488 V. Parker 620 V. Poythress 15 Mattice v. Allen 193 Mattingley v. Wulke 485 Mauri V. Heffernan 242 Mavor v. Pyne 690 Mawson v. Blane 27 Maxwell v. Brown 140, 142, 152, 160 May V. Baboock 813 V. Gamble 730 V. Hooglan 352 V. Tallman 679 Mayer v. Dwinell 888 V. Nyas 738 Mayfield v. Wadsley 127, 132 Maynes v. Atwater 502 Mazone v. Caze 565 Meacham v. CoUignon 433, 440 Mead v. Bunn 429 V. Case 104, 109 V. De Golyer 47 V. Noyes 486, 502 Meade v. Smith 486, 675 Meader v. White 557 Meadows v. Meadows 232, 270 TABLE OP CASES. liii Figures refer to Sections. Means v. Williamson 186, 315, 679 Meany v. Head 796 Mears v. Waples 215, 433, 759 Meclianics' &c. Bank v. Farmers' &e. Bank 19, 864 Mechanics' Sav. Ass. v. O'Con- ner 641 Mechelen v. Wallace 137 Medbury v. Watson 429, 430, 431, 903 Medina v. Stoughton 613, 630 Megaw V. Molloy 294, 415 Mehlberg v. Fisher 735, 752 Meech v. Bennett 444 Meldrum v. Snow 598 Melendy v. Keen 429 Melledge v. Boston Ins. Co. 752 Mellish V. Motteux 477 Mercantile & Exchange Bank v. Gladstone 836 Mercer v. Cheese 733 V. Cosman 635 Merchant v. Chapman 181, 399, 693 Merchants' Bank v. Union R. K. Co. 813 Merchants' National Bank v. Bangs 311, 315, 353, 358, 360, 371, 382, 396, 399 Meredith v. Ladd 516 V. Meigh 148, 160, 181, 693, 804 Merriam v. Cunningham 22, 24, 25 V. Field 656, 657 V. Granite Bank 15 V. Stearns 558 V. United States 691 V. Wilkins 27 V. Wolcott 607 Merrick v. Bradley 619 Merrill v. Downs 557 V. Hunnewell 352, 353 V. Parker 315 V. Thomas 2 V. Wilson 242 Merrimack Manuf. Co. v. Quin- tard 882 Merritt v. Clason 231, 259 V. Johnson 335 Mertens v. Adcock 783, 786 Merwin v. Arbuckle 429, 430 Meservey v. Gray 511 Mesnard v. Aldridge 615 Messenger v. Pratt 648 Messer v. Woodman 135, 142, 154, 319, 323, 334, 352, 353, 679, 765 Messmore v. N. Y. Shot Co. 651, 652 Methwold ». Walbank 51 7 Mews V. Carr 268 Meyer v. Evereth 650 V. Johnston 79 Meyerstein v. Barber 308, 822, 861 IS^eynell v. Surtees 41 Michigan Central R. R. Co. v. Phillips 19, 320, 677 Michigan State Bank v. Gardner 19 Middlebrook v. Thompson 352 Middlesex v. Thomas 730, 735 Middlesex Co. v. Osgood 335, 682 Mihills Manuf. Co. v. Day 871 Milburn v. Milburn 715 Miles V. Gorton 734, 769, 779, 796, 806, 825, 835, 857, 862 V. Miller 870 V. Roberts 216, 682 Mllgate V. Kebble 785, 794 Mill Dam Foundry v. Hovey 561, 562, 567,568,570 Millard v. Hewlett 27 Miller v. Barber 429, 430, 452 V. Cook 232 V. Irvine 232 V. Jones 320, 677 V. Post 530, 540 V. Race 15 c. Sav. Ass'n 399 V. Smith 415, 675 V. State 126 V. Stevens 213 V. Young 429 Milliken v. Thorndike 429 V. Warren 767, 796, 798 Mills V. Auriol 572 V. Ball 841, 854, 861 u. Bayley 575 V. Camp 326, 327, 679 V. Fowkes 746, 748 V. Hunt 134, 242 Milner v. Patton 507 Milnes v. Duncan 419 V. Gery 87 Milton V. Rowland 888, 899, 903 Miner v. Bradley 426, 452, 652 Mingaye v. Corbett ' 245, 254 V. White 426 Mink V. Jarvis 624 Minnesota Oil Co. v. Collier Lead Co. 44 Mirabita v. Imperial Ottoman Bank 392 a Mires v. Solesby 345 Misner v. Granger 657 Mitchel V. Reynolds 520, 526 Mitchell V. Cockburn 506 Ut TABLE OF CASES. Figures refer to Sections. Mitchell V. Cunningham 696 ,. Ede 813 V. Gile 2 V. King 722 V. Lepage 58, 416 u. McDougall 429, 430 V. Newhall 609 V. Smith 530 V. U. S. Exp. Co. 813 V. AVinslow 80, 81 V. Worden 440 V. Zimmerman 429 Mixed Moneys, case of 715 Mixer's case 452 Mixer t;. Coburn V. Cook V. Howarth 600, 611, 898, 902 320 93, 99, 104, 109, 335 Moakes e. JSTioholson 79, 384, 396, 399 Moale v. Buchanan 211 Mockbee v. Gardner 641 Mody V. Gregson 649, 651, 652 a, 667, 705 Moeller v. Young 806 Moens v. Heyworth 457 Moffatt V. Lunt 684 Mogg V. Benedicks 502 Mohney v. Evans 457 Mohr ('. Boston & Albany Rail- road Co. 840, 848, 854 Molitor V. Robinson 502 MoUett V. Robinson 219, 241, 242, 276, 277 V. Wackerbath 306 Molton V. Cainroux 29, 30 jMoncrieff v. Goldsborough 470, 474 Mondell D. Steel 57,610,891,898, 899, 901 Monk V. ■\Vittenbury 19 Montefiore v. Montefiore 504 Montgomery v. Hunt 679, 696 V. Middleton 578 Montgomery Co. v. Am. Emigrant Co. 415 Montpelier & Wells River R. R. V. Langdon 780 Moody V. Blake 6, 433 V. Brown 335 V. Gregson 652 a V. Mahurin 716 V. Wright 79, 81 Mooklar v. Lewis 899 Mooney v. Miller 430 Moore v. Adams 504 V. Bixby 142 V. Campbell 218, 303, 316, 691 Moore v. Chisholm V. Logan I'. Meek V. Piercy V. Sibbald V. \^^aldo 143 758, 760, 761 490 597 2 561 Moorehouse v. Comstock 600, 656 V. Yeager 429 More V. Bonnet 520, 521 Morehead v. Hunt 474 Moreland u. Myall 126 Morewood v. South York Ry. Co. 490, 492 Morey v. Medbury 693 Morgan u. Bailey 557 V. Bain 759, 759 a V. Beaumont 542 V. Birnie 575 V. Eencher 641 V. Gath 47, 690 V. Gregg 354 V. Malleson 2 V. Olvey 485 V. Powers 6l3 .,. Skiddy 429 V. Taylor 675 Moriarty v. Stofferan 433 Morley v. Attenborough 611, 628, 629, 630, 632, 634, 635, 641 V. Boothby 232 Morrell v. Blacknian 440 Morrill v. Aden 22, 27 V. Bemis 615 V. Nightingale 894 V. WaUace 600, 613, 614 Morris v. Bo wen 624 V. Cleasby 743 V. Rexford 320 V. Shryock 862 V. Thompson 478 a, 641, 644 V. Tillson 488 Morris Canal Co. v. Everett 429 Morrison v. Dingley 319, 352, 354 V. Gray 830 V. Smith ■ 762 V. Universal Marine Ins. Co. 442 V. Woodley 352, 354 Morrow v. Reed 334 V. Waterous Eng. Co. 667, 661 Morse v. Brackett 47, 215, 415, 426, 427, 652, 888 V. Dearborn 440 V. Hutchins 902, 903 V. Powers 486 V. Rathbun 429 TABLE OF CASES. Iv Figures refer to Sections. Morse v. Shaw 440 V. Sherman 168, 311, 314, 315, 319, 675, 765 V. Wheeler 27 Morse Twist Drill & Machine Co. V. Morse 520, 521 Mortimer v. Bell 474 V. McCallan 82 Morton v. Dean 110, 211, 250, 254, 268 u. Lamb 592 u. McLeod 813 V. Tibbett 144, 149, 151, 152, 153, 154, 155, 164, 170, 187 Moseley v. Shattuck 320 Moses V. Mead 611, 648, 657, 670, 671 Mosher v. Smith 675 Moss V. Dearing 490 V. Meshaw 352 V. Sweet 597 Mossmere v. New York Shot & Lead Co. 877 Mott V. Mott 521 Mottram v. Heyer 814, 815, 848, 859, 860 Mouflet V. Cole 522 Moulton V. Scruton 903 Mount V. Hendricks 502 V. Lyon 6 77 Mount Hope Iron Co. v. Buffing- ton 351, 675 Mowbray v. Cady 595 Mowrey v. Walsh 7, 433 Moyce v. Newington 11, 433 Moyer v. Shoemaker 415 Muoklow u. Mangles 335,377 Mudge V. Oliver 59, 416 Mullen V. Kerr 531 MuUer v. Eno 888, 896, 898, 899, 901, 903 MuUett V. Mason 904 Mulvany v. Eosenberger 616 Mumford v. Gething 213, 521, 524 V. McPherson 621 V. Whitney 126 Mumper v. Rushmore 696 Mundorf v. Wiokersham 455 Munroe v. Perkins 216 Murch V. Wright 320, 438 Murphy v. Boese 267 a V. Gay 613 17. Scarth 562 V. Simpson 553, 557 V. Swadener 17 V. Thompson 392 Murphy v. Webber 748 Murray v. Baker 565 V. Brooks 624 V. Gilbert 126 V. Jennings 903 V. Judah 607 V. Mann 452 891 V. Meredith 903 V. Smith 613, 657 684 V. Walsh 505 Mussel V. Cooke 111 Mustard v. Wohlford 26 Mutual Life Ins. Co. v. Hunt 29 Myers v. Baymore 18 V. Conway 899 V. Harvey 2 u. Meinrath 604 ,554, 557, 558 V. Sanders 27 V. Smith 68 N. Nash V. Hodgson 748 Nason v. Dinsmore 558 National Bank of Commonwealth V. Mechanics Nat. Bank 748 National Bank of Marquette v. Crowley 319 National Exchange Co. of Glas- gow V. Drew 462 National Fire Ins. Co. v. Loomis 470, 474 National Savings Bank v. Tranah 736 Navan Union v. McLoughlin 41 Navulshaw v. Brownrigg 19, 810 Naylor v. Dennie 828, 837, 851, 856, 862 Neaffie v. Hart 703 Neal V. Gillaspy 641 V. Williams 433, 490 Neate v. Ball 499 Neelson v. Sanborne 232 Neely v. Wood 490 Negley v. Jeffers 216 Neil V. Cheves 783 Neill V. Whitworth 587 Neldon v. Smith 578 Nelson v. Chicago R. R. Co. 385, 399 V. Cowing 624 V. Doty 2 V. Duncombe 29 V. Nelson 126 V. Stocker 22 Nepoter, The 863 Nesbit V. Burry 357 Ivi TABLE OF CASES. Figures refer to Sections. Nesbitt u. Bank of Montreal 675 Nettleton v. Sikes 126,679 Neville, Ee 2, 598, 743 Nevins v. Schofield 796 New I'. Swain 825 New Albany Ins. Co. v. Wilcox- son 502 Newall V. Hussey 752 Newbery i'. "Wall 232 Newby v. Rogers 255, 684 New Brunswick & Canada Rail- way Co. V. Muffgeridge 40 New Brunswick Land Co. v. Kirk 126 New Brunswick Oil Co. v. Par- sons 510, 531 New Brunswick Ry. Co. v. Mc- Leod 320, 382 Newcomb v. Boston & Lowell R. R. Corp. 697 V. Brackett 567, 577 V. Cabell 352, 675, 696 Newell V. Horn 429, 430, 476 V. Radford 236 o. Sibley 17 V. Turner 415 Newhall t). Vargas 767, 783, 784, 785, 794, 830, 834, 835, 843, 844, 859, 862, 868 New Hampshire Fire Ins. Co. v. Noyes 23 Newlan v. Dunham 87 Newman v. Meek 444 Newmarch v. Clay 74 7 Newmarket Iron Foundry v. Har- vey 765 Newsom i>. Thornton 833, 837 Newton v. Bronson 265 Nichol V. Crittenden 433, 485 v. Godts 601 Nicholls V. Shelton 525 V. Stretton 527 Nichols V. Allen 232 V. Johnson 234, 250 V. Michael 40 V. Morse 399, 679, 699, 765 V. Nordheimer 623 V. Patten 490, 679, 802 V. Pinner 440 V. Plume 165 V. Townsend 901 Nicholson v. Bower 158, 160, 500 V. Bradfield Union 689, 701 V. Cooper 492 V. Hood 551 Nickerson v. Darrow 19 Nickerson v. Gardner 577 Niokley v. Thomas 430 Niell V. Morley 29 Niles V. Culver 621, 622 Nimmo v. Kuykendall 485, 488 Nix V. Olive 859 Nixon V. Brown 7, 19 Noad V. Lampson 797 Noble V. Adams 434, 438, 739, 844 V. Nugent 742 V. Smith 2, 675 V. Ward 216, 218 Noe V. Hodges 716 Noel V. Horton 429 Nolan V. Cain 429 Nordheimer v. Robinson 320 Norfolk, Duke of, v. Worthy 470 Norman v. Phillips 160, 164, 181, 693, 804 Norris v. Blair 245, 250, 254, 270 V. Thorp 430 c. Vance 27 North V. Forrest lu North Brunswick Ry. Co. v. Conybeare 432 North River Bank v. Aymar 455 Northey v. Field 841, 859 Northrup v. Foote 553 Northup V. Cook 758 Northwood v. Rennie 613, 623 Norton v. Doolittle 502 V. Sewell 431 V. Simonds 216 V. Young 452 Noyes v. Canfield 213 V. Humphreys 137 V. Jenkins 79 V. Ward 780 Nunes v. Carter 497 Nutall V. Brannin 746 Nutter 0. Wheeler 2, 598 Nutting V. Dickinson 87, 91 O. Oakes v. Turquand 433, 443, 469 Oakford c. Drake 830 Oakley v. Morton 47, 571 Oatman v. Walker 684 Ober V. Carson 334 Obermeier v. Core 766 O'Brien v. Chamberlain 485 u. Credit Valley Ry. Co. 142 f. Gilchrist 813 V. Norris 862 Ochse V. Wood 504 TABLE OF CASES. Ivii Figures refer to Sections. Ockington v. Richey 126,311, 334, 353, 756 O'Conner v. Varney 898 Odell V. Boston & Maine Railroad 331, 334, 362 Odiorne v. New England Ins. Co. 215 Odom V. Harrison 894 O'Donnell v. Leeman 110, 210, 211, 250, 268 V. Sweney 557 OTay V. Burke 39 Offley V. Clay 741 Oggv. Shuter 311, 373, 390, 399, 794 Ogilvie V. Foljambe 264 Ogle V. Atkinson 385, 830, 841 V. Earl Vane 872 O'Hanlan v. Great Western Rail. Co. 871, 876 Ohio & M. R. R. V. Kerr 433 Okell V. Smith 596, 661 Old Colony R. R. Co. v. Evans 255 Old Dom. Steamship Co. v. Burck- hardt 433 Oliver v. Fielden 561 OUivant v. Bayley 56, 657, 661 Olmstead v. Mies 126 Olney v. Howe 308 Olyphant v. Baker 184, 315, 326, 348 O'Neal V. Bacon 613 Oneida Manuf. Co. v. Lawrence 648, 656 O'Neil V. Grain 254 V. Mcllmoyle 325, 379 V. McKewn 716 V. New York Mining Co. 109 O'Neill V. Bell 655 V. Rush 870 Onslow V. Eames 619, 620 Oppenheim v. Russel 836, 854 Orcutt V. Nelson 181, 331, 399, 511, 693 Organ v. Stewart 193 Oriental Inland Steam Co. v. Briggs 39 Ormes v. Beadel 452 Ormrod v. Huth 454, 460, 611, 630 Ormsby v. Machir 319 Orr V. Bigelow 758, 870 V. Murdock 859 a Ortman v. Green 319 Orvis V. Kimball 27 Osborn v. Gantz 320, 610, 888 Osborne v. Fuller • 899 V. Phelps 234 Osgood V. Lewis 600, 613, 670 Osterhout v. Roberts 49 Otis V. Raymond 430 Otts V. Alderson 611 613 Outon V. Rodes 516 Cutwater v. Dodge 144, 319 Overbay v. Lighty 903 Owen V. Legh 127 Owens V. Denton 540, 711 V. Duabar 644 656 V. Lewis 120, 126 V. Porter 544 V. Weedman 677 Owenson v. Morse 730 Oxendale v. Wetherell 47, 690 Pacific Iron Wks. v. Long Island R. R. Co. 693, 699 Pacific Iron Works v. Newhall 657 Packard u. Dunsmore 679, 696 V. Richardson 232, 245, 249 V. Slack 904 V. West 675 V. Wood 675 Packer v. Gillies 9 V. Wilson 232 Packet Co. v. Sickles 526 Padden v. Taylor 433 Paddock v. Strobridge 430, 448, 482 Page V. Bent 429 V. Carpenter 315, 353, 486 V. Cowasjee Eduljee 637, 793, 794 V. Monks 137 V. Myers 216 V. Parker 429, 903 Paget V. Perchard 485 Paice V. Walker 242 Paige V. Ott 47 Paine v. Cave 44 V. Dwinel 752 Paisley v. Freeman 641 Palmer v. Bate 518, 549 V. Hatch 624 V. Head 320, 677 V. Stebbins 521 V. York Bank 870 Palo Alto, The 68 Pam V. Vilmar 2 Paradine v. Jane 572 Parham v. Randolph 421 Park V. Morris &c. Co. 600, 651, 652 V. Morris Axe & Tool Co. 900, 901 Parker v. Byrnes 440, 859 Iviii TABLE OF CASES. Figures refer to Sections. Parker v. Crittenden 50, 774 i-. Davis 715 V. Gossage 837 r. Mitchell 334 t. Palmer 648, 703 V. Patrick 11, 440 V. Perkins 714 u. Prinijle . 898, 899 V. Schenck 109 V. Staniland 118, 119, 126, 127 V. Wallis 144, 145, 147, 161, 164 Parkinson u. Lee 480, 611, 644, 648, 657, 666 Parks V. Hall 767, 796, 799, 805, 806, 807, 808 Parmlee v. Adolph 429, 452 Parris v. Roberts 320 Parsons v. Dickinson 675 V. Loucks 109 u. Martin 743 V. Sexton 888, 891 V. Smith 126 V. Sutton 870 V. Taylor 542 ('. Thompson 516 u. Webb 6 Parton v. Crofts 208, 292, 297, 298 Partridge v. Wooding 679 Pasley D. Freeman 429,431,446,454, 455, 613, 630, 670 Passaic Manuf. Co. v. Hoffman 106, 109 Pate V. Wright 658 Patee v. Pelton 641 Pateshall v. Tranter 899 Paton V. Corrie 318 V. Duncan 607 Patrick v. Leach 613 V. Meserve 696 Pattee v. Greeley 530, 557 Patten v. Smith 320 V. Thompson 830, 835 Patterson v. Clark 5-12 u. Irwine 453 Pattison's Appeal 126 Patton V. Foy 489 Paul V. Hardwick 62o u. Rued 820, 677 Payne i\ Cave 42 V. Rodden 627, 641 V. Shadbolt 806 V. Whale 891 Peabody v. Norfolk 521 V. Speyers 109 Peacock v. Pursell 73 7 Peake v. Conlon 557 Pearce v. Black well 47 7 V. Brooks 509 V. Davis 731 Pearson, ex parte 375 Pearson v. Dawson 777, 779 V. Mason 758, 760 V. Morgan 421 Pease v. Capp 701 V. Gloahec 433, 441, 443, 864 V. Sabin 657 V. Salim 657 V. Smith 6 Peohell V. Watson 529 Peck V. Brewer 452 V. Briggs 508, 511, 529 V. United States 566 Pecker v. Kennisou 137 Peek V. North Staff. Rail. Co. 211, 225 Peer v. Humphreys 6, 11, 13 Peeters v. Opie 560 Peirce v. Corf 222, 225 Pelleeat v. Angell 511 Pellow V. Wonford 684 Peltier v. Collins 621 Pemberton v. Vaughan 624 Pembroke Iron Co. u. Parsons 691,692 Pence v. Langdon 452 Pender v. Fobes 621 Penfold V. Mould 2 Pennell v. Dawson 486 V. McAfferty 703 Penniman v. Hartshorn 265, 269, 260 Pennock v. Coe 79, 81 Pennoek's Appeal 470, 474 People V. Beebe 111 V. Johnson 2 V. Kendall 22 V. Lord 444 u. Walker 684 !'. White 110 People's Bank v. Gridley 696 Perfect v. Lane 429 Perkins v. Bailey 452 V. Clay 620, 526 V. Douglass 597 V. Eaton 542 V. Lyman 521 V. Thompson 17 V. Whelan 627 Per Lee v. Beebe 593 Perley v. Balch 415, 452, 888, 899, 902 Perriu v. Davis 489 V. Wilson 24 Perrine v. Cooley 622 Persse, in re 29 TABLE OF CASES. lix Figures refer to Sections. Peru V. Turner 41 Petelion v. Hippie 542 Peters v. Anderson 746 V. Ballister 696, 813 V. Farnsworth 624 V. Fleming 23, 24 V. Gouch 415 V. Hilles 440 Peterson v. Eyre 870 Petrie v. Hannay 506, 508 Pettengill v. Merrill 335 Pettigrew v. Chellis 429 Pettingill v. Elkins 675 Pettis V. Kellogg 79 Pettitt ;;. Mitchel 702 Pew V. Lawrence 352, 701 Phelan v. Crosby 445 Phelps V. Cutler 167 679, 696 V. Hubbard 320 561, 677 V. Murray 79 V. Willard 351 V. Worcester 23, 24 Philadelphia &c. Railroad Co. u. Howard 877 Phil. R. R. Co. V. TitusviUe 871 V. Wireman 383 a V. Woelpper 81 Philips V. Ives 542 Phillimore v. Barry 258 Phillips V. Alleghany Car Co 561 V. Bateman 232 v. Bistolli 51, 142, 187 V. Bullard 731 V. Dickson 831 V. Hath. 809 V. Merritt 145, 758 V. Moses 748 V. Ocraulgee Mills 82, 143, 145, 208, 221, 352, 354 V. Reitz 602 V. Stevens 570 V. Winslow 81 Philpott V. Jones 544, 748 Philpotts V. Clifton 720 u. Evans 568 758 759, 760 V. Philpotts 490 Phippen u. Hyland 211 ,222 423, 677 V. Stickney 444, 474 Phipps V. Buckman 429 V. M'Farlane 109 Piatt V. Oliver 444 Picard v. Hine 37 Pickard v. Bretts 492 V. Marriage 492 u. Sears 870 Pickering v. Busk 19, 624, 625 V. Cease 542 a Pickering v. Dowson 477, 621 Pickett u. Bullock 797 V. Merchants' Nat. Bank 74 7 Pickrel v. Rose 38 Picot V. Sanderson 2 Pierce v. Cameron 902 V. Emery 79 V. Fuller 531 V. Shipps 17 V. Small 39 t). Tobey 27 V. Wilson 452 V. Woodward 521 Pierrepont v. Barnai-d 126 Pierson v. Hoag 677 Pigotu. Cubley 16 Pike V. Balch 110, 368, 444 V. Fay 213, 460, 622, 623 V. Vaughan 334 Pilkington v. Scott 526 Pince V. Beattie 529 Pinkham v. Mattox 143, 144, 145, 156, 188 Pinnell v. Steinger 490 Pinney v. Andrus 616 Pinnock v. Coe 81 Pitcher v. Hennessey 202 u. Livingston 870 Pitkin V. Noyes 93, 95, 98, 106, 109, 127, 131 Pitt V. Smith 30 Pitts V. Beckett 209, 289 Pittsburgh, Cinn. & St. L. R. R. Co. V. Heck 756 Pixley V. Boynton 542 a Plaisted v. Holmes 502 V. Palmer 553, 557 Planche v. Colburn 567 Plant Seed Co. v. Hall 39 Planters' Bank v. Union Bank 506 Piatt V. Bromage 419 V. McFaul 677, 710 Playford v. United King. Tel. Co. 432 Pleasants v. Pendleton 352, 353, 697 Plevins u. Downing 216 Plimley v. Westley 780 Plumer v. Long 447 V. Lord 780 Plummer v. Erskine 748 V. Shirley 320 Plymouth Bank v. Bank of Nor- folk 803 Pole V. Cetcovitch 572 Polhemus y. Heiman 215, 613 Polhill V. Walter 454 Pollen V. Le Roy 788 PoUey V. Waterhouse 761, 788 Is TABLE OF CASES. Figures refer to Sections. Pollock V. Fisher 352 Polyglass V. Oliver 716 Pond V. Williams 748 Pontifex v. Wilkinson 567 Poole V. Rice 752 V. Timbridge 719 Pooley V. Brown 608 Poor c. '\\^oodburn 433, 452 Pope 0. Beals 535 V. Linn 557 V. Nickerson 18 V. Pictou Steamboat Co. 452 Poplett V. Stockdale 504 Pordage v. Cole 560, 593 Porritt ('. Baker 540 Port V. Williams 430 Port Carbon Iron Co. v. Groves 657 Portalis v. Tetley 810 Porter v. Bright 640 a V. Flintoft 489 V. Parks 19 V. Pettengill 320, 59 7 Portman v. Middleton 877 Posey V. Scales 679 Pothonier v. Dawson 16 Potter r. Saunders 44 V. Titcomb 415 Pottinger v. Hecksher 840, 849 Potts V. Whitehead 39, 41, 44, 68 Poulton V. Lattimore 888, 89 7, 899, 900 Powder Co. v. Burckhardt 2 Powell V. Bradlee 440 V. Devit 306 V. Horton 613, 615, 649 V. Hoyland 441 V. Jessop 111 V. Powell 485 V. Preston 319 V. Smith 55 ;;. Weaver 81 Power V. Barbara 613, 614 Powers I'. Barber 335 V. Russell 36 Prairie Farmer Co. v. Taylor 595 Prather ». Parker 502 Pratt V. Chase 143, 696 V. Langdon 513 1-. Maynard 335 V. Parkman 696, 697, 862, 864 V. Philbrook 641 V. 'Willey 745 a Pray v. Burbank 530 I.. Mitchell 111 Preble v. Bottom 567 Prentiss v. Russ 430 Prescott V. Battersby 530 Prescott V. Holmes 641 V. Locke 95, 98, 102, 106, 109, 139, 142, 144, 311, 319, 323, 324, 325, 326, 327, 332, 334 V. Norris 22, 504, 505 V. Wright 430, 449 Preston v. Dunham 899 V. Whitney 320 Price V. Dyer 218 u. Furman 22, 24, 27 V. Griffith 211 V. Hewett 22 V. Jones 320 t). Lea 134 V. Pitzer 502 V. Price 733, 735, 736 Prideau v. Bunnett 56 Priest V. Wheeler 786 Prime v. Cobb 6, 19 Primrose v. Browning 486 Prince v. Boston & Lowell R. R. Corp. 367 Pringle v. Phillips 15 Pritchett v. Cook 2 Proctor V. Jones 166, 807 V. Nicholson 544 V. Sargent 521 V. Sears 27 Proprietors English & Foreign Credit Co. v. Arduin 39, 40 Prosser v. Edmonds 629 V. Hooper 900 Proudfoot V. Anderson 814 Puckett V. Reed 675, 696 Puckford V. Mo,xwell 730 Pugh V. Chesseldine 268 Pulsifer v. Hotchkiss 902 Purner v. Piercy 126 Pust V. Dowie 564 Putnam v. Mellen 562 V. Osgood 485, 486 V. Tillotson 181, 362, 399, 693 Putney v. Day 126 Putt V. Duncan 879 Pym V. Campbell 214 Q. Quarles v. George 577, 870 Queen, The, v. Carter 2 V. Horan 11 V. Kenrick 476 V. The Sadlers' Co. 452, 887 TABLE OF CASES. Ixi Figures refer to Sections. Quincy v. Tilton Quinn v. Davis Quintard v. Bacon R. Race V. Weston Radford v. Smith Raffles V. Wichelhaus Raguet V. Roll Rahilly v. Wilson Rainey v. Capps Rainsford v, Fenwick Rainwater u. Durham] Ramazotti v. Bowring Ramsay v. Warner Rand v. Mather 415,675 19 144, 148, 160 429 878 50, 214, 417 505 2 557 25 24 745 748 137 V. White Mountains Rail- road 758, 763 Randall v. Hazleton 429, 431, 432 V. Kohlor 624, 655 V. Newson 657, 661, 904 V. Phillips 490 V. Raper 903 V. Roper 877 V. Rhodes 621 V. Thornton 613 Ranger v. Great Western Rail. Co. 466 Rankin ;;. Demott 716 V. Goddard 683 V. Mitchell 2 Ranney v. Moody 486 V, Warren 452 Rannie v. Irvine 521 Ranny v. Higby 399 Rapelye v. Mackie 319, 353 Raphael v. Bank of England 15 Rappleye v. Adee 144, 166, 183, 370 Rasberry v. Moye 902 Rashdall v. Ford 522 Rathbun v. Rathbun 187 Rattary v. Cook 679 Rawlins v. Wickham 429, 452 Rawls u. J)eshler 19,320,862 Rawson V. Harger 429 V. Johnson 592 0. Tuell 320 Rawson, in re 502 Ray V. Thompson 597 Raymond v. Crown & Eagle Mills 242 V. Merchant 752 Raynes v. Crowder 444 Reab v. McAllister 898 Read v. Decker 574 V. Fairbanks 337 V. Goldring 714, 723 Read v. Hutchinson 2, 434, 739 V. Pres. Hud. & Del. Canal Co. 215 V. Runn 47 Reade v. Lamb 91 Readhead i'. Midland Railway Co. 657,661,663 Redee v. Wade 352 Redington v. Roberts 440 Redman v. Sanders 529 Redmond v. Smock 788 Redpath v. Kolfage _: 731 Reed v. Abbey 2 V. Batchelder 26 o. Blades 78 t'. Boardman 746 V. Boshears 29 V. Burrus 81, 399 V. Evans 232 V. Hastings 613 V. M'Grew 216, 415 V. Peterson 455 V. Randall 600 V. Richardson 215 V. Spaulding 2 1'. Upton 752 V. Wood 611, 621 Reese River Mining Co. in re, Smith's case 429, 433 Reese River Mining Co. v. Smith 443, 458, 461, 561 Reeves v. Butcher 558 V. Capper 16, 807 V. Harris 320 V. Pye 245 V. Whitmore 81 Reg. V. Chawton 684 V. Stanoliffe 11 Reggio V. Braggiotti 902, 903 Reichart v. Castator 490 Reid V. Barber 641 V. Draper 242 V. Hoskins 567, 572, 760 V. Robertson 592 Reily V. Howard 871 Reimers v. Ridner 578 Relyea v. N. Hampshire Rolling Mill Corp. 813 Remick v. Sandford 142, 144, 150, 151, 278 Rentall v. Burn 803 Rentch v. Long 106, 109 Reuss V. Pickley 255 Reuter v. Sala 689 Rex V. Arnold 540 V. Charretier _ 550 V, Jackson 434 Ixii TABLE OF CASES. Figures refer to Sections. Eex V. Major 540 Ridgwa y V. Ingram 211, 222 245 V. Marsh 470 V. Wharton 39, 208, 211 Keynell !'. Sprye 429 Riford I ■. Montgomery 6 Reynolds i\ Ayers 1' 319 Rigge V Burbidge 898 V. Boston & Maine Kail- Riggs t' JMagruder 111 road 834, 837, 841, Righter V. Roller 429, 430 849, 859 Rigney V. ]\Iitchell 352 V. Carpenter 232 Riley v. Mallory 24 V. De Chaunis 474 V. Spotswood 50, 481 V. Shuter 689 V. Water Power Co. 6 V. Stevenson 657 V. Wheeler 320, 677, 743 Rhoades v. Castner 211, 213, 222 Rimmer V. Ruston 702 Rhodes v. Baker 126 Rines v. Porter 17 Rice V. Austin 770 Ripley J. M'Clure 568 759, 760 V. Baxendale 871, 876 Ritchie V. Smith 537 V. Churchill 682 Robbins V. Eaton 27, 28 V. Codman 315 Roberts V. Beatty 47, 690 V. Dvvight Manuf. Co. 50, 77 V. Brett 562, 687 V. Forsyth 621,65 2, 641 ,657 ,661 V. Fisher 739 V. Manley 429 V. Garnie 747 V. Stone 79 V. Hughes 611 Richards v. James 495 V. Jenkins 619 V. Porter 227, 251 252 V. Morgan 613 615 V. Shaw 690 V. Watkins 575 Richardson v. Boston Chemical Robertson v. Ferguson 797 Laboratory 721, 726 u. Hayes 577 V. Brown 615 V. Strickland 352 379 I. Cooper 216 V. Vaughn 104, 109 V. Dunn 47 Robeson v. French 553, 557 r. Ford 684 Robinson i\ Batchelder 721 L>. Goss 409 500 V. Briggs 489 V. Gray 696 V. Bullock 52 V. Hooper 216 V. CoUingwood 491 V. Jackson 72G V. Cook 718 V. Johnson 616 V. Davison 570 V. Kelly 542 V. Elliott 79 V. ^Mahon 575 V. Ferraday 725 V. Mellish 512 u. Gordon 167 V. Rardin 675 V. Green 137 505 V. Richardson 2 V. Harvey 613 )'. S(juires 143 r. Macdonnell 78 V. Strong 29, 30 V. Riddle V. Coburn 320 Chan dler 44 644 657 c. Ga;4e 902 Roboth am ii. Tudor 550 V. Varnum 311, 319 , 334 , 767 Robson V. Drummond 567 Rider v. Kelley 335 c. Miller 657 Ridgeway v. Kennedy 202 V. Oliver 736 Ridgway u. Bowman 319 Roby (■ West 605 TABLE OF CASES. Ixiii Figures refer to Sections. Rochelle v. Harrison 679 Rockford, R. 1. & St. L. R. R. Co. V. Lent 690 Rodee v. Wade 352 Rodger v. The Comptoir d'Es- compte 866 Rodgers v. Niles 645 V. Phillips 140, 160, 362, 399 V. Smith 641 Rodman t\ Thalheimer 440 Rodwell V. Phillips 115, 123, 125, 133 Roe V. Bradshaw 493 V. Jerome 780 Rogers v. Akerman 613 u. Gould 144 V. Hadley 214, 304 V. Hanson 888 V. Hurd 27 (/. Kneeland 232 V. Langford 736 V. Miles 657 u. Thomas 837, 868 Rogers Locomotive Works v. Lewis 320 Roget V. Merritt 677 Rohan V. Hawson 748 Rohde V. Thwaites 358, 364, 365, 371, 379 Roland v. Gundy 6, 7 Roll V. Raguet 504 Rolt V. Watson 736 Rommel v. Wingate 44, 376, 689 Romp, The 502 Romuz V. Crowe 736 Rondeau v. Wyatt 93, 95, 96, 104 Roosevelt v. Dale 421 Root V. French 433 V. Lord 320 Roots V. Dormer, Lord 135 Roper V. Johnson 880, 882 V. Treasurer of Sangamon Lodge 430 Ropes V. Lane 317, 319, 352, 353, 370, 679 Roscorla v. Thomas 611 Rose V. Beatie 648 V. Hurley 429, 452 V. Story 2 V. Truax 505 Rosebrook v. Runals 898 Roseman v. Canovan 430 Rosenbaums v. Weeden 788 Rosenthal v. Dessau 862 Rosepaugh v. Vredenburgh 91 Ross V. Eby 311 V. Elliott 489, 497 V. Mather 904 Ross V. Sadgbeer 527 0. Terry 607, 899 V. Titterton 452 V. Welch 126, 167, 168 Rotch V. Hawes 49 Roth V. Colvin 15 Rothchild v. Rowe 485, 502 Rourke v. BuUens 174, 349 V. Short 542 Rouser v. Lewis 693 Rousillon V. Rousillon 527 Routledge v. Grant 39, 42, 66 V. Ramsay 27 Rowan v. Adams 504 V. Refeld 17 Rowe V. Faren 656 V. Hopwood 28 V. Osborn 301 V. Pickford 840 847 Rugg V. Minett Rowley v. Bigelow 433, 440, 443, 490, 840, 844, 864, 868 Royal Canadian Bank v. Carru- thers 864 Royal Canadian Bank v. Grand Trunk Ry. Co. 813 Royce v. Allen 242 V. Watrous 415 Ruck V. Hatfield 386, 824, 845 Rucker v. Cammeyer 265 V. Donovan 859, 867 135, 319, 322, 371, 570, 652, 708 Rummens v. Robins 39 Rumsey v. Berry 542 Rundel v. Keeler 23 Rupert V. Johnston 2 Rushdall v. Ford 422 Rusk V. Davis 324 V. Fenton 29 Kuss V. Butterfield 490 Russell u.. Bandeira 567 V. Bangley 742 V. Carrington 311, 315, 334, 347, 354 V. Clark 429 V. Degrand 630 V. Levy 570 a V. Minor 187, 320 V. Nicholl 319 V. Nicolopulo 650 V. O'Brien 675, 677, 696 u. Richards 126 V. Rowe 677 Rust V. Eckler 888 Rutliff V. Trout 232 Rutter V. Blake 888, 899 Ryall V. Rolle 631 Ixiv TABLE OF CASES. Figures refer to Sections. Ryall V. Rowles Ryan V. Dayton V. Salt Ryder v. Neitge V. Wombwell Ryerson v. Derby Ryno V. Darby Safford v. McDonough 142, 144, 186, 187 Sage V. Sleutz 320 V. Wilcox 232 Sainsbury v. Matthews 118, 119 Sainter v. Ferguson 526 St. Louis & Southeast. Ry. v. Rice 429 Saladin v. Mitchell 788 Sale V. Darragh 143, 250 Salem India Rubber Co. v. Adams 429, 621, 904 Salisbury i'. Stainer 648, 656 Salmon Falls Co. v. Goddard 210, 213, 215, 234, 245, 246, 249, 250, 251, 254, 258, 259, 260 Salmon Falls Manuf. Co. i;. Stod- dard 219 Salomon v. Hathaway 320 V. Moral 487 u. Webster 39 Salomons v. Nissen 866 Salte V. Field 72, 499, 500, 858 Salter v. WooUams 679, 680, 697, 817 Saltmarsh v. Tuthill 557 Saltus V. Everett 19, 864 Sampson v. Shaw 504, 542 Sanborn v. Batchelder 452 V. Benedict 78, 758 c. Flagler 219, 234, 238, 245, 250, 253, 258 V. Kittredge 17, 679 Sandeman v. Scurr 843 Sander v. Hoffman 521 Sanders v. Jameson 703, 896 V. Keber 320 V. Knox 747 V. Lyon 429 Sanderson v. Caldwell 49 Sandford v. Dodd 416 V. Handy 430, 466, 624 V. Norton 16 V. Wiggins Ferry Co. 336, 337, 351 Sands v. Lyon 714 V. Taylor 648, 765, 788, 900 Sangston v. Maitland 742 Sansom v. Rhodes 683 631 Sapona Iron Co. v. Holt 899 570, 571 Sard V. Rhodes 732 205, 231 Sargent v. Butts 558 671 V. Currier 641 23, 24 I'. Essex Mar. Ry. 675 542 V. Franklin Ins. Co. 675 558 V. Gile 597 V. Graham 713, 714 V. Metcalf 320 Sari V. BourdiUoQ 212, 235, 246 Saunders v. Topp 167, 158, 166, 187 V. Wakefield 232 Saunderson v. Jackson 226, 260, 262 Savage v. Canning 415 V. Stevens 429 Savage Manuf. Co. v. Armstrong 661 Sawyer v. Fisher 320 V. Joslin 840, 847, 853, 866, 862 V. Lufkin 29 V. Manahan 510 V. Nichols 144 V. Smith 530 V- Taggart 642 a V. Tappan 747 Sayles v. Wellman 557, 558 Say lor v. United States 567 Sayre v. Wheeler 557 Sayward v. Stevens 813 Suable V. Henson 490 Scarborough v. Reynolds 616 Scarfe v. Morgan 654 Scattergood v. Sylvester 11 Sceales v. Scanlon 613 Schenck v. Saunders 622 Schenke v. Rowell 665 Sohermerhorn v. Tolman 604, 538 Schlesinger v. Stratton 2, 597 Schneider v. Heath 477 V. Norris 261, 262 Schnitzer v. Oriental Print Works 654 Scholefield v. Robb 620 Scholey v. Walton 711 School District No. 1 v. Dauchy 570, 571 Schoonmaker v. Vevalen 502, 679 Schotsman v. Lancashire & York- shire Railway Co. 392, 399, 842, 846, 868 Schubt V. Baker 871 Schultz V. Bradley 788 Schumacher v. Eby 399 Schutt V. Large 433 Schuyler v. Russ 616, 622 Scott V. Buchanan 26 V. Dixon 432 V. Eastern Counties Railway Co. 93, 167 TABLE OF CASES. Ixv Figures refer to Sections. Scott V. Ebury, Lord 244 V. Gillmore 605, 544 V. Kittanning Coal Co. 871 V. Littledale 57 V. Liverpool, Corporation of 87 V. McAlpine 2 V. Mesick 242 V. Pettit 840, 847, 858 V. Ray 747 V. Scott 641 V. Uxbridge Railway Co. 725 Scovell V. Boxall 124, 125 Scoville V. Griffith 871 Scranton v. Clark 641 V. Mechanics' Trading Co. 888 Scudder v. BrMbury 320, 331, 334, 677 V. Bradley 320 V. Worcester j 352 V. Worster 353, 354 Scull V. Shakespear 351 Seal V. Dent 15 Searles v. Sudgrove 720 Sears v. Brink 232 Seaver v. Phelps 29 Seawell v. Henry 716 Secomb v. Nutt 854, 862 Sedgwick v. Stanton 512, 529 Seed V. Lord 320 Seegee v. Perley 126 Seeger v. Duthie 561 Seibles v. Blackwell 903 Seidenbender v. Charles 530 Seigworth v. Leffel 900 Seixas v. Wood 600, 611 Selby V. Selby 257 Sellar v. Clelland " 429 Sellers v. Dugan 557 Semenza v. Brinsley 745 Servas v. Tobin 486 Servisso v. Stockstill 870 Sewall V. Fitch 93, 94, 104, 109 V. Henry 320 Sewell V. Eaton 334 V. Richmond 510 Seymour v. Bennett 565 V. Davis 109 V. Marvin 749 V. Newton 697, 830, 856, 859, 862 V. O'Keefe 675 V. Sexton >Ti7 Shackell v. Rosier 505, 529 Shaffer v. Sawyer 320 Shand v. Bowes 593 Shannon v. Barlow 376 Sharing v. Meunier 497 Sharman v. Brandt 242,265 ,276 Sharon v. Mosher 903 Sharp V. Gray c;. New York 455 49 466 V. Tees 530 Shattock V. Shattock 37 Shattuck V. Green 641 Shaver v. Ehle 607 Shaw V. Barnhart 452 V. Bill 81 V. Coffin 22 V. Finney V. Gault 273 489 V. Hurd 567 V. Levy V. Nudd 265, 319 502 870 V. Pictou 747 V. Pratt 747 V. Sampson ii. Stone 504 429 V. Thompson V. Turnpike Co. 565 486 592 V. Wilshire 502 Shawhan v. Van Nest 335, 379, 380, 758, 763, 788 Shearick v. Huber 1 7 Shears v. Jacobs 493 Sheedy v. Roach 2 Sheeren v. Moses 562 Sheffield Canal Co. v. Sheffield & Rotheram Ry. Co. 41 Sheldon v. Capron 50 V. Cox 2 Shelton V. Franklin 334 Shephard v. Butterfield 17 Shepherd v. Hampton 870 V. Harrison 344, 398, 399 V. Kain 602, 613, 647 V. Nay lor 813 V. Pressey 142, 144, 152, 154, 160 V. Pybus 657, 662 V. Reese 507 V. Temple 415, 899 Shepley v. Davis 324, 353, 808 Sheppard v. Earles 641 V. Union Bank of Lon- don 20, 819 Sherbon v. Colebach 542 Sheridan v. McCartney 489 Sheriff" v. McCoy 765 Sherk v. Endress 490 Sherman v. Champlain Trans. Co. 641 Sherry v. Pioken 126 Sherwood v. Salmon 421 Ixvi TAIiLE OF CASES. Figures refer to Sections. Sherwood v. Sutton Shields V. Pettee SMmmin v. Bellew Shindler v. Houston Ship Packet, The Shipman v. Graves 903 47, 578, 690 470 142, 187, 696 . Ig 703 Shipsey v. Bowery Bank 748 Shireman v. Jackson 320 Shirley v. Shirley 255 Shook V. Singer Manuf. Co. 902 Short V. Kuttan 79 V. Simpson 863 865 V. Spakeman 242 V. Stone 5C7 Shortrede t>. Cheek 213 Shower v. Pilch 2 Shufeldt V. Pease 433 Shumway v. Rutter 675 679 Shurtleff v. Willard 679 696 Sibley V. Tie 679 Sibree v. Tripp 732 Sides V. Hilleary 430 Sievewright v. Archibald 208, 213, 290, 294, 295, 296, 299, 301, 304 Siffken v. Wray 500, 831, 861 Sikes V. Johnson 22 Silliman v. McLean 320, 765 Simar v. Canady 430 Simmons v. Cincinnati Sav. Soo. 2 V. Jenkins 502 V. Swift 315, 321, 322, 323, 333, 806, 807, 857 V. Wilmot 725 Simms v. Norris 24 Simon v. Lloyd 730 V. Motives 110 Simond v. Braddon 581, 582, 613 V. Fisher 143 Simpson v. Crippen 593, 880, 882 V. Eggington 756 V. Lamb 529 V. j\Iaritson 684 V. NichoUs 554, 658 V. Potta 620 Sims V. Eiland 429 V. Howell 657 V. Marryat 634, 635 V. Sims 2 V. Wilson 320 Simson v. Ingham 746, 748, 749 Sinclair v. Ilealy 433 Sisson V. Cleveland & Toledo Railroad 871 Skiff 17. Johnson 607 Skillings 0. BoUman 822 Skinner v. Gunn 624 Slater v. Maxwell 444 Sledge V. Scott 454 Sleeper v. Chapman 490 Slinglufi V. Eckel 444 Sloan V. Graham 428 Sloan Saw Mill Co. v. Guttshall 167 Slocum V. Seymour 126 Slubey v. Heyward 774, 805, 857 Stutz V. Desenberg 2 Small V. FrankliQ Mining Co. 731 V. Jones 444 V. Quincy 202 Smart v. Batchelder 319, 352 V. Sandars 72 Smeed v. Ford 874 Smith's case 429, 452, 520, 813 Smith V. Arnold 211, 245, 249, 266, 268, 530, 540 V. Atkins 78 V. Babcoek 421, 430 V. Bean 553, 557 V. Beatty 448 V. Benson 126 ti. Berry 870 V. Champney 6J5 u. Chance 679 V. Cheese 492 V. Countryman 429 tf. Dallas 315 V. Davenport 696 V. Dennie 320 V. Dunham 894 i;. Evans 24, 27 V. Ferrand 731 V. Field 500 V. Foster 320, 557, 567 V. Gillett 682 V. Godfrey 611 V. Goss 836, 848 V. Gowdy 39, 253 V. Green 903 V. Greenlee 444 V. Griffith 870 V. Hamilton 320 V. Henry 502 V. Hobson 320 V. Hudson 43, 156, 160, 164, 181, 693, 804, 847 V. Hughes 430, 478, 481 V. Jones 270, 444 V. Justice 613 V. Kay 429 V. Kelly 27, 28 V. Lewis 426, 567, 568, 592, 600, 690, 760, 763 V. Lipscomb 692 V. Love 696, 652 V. Lynes 320, 433 TABLE OF CASES. Ixvii Figures refer to Sections. Smith u. Mo Gregory 270 V. Mawhood 535 V. Mayo 27 V. Mercer 735 V. Meyer 870, 901 €;. Miller 731 V. Milliken 320 V. Myers 76, 584 V. Neale 253, 632 V. Newland 320 V. Newton 429 V. New York Central Rail. Co. ■ 109 U.Page 711 V. Pettee 578, 788 V. Richards 421, 429, 430 U.Smith 17,137,255,362,415, 440 V. Sparrow 553 V. Surman 98, 105, 118, 119, 126, 187, 228, 251 V. Thomas 870 V. Thompson 529 V. Weaver 1 V. Wheeler 682 V. White 507 V. AVilliams 621 Smith's case, Reese Silver Mining Co. 429, 433 Smoot V. The United States 568 Smyth V. Exec's of Ward 215 Suarr v. Small 426 Sneathen v. Grubbs 363 Snelgrove v. Bruce 601, 602 Snelling v. Hall 215, 655 Snow V. Miles 39 V. Perry 716 V. Ware 690 V. Warner 144, 158, 160 Soles V. Hickman 232, 249, 250, 254 Solomons v. Chesley 675 Somerby w. Buntin 111, 526 Somers v. O'Donohue 634 a V. Richards 430 Somes V. Brewer 433 V. British Empire Shipping Co. 796 Sortwell V. Hughes 507, 511 Sour wine v. Truscott "39 Southall V. Rigg 422 Southard v. Benner 502 V. Pinckney 502 South Australian Ins. Co. v. Ran- dell 2, 354 Southern v. Howe 617 Southern Life & Trust Ins. Co. v. Cole 111 Southwell V. Bowditch 219 V. Breely 352, 689 Southwestern Freight &c. Co. v. Plant 320, 677, 799 Southwestern Freight &c. Co. v. Stanard ^ 319,799,814,815 Southwick V. Harndell 7 Southworth v. Smith 714 Sowai'd V. Palmer 735 Spalding v. Rosa 570 V. Ruding 865 V. Vandercook 902 Sparkes i;. Marshall 366 Sparks v. Mesick 621 Sparling v. Marks 613, 888 Sparrman v. Keim 430 Sparrow v. Caruthers 32 Spartali v. Benecke 316, 678, 797, 798 Spear v. Hart 211 Spence v. Union Marine Ins. Co. 354 Spencer v. Cone 104, 109 V. Hale 144, 160, 188 V. St. Clair 452 V. Slater 488 V. Smith 544 Spicer v. Cooper 213, 249 Spicers v. Harvey 379 Spickler v. Marsh 595 Spiller V. Soribner 780 Spirett V. Willows 483 Spooner v. Holmes 6 Spottswood V. Barrow 699 Sprague v. Blake 143, 193 V. Hazenwinkle 748 V. King 311, 319, 382 Spring V. Coffin 415, 675 Springfield v. Drake 111 Springfield Bank v. Merrick 530 Springwell v. Allen 611, 630 Sprye v. Porter 529 Spurr V. Albert Mining Co. 657, 661 V. Benedict 421 Stackpole v. Simonds 557 Stacy V. Deshaw 485, 488 V. Kemp 622, 902 Staiford v. Pooler 703 V. Walter 362 Staines v. Shore 470 Stainton v. Wood 687 Stamm v. Kuhlman 673 Stancliffe v. Clark 657 Stanley v. Chamberlain 507 V. Gaylord 6, 19 V. Jones 529 Stanton v. Austin 577, 679 V. Eager 362, 382, 399, 862, 864, 866, 868 Ixviii TABLE OF CASES. Figures refer to Sections. Stanton v. Green 490 V. Richardson 564 V. Small 758 , 870 V. Wilson 24 Stark V. Alford 870 Starkey v. Gabby 748 Starnes v. Erwin 613 Starr Glass Co. v. Morey 47 690, 898 Startup V. McDonald 685 , 695 , 701 State V. Bell 502 V. Intoxicating L quors 415, 675 V. Prime 641 State Capital Bank v. Thompson 557 Stead V. Dawber 216 Stearns v. Barrett 521 V. Gafford 81 V. Hall 216 V. Washburn 765 Stebbins v. Eddy 429 Stedman v. Gooch 729 739 Steel V. Brown 485 Steele v. EUmaker 474 V. Haddock 213 Stephens v. Chappell 619 V. Ells 641 V. Orman 430 V. Tucker 81 352 (,. Wilkinson 790 794 Stephenson v. Hart 436 437 V. Eanney 2 Sterling v. Baldwin 126 V. Van Cleve 502 Stern v. Filene 679 Sternfels v. Clark 870 Stevens r. Austin 415 V. Boston & Worcester R. R. Co. 382 V. Eno 323 V. Fuller 430, 448 482 V. Giddings 454 V. Harrow 490 u. Irwine 502 V. Lyford 870, 877 V. Lynch 419, 422 V. Rainwater 429 V. Smith 661 V. State, The 2 V. Stevens 2 V. Wheeler 837 V. Winn 232 V. Wood 557 Stevenson v. McLean 40, 44, 46 a, 1 75 V. Newnliam 433, i40. 441 Stevenson v. Rice Steward v. Scudder Stewart v. Aberdein V. Doughty u. Emerson 320 213 742 126 50, 428, 433, 440, 739 V. Hopkins 531 V. Loring 570, 571 V. Stewart 419 Stiles V. White 429, 902, 903 Still V. Hall 898 Stillman v. Hurd 18 Stilt D. Little 429 Stinson v. Branigan 577 u. Clark 696 Stocken v. Collin 68 Stockham v. Stockham 44 Stockwith V. North §50 Stokes V. La Riviere 841 V. Lewis 62 V. Moore 264 Stollenwerck v. Thacher 697, 864 StoUings V. Harrold 81 Stonard v. Dunkin 781 Stone V. Browning 142, 152, 232 V. Dennis 571 V. Dennison 23, 91 V. Denny 429, 613, 904 V. Elberly 17 V. Frost 899 V. Hackett - 2 V. Marsh 6, 13 V. Peacock 311, 319, 334, 353, 675 V. Perry 320 V. Pointer 641 V. Seymour 747 I'. Swift 696, 813 V. Vance 622 Stoolfoos V. Jenkins 22 Stoops V. Smith 202, 213 Storey v. Agnew 7, 488 Storm ('. Smith j 641 Storrs V. Barker 780 Story i'. Flournay 81 r. Salomonson 542 Stoveld V. Fade 748 V. Hughes 774, 779 Stowell ('. Robinson 216 Strain v. Wright 22 Straus V. Minzesheimer 334, 696 V. Ross 308 V. Wessel 399 Strauss V. Ross 318, 319 Street v. Blay 420, 452, 596, 610, 888, 890, 896, 901, 903 V. Chapman 903 TABLE OF CASES. Ixix Figures refer to Sections. Strickland v. Turner 76, 415 Swett V. Colgate 600, 611. 641 Strong V. Dodds 181, 362, 693 V. Patrick 903 V. Doyle 127 V. Pym 832 iJ. Foote 23 V. Shumway 6 23 V. Hart 731 Swift V. Barnes 870 V. Harvey 723 V. Bennett 24 V. Taylor 320 V. Gilford 215 Stroud V. Pierce 613, 614 V. Halliday 644 Strutt V. Smith 765 V. Jewsbury 466 Stuart V. Nicholson 620 V. Winterbotham 466 , 467 Stubbs V. Johnson 440 Swikehard v. Kussell 429 V. Lund 835, 843, 844, 849, Swinyard v. Bowes 735 851 Switzer v. Skiles 444 Stucky V. Clyburn 616 Sword V. Carruthers 830 Stucley V. Bailey 610, 613 Syers v. Jonas 655 Studwell V. Shafter 22 Sykes v. Giles 741 , 742 Sturdy v. Arnaud 711 V. Parks 597 Sturtevant o. Orser 849, 858 Symonds v. Hall 17 Suit V. Woodhall 362, 511 Symonds, in re 492 Sullivan v. Byrne 565 Syracuse &c. R. R. Co. V. Collins 730 V. Mitcalfe 466 Sully V. Fearn 415 Summeril v. Elder 399 T. Summers v. Vaughan 611 Sumner v. Dalton 502 Taber v. Cannon 242 V. Hamlet 311, 319, 331 Tadman v. Lubbock 718 V. Jones 557, 558 Taft V. Dickinson 320 V. McFarlan 320 V. Pike 27 V. Parker 452 , 562, 567, 593 V. Sergeant 27 V. Williams 242 Taffts V. Manlove 17 V. Woods 320 Taggart v. Stanbery 624 Supple V. Gilmore 699 Taintor v. Prendergast 242 Sutherland v. Alhusen 577, 679 Talcott V. Henderson 440 V. Gilman 565 Tallis V. Tallis 527 Sutten V. Hawkins 722 Tallman v. Franklin 245 , 250 Sutton II. Ballou 675 Talmadge v. White 320 677 V. Campbell 335 Talman v. Franklin 110 V. Crosby 598, 622 Talver v. West 143 V. Kettell 813 Tamvaoo v. Lucas 591 V. Pa^e 711 Tancred v. O'MuUin 2 Suydam v. Clark 301 Tanner v. D'Everado 565 Swain v. Seamens 216 V. Scovell 805, 806 857 V. Shepherd 344, 597 V. Smart 27 Swallow V. Emery 320 Tansley v. Turner 178, 327, 805, Swan V. Drury 592 827 V. Phillips 446 Taplin v. Florence 679 Swanwick v. Sothern 325, 781, 808 Tapp V. Lee 470 Swayze v. Hull 516 Tappan v. Brown 548 Sweeney v. Godard 562 Tarleton v. Baker 542 V. Ousley 315 Tarling v. Baxter 316, 764 Sweet V. Colgate 641 V. O'Riordan 376 I). Lee 213, 258 Tarrabochia v. Hickie 561 V. Poor 529 Tasker v. Bartlett 577, 714 V. Shumway 213, 600 V. Shepherd 570 V. Titus 731 Tate V. Port Hope Ry. Co. 562 Sweeting v. Turner 316 Tatum V. Kelly 508 Sweetman v. Prince 627, 630 V. Mohr 619 Ixx TABLE OF CASES. Figures refer to Sections. Tavloe v. Merchants' Fire Ins. Co. 69, ^ 75 Taylor, ex parte, in re Burrows 24 Taylor v. Ashton 458 V. Blanchard 520, 521 V. Bullen 602, 613 i;. Caldwell 570 a 0. Chambers 8 V. Chester 509 V. Cole 694 V. Commercial Bank 489 V. Fleet 429, 454, 477 V. Guest 429 ... Hare 427 V. Henry 2 V. Jones 45 V. Kymer 809 V. Lapham 315 V. Pratt 232 V. Richardson 696 V. Riggs 202 V. Ross 232 V. Steamboat Robert Camp- bell 44 V. Travis 592 V. Turner 399 V. Twenty-five Bales of Cot- ton 675 V. Wakefield 43, 171, 802 V. ■\^'eld 490 V. Wilson 741 Taymon v. Mitchell 611, 888, 899 Tealv. Auty 124, 125 Techmeyer v. Waltz 1 7 Teed «. Johnson 419 V. Teed 193 Teesdale v. Anderson 607 Tempest c. Fitzgerald 185, 187, 807 V. Kilner 111 Tennessee National Bank u.Ebbert 79 Terrett v. Bartlett 511, 530 Terry v. Belcher 608 V. Bissell 607 V. Wheeler 315, 319, 326, 334, 696 Tetley v. Shand 240 Tewkesbury i\ Bennett 614 Tewksbury, Bailiffs &c. of, v. Dis- ton 10 Texada v. Camp 903 Thacker r. Hardy 542 Thallhimer v. Brinckerhoff 529 Thayer v. Brackett 721, 726 V. Lapham 315 V. Rock 137, 505 V. Turner 415 Thetford v. Hubbard 717, 719 Thing V. Libbey 27 Thomas v. Blackman 39 V. Cadwallader 561 V. Evans 713 V. Knowles 571 V. IMallory 707 V. Shoemaker 684 V. Winchester 431 V. Winters 320 Thompson v. Alger 111, 143, 193, 379, 758, 762, 763, 765, 870 V. Baltimore &c. R. R. 679 0. Bertrand 619 V. Botts 616, 899 V. Cohen 491 V. Conover 258 V. Davies 444 V. Dominy 863 t. Gardiner 277, 294 V. Gould 77 V. Guy 430 V. Hall 232 c. Hudson 748 V. James 44, 69 V. Lay 27 u. Maceroni 168 V. Means 521 V. Menck 208 V. jNIoore 490 V. Nelles 628 V. Rose 440 V. Russey 597 1. Smith 763 V. Thompson 837 V. Wilhite 675 V. Williams 557 0. Yeck 675 Thomson v. Davenport 238, 239, 242, 445 Thornburn t'. Whitacre 572 Thorndike v. Bath 315, 335, 6 75, 679 V. Locke 758, 763 Thorne v. Barwick 39, 44 V. McVeagh 613, 903 V. Mosher 714 V. Prentiss 429 Thornett v. Haines 470, 472 Thornton v. Charles 288, 291, 294, 295, 299 V. Davenport 502, 675 i\ lUingworth 26, 27 0. Kempster 50, 251, 2 55, 282, 301 V. Meux 285, 286, 2 87, 291, 294, 295, 301 V. Thompson 9 03 TABLE OF CASES. Ixxi Figures refer to Sections. Thornton v. Wynn 888, 900 Thorold v. Smith 744 Thrall v. Hill 78, 79 V. Newell 607 Thresh v. Rake 216 Thurlow V. Gilmore 27 Thurnell v. Balbirnie 87, 574 Thurston v. Blanchard 415, 752, 772, 798 V. Percival 529 V. Spratt 641 V. Thornton 39 Tibbets v. Towle 320 Tibbett v. Morton 144 Ticknor v. McClelland 502, 675 Tigress, The 830, 838, 861 Tilden t). Minor 813,863 Tileston v. Newell 661 TiUock V. Webb 557 Tilson V. Terwilliger 486, 502 Tilt V. La Salle Silk Manuf. Co. 38, 788 V. Silverthorne 2, 570 Tilton Safe Co. v. Tisdale 657 Timmons v. Nelson 320 Tipton V. Feitner 47 V. Triplett 627 Tisdale v. Buckmore 415 V. Connell 613, 622 V. Harris 111 Tison V. Howard 864 Titcomb v. United States 687 V. Vantyle 29 V. Wood 433, 443 Todd V. Liverpool Ins. Co. 19 V. Keid 742 Toledo &c. R. R. Co. v. Chew 334 Toledo Ry. Co. v. Gilvin 677, 679 Tome V. Dubois 6, 308 Tomkinson v. Straight 170 Tomlinson v. Greenfield 81 V. Miller 265 V. Savage 470, 474 Tompkins v. Haas 135 V. Nichols 485 V. Tibbits 352 Toms V. Wilson 687, 709 Tone V. Wilson 429 Tooke V. Hollingsworth 678, 769, 779, 858 Topping V. Root 577 Torrance v. Bolton 421 V. Hayes 741 Torrey u. Corliss 362,511 Torry v. Holmes 242 Toulmin v. Headley 701, 891 Towell V. Gatewood 611, 613, 615 Tower V. Tudhope 145, 150, 160 Towers v. Osborne 93, 94, 96, 97, 104 Towle V. Larrabee 557 V. Leavitt 470, 472 Town Commissioners v. Woods 10 Towne v. Collins 7 V. Wiley 22 Townend v. Drakeford 294 Towner v. Bliss 320 Townley v. Crump 769, 770, 779, 807 Townsend's case 68 Townsend v. Hargraves 91, 159, 170 174, 187, 208, 226, 230, 252, 315, 319 V. Jennison 716 V. Shepard 50 Townsley v. Moore 91 Towson V. Havre de Grace Bank 716 Tracy v. Talmage 504, 505, 511 V. Webster 511 Traill v. Baring 429 Train v. Gold 39 Treadwell v. Aydlett 840, 848 V. Reynolds 703 Treat v. Shoninger Melodeon Co. 521 Tregelles v. Sewell 373 Trent & Humber Co. in re 873 Trevor v. Wood . 44, 68 Trieber v. Andrews 696 Tripp V. Armitage 108, 340, 341 V. Tripp 415, 675 Tronson v. Dent 18 Trott V. Irish 513 Troughton v. Johnson 474 Troup V. Wood 444 Trousdale v. Sheppard 492 Trout V. Kennedy 870 Trowbridge v. Holden 2 Trueman v. Loder 219, 238, 287, 295 Trull V. Bigelow 490 Trullinger v. Koford 746 Truman v. Hardin 320 Trust V. Delaplaine 444, 470 Trustees Germ. Luth. Church v. Heise 748 Tryon v. Whitmarsh 429 Tuberville v. Whitehouse 26 Tucker v. Buffington 696 V. Humphrey 830 V. Ross 696 V. West 557 !'. Wilson 16 v. Woods 39 Tuckerman v. Hinkley 554, 558 Tudor's, Dr., case 550 Tuer V. Harrison 497 Tufts V. McCIure 683 Ixxii TABLE OF CASES. Figures refer to Sections. Tufts V. Mattashed 320 V. Plymouth Gold Min. Co. 230 Tupper V. Cadwell 23, 24, 25 Turley v. Bates 311, 319, 328, 382 Turner v. Brown 2 V. Coolidge 679, 696 V. Felgate 1 7 V. Harvey 448, 450 V. Langdon 679 V. Mills 489 V. Mucklow 658 V. Trisby 25 V. Trustees Liverpool Docks 392, 395, 399, 830, 841, 842 Turney v. Dodwell 730 Turnley v. McGregor 446 Tuthill V. Babcock 421, 430 Tuton V. Sanoner 492 Tuttle u. Brown 611, 613, 902, 903 D.Holland 511 V. Love 39 Tuxworth V. Moore 174, 184, 675, 679, 697, 803 Twining v. Oxley 781 Twohy V. Armstrong 683 Twyne's case 484 Tye r. Finmore 618, 649 Tyers v. Kosedale & Ferryhill Iron Co. 216, 872, 882 V. United States 722 Tyler v. Bland 719 V. Freeman 320 V. Strong 319 Tyre v. Causey 430, 904 Tyson v. Thomas 540 U. Udell V. Atlierton 462, 465, 466, 467 Ulil V. Robinson 675 Ullman v. Barnard 19 Underwood v. Campbell 232 V. NichoUs 742, 743 V. Robertson 18 Union Bank v. Warner 490 Union Bridge Co. v. Troy & Lan- singburgh R. R. Co. 512 U. S. Reflector Co. v. Rushton 155 Unity Joint Stock Banking Ass. ex parte 22 Upton V. Sturbridge Cotton Mills 320, 675, 677 V. Suffolk County Mills 623, 624 Uther V. Rich 15 Utica Ins. Co. v. Kipp Utley V. Donaldson 608 39 Vail V. Strong 2, 904 Vale V. Bayle 399 Valpy V. Gibson 85, 251, 847 V. Oakeley 730, 758, 772, 773, 779, 787, 794, 825,867,870, 879 Van Alstine v. Wimple 137 Van Arsdale v. Howard 430 Van Blunt v. Pike 697 Van Bracklin v. Fonda 670, 671 Vanbuskirk v. Green 679 Van Casteel v. Booker 390, 393, 395, 399, 500, 818, 835, 841, 844 Van Duzor v. Allen 320 Vandenbergh v. Spooner 236 Vandewalker v. Osmer 429, 616, 618 Van Epps v. Harrison 452 Van Hoozer v. Cory 79 Van Liew v. Johnson 452 Van Ostrand v. Reed 621 Van Santen v. Standard Oil Com- pany 813 Van Toll v. South Eastern Rail. Co. 55,417 Van AVart v. "WooMej 735 Van Woert v. Albany R. R. 143 Van Wyck v. Allen 600, 661, 903 Varner v. Nobleborough 752 Varney i-. French 557 Vassar v. Camp 44, 68 Vaugh V. Hopson 320 Vaughan v. Hancock 137 Vawter v. GritBn 111 Veasey v. Doton 430 Veazie v. Holmes 335 V. Somerby 675, 696 V. Williams 455, 470, 474 Vent V. Osgood 23 Ventress v. Smith 7 Vernede v. Weber 581 Vernon v. Keyes 449, 450 Vertue v. Jewell 835, 837, 866 Vibbard v. Johnson 641 Vicars v. Willcocks 872 Vicary v. Moore 216 Vickers v. Hertz 20, 820 t. Vickers 87, 88 Viokery v. Welch 521 Vielie v. Osgood 259 Viet V. Viet 2 Vigers v. Pike 429, 430 TABLE OF CASES. Ixxiii Figures refer to Sections. Vincent v. Berry 899 V. Cornell 320 V. Geriuond 143, 144, 184, 193 V. Leland 611, 899 Vinind v. Gilbreth 675, 696 Vinton v. Peck 557 Violet V. Patton 232 Visscher v. Greenback Alkali Co. 600 Vlierboom v. Chapman 18 Voorhees v. Earl 452, 888 Vooris V. Ohnstead 778 Vorebeck a. Roe 126 Vyse V. Wakefield 577 W. Wabash Elevator Co. v. First Nat. Bk. of Toledo 320 Waddington v. Bristow 118, 133 V. Oliver 690 Wade's case 715, 717 Wade V. Tatton 446 Waddell v. Macbride 358 Wadleigh v. Devilling 530 Wadley v. Davis 600 Wailing v. Toll 24 Wain V. Bailey 736 V. Warlters 90, 232, 246 Wait V. Baker 181 V. Brewster 752 V. Green 320 Waite V. Baker 389, 390, 395, 399, 693, 804 V. Jones 505 Wake V. Harrop 219, 419 Wakefield v. Gorrie 320, 765 V. Lithgow 710 V. Lynn 489 Walan v. Kerby 504 Walbridge v. Follet 510 Walden u. Murdock 315, 696 Waldo V. Belcher 323, 352 V. Martin 516 Waldron v. Chase 315, 334, 347, 352 353, 354 V. Jacob 213 V. Romaine 399 Walford v. Duchess de Pienne 33 Walker v. Blake 697 V. Butler 748 V. Butterick 2, 598 V. Constable 268 V. Davis 22 V. Denison 421 V. Holsington 620, 898 Walker v. Hyman 820 V. Lovell 137, 505 .;. M'Bride 2 V. Nussey 193 Walker and Woodbridge, ex parte 859 Wall's case 45 Walls V. Gates 888 Wallace v. Agry 752 V. Breeds 322, 324, 352, 354, 808 V. Kelsall 725 V. Morss 22 V. Rogers 622 Waller v. Lacey 746 Walley v. Montgomery 383 Wallis V. Day 526 Walrath v. Ingles 193, 334 Walsh V. Barton 474 V. Brown 562 V. Powers 22 Walter v. James 756 V. Ross 862 V. Walter 550 Walton V. Cody 657 Ward, ex parte 2 Ward V. Bourne 752 V. Byrne 523, 524 V. Covin 627 V. Hobbs 477 a, 663, 671, 672, 904 V. Shaw 334 Wardall v. Smith 486 Warden v. Marshall 315, 415, 675, 679, 786, 802 Ware v. Simmons 81 Wareham Bank v. Burt 570, 571 Warfield v. Booth 527 Waring v. Mason 242, 649, 656, 899 Warlow V. Harrison 42, 270, 471 Warner v. Daniels 430, 455 V. Martin 19 V. Willington 253 Warren v. Buckminster 347, 352, 353, 788 V. Daniels 421 V. Jones 521 V. Leland 126 V. Maines 716 D. Milliken 174,334,352, 354, 697 V. Philadelphia Coal Co. 611, 613, 641 V. Stagg 216 V. Tyler 452 V. Wheeler 592 Wartman v. Breed 144 Ixxiv TABLE OF CASES. Figures refer to Sections. Warwick v. Bruce 22, 26, 118, 119 V. Noakes 710 V. Slade 305 Washburn v. Burrows 118 V. Cuddihy 620 Washington v. Jones 597 Washington Ice Co. v. Webster 250, 253 Waterbury v. Graham 232 Waterfall v. Penistone 496 Waterhouse v. Skinner 592 Waterman v. Buckland 542 V. Meigs 109, 234, 250 Waters v. Cox 320 Waters Heater Co. v. Mansfield 595, 703 Waters Patent Heater Co. v. Tompkins 597 Watkins «. Birch 486 V. Hill 752 V. Hodges 216 V. Paine 399, 703 V. Robb 718 Watrous V. Bates 870, 871 V. Blair 504 Watson V. Cross 24 ci. Denton 620 V. Gorren -577 t'. Hensell 23 V. McLaren 232 V. Rodgers 502 V. Rowe 613 ('. Spratley 111 c. Walker 577 Watts V. Ainsworth 40 V. Friend 131, 136, 540 V. Hendry 334 Waugh V. Russell 53 Waul V. Kirkman 249 Way V. Foster 553 Way's Trusts, in re 2 Wnyland v. Moseley 813 Waymell v. Reed 511 Weakly v. Bell 752 Weall V. King 655 Weatherford v. Fishback 429 Weaver v. Jones 26 V. Lapsley 320 Webb V. Brooke 506 V. Fairraaner 684 V. Heme Bay Commission- ers 781 V. Odell 50, 442, 607 V. Sharnian 39 V. Stone 415, 567 Webber v. Davis 6, 308, 315 V. Donnelly 5ii Webber v. Minor 679 V. Tivill 85 Webster v. Bailey 502 V. Bainbridge 752 V. Ela 234 V. Granger 675 V. Munger 611 V. Peck 502 . V. Zielly 208 Weddigen v. Boston Elastic Fabric Co. 731 Weeks v. Burton 429 u. Hull 684 V. Lalor 320 V. Robie 452 Wegg V. Drake 95, 146 Weiger v. Gould 657 Weimer V. Clement 452,454,613 Weir V. Harnett 466 Weiss V. Brennan 433 Welch V. Allington 752 Weld u. Came 155,182, 186, 770, 803 V. Cutler 353, 354 Weldin v. Porter 232 Weller v. Hersee 526 Wellington v. Downer Kerosene Oil Co. 431, 904 Wells V. Abernethy 870 V. Abraham 13 c'. Calnan 571 V. Camp 502 V. Day 135 I. Foster 519 V. Girling 497 V. Miller 679 f. Porter ,82 V. Sflwood 903 r. Thorman 37 Welsh V. Bell 767 V. Center 611 Welshbillig v. Dienhart 429 Wentworth o. Dows 898 V. Outhwaite 806, 847, 857, 867 V. Tubb 29 Werner v. Humphreys 41 Wertheimer v. Penn. R. R. Co. 813 West V. Bolton 320 V, Cunningham 611 V. Cutting 888 V. Moore 22 V. Pritchard 870 V. Rutledge 679 West Boylston Manuf. Co. v. Searle 752 Westcott V. Ainsworth 429 TABLE OF CASES. Ixxv Figures refer to Sections. Westcott V. Nims 902 Westerlo v. De Witt 2 Western Bank of Scotland v. Ad- die 432,452,461,464,466 Western Gravel Road Co. v. Cox 877 Western Transportation Co. v. Marshall 19, 433, 677 Western Union R. R. Co. v. Wagner 1 9 Western Un. Tel. Co. v. Chicago & Paducah R. R. 38 Western Un. Tel. Co. v. Chicago R. R. 264 Westfield Bank v. Cornen 455 West Jersey R. R. Co. v. Trenton Car Works 335 Westmoreland v. Powell 483 Weston V. Downes 891 Westropp V. Solomon 423, 607 Westzinthus, in re 865 Wetherell v. Jones 533 Wetherill v. Neilson 600 Wharf V. Roberts 429 Wharton v. McKenzie 24 V. Mo. Car Foundry Co. 684 Wheat V. Cross 68, 414 Wheaton v. Baker 452 Wheeler v. Collier 470 V. Guild 15 V. Knaggs 713, 715, 716 V. Konst 502 V. Nichols 696 M. Russell 530 V. Wheeler 2 Wheeler, in re 759 Wlieelton v. Hardisty 462, 561 Wheelwright v. Depeyster 7 Whelan u. Lynch 758, 870 Whincup V. Hughes 426, 570 Whippey v. Hillary 27 Whipple V. Foot 126 V. Gilpatrick 320 V. Thayer 184, 675, 696 Whistler v. Foster 6, 15 Whitaker, ex parte 440 Whitaker v. Cone 629 u. Eastwick 611, 641 V. Sumner 622 V. Williams 780 Whitcomb v. Hungerford 677 V. Joslyn 22 V. Whitney 315, 319 White, ex parte, in re Neville 2, 598, 743 White V. Atkins 2 V. Beaton 564 II. Branch 27 V. Brockway 903 White «. Buss 508,511,530 V. Crew 268 V. Foster 120, 126 V. Franklin 530 V. Franklin Bank 504, 538 V. Fuller 215 V. Garden 440, 441 V. Hunter 490 V. Mann 570 V. Miller 600, 657, 871 V. Mitchell 841 V. Morris 490 V. Philbrick 49 V. Proctor 268 V. Sawyer 456, 465 V. Spettigue 6, 13 V. Welsh 679 V. Wheaton 429 u. Wilks ! 353, 354 Whitehead v. Anderson 500, 806, 833, 851,853, 854, 856, 860 Whitehouse v. Frost 347, 352, 354 Whiting V. Barrett 2 Whitman v. Freese 600 V. Merrill 433 Whitmarsh v. Conway Ins. Co. 213 V. Walker 126 Whitmore v. Coates 870 V. South Boston Iron Co. 621,655,657,661,903 Whitney v. Allaire 452 V. Boardman 213, 47 7, 600, 602, 788 1). Eaton 320 V. Heywood 641 V. Slayton 320, 521 V. Sutton 613 V. Taylor 619 V. Whiting 530 Whiton V. Spring 741 Whittaker v. Howe 521, 525 Whittemore v. Coates 758, 870 V. Gibbs 111 Whitwell V. Carter 542 V. Vincent 320 Whywall v. Champion 26 Wieler v. Schilizzi 602 Wier V. Bissett 600 Wiffgin V. Day 433, 440 V. Foss 415 V. Peters 684 Wigglesworth v. Dallison ■ 215, 798 Wight V. Moody 485 WiTbur V. Cartwright 613 V. How 444 Wilcox V. Hall 657 V. Pillow 707 Lsxvi TABLE OF CASES. Figures refer to Sections- Wilcox V. Roath 27 Williamson v. Connaday 624 Wilcox Silver Plate C 0. V. Green 693 V. Dawes 32, 33 Wilde V. Gibson 461 V. Dillon 870 Wilder v. Cowles 242, 607 V. Henley 529 Wilds V. Smith 703, 859 a, 901 V. Lea 675 Wilkes V. Davis 87 V. Mason 433 V. Ferris 174, 696 V. Russell 433 Wiley V. Smith 859 a V. Sammons 641 Wilhelm u. Schmidt 748 Willing V. Currie 39 Wilkins p. Bromhead 365 Willings V. Consequa 870 V. Casey 194 W illington V. West Boylston 571 V. Duncan 242 W illis V. Willis 315 u. Stevens 690 Willmott V. Smith 741 Wilkinson v. Evans 227, 252 Willoughby v. Moulton 452 V. Holiday 311 , 319, 331, Wilmot V. Hurd 611 334 V. Wadsworth 372 V. King 8, 9 W Imshurst v. Bowker 388, 399 V. Tousley 542 AVilson V. Anderson 861 Willard v. Eastham 37 V. Clements 41 V. Randall 430 V. Cooper 354 u. Stevens 615, 666 V. Crockett 6 Williams v. Adams 334 V. Davis 870 V. Bacon 208, 211, 219, V. Dunville 644 657, 661 238, 239 V. Ferguson 616 ('. Barr 716 V. Fuller 433, 456 V. Birch 433 v. King 902 V. Burgess 169 V. Knott 570 0. Byrnes 235 V. Carpenter 710 V. Christie 219 V. Evans 741, 744 V. Given 433 V. Griffith 748 V. Hart 888 V. Healey 592 V. Hill 570 V. Ingram 616 u. Jackman 335,337,351 V. Jones 758 i,. Lake 238 V. M'Donald 6 75 V. Merle 6 V. Jliller 17 V. jMilUngton 741, 742 V. Moor 26, 2 7 u. Paul 554, 558 v. Protheroe 529 V. Rapelje 675 V. Rawlinson 747 V. Reynolds 877 V. Smith 7 V. Spaffbrd 648 V. Stafford 622 V. Woodworth 613 Williamson v. Allison 611, 630, 904 i/. Barnsley 550 V. Berry l, 2 V. Lane. & York. Rail. Co. 870, 871, 876 V. Marsh 621 0. Melvin 513 t;. Paulsen 675 V. Ray 497 V. Short 319 V. Stratton 511 ['. Sullivan 502 r. Wagar 47, 690 U.Wilson 53, 79, 81 Wilson Sewing Machine Co. v. Sloan 561 Wilt V. ■Welsh 22 Winchell c. Carey 557 Winchester v. Howard 219 u. Nutter 542 Windham v. Chetwynd 90 Wing V. Chapman 903 V. Clark 315, 362, 399 V. Merchant 2 Winks V. Hassall • 808 Winslow V. China 684 V. Merchants' Lis. Co. 79 V. Norton 862, 863, 864 Winsor v. Lombard 600, 611, 615, 616, 670, 671 Winter v. Bandel 429 V. Coit 399 Winterbottom o. Wright 432 TABLE OF CASES. Ixxvii Figures refer to Sections. Wis. Marine Bank v. Bank of B r. N. A. 864 Wise V. Chase 739 V. McMahon 388 a Wisner v. Granger 661 Witliall V. Young 497 Witherby v. Sleeper 597 Witlierow v. Witherow 47 Withers v. Greene 888 V. Lyss 324 V. Reynolds 592 V. Weaver 2 Withington v. West Boylston 561 Wittowsky v. Wasson 1, 87 Wolcottu. Mount 430, 600, 613, 647, 657, 871, 875, 876, 877,903 Wolf V. Dietzsch 597 Wolfe V. Howes 571 V. Luyster 444, 470, 474 V. Myers 813 Wolfenden v. Wilson 102 Wontner v. Sharpe 39 Wood 0. Ashe 621 V. Bell 316, 339, 342, 351 V. Benson 137 V. Bodwell 752 V. Dixie 488 V. Fales 354 V. Garland 452 V. Hitchcock 721. 726 V. Jones 835 V. Leadbitter 679 , V. Manley 679, 697, 817 V. Roach 835 V. Rowcliffe 20 V. Shultis . 91 V. Smith 615 V. Tassell 680 V. Yeatman 854, 862 Wood and Foster's case 78 Wood M. & R. Co. V. Brookes 320 Woodbridge v. Bridgham 684 Woodbury u. Robbins 619 Woodford V. McClenahan 624 Woodgate v. Godfrey 489 Woodland v. Fear 423, 608 V. Fuller 7 Woodley u. Coventry 175,778,781, 803 Woodruff V. Heniman 505 V. United States 334 Woods V. Armstrong 630 V. Buofbey 502 V. Hall 470, 474 V. Hudson 444 V. Kirk 490 V. McGee 319, 347, 352 Woods V. Russell 336, 337, 338, 339, 340, 342, 351 Woodward v. Foxe 650 V. Thacher 903 Woodworth v. Byerly 502 Wooley i>. Chamberlain 780 Woolfe V. Home 242 Woolsey v. Bailey 362, 399 Wooster V. Sage 169, 415, 597 V. Sherwood 19 Wooton V. Hinkle 444 Worman v. Kramer 602 Worrall v. Munn 265, 355 Worsley v. Wood 575 Worth V. Northam 490 Worthington v. Cowles 607 V. Grimsditch 711 Worthon v. Wilmot 758, 870 Worthy v. Johnson 641 V. Jones 526 V. Patterson 903 Wren v. Pearce 232 Wright V. Barnes 690 V. Canipbel 866 V. Cook 426 V. Crookes 621 V. Hart 611, 657, 899 V. Laing 748 V. Lawes 854 V. Lawton 739 V. Leonard 22 V. McCormick 502 V. O'Brien 109, 335 V. Pierce 320 V. Roach 902, 903 V. Tetlow 351 V. Weed 677, 699 Wyeth V. Morris 903 Wyman v. Fiske 82 V. Gray 232 Wynn v. Shropshire Union Rail. & Canal Co. 571 Y. Yale V. Dederer 37 V. Seely Yates V. Bond 126 179 641 V. Pym Ybarra v. Lorenzana 615 490 Yeakle v. Jacob 128 Yerkes v. Salomon 542 Yerrington v. Greene York V. Verplanok Young V. Austin 323, 353 571 871 767 V. Blaisdell 142, 187 696 Ixxviii TABLE OF CASES. Figures reler to Sections. V. Cole 607 , 608 V. Covell 429 V. Hall 429 V. Harris 429 V. Heemans 484 I'. Higgin 684 V. McClure 485, 502 V. Matthews 334 V. Miles 347, 354 V. Paul 255 V. Timmins 520, 526 Young & Conant Manuf. Co. v. Wakefield 652 Young Manuf. Co. v. Wakefield 426 Younger v. Givens 870 Youqua v. Nixon Yourt V. Hopkins Z. Zabriskie v. Smith Zagury v. Furnell Zaleski v. Clark Zohn V. Cleaver Zouch V. Parsons Zuchtman v. Roberts Zuller V. Rogers Zwinger v. Samuda 571 265 6 323 335, 565 19 22, 31 65, 320 901, 903 817 SALE OF PERSONAL PROPERTY. SALE OF PERSONAL PROPERTY. BOOK L FORMATION OF THE CONTRACT. PAHT L AT COMMON LAW. CHAPTER I. OF THE CONTEACT OF SALE OF PEESONAL PEOPEETY, ITS FOEM, AND ESSENTIAL ELEMENTS. Section Definition of a bargain and sale of goods ...... 1 The elements of the contract . . 1 Parties 1 Mutual assent .... 1 Section Transfer of absolute property . 1 Price in money .... 2 Form at common law ... 3 Form by statute of frauds . . 4 § 1. By the common law a sale of personal property is usually- termed a " bargain and sale of goods." It may be de- Definition fined to be a transfer of the absolute or general property gain aad in a thing for a price in money, (ji) Hence it follows, sale of goods. (a) [Wittowsky v. Wasson, 71 N. Car. 451. A present transfer. Martin v. Adams, 104 Mass. 262 ; Smith v. Weaver, 90 111. 392.] Blackstone's definition is, " A transmutation of property from one man to another in consideration of some price." 2 Bl. 446. Kent's is, "A contract for the transfer of property from one person to 1 another for a valuable consideration." 2 Kent, 615, nth ed. This definition would include barter, which, though in most re- spects analogous, is certainly not identi- cal, with sale. [See the definition given by Wayne J. in Williamson v. Definitions Berry, 8 How. (U. S.) 544. of a sale. In Gardner v. Lane, 12 Allen, 39, 43, 2 FORMATION OF THE CONTRACT. [BOOK I. that to constitute a valid sale, there must be a concurrence of the Theeie- following elements, viz.: 1st, parties competent to con- mentsof tract; 2d, mutual assent; 3d, a thing, the absolute or the con- ' ' _ _ _ ' ° tract. general property in which is transferred from the seller to the buyer ; and 4th, a price in money paid or promised. That Parties. it requires, 1st, parties competent to contraot, and 2d, Mutual as- mutual assent, in order to effect a sale, is manifest from ^^"^' the general principles which govern all contracts. The Transfer of third essential is that there should be a transfer of the aasalute properly, absolute or general property in the thing sold ; for in law a thing may iu 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 of this is presented in the case of Jenkins v. Jenkins V. Brown, (5) where a factor in New Orleans ™^^"' bought a cargo of corn with his own money, on the order of a London correspondent. He shipped tlie goods for account of his correspondent, and wrote letters of advice to that effect, and sent invoices to the correspondent, and drew bills of exchange on him for the price, but took bills of lading to his own order, and indorsed and delivered them to a banker to whom he sold the bills of exchange. This transaction was held to be a transfer of the general property to the London merchant, and therefore a 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 pledge, the general property remains in the pawnor, and a special prop- erty is transferred to the pawnee, (c) § 2. So in relation to the element of price. It must be money, Price, must paid Or promised, accordingly as the agreement maybe e mouey. j^^. ^ ^^^^ ^^_ ^ ^^^j.^, ^^^^^ _ ^^^^ .^ ^^^^^ ^^^^^^ consideration than money be given, it is not a sale. If goods be given in ex- Bigelow C. J. said : " The ordinary defi- price to be paid tlierefor. A learned au- nition of a sale, as a transmutation o£ tlior adds to this summary the brief and property from one person to another for a significant remark, ' If any of these ingre- price, does not fully express the essential dients be wanting, there is no sale.' At- elements which enter into and make up a kinson on Sales, 5." Mackaness v. Long, contract. A more complete enumeration 85 I'enn. St. 158.] of these would be, competent parties to (6) u Q. B. 496 ; 19 L. J. Q. B. 286. enter into a contract, an agreement to (c) Halliday v. Hol;;ate, L. K. 3 Ex. sell, and the mutual assent of the parties 299 ; Harper v. Goodsell, L. R. 5 Q. B. to the subject-matter of the sale and to the 424 ; [Jack v. Eagles, 2 Allen (N. B.), 95.1 PART I.] ELEMENTS AND FORM OF THE CONTRACT. 3 change for goods it is a barter. So also goods may be given in consideration of work and labor done, or for rent, or for board and lodging, Qd} or any valuable consideration other than money ; all of which are contracts for the transfer of the general and absolute property 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, (e) If no valuable consideration be given for the transfer, it is a gift, (/) not a sale. In Ex parte White, in re Nev- {d) See an example in Keys v. Har- wood, 2 C. B. 905. (e) Tor cases showing distinction be- tween sale and barter, see Harris v. Fowie, cited in Barbe v. Parker, 1 H. Bl. 287 ; Hands V. Burton, 9 East, 349 ; Harrison V. Luke, 14 M. & W. 139 ; Sheldon v. Cox, 3 B. & C. 420; Guerreiro v. Peile, 3 B. & Aid. 616 ; Forsyth v. Jervis, 1 Stark. Difference *37 ; Read v. Hutcliinson, 3 between Camp. 352. [The difference sale and ex- ^ *■ change. between a sale and an ex- change is this : that in the former the price is paid in money ; whilst in the latter it is paid in goods, by way of barter. But the same rules of law apply to both. " The distinction between a sale and exchange of property is rather one of shadow than of substance. In both cases the title to property is absolutely transferred, and the same rules of law are applicable to the transaction, whether the consideration of the contract is money or by way of bar- ter." Bigelow J. in Commonwealth u. Clark, 14 Gray, 372. See Howard v. Harris, 8 AUen, 297. But there is a dif- As to plead- ference between a contract of '"S- sale and an exchange, in the form of remedy to be adopted for a breach. The declaration for breach of an agree- ment for an exchange of goods should be special; a count for goods sold and de- livered is not sufBcient. Mitchell «. Gile, 12 N. H. 390 ; Vail v. Strong, 10 Vt. 457. See, also, Loomis u. Wainwright, 21 lb. 520 ; 2 Bl. Com. 446, 447 ; Anon. 3 Salk. 157; Stevenson u. The State, 65 Ind. 409 ; Edwards o. Cottrell, 43 Iowa, 194 ; Williamson v. Berry, 8 How. 544.] (/) Parol gifts of personal chattels do not pass the property, if there Delivery be no actual delivery to the necessa'ry donee. Irons v. Smallpiece, 2 B. & A. 551 I Shower v. Pilch, 4 Ex. 478; Douglas v. Douglas, 22 L. T. N. S. 127; [Hanson «. Millett, 55 Maine, 184; Dole V. Lincoln, 31 lb. 422 ; Allen v. Polereczky, 31 lb. 338; Wing v. Mer- chant, 57 lb. 383; Trowbridge v. Hol- den, 58 lb. 117 ; Marston v. Marston, 21 N. H. 491 ; Grover v. Grover, 24 Pick. 261 ; Huntington v. Gilmore, 14 Barb. 243; Brown v. Brown, 23 lb. 565; Hun- ter u. Hunter, 19 lb. 631 ; Brink v. Gould, 7 Lansing, 425 ; Whiting v. Barrett, 7 lb. 106 ; Mahan v. United States, 16 Wallace, 143; Adams v. Hayes, 2 Ired. (Law) 366; Sims u. Sims, 2 Ala. 117; Hitch V. Davis, 3 Md. Ch. 266 ; People v. Johnson, 14 111. 342 ; Withers v. Weaver, 10 Barr, 391 ; In re Campbell's Estate, 7 lb. 100; Carpenter u. Dodge, 20 Vt. 595; Camp's Appeal, 36 Conn. 88, 92; Dean v. Dean's Estate, 43 Vt. 337 ; Blan- chard v. Sheldon, 43 lb. 512; Eeed v. Spaulding, 42 N. H. 114; 2 Kent, 438, 439 ; Wheeler v. Wheeler, 43 Conn. 503 ; White V. Atkins, 5 Low. Can. 420 ; Kim- ball . Brown, 6 Hun, 331 ; Mar- personalty may be perfectly valid even tin u. Punk, 75 N. Y. 134; Simmons v. when voluntary. If I give any chattel, Cincinnati Sav. Soc. 31 0. St. 457. But that, of course, passes by delivery ; and if an effectual gift may be made of a chattel I say, expressly or impliedly, that I con- already in the actual possession of the stitute myself a trustee of personalty, that donee, without any renewed act of deliv- is a trust executed, and capable of being ery. Champney v. Blanchard, 39 N. Y. enforced without consideration." As to 111 ; Wing V. Merchant, 57 Maine, 383; voluntary gifts and settlements of per- Dole (/. Lincoln, 31 lb. 422; Whiting u. sonal property, including promissory notes Barrett, 7 Lansing, 106, 109; Shower and other choses in action, see Richardson V. I'ilck, 4 Ex. 478; Huntington v. Gil- v. Richardson, L. R. 3 Eq. 686; Keke- more, 14 Barb. 243, 247, 248. " A gift is wich u. Manning, 1 De G., M. & G. 176 ; strictly a contract." Hoar J. in Attorney In re Way's Trusts, 2 De G., J. & S. General u. Merrimack Manuf. Co. 14 (Am. ed.) 365, and note (1) ; Wing ti. Gray, 603. Gifts iyiter vivos, " when made Merchant, 57 Maine, 383 ; Reed v. Spaul- perfect by delivery of the things given, are ding, 49 N. H. 114; Westerlo v. De Witt, executed contracts." Wilde J. in Grover 36 N. Y. 340 ; Connor v. Trawick, 37 Ala. u. Grover, 24 Pick. 264. Delivery in this, 289, 295; 2 Kent, 438; Sir W. Page Delivery as in every other case, must Wood V. C. in Penfold v. Mould, L. R. 4 trnature ^'^ according to the nature of Eq. 562, 564 ; Stone v. Hackett, 12 Gray, ofthiDg. the thing. The donor must 227; Borneman v. Sidlinger, 15 Maine, part not only with the possession, but with 429. As to a gift causa mortis in trust, the dominion of the property; and when see Sheedy v. Roacb, 124 Mass. 472, and the gift is perfect, by delivery and aecejit- cases cited.] ance, it is then irrevocable by the donor. 2 Kent, 439, 440; Noble v. Smith, 2 John. 52 ; Hooper u. Goodwin, 1 Swanst. 485 ; Picot V. Sanderson, 1 Dev. (N. Car.) 309 ; Tancrcd i,. O'lMullin, 2 Oldright (N. S.), ig) L. R. 6 Ch. App. 397 ; [post, §§ 597 and note, 598.] {!>) L. R. 3 P. C. C. 101. (i) [The distinction between a sale and a bailment is further illus- Sale and 145; Vict u. Viet, 34 U. C. Q. B. 104; trated in Hunt v. Wyraan, ScUoii Walker v. M'Bride, 2 Huds. & Br. 215.] 100 Mass. 198. This was an bew°- As to gifts of money by check, tee Brom- action for the price of a horse, as on a sale ley V. Brunton, L. R. 6 Eq. 275, and cases thereof. It appeared that the plaintiff there cited ; [Jones u. Lock, L. R. 1 Ch. had the horse for sale ; that the defendant App. 25.] And as to gift of a bond with- asked and was told the price and charac- out delivery, see Morgan u. Malleson,L.R, ter of the horse ; that the defendant ex- 10 Eq. 475, and cases there cited. [In Jones pressed a desire to take the horse and try f. Lock, L. R. 1 Ch. App, 28, Lord Cran- it, and proposed that "if the plaintiff worth L. C. said : " No doubt a gift may would let him take the horse and try it, if be made by any person sui juris and cum- he did not like it he would return it in as pos mentis, by a conveyance of real estate good condition as he got it, the night of or by delivery of a chattel; and there is the day he took it;" and the plaintiff as- PART I.] ELEMENTS AND FOKM OF THE CONTRACT. § 3. By the common law, all that was required to give validity to a sale of personal property, whatever may have been Form at the amount of value, was the mutual assent of the par- LT""" ties to the contract. As soon as it was shown by any evidence, Penn. St. 469 ; Myers v. Harvey, 2 Penn. 479; Crist!;. Kleber, 79 Penn. St. 240. It is said to be a recognized dis- criterion tinction between bailment and '" t How. Pr. 235 ; Converseville v. Sibbald, 29 U. C. Q. B. 487 ; Mahler v. Co. u. Chambersburg Woollen Co. 14 Hun, Schloss, 7 Daly, 291 ; Slutz v. Desenberg, 609; Doddsw. Durand, 5U.C. Q. B. 623; 28 0. St. 371.] Brothers v. Davis, 47 Iowa, 363 ; Bayliss (t) [See Lincoln v. Johnson, 43 Vt. 74, >;. Davis, lb. 340; Conable v. Lynch, 45 77; Darden u. Lovelace, 52 Ala. 290, lb. 84; Albert i.\ Lindau, 46 Md. 334; 291. Audcnreid y. Randall, 3 Clifif. 99.] CHAPTER II. OF THE PARTIES TO THE CONTRACT. SECTION I. — WHO MAT SELL. In general, none but owner Effect of outstanding writ on owner's power to sell . Exceptions to general rule Market overt . Exceptions . Sale by sample . Purchase by shopkeeper in Lon don Stolen goods, when felon is pros ecutcd .... Reimbursement of innocent pur chaser .... Sale, horses in market overt Negotiable securities . Goods pawned . Goods taken by sheriffs Goods in wrecked ships Factors and consignees Persons intrusted with possession by owner ..... Section 6 7 7 8 9 10 10 11 12 14 15 16 17 18 19 19 Section Law doubtful 20 SECTION II. WHO MAT BUT. Persons generally incompetent . . 21 Infants . . . . • . .22 Necessaries 23 Question of fact or law? . . 24 Married infant . . . .25 Infant tradesman . . .26 Ratification after majority . . 27 Lunatics 29 Drunkards 30 Married women — 1. At common law , . 31 Husband cioiUter mortuus . 32 Husband alien, abroad . . 33 Sole trader in London . 35 2. By statute . . . 36 Protection order . . .36 Property act, 1870 . . .36 3. In equity . . . .37 § 5. So far as the general capacity to contract is concerned, and the rules of law relating to persons either totally incompetent to contract, or protected from liability by reason of infancy, cover- ture, 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 specially applicable to sales of goods will be ex- amined in this chapter. 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 represent ^^^^ ^^^ the owner. JVemo dat quod non habet. (a) A person *e owner. (a) Peer v. Humphreys, 2 Ad. & E. 161 ; [Stanley v. Gaylord, 1 Cush. 536, 495; Whistler v. Poster, 32 L, J. C. P. 545; Parsons v. Webb, 8 Greenl.38; Gal- 8 FORMATION OF THE CONTRACT. [book I. therefore, however innocent, who buys goods from one not the owner, obtains no property in them whatever (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 owner, who may maintain his action without prosecuting the felon. (J)') But a man may make a valid agreement to sell a thing vin V. Bacon, 2 Fairf. 28 ; Barrett v. War- ren, 3 Hill, 348; Gilmore v. Newton, 9 Allen, 171 ; Riley v. Water Power Co. 11 Cush. 11 ; Bearce u. Bowker, 115 Mass. 129; Moody u. Blake, 117 lb. 23, 26; Chapman v. Cole, 12 Gray, 141 ; Prime v. Cobb, 63 Maine, 200 ; Courtis v. Cane, 32 Vt. 232 ; Kiford v. Montg:omery, 7 lb. 418; Williams o. Merle, 11 Wend. 80; Kinder v. Shaw, 2 iVIass. 398 ; Wilson u. Crockett, 43 Mo. 218; Bryant v. Whit- cher, h2 N. H. 1.58, 161 ; Klein v. Seibald, 89 111. 540. But it is not necessary that the goods should be in the act- Not neces- sary that ual possession of the vendor Tetattf «t 'he time of sale. The sale posaes"ion of naay be good, although the vendor. , " . goods are in the possession of a third party tortiously withholding them. " I know of no principle of law," says Judge Story in the case of The Brig Sarah Ann, 2 Sumner, 211, " that establishes that a sale of personal goods is invalid, because they are not in the possession of the right- ful owner ; but are withheld by a wrong- doer. The sale is not, under such circum- stances, 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 a bond fide title for a valuable consideration without no- tice ; and a fortiori, against a wrong-doer." The same was held in Cartland c. Mor- rison, 32 Maine, 190; Webber v. Davis, 44 lb. 147; Hubbard u. Bliss, 12 Allen, 590; Carpenter v. Hale, 8 Gray, 157. See Boynton <7. Willard, 10 Pick. 166, 169; Hassell v. Borden, 1 Hilton (N. Y.), 128 ; Zabriskieu. Smith, 3 Kernan, 322 ; Tome V. Dubois, 6 Wallace, 554; First National (b) Stone u. Marsh, 6 B. & C. 515; Marsh v. Keating, 1 Bing. N. C. 198, and 2 CI. & Fin. 250; Wliite v- Spettigue, 13 M. & W. 603 ; Lee v. Baycs, 18 C. B. 599 ; [Crane v. London Dock Co. 5 B. & S. 313; 2 Kent, 325; 1 Chitty Contr. (11th Am. ed.) 534 ; Beazley v. Mitchell, 9 Ala. 780 ; Hoffman i/. Carow, 20 Wend. 21 ; 22 lb. 285 ; Dame v. Baldwin, 8 Mass, 519 ; McGrew v. Browder, 14 Martin (La.), 1 7 ; Roland v. Gundy, 5 Ohio, 202 ; Browning v. Magill, 2 Harr. & J. 308 ; Heckle v. Lurvey, 101 Mass. 344 ; Gilmore c. Newton, 9 Allen, 171 ; Chapman v. Cole, 12 Gray, 141 ; Stanley v. Gaylord, 1 Cush. 536 ; Riley v. Boi-ton Water Power Co. 11 lb. 11. Breckenridge u. McAfee, 54 Ind. 141. Upon the principle stated in the text, an auctioneer, who Auctioneer receives and sells stolen goods, liable 'o «»1 , . , . owner if he not knowing nor having rea- sell stolen son to believe that they were Z""^- stolen; and a person who in good faith buys a stolen horse, and afterwards exercises do- minion over him by letting him to a third person ; is liable to the rightful owner in trover without a previous demand. Hoff- man V. Carow, 20 Wend. 21 ; S. C. 22 lb. 285 ; Coles v. Clark, 3 Cush. 399 ; Oil- more V. Newton, 9 Allen, 171 ; Hills ». Snell, 104 Mass. 177; Williams u. Merle, 11 Wend. 80 ; Courtis v. Cane, 32 Vt. 232 ; Pease i>. Smith, 61 N. Y. 477. In the case of stolen goods, a mere naked ^^^^^ ^^^^ bailee, who does no act, and bailee not has no intent, to convert them " °' to his own use, or withhold them from the owner, and, before any demand made upon him, delivers them back to the person from whom he received them, is not guilty of a Bank of Cairo v. Crocker, 111 Mass. 163, conversion, although he knew that they 169, 170.] ^grg stolen. Loring v. Mulcahy, 3 Allen, PART I.] PARTIES. 9 not yet his, (c) and even a thing not yet in existence ; this execu- tory 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 j.^^^^. ^j the purchaser. But if the buyer has notice that any outstand- . ing writ writ, by virtue of which the goods of the vendor might against be seized or attached, has been delivered to and remains unexecuted 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. 2, 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," pro- tects him, by 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." (e) The first and most impor- 575. So in Spooner u. Holmes, 102 Mass. hands. The suit in which the property- SOS, it was held by a majority of the court was attached did not proceed to judgment, that an action for the conversion of interest but the entry of "neither party" was couponsof United States bonds cannot be made in it. While the proceeds of the maintained by the owner, from whom they sale were in the hands of the have been stolen, against a person who has deputy, and the suit was still proceeds of received them as an agent, for exchange in pending, B. assigned the at- "■"^"j^^^ good faith and without gross negligence, tached property and its pro- from a party to the thefl, and has trans- ceeds to A. in these words : " I . . . . ferred them by delivery and paid the pro- hereby ratify and confirm said sale by ceeds to his employer, without benefit to said sheriff .... and hereby sell, assign, himself, and without any demand or no- and transfer to said A. all of said per- tice.] sonal property attached and trusteed and (c) [See Bruce !.•. Bishop, 43 Vt. 161, the proceeds thereof." It was held that 163.1 the instrument transferred to A. not (d) Woodland v. Fuller, 11 Ad. & E. merely a chose in action, enabling him to 859. [As to the sale and delivery of prop- sue in B.'s name, but transferred to him erty under attachment, see post, § 696 in the property in the proceeds, and that it note (5). Hooker v. Jarvis, 6 U. C. Q. was the deputy's official duty to deliver B. (0. S.) 439 ; Storey v. Agnew, 2 Brad- the proceeds to A. First Ward Nat. well (III.), 353. A. brought suit against B. Bank w. Thomas, 125 Mass. 278.] and attached property, which was sold by (c) This section is not retrospective in the officer, and the proceeds came into his its operation, and does not aiTect preexist- 10 FORMATION OF THE CONTRACT. [book I. §8. Mavket overt. Exceptions tant exception to the rule, that a man cannot make a owners valid Sale of goods that do not belong to him, is pre- seiif^^"^ sen ted in the case of sales made in market overt. (/) Market Overt in the country is held on special days, provided by charter or prescription ; (^) but in London every day except Sunday is market-day. (A) 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 publicly to sale is market overt for such goods as the owner openly professes to trade in. (J) As a London shop is not a market overt for any goods except such as are usually sold there, it was held in the leading case, (i) that a scrivener's shop was not a market overt for plate, though a goldsmith's would have been. So Sniithfield was held not to be a market overt for clothes, but only for horses and cattle ; (/c) and Cheapside not for horses ; (l) and Aldridge's not for carriages, (nz) A wharf is not a market overt, even in the city of London, (n) In a recent case in the queen's bench, the common law doctrine of market overt ing rifrlits. Williams v. Smith, [2 H. & N. 44.3 ;] 26 L. J. Ex. 371 ; and in error, [4 H. & N. 559 ;| 28 L. J. Ex. 286 ; Flood v. Patterson, 30 L. .J. Cli. 486 ; and .Ltckson V. Woollcy, 8 E. & B. 778, and 27 L. J. Q. B. 181,448. Tlie subsequent statutes of 23 & 24 Vict. >;. 38, and 27 & 28 Vict. o. 112, fnrnisli the rules on this subject, in respect of land, including leasehold titles to land. (/) [The law of Massachusetts does not recognize the effect of the American ^ . doctrine as English sale in market overt. oveT"" I5'""e "• Baldwin, 8 Mass. 521; Towne u. Collins, 14 lb. 500; Southwick «. Harndell, 2 Dane Abr. 286. This is generally true of the law in all of the American States. 2 Kent, 344; Ventress v. Smith, 10 Peters, 176. In New York, Wheelwright u. Dcpey- eter, 1 John. 480; Hoffman v. Carow, 22 Wend. 285 ; S. C. 20 lb. 21 ; Mowrey v. Walsh, 8 Cowen, 238. In Pennsylvania, Easton v. Worthington, 5 Serg. & U. 130; Hosack V. Weaver, 1 Ycates, 478; Hardy V. Metzgar, 2 lb. 347. In Vermont, Hea- cock !i. Walker, 1 Tyler, 341 ; Griffith v. Fowler, 18 Vt. 390. In Ohio, Roland I,. Gundy, 5 Ohio, 203. In Maryland, Browning u. Magill, 2 Harr. & J. 308. In New Hampshire, Bryant v. Whitcher, 52 N. H. 158; Nixon v. Brown, 57 lb. 34. In Maine, Coombs v. Gorden, 59 Maine, 111, 112. See Fawcett v. Osborn, 32 111. 411; Eobinson v. Skipworth, 23 Ind. 311.] [g) See Benjamin v. Andrews, 5 C. B. N. S. 299; 27 L. J.M. C. 310. (A) Case of market overt, 5 Rep. 83 b; L'Evesque de Worcester's case, Moore, 360 ; Poph. 84 ; Comyn's Dig. Market, E.; 2 Bl. Com. 449 ; Lyons v. Dc Pass, 11 Ad. & E. 326 ; Crane v. The London Dock Company, 33 L. J. Q. B. 224 ; S. C. 5 B. & S. 313 ; Anon. 12 Mod. 521. (i) 5 Rep. 83 b. (k) Moore, 360. (1) lb. See, also, Taylor v. Chambers, Cro. Jac. 68. (m) Marner v. Banks, 17 L. T. 147. (n) Wilkinson v. King, 2 Camp. 335. PART I.] PARTIES. 11 was much discussed, and the chief justice expressed the opinion that a sale could not be considered as made in market overt " un- less 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, (o) § 9. The exceptions to the validity of sales made in marlcet overt by one who is not the owner, and the rules of law g^,^^ .^ governing the subject, are fully treated by Lord Coke, maiket in 2 Inst. 713, and have been the subject of numerous are not decisions. A sale in market overt does not give a good title to goods belonging to the sovereign ; nor protect a buyer who knew that they were not the property of the seller, or was guilty of bad faith in the transaction. The purchaser is not protected 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, (p) nor to sales of pawns taken to any pawnbroker in London, or within two miles there- of ; (j) 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, (r) § 10. A sale by sample is not a sale in market overt, and in (o) Per Cockburn C. J. in Crane !). The But I suppose that until this case, it London Dock Company, 5 B. & S. 313 ; never was contended that the privilege of 33 L. J. Q. B. 224. [The fact that the sale the market overt extended protection not The vendor '^'^ ra&in in market overt will alone to the purchaser but to tlie seller, — is not pro- not necessarily, or of itself, the innocent seller it may be, and in this Ralfinmar- excuse the vendor, and relieve case certainly was, —but still the seller, ket overt. jjj^, q£ liability to the owner and as such seller the agent of the thief, of the stolen property. In Ganly w. Led- Such a proposition .... 'capsizes the widge, Ir. R. 10 C. L. 33, Barry J. said : intellect.' "] " To argue that the circumstance that the (p) 2 Inst. 713 ; 2 Bl. Com. 499 ; Har- sale was made in market overt per se top v. Hoare, 2.Str. 1187; Wilkinson v. exempts the defendants from liability, King, 2 Camp. 335 ; Packer v. Gillies, 2 seems to me to involve a curious conf u- Camp. 336, note ; cases cited in Crane v. sion of ideas. The doctrine of sale in The London Dock Company, 33 L. J. Q. market overt in the case of stolen prop- B. 224 ; .5 B. & S. 363. erty exists in our law for the protection of (?) Act 1 Jac. 1, c. 21, s. 5 ; Hartop v. the purchaser, of the man who innocently Hoare, 3 Atk. 44. buys in the open public market. Thus (r) 2 Bl. Com. 450 ; 2 Inst. 713 ; and applied, the rule exhibits all that reason see per Best J. in Freeman v. East India and common sense which so largely per- Company, 5 B. & A. 624. vade the fundamental rules of our law. 12 FORMATION OF THE CONTRACT. [bOOK 1. Hill V. Smith, (s) Sir James Mansfield C. J. said: "All the doc- g ,^^ trine of sales in market overt militates against any idea sample, not of a sale by sample ; for a sale in market overt requires market that the commodity should be openly sold and delivered „.„ ' in the market." This decision was approved and fol- Smith. lowed by the queen's bench in Crane v. The London Dock Company, (f) In Lyons v. De Pass, (m) a sale was held to be Pnrchnse entitled to the privilege of market overt where made in ke ^'"'m ^ ^'^"P ^^ *^^ *^'*y °^ London TO the shopkeeper who London. dealt in such goods ; but the point was not raised, and Lj-ons V. the existence of the privilege in such a case was strongly questioned by the judges in Crane v. The London Dock Company, (a;) § 11. The security of a purchaser in market overt who inno- Where true cently buys stolen goods is affected by the statute 24 & prsecutes 25 Vict. c. 96, s. 100, which reenacts and adds to the 7 felon. & 8 Geo. 4, c. 29, s. 67. (t/) By the terms of this sec- tion, it is provided that " If any person guilty of any such felony or misdemeanor as is mentioned in this act, in stealing, taking, obtaining, extorting, embezzling, converting, or disposing of, or in knowingly receiving, any chattel, monej', valuable security, or other property whatsoever, shall be indicted for such offence, 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 representative ; 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 man- ner." It has been settled that, on the true construction of this statute, the property in the chattel becomes revested in the origi- nal owner upon the conviction of the felon, even though no writ or order of restitution has been made by the court, (g) But an (s) 4 Taunt. 532. Parker v. Patrick, 5 T. R. 175. [Moycet). {t) 33 L. J. Q. B. 224; 5 B. & 8. 313. Newington, L. R. 4 Q. B. D. 32 ; Lindsay See Bailiffs &c. of Tewkesbury v. Ditson, v. Cundy, 1 lb. 348 ; § 434, note {k), post.] 6 East, 438. [Town Commissioners u. (z) Scattergood v. Sylvester, 15 Q. B. Woods, Ir. R. 11 C. L. 506.] 506; 19 L. J. Q. B. 447. See, also. Peer («) 11 Ad. & E. 326. V. Humphrey, 2 Ad. & E. 495 ; [Queen!). (.r) See note (() above. Horan, Ir. R. 6 C. L. 293 ; Keg. v. Stan- (y) See, also, 21 Henry 8, ,;. 11, and cliffe, 11 Cox C. C. 318.] PART I.] PARTIES. 13 action was held not to be maintainable against an innocent pur- chaser in market overt, who had disposed of the stolen goods be- fore the conviction of the thief ; although he was, while the goods still remained in his possession, notified of the robbery by the original owner, (a) § 12. When an innocent purchaser of stolen goods has been forced to make restitution to the prosecutor of the thief, Reim- the 30 & 31 Vict. c. 35, s. 9, enacts that upon the con- [""^^^'t viction of the thief it shall be lawful for the court to purchaser, order that any money taken from him on his apprehension shall be applied to reimbursing the purchaser the price paid by him. § 13. It was at one time supposed that where goods had been stolen, an owner could not recover them from an ^ Owner not innocent vendee who had bought them, not in market bound to overt, until he had done his duty in prosecuting the before re- thief. But the cases of Gimson v. Woodfall (6) and £rom"i"n,o- Peer v. Humphreys (e) were overruled in White v. Spet- pg"'^'^"''' tigue, (^d) where it was held, on the authority of Stone gf'J? "<" V. Marsh, (e) and Marsh v. Keating, (/) that the obli- market gation of the plaintiff to prosecute th« 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. Spettigue. (A) In Wells V. Abraham, (i) on the trial of an action for tro- weiis v. ver, the evidence established a primd facie case of fel- ony, and after verdict for plaintiff a new trial was moved for on that ground, and on the further ground shown by afiidavit, 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. § 14. For more than three centuries it has been found necessary to make special provision in relation to the sale of horses saie, in market overt, on account of the peculiar facility with ^a^ket" which these animals, when stolen, can be removed from ""'"''■■ the neigliborhood of the owner and disposed of in markets and (a) Ilorwood v. Smith, 2 T. R. 750. (e) 6B. &C. 551. [See § 434 note [k], post.] (/) I Bing. N. C. 198. (b) 2C. &P. 41. (9) 18C. B. 599. (c) 2 Ad. & E. 495 ; 4 N. & M. 430. (A) 13 M. & W. 603. (d) 13 M. & VV. 603. («■) L. R- 7 Q. B. 554. 14 FORMATION OF THE CONTRACT. [BOOK I. fairs, (/c) The statute of 2 & 3 P. & M. c. 7, passed in 1555, and that of 31 Eliz. c. 12, in 1589, 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 tea o'clock in the morning until sunset, and he sliall take the tolls for all horses at that place and within those hours, and not at any- other time or place ; that the parties to the bargain shall be be- fore 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, un- less the animal 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 knowl- edge" of the vendor, and "of his true Christian name, surname, and place of dwelling or resiancy ;" or that the vendor shall bring to the keeper one sufficient and creditable person that can testify that he knows the vendor ; and in such case the name and resi- dence 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 provides 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 statute, on repayment to the pur- chaser of the price paid by him, provided the demand on the pur- chaser 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 Horse re- modern cases on the subject. {I) In Lee v. Bayes, (I) outside" of it was held that the sale of a horse at auction in a re- (/■:) [See Browning v. Magill, 2 Harr.& (/) See Joseph v. Adkins, 2 Stark. 76; J- 308.J Lee V. Bayes, 18 C. B. 599. PART I.] PARTIES. 15 pository out of the city of London was not a sale in London market overt, Jervis C. J. saying that market overt was ovei™^"^ " an open, public, and legally constituted market." On the ques- tion, What is a legally constituted market ? the reader what is a is referred to the case of Benjamin v. Andrews, (m) |.°';,st'iiuted decided in the common pleas in 1858. maiUet? § 15. 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, negotiable SGClLll'ltlfiS which directs that, "If it shall appear before any award by one not 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 instrument, shall have been hond fide taken or received by transfer or deliv- ery, by some person or body corporate, for a just and valuable con- sideration, without any notice, or without any reasonable cause to suspect that the same had by any felony or misdemeanor been stolen, taken, obtained, extorted, embezzled, converted, or dis- posed of, in such case the court shall not award or order the res- titution of such security : provided, also, that nothing in this sec- tion contained shall apply to the case of any prosecution of any trustee, banker, merchant, attorney, factor, broker, or other agent intrusted 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 operating in such manner as to interfere with a settled rule of the law merchant, namely, that one not the owner, even the thief, may make a valid transfer of negotiable instruments, if they are in the usual state in which they commonly pass on delivery 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, (n) (m) 5 C. B. N. S. 299; 27 L. J. M. C. 10 Ad. & E. 784; Raphael v. Bank of 310. England, 17 C. B. 161 ; 25 L. J. C. P. 33 ; («) Grant v. Vaughan, 3 Burr. 1516; Seal v. Dent, 8 Moore P. C. 319 ; Gill v. Lang V. Smith, 7 Bing. 284 ; Gagier u. Cubitt, 3 B. & C. 466 ; Whistler v. Fors- Mieville, 3 B. & C. 35 ; Crook v. Jadis, ter, 32 L. J. C. P. 161. See, also, numer- 5 B. & Ad. 909 ; Blackhouse v. Harrison, ous other cases cited in notes to Miller v. 5 B. & Ad. 1105; Bank of Bengal v. Race, 1 Sm. Lead. Cas. 468 (ed. 1867) ; McLeod, 7 Moore P. C. 35; Goodman u. Byles on Bills, p. 158 (9th ed.); [Cone w. Harvey, 4 Ad. & E. 870; Uther i,-. Rich, Baldwin, 12 Pick. 545 ; Wheeler v. Guild, 16 FORMATION OF THK CONTRACT. [book I. Sale by pawnee. § 16. Another case, in which one not the owner of goods may make valid sale of them, is that of the pawnee. He has the legal power to sell goods pledged to him, if the pawnor make default in payment at the stipulated time ; and this he may do without taking any legal proceedings against the pawnor, (o) § 17. The sheriff, as an officer on whom the law confers a power, B ubiic '^^y ^^"^ ^^^ goods of the defendant in execution, and officers. confer a valid title on the purchaser ; and this title will not be affected, although the writ of execution be afterwards set aside. (^) This protection, however, was held by the court of 20 Pick. 5+5 ; Matthews v. Poythress, 4 Ga. 287 ; Magee u. Badger, 30 Barb. 246; Pringle ■^ chaser at B. 736. [But a purchaser ac- sheriffssale. ^^^-^.^^ ^„ jj^jg j^ property which he buys at a sherift's sale, unless it belonged to the judgment debtor. A pur- chaser of the goods of A. at a sale on ex- ecution against B. is liable to A. in tro- ver, if he takes the goods. Champney v. Smith, 15 Gray, 512 ; Johnson y.Babcock, 8 Allen, 583 ; Buffum v. Deane, 8 Cush. 41; Stone u. Elberly, 1 Bay, 317; Bry- ant V. Whitcher, 52 N. H. 158; Shearick u. Huber, 6 Binn. 2 ; Griffith t. Fowler, 18 Vt. 390; Sanborn v. Kittredge, 20 lb. 640 ; Symonds v. Hall, 37 Maine, 354, 357, 358; Coombs v. Gorden, 59 lb. Ill; Homesley w. Hogue, 4 Jones (Law), 481; Arendale v. Morgan, 5 Sneed, 703 , Boggs V. Fowler, 16 Cal. 559 ; Williams v. Miller, 16 Conn. 144; Bartholomew ;;. Warren, 32 lb. 102 ; Burke v. McWhirter, 35 U. C. Q. B. 1 ; Kirby u. Cahill, 6 U. C. Q. B. (0. S.) 510. To constitute a valid levy as against a creditor or vendee of the debtor, it is necessary, according to the weight of authority, that the ^ij^t ^^i.. sheriff should exercise domin- easary to con.*titute ion over the goods ; that the a levy by goods should be under his '''*"^- control, or that he should do some act in relation to the goods for which he would be liable in trespass were it not for the process under which he acts. Forth v. Pursley, 82 III. 152; Techmeyer v. Waltz, 49 Iowa, 645 ; Cobb v. Cage, 7 Ala. 619 ; Cheshire National Bank u. Jewett, 119 Mass. 241; Shephardu. Butterfield,4Cush. 425; Butterfield v. Clemence, 10 lb. 269 1 Hemmenway v. Wheeler, 14 Pick. 410; Rowan u. Refeld, 31 Ark. 648 ; Bryant C-. Osgood, 52 N. H. 182 ; Harris u. Ev- ans, 81 111. 419 ; Godfrey v. Brown, 86 lb. 454; Taifts v. Manlove, 14 Cal. 47 ; Rives V, Porter, 7 Ired, 74; Pierce v. Shipps, 16 PART I.J PARTIES. 17 queen's bench not to be available in favor of a purchaser of goods distrained under a warrant issued by two justices of the peace to the constable, where the warrant was on the face of it illegal, (^q) § 18. Another instance of the power of one who is not owner to transfer the property in goods held in his possession is j^^^^^^^ ^j that of the master of a vessel, who is vested by law with ^'''ps- authority to sell the goods of the shippers of the cargo in case of absolute necessity ; as where there is a total inability to carry the goods to their destination, or otherwise to obtain money indispen- sable for repairs to complete the voyage. But the purchaser ac- quires no title, unless such necessity exists, (r) § 19. By the factors' act (6 Geo. 4, c. 94, s. 2), "persons in- trusted with, and in possession of, any bill of lading. In- factors and dian warrant, dock warrant, warehouse-keeper's certifi- consignees, cate, warrant, or order for the delivery of goods, shall be deemed and taken to be the true owner of the goods so far as to give valid- ity 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 intrusted with any goods, wares, or merchandise, or to whom the same may be Barb. 585 ; Blades v. Arundale, 1 M. & v. FiBeld, 4 Zab. 161 ; Newell v. Sibley, S. 711; Ackland ,;. Pavnter, 8 Price, 95 ; 1 South. 381. A sheriff cannot buy at Reynolds v. Ayres, 5 Allen (N. B.), 333; his own sale on execution. 3^^.^;^ j.^^. Murpby w. Swadener, 33 0. St. 85. But Perkins u. Thompson, 3 N. H. not purchase as against the debtor the rule is not so 144. But such n, purchase Jjj^. '"'"' strict. Brooks v. Palmer, 1 Pugsley & was upheld on the facts pre- Burbridge (N. B.), 615 ; Forth v. Pursley, sented in Smith v. Smith, 2 Oldright (N. supra. In Tafits v. Manlove, supra, Bald- S.), 303.] win J. said : " It may be admitted, as un- (?) Lock v. Sellwood, 1 Q. B. 736. questionably the law is, that a levy may be (r) The Gratitudino, 3 Rob. Adni. 259 ; good as against the defendant in the writ. Freeman v. East India Company, 5 B. & when it would not be good as to third A. 621 ; Vlierboom v. Chapman, 13 M. & persons. But we apprehend that this dis- W. 239; Underwood 0. Robertson, 4 tinction is not based upon any difference Camp. 138; Cannan v. Meaburn, 1 Bing. in the legal requisites of a levy, but in the 243 ; Tronson o. Dent, 8 Moore P. C. fact that the conduct of the defendant, 419; Cammell !). Sewell, 3 H. & N. 617, either by positive or negative acts, may and S. C. in 5 H. & N. 728 ; 29 L. J. I'.x. amount to a waiver, or an estoppel, or 350 ; Maude & P- on Ship. 446 ; [Pope v. agreement that that shall be a levy which, Nickerson, 3 Story, 465 ; The Ship Packet, without such conduct, would not be suf- 3 Mason, 255 ; Fontaine v. Col. Ins. Co. ficient." And the New Jersey cases would 9 John. 29; Jordan u. Warren Ins. Co. seem to indicate that there is no differ- 1 Story, 342 ; The Joshua Barker, Abbott ence in principle between the two cases. Adm. 215; Mjers v. Bayniore, 10 Penn. Dean v. Thatcher, 32 N. J. Law, 470; St. 114; Stillman «. Kurd, 10 Texas, 109 ; Brewster ./. Vail, Spencer, 56 ; Caldwell Gates v. Thompson, 57 Maine, 442.] 2 18 FORMATION OF THE CONTRACT. [bOOK I. consigned," are protected in their purcliases, notwithstanding no- tice that the vendors are agents ; provided the purchase and pay- ment be made in the usual and ordinary course of business, and the buyer has not notice, at the time of purchase and payment, 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 aa having tlie 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 indorsement or delivery, the possessor of such documents to transfer or receive goods thereby represented." (s) These acts apply solely to persons intrusted as factors or commission mer- chants, not to J. M'sons to whose employment a power of sale is not ordinarily incident, as a wharfinger who receives goods usually without power to sell, (f) 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 vendors would be liable in trover to the true owner, (ii) Mr. Persons in- Shitty, in his Treatise on Contracts, (a;) has the fol- trusted lowing passage : " It is said, however, that if the real with pos- i: T _cr session by Owner ot goods suffer another to have possession thereof, or of those documents which are the indicia of property owners. (s) [See 1 Cliitty Contr. (llth Am. ed.) 209; Consolidated Sts. of Can. c. 59 298-300; Niivulshaw t). Brownvigg, 2 De (1859); In re CoL-man, 36 U. C. Q. B. G., M. & G. (Am. ed.) 441, and notes, 445 559; Cockburn o. Sylvester, 27 U. C. and cases in note (I); Johnson v. The C. P. 34; Todd v. Liverpool & Loiid. Credit Lyonnais, 2 C. P. D. 224, and Globe Ins. Co., 20 lb. 523.] 3 C. P. 1). 32 ; Kickerson a. Darrow, 5 (() Jlonk v. Wittenbury, 2 B. & Ad. Allen, 419, 422. The English statutes 484. are the foundation of acts in several of (u) Loeschman z'. Machin, 2 Stark. 311; the American States on the same sub- Cooper v. Wiilomatt, 1 C. B. 672 ; [Stan- ject; as in New York, Pennsjhauia, ley y. Ga\lord, I Cush. 536 ; Gilmore v. Rhode Kland, Ohio, Maine, M.-issachu- Newton, 9 Allen, 171 ; Galvin v. Bacon, 2 setts, &c. See Smith Merct. Law (Am. Fairf. 28 ; Bearce v. Bowker, 115 Mass. ed.), 126, note; 2 Kent, 628, note (/)); Bott 129,132; Prime u. Cobb, 63 Maine, 200; V. McCoy, 20 Ala. 578; Michigan State Barker v. Dinsmore, 72 Penn. St. 427; Bank v. Gardner, 15 Gray, 362 ; Dc Wolf Marshall v. Beeber, 53 Ind. 83 ; Porter v. V. Gardner, 12 Cash. 19; Ullman v. Bar- Parks, 49 N. Y. 564.] nard, 7 Gray, 554; Jennings v. Merrill, (x) Page 359, 8th ed. ; [llth Am. ed. 20 Wend. 9; Warner v. Martin, 11 How. 534.] PART I.] PARTIES. 19 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. & C. 38 ; per Bayley J. Boyson v. Coles, 6 M. & S. 14). (a;i) But probably this proposi- tion ought to be linaited to cases where the person who t- . 1 J J.1 • ;? ,1 1 Limitation Jiaa tUe possession or the goods was one who from the of doctrine. nature of his employment might be tak&n primd facie to have had (xi) [A case involving an inquiry into this point lately arose in New Hampshire. Sale by per- "^'^^ plaintiff employed one M. T^^?\ -.1, '° purchase a horse for him. trusted with ^ pcssession M. bought the horse, paid for by owner. j^ ^jj,, j,,g plaintiff.^ money, and took a bill of sale in his own name. Afterwards he informed the plaintiff of what he had done, and showed him the bill of sale ; but the plaintiff permitted Nixon V. him to go away with the horse Brown. and the bill of sale still in his possession. M. thereupon went to the de- fendant, who had no knowledge of the agency, showed him the bill of sale, sold him the horse for cash, and absconded ; and it was held that the plaintiff could not recover in an action of trover for the horse. Nixon V. Blown, 57 N. H. 34. The court rely much upon the circumstance that the plaintiff had been informed that M. had taken the bill of sale of the horse in his own name, and with that knowledge per- mitted him to go forth clothed with all the indicia of ownership, and so completely armed for the commission of a fraud. So where the seller of a lot of butter delivered it at a, railway station and authorized the railway agent to issue a bill of lading to the purchaser, under a verbal agreement with both that it should not be shipped until the balance of the price should be paid; but the purchaser, in violation of this agreement, pledged the bill to a third party, who advanced him the value of the butter, without any notice of the verbal agreement ; it was held that a good title passed to such third party. Western Union E. R. Co. v. Wagner, 65 111. 197. See Michigan Central R. E. Co. v. Phillips, 60 111.190; Western Transportation Co. V. Marshall, 4 Abb. (N. Y.) App. Dec. 575. The general principle, however, is, that the sale of goods by one who has tortiously obtained possession of them without the owner's consent vests in the purchaser no title to them as against the owner. This is clearly illustrated in the case of Barker u. Dinsmore, Barker ti. 72 Penn. St. 427, where a Dinsmore. man, representing himself as connected with Barker & Co., contracted with Dins- more for wool for them, to be consigned to Pittsburg and paid for there. The man, representing to Barker & Co. that he was Dinsmore's son, contracted to sell them wool; it arrived at Pittsburg before Dins- more ; was delivered to the man, and by him to Barker & Co., who paid him for the wool. The jury found that the sale was not to the man on his own responsi- bility, but as agent for Barker & Co.; it was held tliat the title to the wool re- mained in Dinsmore. Williams J. said : " The case is a hard one in any aspect of it. One of two innocent parties must suf- fer by the fraud and knavery of a swind- ler, who had no authority to act for either. But the law is well settled that the owner cannot be divested of his property without his own consent, unless he has placed it in the possession or custody of another and given him an apparent or implied right to dispose of it." See Quinn v. Davis, 78 Penn. St. 15; McMahon w. Sloan, 12 lb. 229 ; Porter v. Parks, 49 N. Y. 564 ; Rawls v. Deshler, 4 Abb. (N. Y.) App. Dec. 12; Mechanics' &c. Bank v. Farmers' &c. Bank, 60 N. Y. 40.] 20 FORMATION OV THE CONTRACT. [BOOK I. the right to sell." («/) This limitation, suggested by Mr. Chitty to the rule propounded in the dicta of the two learned judges, was approved by the barons of the exchequer in Higgons v. Bur- ton, (z) and when thus limited, the principle does not differ sub- stantially from the provisions of the factors' act, as amended by the 5 & 6 Vict. c. 39. § 20. But the cases recently decided under the factors' act leave Law doubt- this statement open to grave doubt, and show the ex- recei'i't'de- treme difBculty of defining the subject-matter to which cisions. jj^ applies. In Havman v. Flewker, {a) a picture-dealer Hayman ». , , , , " ,, ■ i • , , Flewker. was held to be an " agent intrusted 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, Baines v ^^^ instead of so doing, pledged them. In Baines v. Swainson. Swainson, (J) the circumstances were that one Emsley, who carried on business at Leeds, as factor and commission mer- chant, falsely represented to the plaintiffs that he could sell some of their goods to one Sykes. The 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 tro- ver, and Martin B. directed the jury to give 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 {y] [A commission merchant sold and tlie owner for making the sale. Jones v. Snlebycom- di^livered property intrusted Hoclgskins, 61 Maine, -feo. ButseeBohn mission nier- to him for Sale, after a sale of v. Cleaver, 25 La. Ann. 421.] sale by the same by the owner, but (z) 26 L. J. Ex. 342. See, also, Pick- owner, before notice to the commis- ering v. Busk, 15 East, 38; [1 Chitty slon merchant of the sale by the owner, or Contr. (11th Am. ed.) 277 ; Saltus v. Ev- any other notice of revocation of his au- erett, 20 Wend. 267 ; Lobdell u. Baker, thority. The property was not delivered 1 Met. 202, 203; Crocker v. Crocker, 31 to the purchaser from the owner, nor was N. Y. 507 ; Wooster v. Sherwood, 2.5 lb. any actual possession taken by said pur- 278 ; Western Transportation Co. f. Mar- chaser. It was held by a majority of the shall, 37 Barb. 509 ; Folsora v. Batchel- court, that a good title passed to the pur- der, 22 N. H. 51.] chaser from the commission merchant (a) 13 C. B. N. S. 519; 32 L. J. C. P. upon the sale and actual delivery to him; 132. and that the commission merchant was (6) 4 B. & S. 270. not liable in trover to the purchaser from PAET I.] PARTIES. 21 jury to determine that fact, and also to decide whether the sale had taken place in the ordinary course of business. Crompton and Blackburn 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 ordinary course of business, as had previously been held by Vice Chancellor Wigram, in Wood v. Rowcliffe. (c) Crompton J. said it was im- possible 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." In j.ue„teg^. Fuentes v. Montis (cZ) the court of common pleas gave Montis, judgment (affirmed in exchequer chamber) 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 revo- cation of the factor's authority, although the defendant was in good faith, and ignorant of the revocation, and although the wine remained in the factor's possession ; the court holding that the words "intrusted 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 " intrusted with " the goods after he had been ordered to deliver them to another factor for account of the con- signor, although he had disobeyed the oi'der, and remained " in possession." Under this decision, which the judges, Willes, Keat- ing, and Smith, expressed regret at being constrained to deliver, the confidence felt by merchants in dealing with factors in relation to goods consigned to them, and in their possession, must be greatly shaken ; and there seems certainly to be no mode of mak- ing advances safely to a factor on the security of goods on consign- ment, 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. ex- pressed his entire concurrence in the following dictum of Black- burn J. reported in Baines v. Swainson : " I do not agree with the counsel for the defendant, 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 (c) 6 Hare, 183. pard v. The Union Bank of London, 7 H. (d) L. R. 3 C. P. 268 ; 37 L. J. C. P. & N. 661 ; 31 L. J. Ex. 154. 137 ; L. B. 4 C. P. 93. See, also, Shep- 22 FORMATION OF THE CONTRACT. [BOOK I. business, amounts to an 'intrusting' him as agent; though I think that under that part of section 4 of stat. 5 & 6 Vict. c. 39, to which I have referred, the fact of a person being put in posses- sion of goods calls upon the person who gave him possession to explain and show that it was not an intrusting." It would 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 anotlier place, although the factor was in possession of tiiera with the consent of the consignor, and was a person whose ordi- nary business consisted in selling goods sent to him on consign- ment. Although this case was afKrraed in the exchequer cham- ber, the dicta, that the act has reference only to factors for sale of the goods, are disapproved by Lord Westburj"- in Vickers v. Hertz, («) so that no one would venture, in the present state of the authorities, to give a positive opinion as to the true construc- tion of this statute. The subject is further discussed post, book V. part I. ch. iv. on Lien. SECTION II. — WHO MAY BUY. § 21. There are certain classes of persons incompetent to con- tract in general, but who under special circumstances may make valid purchases. Infants, insane persons, and married women are usuallj' protected from liability on contracts, as also drunkards wlien in such a state as to be unable to understand 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 con- stitute a valid engagement. The exceptions to this general disa- bility, so far as concerns the competency to purchase, will now be considered. § 22. Infants, that 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 void, but only voidable in his favor. (/) He may maintain an action (g) against the vendor (e) L. K. 2 gc. App. 113, 118. King y. Inhabitants of Chillesford, 4 B. & (/) Gibbs V. Merrill, 3 Taunt. 307; Cat p. 100; [I Chitty Contr. (lltli Am. Hnnt V. Massey, 5 B. & Ad. 902; Holt ^. ed.) 215.] Clarencieux, Str. 937 ; Zouch v. Parsons, {(j) Warwick v. Bruce, 2 M. & S. 205; 3 Burr. 1794; per Abbott C. J. in Tlie [I Chitty Contr. (Uth Am. ed.) 222.] PART I.J PARTIES. 23 during infancy, and he may, on arriving at the age of twenty-one years, confirm his purchase. (K) An action at law will not lie against an infant for fraudulently representing himself rai,erep- of full age and thereby inducing the plaintiff to contract '?««"'"- . •' ° J^ tions as to With him ; (i) nor would these facts constitute at law a "ge- (h) Bac. Abr. Infancy, I. 3 ; Holt u Wani, Sir. 939; [Boyilen <;. Boyden, 9 Met. .521.] (i) Price V. Hewett, 8 E.x. 146 ; .John- son V. Pye, 1 Sid. 258; S. C. 1 Lev. 169 ; S. C. I Kcb. 913; [Adelplii Loan Associ- ation V. Faiilun-st, 9 Ex. 422, 430. But it „ „ was decided in Fitts u. Hull, 9 New Hamp- _ ' ehire deci- N. H. 441 (overruling John- sou V. Pye, cued in support of the text), ihat an infant is liable for deceit in falsely representing himself to be of age, and thereby inducing the vendor to sell bini goods on credit, and afterwards avoiding his promise to pay by pleading infancy. The decision in this case rests upon the ground that the false representa- tions by the infant respectiug his age, and his sub»equent repudiation of the contract, may be treated as a separate and distinct wrong of themselves although connected with the contract of sale. See Towne v. Wiley, 23 Vt. 3.'55 ; Eaton u. Hill, 50 N. H. 235; Prcscott u. Norris, 32 lb. 101; Eckstein v. Frank, 1 Daly, 334 ; Elwell v. Martin, .32 Vt. 217; Shaw v. Coffin, 58 Maine, 254. But the decision in Fitts v. Hall is declared to be unsound in 1 Am. Lead. Cas. (4th ed.) 262, where it is said: "In Fitts u. Hall, the representation, by itself, was not actionable, for it was not an injury, and the avoidance of the con- tract, wliich alone made it so, was the ex- erci.'io of a perfect legal right on the part of the infant." There is an allusion to this suggestion in Merriam v. Cunning- ham, 11 Cush. 43; but the court did not find it necessary to express any opinion Maasachu- upon the point. It was, how- Ectts dictum, gver, remarked by Bigclow J. that "it is by no means clear that an ac- tion ex delicto can be maintained against an infant for fraudulently representing himself to be of age, and, by means of such representation and deceit, procuring credit on a contract which he subsequently avoids by plea of infancy. The cases are not uniform on this question. The ear- lier authorities are clear to the point that no such action can be maintained." A decision contrary to Fitts u. Hall was made in Brown v. McCunc, 5 Saiulf. 224, which, however, was an action somidiug in contract. It is entirely clear that such false representations are no sufficient an- swer to a plea of infancy in an action on a contract. Barley v. llu^sell, 10 N. H. 184; Merriam v. Cunningham, 11 Cu.sh. 40, 43; Stoolfoos v. Jenkins, 12 Serg. & R. 399. See West u. Moore, 14 Vt. 447 ; People V. Kendall, 25 Wend. 399 ; De Roo ^. Foster, 12 C. B. N. S. 272; Wright v. Leonard, 11 lb. 258; Heath w. Mahoney, 14 N. Y. Supreme Ct. 100. , ,, , , Represeuta- AU the cases agree that, tions which where the false represcnta- "^^{'"^"t'"' tions made by the infant are substantially a part of the contract, he cannot be held for a breach of his prom- ise by merely changing the form of ac- tion. Thus infancy is a good ^defence to an action for deceit and false warranty in the sale of goods. Present! v. Norris, 32 N. H. 101; Eaton v. Hill, 5(1 lb. 235; West V. Moore, 14 Vt. 447 ; Morrill v. Aden, 19 lb. 505; Gilson ;•. Spear, 38 lb. 311. See Fitts v. Hall, 9 N. H. 441, 445 ; 2 Kent, 240, 241 ; Lewis v. Littlefield, 15 Maine, 235; Studwell v. Shapter, 54 N. Y. 249. An infant is liable for fraud or tort which is torts iude- wholly independent of con- penilcDtof •' ^ „ contracts, tract. Fitts v. Hall, 9 N. H. 441 ; Eaton v. Hill, 50 lb. 235 ; Prcscott V. Norris, 32 lb. 101 ; Sikcs v. Johnson, 16 Mass. 389 ; Wilt v. Welsh, 6 Watts, 9 ; 2 Kent, 241 ; Humphrey !'. Douglass, 10 Vt. 71 ; Lewis v. Littlefield, 15 Maine^ 24 FORMATION OF THE CONTRACT. [book I. good replication to a plea of infancy ; (¥) nor suffice as the basis of a replication on equitable grounds. (I') But they would entitle the plaintiff to relief if made the subject of a bill in equity, (m) § 23. But an infant is competent to purchase for cash or on credit a supply of necessaries; and his purchase on credit will be valid even though it be shown that he had an income at the time sufficient to supply him with ready money to buy necessaries suitable to his condition, (w) The necessaries Necessa- ries. 233 ; Bi-own u. Maxwell, 6 Hill (N. Y.), 592; Baxter r. Bush, 29 Vt. 465; Bul- lock u. Babeock, 3 Winil. 391 ; Hartlield u. Roper, 21 lb. 615; Walker v. Davis, 1 Gray, 506 ; Barliam u. Turbeville, 1 Swan (Tunn.), 437 ; Mathews v. Cowan, 59 Jll. 341. This is really the principle which was applied to the facts in Fitts V. Hall, 9 N. H. 441, 449. The piinciple is certainly correct, though there may have been a misapplication of it in that instance. An infant is liable in tort for the conversion of goods which he has ob- tained by fraud, although he had sold them before any demand made upon him for them. Walker v. Davis, 1 Gray, 506. So it has been held that he is liable for fortionsly converting goods which he has fraudulently obtained with an intention not to pay for them. Wallace v. Mors-^, 5 Hill (N. Y.), 391; 2 Kent, 241. Where an infant avails himself of the When Ten- . ., .- • i. .. • j dor may re- privilege ot infancy to avoid payment for goods which have been sold to him on credit, the vendor may reclaim the goods (if they are still in the possession of the infant), as having never parted with his property in them. Badger i;, Phinney, 15 Mass. 359; Boyden u. Boyden, 9 Met. 521 ; Fitts v. Hall, 9 N. H. 446, 447 ; Strain v. Wright, 7 Ga. 568; Jeffords v. Ringgold, 6 Ala. 544 ; Boody v. McKenney, 23 Maine, 525. See Henry v. Root, 33 N. Y. 526 ; Walsh V. Powers, 44 lb. 23, 26. But if the goods have been lost, used, wasted, sold, or otherwise parted with, no action will lie against the infant, upon avoiding the contract, for not redelivering them to the vendor. Fitts v. Hall, 9 N. H. 441, 445, take the 446 ; Shepley J. in Boody v. McKenney, 23 Maine, 525, 526; Burns' k. Hill, 19 Ga. 22 ; Price u. Furman, 27 Vt. 268, 271 : Manning v. Johnson, 26 Ala. 446, 452 ; Whitcomb v. Joslyn, 51 Vt. 79.] (k) Johnson u. Pye, 1 Sid. 258; [Car- penter V. Carpenter, 45 Ind. 142.] (/) Bartlett v. Wells, 31 L. J. Q. B. 57 ; [1 B. & S. 836; De Roo v. Foster, 12 C. B. N. S. 272.] (m) Ex parte Unity Joint Stock Bank- ing Association, 27 L. J. Bank. 33 ; [3 De G. & J. (Am. ed.) 63, 64;] Nelson v. Stocker, 28 L. J. Ch. 760 ; [4 De G. & J. (Am. ed.) 458, 464.] (n) Burghart v. Hall, 4 M. & W. 727 ; Peters v. Fleming, 6 M. & W. 42. [An infant will be held only for a reasonable price for necessaries supplied to him. He can bind himself therefor only upon aeon- tract, the consideration of which is open to inquiry. Stone c. Dennison, 13 Pick. 1 ; Earle v. Reed, 10 Met. 387, 389, 390; Breed v. Judd, 1 Gray, 455 ; Dubose v. Wheddon, 4 McCord, 221 ; Locke v. Smith, 41 N. H. 346 ; Vent u. Osgood, 19 Pick. 575 ; Hussey v. Jewett, 9 Mass. 1 00 ; M'Cril- lis V. How, 3 N. H. 348 ; Beeler v. Young, 1 Bibb, 519, 520; Bouchell v. Clary, 3 Brev. 194. In Earle v. Reed, 10 Met. 387, it was decided, jet^^uie' that, in a suit by the promisee, as to suing •' ^ on instru- on a negotiable note given by ment given an infant, the plaintiff may j°ries.™'' show that it was given in whole or in part for necessaries, and may recover thereon as much as the necessaries, for which it was given, were reasonably worth, and no more. Bradley :;. Pratt, 23 Vt. 378. See M'Minn v. RichcQonds, 6 PART I.J PARTIES. 25 for which the infant may make a valid contract of purchase are stated in Co. Litt. 172, to be " his necessary meat, drinke, ap- parell, necessary physicke, and such other necessaries, and like- wise for his good teaching or instruction, whereby he may profit himself afterwards." But these are not the only articles that are comprehended by the term, (o) It includes also articles purchased for real use, although ornamental, as distinguished from such as are merely ornamental, for mere ornaments can be necessary to no one ; (/>) and it was said by Alderson B., in delivering the judg- ment of the court in Chappie v. Cooper, (j) after advisement, that " articles of mere luxury are always excluded, though luxuri- ous articles of utility are in some cases allowed In all cases there must he personal advantage from the contract derived to the infant himself.'" (r) The word necessaries must therefore be regarded as a relative term, to be construed with reference to the infant's age, state, and degree, (s) Terger, 9 ; Dubose v. Wheddon, 4 Mc- Cord, 221 ; Guthrie v. Morris, 22 Ark. 411.] (o) [Necessaries are not confined to those articles absolutely necessary to sup- port life. Rundel v. Keeler, 7 Watts, 237; Watson v. Hensell, lb. 344; Davis V. Caldwell, 12Cush. 513 ; 1 Chitty Contr. (lUh Am. ed.) 196; Strong «. Foote, 42 Conn. 203.] (p) Peters v. Fleming, 6 M. & W. 42. [Articles, which are principally for mere ornament or amusement, cannot be neces- saries, although they might possibly be turned to a useful purpose. Bramwell B. in Ryder v. Wombwell, L. R. 3 Ex. 90.] (q) 13 M. & W. 256. See, also, per Bramwell B. in Ryder v. Wombwell, L. E. 3 Ex. 90; 37 L. J. Ex. 48. (r) [The expenditures, or articles con- Necessaries: tracted for by an infant, for what. which he would be liable, are to be limited to cases where, from their very nature, expenditures for such pur- poses would be beneficial; or, in other words, they must belong to a class of ex- penditures which are in law termed bene- ficial to the infant. What subjects of expenditure are included in this class is a matter of law to be decided by the court. The further inquiry may often arise, whether expenditures, though em- br.aced in this class,. were necessary and proper in the particular case ; and this may present a question of fact. It is therefore a preliminary question to be set- tled, whether the alleged liability arises from expenditures for what the law deems " necessaries ; " and unless that be shown, it is not competent to introduce evidence to show that, in a pecuniary point of view, the expenditure was beneficial to the minor, as that is irrelevant. Dewey J. in Tupper, u. Cadwell, 12 Met. 563. See New Hamp- shire Fire Ins. Co. v. Noyes, 32 N. H. 345.] (s) 2 Stephens Com. 319; [Thomas J. in Breed v. Judd, 1 Gray, 458. As to the legal definition of " necessaries," and what is included in that term as applied to cases involving the liability of infants, see Phelps u. Worcester, 11 N. H. 51, 53 ; Tupper V. Cailwell, 12 Met. 562, 563 ; Le- fils 0. Sugg, 15 Ark. 137 ; Bradley b. Pratt, 23 Vt. 378. In Davis v. Caldwell, 12 Cush. 513, Shaw C.J. said: "The term 'necessaries,' in this rule of law, is not used in its strictest sense, nor limited to that which is required to sustain life. That which is proper and suitable to each 26 FORMATION OF THE CONTnACT. [BOOK I. § 24. The cases in which these principles have been applied are Adjudica- quite too numerous to be reviewed in detail, but some 'wiatTre" examples may be selected, before considering the ques- andarenot ^ion whether it is for the court or iury to determine in necessa- • j* vies. each case what are or are not necessaries for the infant. Articles supplied to an undergraduate at Oxford for dinners given to his friends at his rooms, fruit, confectionery, &c. &c. were held not necessaries by the queen's bench in Wharton v. McKenzie; (() and the exchequer of pleas, in a case exactly similar, held that there was no evidence for the jury, and that the plaintiff should be nonsuited, (m) But where a jury had found that a purchase for the amount of 8L On. 6d. for gold rings, a watch-chain, and a pair of breastpins, were "necessaries" for an undergraduate at Cam- bridge, the son of a gentleman of fortune and a member of parlia- ment, the exchequer refused to set aside the verdict, holding the question to be one for the jury, (x) Where the defendant, a cap- tain in the army, had ordered livery for his servant and cockades for some of bis soldiers, the jury found both to be necessaries ; but the court, on motion for new trial, required the plaintiff to abandon the charge for the cockades, holding that they were not necessaries, Lord Kenyon observing that, as regarded the livery, he could not say that it was not necessary for a gentleman in defendant's position to have a servant, and if so, the livery was necessary. (?/) In perilous times. Lord Ellenborough held that regimentals sold to an infant as a member of a volunteer corps enrolled for the national defence were necessaries, (a) But a chronometer, costing 68/., was held, in the absence of proof that it was essential, not to be a necessary for an infant who was a lieu- tenant in the royal navy, (a) A purchase of a horse by an infant may be valid if it be shown to be suitable to his rank and fortune to keep horses, or if it were rendered necessary by circumstances that he should keep one, as, if he were directed by his physician individual, according to hia circumstances form himself." See 2 Kent, 239; Strong and condition in life, are necessaries, if v. Foote, 42 Conn. 203.] not supplied from some otlier source. But (()5Q. B. 606. when suitable provision is made by a par- {u) Brooker v. Scott, 11 M. & "W. 67. ent or guardian, or where, from any source, (x) Peters v. Fleming, 6 M. & W. 42. the wants of a minor are supplied, arii- {y] Hands v. Slaney, 8 T. R- 578. cles furnished by a trader to the minor on (z) Coates c. Wilson, 5 Esp. 152. his own credit are not necessaries, and of (a) BeroUes v. Ramsay, Holt N. P. 77. this the trader must take notice and in- PART I.] PARTIES. 27 to ride for exercise ; (J) but a purcliase of cigars and tobacco by an infant was held not to bind him ; (c) nor was the plaintiff allowed to recover the cost of a silver goblet sold to an infant for 15Z. 15s., which the plaintiff knew when he supplied it to be in- tended by the infant for a present to a friend, (c^) In Questinnof the case of Ryder v. Wombwell, (e) it was finally set- '»"■'"•'»<='• tied, that the issue whether goods sold to an infant are woml>weli. necessaries is a question of fact, to be left to the jury ; but that in this, as in all other like questions, the modern rule is, not as formerly, that a case must go to the jury if there be a scin- tilla of evidence, but that the judge is to determine (subject of course to review) whether there is evidence that ought reasona- bly to satisfy the jury that the fact sought to be proved is estab- lished. The facts were that the defendant, the son of a deceased baronet, was in the enjoyment in his own right of an allowance of 5001. a year, during his minority, and entitled to 20,000Z. on coming of age. He had no fixed residence, but lived, wlien in London, with his mother, and when in the country, with his elder brother, free of charge. The plaintiff sought to recover from him the following sums : 1st, 251. for a pair of solitaires, or sleeve-but- tons, with rubies and diamonds ; 2d, 6?. 10s. for a smelling-bottle, ornamented with precious stones ; 3d, 15/!. 15s. for an antique silver goblet, with an inscription ; 4th, 13Z. 13s. for a pair of coral earrings. The goblet'was wanted, as the plaintiff was told by the defendant, for a present to a friend, at whose house the defend- (J) Hart c. Prater, 1 Jur. 623. [In Durham, 2 Nott & McC. .524. See, also, Merri.am v. Cunuingham, 11 Cush. 40, the Grace v. Hale, 2 Humph. 27. As to the question was on the liability of an infant, liability of a husband for a horse furnished who was x- married man and had a fam- to his wife whose health required her to ily, for the board of four horses for six ride out in pleasant weather, see Cornelia Horses for months, the principal use of o. Ellis, 11 111. 584; 1 Chitty Contr. (Uth busineBS not which was in the infant's busi- Am. ed.) 234, note (x).] necessaries. ^^^^ ^^ ^ hackman, although (c) Bryant v. Kichardson, 14 L. T. N. occasionally and incidentally the horses S. 24; L. R. 3 Ex- 93, in note, were used to take his family out to ride, (d) Ryder v. Wombwell, L. R. 3 Ex. the court decided as matter of law that 93 ; L. R. 4 Ex. 32. [In Watson v. Cross, the subject of the claim was not within 2 Duvall (Ky.), 147 it was determined the class of necessaries for which an that an infant was liable for his hotel infant is liable. See, also, Mason v. bill, on the ground that it was the legal Wright, 13 Met. 306. A horse has been duty of the innkeeper to receive and en- held in South Carolina not to be within tertain him.] the denomination of " necessaries " for (e) L. R. 3 Ex. 93 ; 4 Ex. 32. [See which an infant is liable. Rainwater v. Mohney v. Evans, 51 Penn. St. 80.] 28 FORMATION OF THE CONTRACT. [BOOK I. ant had been frequently a guest. Kelly C. B. rejected evidence offered by the defendant to show that, at the time of the pur- chase of the solitaires, the infant had already purchased articles of a similar description to a large amount, no proof being offered that the plaintiff knew this. The learned chief baron refused to nonsuit, but left it to the jury to say whether all or any of the articles were necessaries, suitable to the estate and condition in life of the defendant. The jury found that the solitaires and goblet were necessaries, the other articles not. Leave was re- served to move for a nonsuit, or for reduction of damages, if the court should be of opinion that there was evidence for the jury that one of the two articles was necessary, and not the other. Bramwell B. was of opinion that the plaintiff ought to have been nonsuited, or a verdict given for the defendant ; and that the evi- dence to show that the defendant was already supplied with sim- ilar articles ought to have been received. Kelly G. B. delivered the judgment, holding, — first, that the evidence rejected at the trial was properly excluded ; secondly, that the verdict for the price of the goblet was against evidence, and should be set aside ; and thirdly, that the defendant might have a new trial on payment of costs if he desired it, for the price of the solitaires. On the appeal, it was held unanimously that the plaintiff ought to have been non- suited. In the opinion delivered by Willes J. he made the follow- ing important preliminary observations: "We must first observe that the question in such cases is not whether the expenditure is one which an infant in the defendant's position could not prop- erly incur. There is no doubt that an infant may buy jewelry or plate if he has the money to pay, and pays for it ; (/) but the question is, whether it is so necessary for the purpose of maintain- ing himself in his station that he should have these articles, as to bring them within the exception under which an infant may pledge (/) ["If an infant buys an article 106, and cases cited; Breed i>. Judd, 1 which is not a necessary, he cannot be Gray, 456, 457 ; flarney o. Owens, 4 compelled to pay for it; but if he does pay Blackf. 337; Hill c. Anderson, 5 Sm. & for it during his minority, he cannot on M. 216, But it was held in Riley v. Mfll- attaining his majority recover the money lory, 33 Conn. 201, that if an infant ten- back." Lord Justice Turner, in Ex parte ders back an article purchased by him, Taylor, in re Burrows, 8 T)e G., M. & G. substantially the same in value as he 254, 258. See Bailey u. Bamberger, 11 bought it, he may recover the pnrchase- B. Mon. 113; Smith (/. Evans, 5 Humph, tnoney. See, also, Price v. Furman, 27 70; Cummings <^. Powell, 8 Texas, 80; Vt. 268.] Robinson v. Weeks, 56 Maine, 102, 105, PART I.J PAKTIES. 29 his credit for them as necessaries." In reference to this question the court held that judges know as well as juries what is the usual and normal state of things, and consequently whether any particular article is of such a description as that it may be a necessary under such usual state of things ; (^) that if the state of things be unu- sual, new, or exceptional, then a question of fact arises to be de- cided by a jury under proper direction ; that the judge must deter- mine whether the case is such as to cast on the vendor the onus of proving the articles to he necessaries within the exception, and whether there is sufficient evidence to satisfy that onus. In the application of these principles to the case before it, the court held that it was not bound to consider itself so ignorant of every usage of mankind as to be compelled, in the absence of all evidence on the subject, to take the opinion of a jury whether it is so neces- sary for a gentleman to wear solitaires of this description, that though an infant he must obtain them on credit rather than go without them. On the point as to the exclusion of the evidence on the trial, the court of error expresslj'^ refused to decide, reserv- ing it " to be determined hereafter." (A) ig) [In Merriam v. Cunningham, II „ . , Cush. 40, 44, Bigelow J. said : Province of . court and " It IS the wcll-settlod rule J"'^' that it is the province of the court to determine whether the articles sued for are within the class of necessaries, and if so, it is the proper duty of the jury- to pass upon the questions of the quantity, quality, and their adaptation to the con- dition and wants of the infant." See, also. Swift V. Bennett, 10 Cush. 436; Tap- per V. Cadwell, 12 Met. 563; Johnson v. Lines, 6 Watts & S. 80, 84; Bent v. Man- ning, 10 Vt. 225 ; Grace v. Hale, 2 Humph. 27, 29; Stanton u. Willson, 3 Day, 37; Glover w. Ott, 1 McCord, 572; Beeler v. Young, 1 Bibb, 519; Hall u. Weir, 1 Allen, 261 ; Eames v. Sweetser, 101 Mass. 78, 81. But in Davis o. Caldwell, 12 Cush. 512-514, Chief Justice Shaw stated the law more clearly and distinctly in conformity with the rules laid down in the text. He there said, " that in most cases, whether necessaries or not is a ques- tion of fact for the jury, depending on the circumstances ; and the two principal cir- cumstances are, whether the articles are suitable to the minor's estate and condi- tion, and whether he is, or not, without other means of supply." See Bonney v. Reardin, 6 Bush (Ky.), 34. And having referred to Peters v. Fleming, and Wharton V. McKenzie, noticed in the text, and to Cripps V. Hills, 5 Q. B. 606, the learned judge further observed : " In these cases, it is held, and we think this is the true view of the law on this subject, that whether the articles sued for were neces- sariw or not is a question of fact, to be submitted to a jury, unlets in a very clear case, when a judge would be warrimted in directing a jury authoritatively that some articles, as, for instance, diamonds or race-horses, cannot be necessaries for any minor."] (A) [See 1 Chitty Contr. (11th Am. ed.) 203. That the question, whether the infant had other means of supply, is a proper one in such cases, see D.ivis u. Caldwell, 12 Cash. 512, 513; Swift t/. Bennett, 10 Ih. 436, 437 ; 2 Kent, 239. That an infant is not liable, even for neces- 30 FORMATION OF THE CONTRACT. [BOOK I. § 25. If an infant be married, his obligations as husband and y,r . J • father in supplyina: necessaries are the same as if he Married in- [tl j o ^ fant. were of full age, and the things necessary for his wife and children are necessary for himself, and what is supplied to them on his express or implied credit is considered as purchased by him. (i) An illustration of the maxim, Persona conjuncta cequijjai-atur interesse p7-oprio, is given in Broom's Maxims in these terms : " So if a mail under the age of twenty-one con- tract for the nursing of his lawful child, this contract is good and shall not be avoided by infancy, no more than if he had con- tracted for his own alinnent or erudition." § 26. An infant being considered in law as devoid of sufBcient Infant discretion to carry on a trade, is not liable on a purchase tradesman, of goods Supplied to him for his trade, as being neces- saries, whether he be trading alone or in partnership with an- other, (/c) But if he uses for necessary household purposes goods supplied to him as a tradesman, he becomes liable for what is so used. (?) In Thornton v. Illingworth, Qin') a purchase of goods Thornton by an infant for the purposes of trade was treated by woitii.^ the queen's bench as constituting an exception to the general rule that the contracts of infants are voidable only, not void. Bayley J. said: "In the case of an infant, a contract made for goods, for tlie purposes of trade, is absolutely void, not voidable only. The law considers it against good policy that he should be allowed to bind himself by such contracts." Littledale J. concurred in this view, (n) But in the previous case of War- saries, wliile he remains under the care of Abell u. Warren, 4 Vt. 149 ; Bailies J. in his fatlier or guardian, and is supported by Bceler v. Young, 1 Bibb, 519,520.] him, see, further. Angel i'. M'Lellan, 16 (k) Wbywall y. Champion, otra. 1083; Mass. 28; Wailing v. Toll, 9 JohJ. 141 ; Dilk v. Keighley, 2 Esp. 480; [Mason u. Johnson v. Lines, 6 Watts & S. 80,83; Wright, 13 Met. 306; 1 Chitty Contr. Phelps V. Worcester, 11 N. H. 51, 53; { 11th Am. ed.) 204, and note.] Perrin u. Wilson, 10 Mo. 451; Kline u. (I) Tuberville i'. Whitehouse, 1 C. & P. L'Amoureanx, 2 Paige, 419; Hull v. Con- 94. nolly, 3 McCord, 6; Simms v. Norris, 5 (m) 2 B. & C. 824. See, also, Helton i). Ala. 42 ; Guthrie v. Murphy, 4 Watts, Hodges, 9 Bing. 365. 80.] („) [In Williams v. Moor, U M. & W, (i) Turnert). Trisby, 1 Str. 168; Rains- 256, 258, Parke B., speaking with refer- ford V. Fenwick, Carter, 215. [See per ence to Thornton v. Illingworth, said; Dewey J. in Tupper <;. Cadwell, 12 Met. " Holroyd J. does not adopt the distinc- 562; Davis u. Caldwell, 12 Cash. 512; tion taken by Bayley J., that a promise to Meniam v. Cunningham, II lb. 40; pay for goods not necessaries may be rat- PART I.] PARTIES. 31 wick V. Bruce (o) (not cited in Thornton v. Illingworth), where the infant was plaintiff by his next friend, it appeared -Warwick that the infant had paid 40Z., part of the total price "■ l^''"™- of 811. 10s. which he had agreed to give for a quantity of potatoes, and Lord Ellenborough nonsuited the plaintiff on the objection •that the contract was a trading contract. A new trial was granted, Lord Ellenborough saying : " It occurred to me at the trial, on the first view of the case, that as an infant could not trade, and as this was an executory contract, he could not maintain an action for the breach of it ; but if I had adverted to the circumstance of its being in part executed by the infant, for he had paid 40Z., and therefore it was most immediately for his benefit that he should be enabled to sue upon if, otherwise he might lose the benefit of such payment, I should probably have held otherwise. And I certainly was under a mistake in not adverting to the distinction between the case of an infant plaintiff or defendant. If the de- fendant had been the infant, what I ruled would then have been correct ; but here the plaintiff is the infant, and sues upon a con- tract partly executed by him, which it is clear that he may do." This case is not reconcilable with the dicta of the judge in Thorn- ton V. Illingworth, for it is plain that if a contract is absolutely void, no action can be maintained on it or for the breach of it by anybody. The facts and circumstances of the two cases are widely dissimilar, and the decision in the earlier case seems to be more in accordance with general principles than the reasoning in the later case, (p) The language of the learned judges in Thornton v. 111- ified, but that a promise to pay for goods Waters, 38 Maine, 450 ; Weaver v. Jones, purchased for the purposes of trade is 24 Ala. 420, 424 ; Cummings v. Powell, 8 void. The promise is not void in any case Texas, 80, 90; Mustard w. Wohlford, 15 unless the infant chooses to plead his in- Grattan, 329, 337 ; Guthrie v. Morris, 22 fancy."] Ark. 411 ; Cole v. Pennoyer, 14 111. 158; (o) 2 M. & S. 205. Abell v. Warren, 4 Vt. 149, 152; Keed v. (p) [See 1 ChittyContr. (11th Am. ed.) Batchelder, 1 Met. 559; Fetrow v. Wise- 215; Earle u. Re'ed, 10 Met. 387, 389. man, 40 Ind. 148; Kennedy v. Doyle, 10 Although in many cases there has been Allen, 161 ; 2 Kent, 234, 235, 236. In quite an indiscriminate use of the terms Commonwealth w.Weiher, 3 Met. 445, 448, "void" and "voidable" with Wilde J. said: "The distinction between T^daMe* reference to infants' contracts, void and voidable acts seems to be this : contracts. ^.^^ jj^g tendency of modern That every act malum in se, or which is decisions is to hold the trading contracts against public policy, is held to be void in of infants, which would be valid if made the strictest sense — a mere nullity ; but if by an adult, to be voidable only and not the act is prejudicial only to an individual, absolutely void, in all cases. Hardy v. then it is to be considered as voidable 32 FORMATION OF THE CONTRACT. [book I. ingworth was wider than was required for the decision of the case before them, and another proposition contained in the same opin- ion has been overruled, as shown by Lord Denman in Bateman v. Finder, {q) decided in 1842. § 27. The infant may, on arriving at the age of twenty-one Katifica- years, ratify and confirm a purchase made during in- majont" fancy, (r) laut only in writing, (s) By the 9 Geo. 4, c. only by such individual." So npon the same matter, it was remarlced in AUis v. Billings, 6 Met. 415, 417, by Dewey J., that " the distinction between the terms * void ' and ' voidable,' in their application to contracts, is of ttn one of great practical importance; and whenever entire techni- cal accuracy is required, the term 'void' can only be properly ajiplied to those con- tracts that are of no effect wliatsoever ; such as are a mere nullity, and incapable of confirmation or ratification." The opin- ion of Baron Parke given in Williams v. Moor, 11 M. & W. 256, will repay consid- eration in this connection.] (q) 3 Q. B. 574. (r) [The prinei|)le on which the law al- lows a party, who has attained his age of twenty-one ytars, to give validity to con- tracts entered into during his infancy is that he is supposed to have acquired the power of deciding for himself, whether the transaction in question is one of a meri- torious character, by which in good con- science he ought to be bound. Parlie B. in Williams u. Moor, 11 M. & W. 256, 264, 265. Resting upon this principle is the decision of Morse u. Wheeler, 4 Allen, 570, in which it was main- tained that a person who has arrived at the age of twenty-one is pre- sumed to know the law, and is not ex- cused from performing his contract fairly and freely entered into, by reason of his ignorance of the law when he made it; and, consequently, that the ratification, by Whether knowledge of non-liabil it}' is requi- site at time of ratifica- tion. a person of full age, of his contract made while an infant, is binding upon him, al- though at the time of the ratification he did not know that the contract could not legally be enforced against him. See, also, Taft v. Sergeant, 18 Barb. 320. In the opinion given by Judge Metealf, in the above case of Morse v. Wheeler, he reviews the dicta and rulings adverse to that de- cision ; and it appears that the instaaces are numerous in which it is asserted that, to render the ratification by a person after he arrives at majority, of his contract made while an infant, valid and binding upon him, he must have known, at the time of the ratification, that he was not legally liable. The instances are, however, rare, in which this precise point has been dis- tinctly in issue and necessary to the de- cision. The point was made in what Judge Metealf terms the "unreasoned case of Hinely v. Margaritz, 3 Bair. 428, and it was decided that such knowledge was es- sential to the validity of the ratification. The following cases bear in the same di- rection : Harmer v. Killing, 5 Esp. 102 ; Smith V. Mayo, 9 Mass. 64 ; Ford v. Phil- lips, 1 Pick. 203; Thing u. Libhey, 16 Maine, 57; Curtin v. Patton, 11 Serg. & R. 311 ; Reed u. Boshears, 4 Sneed (Tenn.), 118; Norris u. Vance, 3 Rich. (S. Car.) 168. See 1 Chitty Contr. (11th Am. ed.) 218, note {. Healey, 84 111.104. As to confirming erty received therefor. So, also, in Car. deeds and transactions voidable by reason Avoidance penter v. Carpenter, 45 Ind. of fraud, breach of trust, &c. see De Mont- as to third 142. An infant's right to morency v. Devereux, 7 CI. & Fin. (Am. avoid his sale of property may ed.) 188, and note (1), and cases cited; be exercised against iona fide purchasers Kerr F. & M. 296, 297. See Void and from the grantee. Myers u. Sanders's Voidable Acts of Infants, 13 Am. L. Heirs, 7 Dana, 506 ; Hill v. Anderson, 5 Eev. 280.] Sm. & M. 216, 224; but see Carr v. it] 1 Ex.122. [See Mawson w. Blane, Clough, 26 N. H. 280. In all cases the 10 Ex. 206 ; ante, § 27, note (r).] ratification must take place before action (m) Hartley v. Wharton, 11 Ad. & E. brought. Thornton u. Illingworth, 2 B. 934; Hunt v. Masscy, 5 B. & Ad. 902; & C. 824; Merriam u. Wilkius, 6 N. H. Lobb v. Stanley, 5 Q. B. 574; Williams 432; Hale v. Gerrish, 8 lb. 374; Conn «. Moor, 11 M. & W. 256 ; Cohen «. Arm- 0. Coburn, 7 lb. 372; Thing v. Libbey, strong, 1 M. & S. 724; Tanner v. Smart, 16 Maine, 55, 57 ; Aldrich v. Grimes, 10 6 B. & C. 603 ; Whippey v. Hillary, 3 B. N. H. 198 ; Goodridge u. Eoes, 6 Met. & Ad. 399 ; Routledge v. Eamsay, 8 Ad. 487, 490 ; Shaw C. J. in Smith v. Kelley, & E. 221. PART I.J PARTIES. 35 the correctness of an account as set forth, and the satisfaction of the party with the prices charged. It must further contain some- thing 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, (a;) held insufficient, to bind the defendant, his signature to a writing at the foot of the account in these words : " Particulars of account to end of year 18G7, amounting to 162L 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. («/) § 29. As to lunatics and persons non compotes mentis, the rules of law regulating their capacity to purchase do not differ materially from those which govern such contracts when made by infants. (2) 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, (a) Still, if that state of mind, though really existent, be unknown to the other party, certain and no advantage be taken of the lunatic, the defence ™i°h Tung, cannot prevail ; especially where the contract is not ''"^ S""*- merely executory, but executed in the whole 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, (b) So far as relates to supplies of neces- (x) L. R. 4 Q. B. 1. M'Donnell, 9 Ex. 309 ; [Campbell v. Hill, 23 (y) [Where a promissory note is given U. C. C. P. 473 ; Busk v. Fenton, 14 Bush, by an infant, for articles not necessaries, 490 ; Barnes v. Hathaway, 66 Barb. 452 ; which have been used or sold by him, an Mut. Life Ins. Co. u. Hunt, 14 Hun, 169. acknowledgment that he owes the debt, or In Elliot u. Ince, 7 De 6., M. & G. 475, a payment of a part of it, after he comes 487, Lord Cranworth said : " The princi- of age, will not ratify his promise to pay pie of the case of Molton v. Camvoux was the note. Bobbins v. Eaton, 10 N. H. 561. very sound ; namely, that an executed See Benham 0. Bishop, 9 Conn. 330; contract, where parties have been dealing Hinely 0. Margaritz, 3 Penn. St. 428 ; fairly and in ignorance of the lunacy. Smith V. Kelley, 13 Met. 310.] shall not afterwards be set (x) [See Shaw C.J.inHallett!;. Oakes, aside. That was a decision of ^rlc^'wit™' 1 Cush. 298, 299 ; Kendall 0. JVIay, 10 necessity, and a contrary doc- lunatics Allen, 67.] trine would render all ordi- *°° (a) Molton v. Camroux, 2 Ex. 487, nary dealings between man and man un- and 4 Ex. 17, in error; [McCarty u. safe. How is a shopkeeper who sells his Kearnan, 86 111. 291 ; Titcomb v. Van- goods to know whether a. customer is or tyle, 84 lb. 371.] is not of sound mind 1 The result of the (6) Molton V. Camroux, 2 Ex. 487. See, authorities seems to be, that dealings of also, Niell v. Morley,9 Ves. 478; Beavan v. sale and purchase by a person apparently 36 FORMATION OF THE CONTRACT. [book I. saries to a person of unsound mind, there can be no question that where no advantage is taken of his condition by the vendor, the purchase will be held valid, (c) sane, though subsequently found to be in- sane, will not be set nside against those who have dealt with him on the faith of his being a person of competent under- standing." See Carr v. Holliday, 5 Ired. Eq. 167 ; Manning v. Gill, L. K. 13 Eq. 485 ; Lincoln v. Buckmaster, 32 Vt. 652; McCormick o. Littler, 85 111. 62. In Seaver v. Phelps, 11 Pick. 304, the ac- tion was trover for a promissory note, pledged by the plaintiff when he was in- sane, to the defendant; the defendant of- fered to show that at the lime he took the pledge he had no knowledge of the plain- tiff's insanity, and had no reason to sus- pect it, and that he did not overreach the plaintiff, nor practise any fraud or unfair- ness ; the court held that these facts, if proved, would constitute no defence to the action. Wilde J. said : " The defendant's counsel rely principally on a distinction between contracts executed, and those which are executory. . . . But we do not consider the distinction at all mate- rial."] (c) IManby u. Scott, 1 Sid. 112; Dane V. Kirkwall, 8 C. & P. 679; "Weniworth V. Tubb, 1 Y. & C. C. C. 171 ; Kelson c. Duncorabe, 9 Beav. 211 ; Baxter v. Earl of Portsmouth, 5 B. & C. 170. [See Mc- Crillis u. Bartlett, 8 N. 11. 569 ; Hallett v. Oakes, 1 Cuah. 296,298 ; Seaver v Phelps, 11 Pick. 304, 307; Fiizgerald j;. Retd, 9 Sill. & M. 94 ; Sawyer v. Luf kin, 56 Maine, 308; Kichardson v. Strong, 13 Ired. Kendall t'. (Law) 106. In Kendall V. May, Mai'. 10 Allen, 59, the action was brought against the defendant, an in- sane person, to recover for board fur- nished, services rendered, and expenses incurred on his behalf. It appeared that the defendant had property of the value of about 8200,000, and that his yearly income was from $10,000 to $12,000 ; that he ap- plied to the plaintiff to take him into his own house and furniah him with board ; that the plaintiff did so, and afterwards. at the defendant's request, the plaintiff and his wife went with the defendant on a journey of several weeks to various places out of the commonwealth, and the expenses of this journey were included among the items of charge in suit. It did not appear that the plaintiff had any au- thority for what he did except the request of the defendant. A guardian had pre- viously been appointed over the defendant, but he had been removed. Chapman J. said: "The judge properly refused to in- struct the jury that the journey taken by the defendant out of the state was not reasonably necessary for him, and that the plaintiff could not properly take him on a journey for pleasure out of the state with- out the sanction of his former guardian, or of the courts, or of his relations The plaintiff incuried the risk of being able to satisfy the jury that the charges were rea- sonable and proper. The fact that the former guardian had provided rooms and necessaries for the ward, was not male- rial If without harm to himself he could enjoy luxuiies and ^.. , , ■^ •' ^ Liberal rule gratify his tastes and fancies, aaopted as to 1 u ^ ^ 1 -.-J 1 1 •„ Decessarius he ought to be indulged m ^^^ j^^^tic. such enjoyments to a reasona- ble extent. If he enjoyed journeys, it was proper that he should be indulged in them. If he preferred the society of some per- sons over that of others, that preference should be reasonably regarded and in- dulged. ... It appears that he is ca- pable of enjoying, to some extent, many pleasures and luxuries, and that he has preferences as to the place of his residence and his associates. Humanity and his right to his own property require that he should not be restrained or thwarted in his prefer- ences and enjoyments, more than is neces- sary for his own welfare. In re Persse, 3 MoUoy, 94, the lord chancellor said: ' The maintenance of a lunatic is not lira- iicd as an infant's is, within the bounds of income. It is ni)t limited except by the PART I.J PARTIES. 37 § 30. A drunlcard, when in a state of complete intoxication, so as not to know what he is doing, has no capacity to contract in general, (cZ) but he would be liable for abso- '^"° " '' lute necessai-ies supplied to him while in that condition ; and Pol- lock C. B. put the ground of the liability as follows : " A contract may be implied by law in many cases, even where the party pro- tested against any contract. The law says he did contract, be- cause he ought to have done so. On that ground the creditor might recover against him when sober, for necessaries supplied to him when drunk." (e) § 31. A married woman is absolutely incompetent to enter into contracts during coverture, and has in contemplation of Married law no separate existence, her husband and herself form- Jt^^JJ,'.^' ing but one person. (/) She cannot, even while living moniaw. apart from her husband and enjoying a separate maintenance se- cured by deed, make a valid purchase on her own account, even for necessaries, and when credit is given to her there is no remedy but an appeal to her honor. (^) The contract with her is not, as in the case of an infant, voidable only, but it is absolutely void, and therefore incapable of ratification after her coverture has ceased. (K) § 32. The common law exceptions to the general and very rigid rule as to the incapacity of a married woman to bind when hus- herself as purchaser are well defined. The first is, csVittw when the husband is civiliter mortuus, dead in law, as ^ortuus. when he is under sentence of penal servitude, or transportation, or banishment, (i) The disability of the wife in such cases is said to be suspended, for her own benefit, that she may be able to pro- fullest comforts of the lunatic. Fancied Jr. 12. [See 1 Chitty Contr. (lUhAm. enjoyments and even harmless caprice are ed.) 192, and cases in note (d)^.] to be indulged up to the limits of in- (e) Gore i;. Gibson, 13 M. & W. 623 ; come, and for solid enjoyments and sub- [McCrillis a. Bartlett, 8 N. H. 569; Rich- stantial comforts the court will, if neces- ardson v. Strong, 13 Ired. (Law) 106.] sary, go beyond the limits of income.' In (y) Co. Littleton, 112 d. this commonwealth it is not thus limited (jy) Marshall v. Button, 8 T. R. 545. in respect to an infant, and there is, there- (h) Zouch v. Parsons, 3 Burr. 1794, fore, less reason for limiting it in respect 1805 ; Com. Dig. Baron & Feme, W. to a person of full age."] {() Ex parte Franks, 7 Bing. 762; (d) Molton V. Camroux, 4 Ex. 17; Pitt Sparrow v. Caruthers, cited in note, 1 T. V. Smith, 3 Camp. 33 ; Fenton v. Hollo- R. 6 ; De Gaillon <,. L'Aigle, I B. & P. way, 1 Stark. 126 ; Gore v. Gibson, 13 M. 357. [See 1 Chitty Contr. (llth Am. ed. & W. 623 ; Cook v. Clayworth, 18 Ves. 252, 253.] 38 FOKMATION OF THE CONTRACT. [BOOK I. cure a subsistence. She may therefore bind herself as purchaser when her husband, a convict sentenced to transportation, has not yet been sent away, (k) and also when he remains away after his sentence has expired. (I) But not if he abscond and go abroad in order to avoid a charge of felony, (m) § 33. It was held in some early cases, that where a woman's Husband husband was an alien and resided abroad, and she hved ahen, resi- jj^ England and contracted debts here, she was liable; abroad. Lord Kenyon, in one case, putting the decision " on the principle of the old common law, where the husband had abjured the realm." (w) But this principle was held not to apply to the case of Englishmen who voluntarily abandoned the country, (o) More modern cases seem to throw very strong doubt on the ear- lier doctrine as regards the capacity of a woman, whose husband is an alien residing abroad, to contract debts for which she can be sued in England. In Kay v. Duchesse de Pienne, where Lord Ellenborough's ruling at nisi prius was confirmed by the court in banco (3 Camp. 123), his loixlship confined the doctrine of Lord Kenyon to cases where the husband has never been in the king- dom, not simply residing abroad, separate from his wife. And in Boggett V. Frier, 11 East, 303, the court observed to counsel that all these old cases were, so far as opposed to Marshall v. Rutton, 8 T. R. 545, overruled by that case. In Barden v. Keverberg, where the defendant pleaded coverture, plaintiff replied, that de- fendant's husband was an alien residing abroad, and had never been within the United Kingdom ; and that the debt was con- tracted by the defendant in England, where she was living sep- arate 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 demurrer, but the case was tried on the facts alleged by the replication, and denied by rejoinder, and the verdict for plaintiff was set aside by the court in banco. Parke B. said : " Suppos- ing the replication good, although I have a strong opinion that it is not (because the cases in which the wife has been held liable, (k) Ex parte Franks, 7 Bing. 762. N. R. 380; De Gaillou c. L'Aigle, 1 B. & (l) Carroll v. Blencow, 4 Esp. 27. P. 357. (ra) Willlatnson v. Dawes, 9 Bing. 292. (0) Farrar v. Countess of Granard, 1 B. (n) Walford v. Duchess de Pienne, 2 & P. N. R. 80; Marsh v. Hutchinson, 2 B. Esp. 553; Franks u. De Pienne, 2 Esp. & P. 226 ; Williamson v. Dawes, 9 Bing. 587; Burfield v. De Pienne, 2 B. & P. 292. PART I.] PARTIES. 39 her husband being abroad, apply only where he is civiliter mor- tuus), you are bound under it to make out that the husband was an alien, that he was resident abroad and never in this country, which facts are now admitted ; and also that the defendant rep- resented 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. ( p) § 34. More recently the case of De Wahl v. Braune (5) came before the exchequer. The declaration was on an agree- ^^ -^^^ ment to purchase the interest of the plaintiff in the ben- ''• Braune. efit of a lease and school for young ladies. Plea in abatement, plaintiff's coverture. Replication, that her husband was an alien, born in Russia, did not reside in this country at the commence- ment 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 sin- gle 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 civiliter mortuus, and that the contract made during coverture 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 defendant instead of plaintiff. § 35. The only remaining exception to the absolute incapacity of a married woman to bind herself as purchaser during jj^^jed coverture is one which arises under the custom of Lon- ^™\^^^g^ don, and is confined to the city of London. By that in city of ' 17 7 11 London. custom, /erne covert may be a sole trader, and when so, she may sue and be sued in the city courts, in all matters arising out of her dealings in her trade in London. In the well- g^^^^ ^_ known case of Beard v. Webb, (r) where Lord Eldon Webb. C. J. delivered the judgment of Cam. Scaoc. reversing that of the king's bench, this custom is elaborately considered, in connection ip) Barden u. Kererberg, 2 M. & W. (?) 1 H. & N. 178, and 25 L. J. Ex. 61. [See 1 Chitty Contr. (llth Am. e\ ; Boyd i,. Moyle, 2 C. B. 644; Train v. Gold, .5 Pick. 380 ; Johnston v. Pessler, 7 Watts, 48 ; Eskridge u. Glover, 5 Stew. & Port. 264. If one person promises another to Offer of P"y him a sum of money if reward. }je ^vill do a particular act, and the latter does the act before the revo- cation of the promise, the promise may be- come binding, although the promisee does not, at the time, engage to do the act ; the doing of the act being a good considera- tion for the previous promise, and the promise amounting to a request to do the act. Barnes v. Perine, 9 Barb. 202. These propositions are, of course, subject to the rule that the act of acceptance must take place within a reasonable time. Post, §41, note [q], A public offer by advertisement of a reward for the performance of some service is, in certain cases, binding when accepted and acted on by any one ; as, for information respecting a loss or crime, or for apprehension, &c. of a felon or other offender. 1 Chitty Contr. (Uth Am. ed.) 11, note (u') ; Loring v. Boston, 7 Met. 409 ; Crocker v. t^ew Lond., Willimantic & Palmer R.R. Co. 24 Conn. 261, per Sanford J. ; Leake Cont. 13 ; Eagle v. Smith, 4 Houston (Del.), 293; Co. of Montgomery v. Robinson, 8S 111. 174; Grady v. Crook, 2 Abb. N. C. 53.] (d) [Chinnock v. Marchioness of Ely, 4 De G., J. & S. 638.] (rf') (Carter v. Bingham, 32 D. C. Q. B. 615; Webb v. Sharman, .34 lb. 410; Fox !,-. Turner, 1 Biadwell (111.), 153] (e) Champion u. Short, 1 Camp. 53; Routledge u. Grant, 4 Bing. 653; Hutch- inson V. Bowker, 5 IM. & W. 535 ; Jordan !•. Norton, 4 M. & W. 155; Wontner d. Shairp, 4 C. B. 404 ; Duke v. Andrews, 2 Ex. 290 ; Chaplin v. Clarke, 4 Ex. 403 ; Forster v. Rowland, 7 H. & N. 103, and 30 L. J. Ex. 376 ; Honeyman v. Marryat, 6 H. L. Cas. 112 ; Andrews u. Garrett, 6 C. B. N. S. 262 ; Proprietors Eng. & For. Cr. Co. V. Arduin, L. R. 5 Eng. App. 64; Addinel's case, L. R. 1 Eq. 225 ; aff. in H. L. sub nom. Jackson v. Turquand, L. R. 4 Eng, App. 305. PART I.] MUTUAL ASSENT. 45 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. § 40. In Hutchinson v. Bowker, (^) the defendant wrote an offer to sell a cargo of qood barley ; the plaintiff replied : Hutchin- o ^ •! ' >■ r son «. Bow- " ouch oiier we accept, expecting you will give na fine ker. barley, •diid. full weight." 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 de- cline shipping the same." It was shown on the trial that c/ood barley and^ne barley were terms well known in the trade, and that^^we barley was the heavier. The jury, 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 defendant's oif er. In Hyde v. Wrench, (A) defendant offered to sell his farm to plaintiff for 1,000Z. The plaintiff, ^„^^^ thereupon, offered him 950^., which defendant refused. Wrench. Plaintiff then accepted the offer at 1,000Z., but defendant declined to complete the bargain. Held, on demurrer, by Lord Langdale, that when plaintiff, instead of accepting the first offer uncondi- tionally 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. In the Gov- „ ^ ^ _ Governor ernor, Guardians &c. of the Poor of Kingston-upon-HuU &c. of V. Petch, (i) plaintiffs advertised for tenders to supply upon-Huii meat, stating, " all contractors will have to sign a writ- ten contract after acceptance of tender." Defendant tendered, [fj [A mere loose conversation by way conveys no title whatever to the apparent of banter or jest, or without purchaser. Bradley ;;. Hale, 8 Allen, 59 , tionneces- any definite intention to make Cox v. Jackson, 6 Allen, 108; Hyam's ^^''^- an agreement, will not con- case, 1 De G., F. & J. 75; Bowes v. Fos- stitute one, although it may assume that ter, 2 H. & N. 779 ; § 490, note (r), post.] shape. The question of intent in such {g) 5 M. & W. 535. ease is for the jury. Bruce a. Bishop, [h] 3 Beav. 334. 43 Vt. 161; Thurston v. Thornton, 1 (i) 10 Ex. 610, and 24 L.J. Ex.23; Cush. 89. So a merely colorable sale of [The New Brunswick & Canada Railway personal property, made with the imen- Co. y.' Muggeridge, 4 H. & N. 160, 580; lion that the title should not be trans Bog Lead Mining Co. v. Montague, 10 C. feired in reality, but only in appearance, B. N. S. 481, 491.] 46 FORMATION OF THE CONTRACT. [bOOK I. and received notice of the acceptance of his tender, and then wrote that he declined the contract. Held, that by the terras 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, (k) defend- Jordan r. o _ ^ ^ Norton. ,T,nt 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 Felthouse ., ' \ y r ^ V. Bindley, to his uncle that he could not take less than thirty guin- eas for a horse, for which the uncle had offered SOI. The uncle wrote back saying, " Your price I admit was thirty guineas, I of- fered 30?., never offered more, and you said the horse was mine ; however, as there may be a mistake about him I will spht the dif- ference, 30?. 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 more about Jiim, I consider the horse is mine at 30Z. 15«." 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, saying it was his uncle's. The defendant by mistake sold the horse, and the action was trover by the uncle. Held, 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 30?. 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 Watts ». *^® alleged conversion. («i) In Watts v. Ainsworth (?i) Ainsworth. ^\\\ ^g found a good illustration by Bramwell B. of the mode of construing a correspondence when a contest arises as to the existence of mutual assent, (o) See, also, the opinions deliv- [h) 4 M. & W. 15.5. of the offer, so iis to enable the plaintiff to (/) 11 C. B. N. S. 869 ; 31 L. J. C. P. maintain the action. 204. („) I H. & C. 83 ; 31 L, J. Ex. 448. (m) It was further held in this case that (o) [The letters of a. correspondence the nephew's acceptance of the offer after constituting a bargain are one transac- conversion, but before the action brought tion ; and so long as there is a proposal by plaintiff, did not relate back to the date by either party accepted by the other, there PART I.] MUTUAL ASSENT. 47 ered in the House of Lords in a recent case, in which the unani- mous judgments of the exchequer of pleas, and of the exchequer chamber, were unanimously reversed, (p) [In Stevenson v. Mc- Lean, (^•') the defendant being possessed of iron warrants, wrote to the plaintiff that he would sell for 40s. nett cash, open all Monday. On Monday morning the plaintiff telegraphed to de- fendant, " Please wire whether you would accept forty Letter of for delivery over two months, or if not, longest limit you mqu'ry not *J ' ' o •/ a rejection would give." It was held, that this was not a rejection <>* "" "ff"- of the defendant's offer, and that the plaintiff having subsequently accepted the defendant's offer, the defendant was bound. Lush J. said : " Two objections were relied on by the defend- gtevenson ant : first, it was contended that the telegram sent by "■ McLean. the plaintiff on the Monday morning was a rejection of the de- fendant's offer and a new proposal on the plaintiff's part, and that the defendant had therefore a right to regard it as putting an end to the original negotiation. Looking at the form of the telegram, the time when it was sent, and the state of the iron market, I can- not think this is its fair meaning. The plaintiff Stevenson said he meant it only as an inquiry, expecting an answer for his guid- ance, and this, I think, is the sense in which the defendant ought to have regarded it Then, again, the form of the telegram is one of inquiry. It is not ' I offer forty for delivery over two months,' which would have likened the case to Hyde v. Wrench. .... Here there is no counter-proposal There is noth- ing specific by way of offer or rejection, but a mere inquiry, which should have been answered and not treated as a rejection of the offer."] § 41. It is a plain inference from these cases, that a proposer may withdraw his offer so long as it is not accepted ; for Proposal if there be no contract till acceptance, there is nothing tracted be- by which the proposer can be bound ; and the authori- ceptauce. ties quite support this inference. Even when on mab- Piomise to 1 /H. 1 1 • n leave pro- ing the offer the proposer expressly promises to allow a posai open certain time to the other party for acceptance, the offer if"„ithout^ may nevertheless be retracted in the interval, if no con- ti°o°n"^'^™' is a good contract in writing, because the (p) Proprietors Eng. & For. Cred. Co. letters testify the acceptance by each party v. Arduin, L. R. 5 Eng. App. 64. of the terms agreed upon between them (pi) [L. R. 5 Q. B. Div. 346.] both. Willes J. in Bog Lead Mining Co. V. Montague, 10 C. B. N. S. 481, 491. | 48 FORMATION OF THE CONTRACT. [book I. ideration has been given for the promise, {q') Cooke v. Ox- si (q) [Craig v. Harper, 3 Cush. 1 58 ; Bos- ton & Maine Kailroad u. Bartlett, lb. 224; Eskriilge v. Glover, 5 Stew. & Port. 2C4 ; Martin v. Mitchell, 2 J. & W. 413, 428 ; Lucas v. James, 7 Hare, 410 ; Chin- nock V. Marchioness of Ely, 4 De G., J. & S. 638 ; Faulkner v. Hebard, 26 Vt. 452; Falls u. Gaither, 9 Porter, 605; Potts V. Whitehead, 5 C. E. Green (N. J.), 59; S. C.8 III. 512; 1 Sugden V. & P. (8th Am. cd.) 132 ; Abbott v. Shepard, 48 N. H. 16; Leake Contr. 20, 21; Bur- ton ^. Shotwell, 13 Bush, 271 ; Hoch- ster V. Baruch, 5 Daly, 440 ; Dix v. Shaver, 14 Hun, 392. But on the other hand, where Acceptance "" °^'"' '=* """^^ '" writing to beiore re- sell land at a cerlain price, if traction , ... ^ . ,._ completes taken wiihin a certam time, contract. g^j the person to whom the of- fer is made, before it is retracted, accepts it within ihe time, such offer and acceptance constitutes a valid contract. Boston & Maine Railroad v. Bartlett, 3 Cush. 224. Fletcher J. in this case said : " When the offer was accepted, the minds of the par- ties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legttl consideration for the engagement on the part of the defendants It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once." Before ac- ceptance, however, the proposition was " but an offer to contract, and the parties making the offer most undoubtedly might have withdrawn it at any time before ac- ceptance." Where a time for acceptance is stipulated, an acceptance after that time is not sufficient. Potts v. Whitehead, 5 C. E. Green (N. J.), 55 ; Leake Contr. 17 ; Earrell i,. Hunt, 21 U. C. C. P. 117. Where no time is limited for acceptance of the offer, it should be accepted, if at all, within a reasonable time, and unless it is so accepted and the acceptance notified to the person making the offer, he will not be bound. Metcalf J. in Craig v. Harper, 3 Cush. 1 58, 160 ; Peru v. Turner, 1 Fairf. 185; Wilson v. Clements, 3 Mass. 1; Johnston v. Fessler, 7 Watts, 48 ; Martin u. Black, 21 Ala. 721 ; Leake Contr. 17, 18 ; Chicago &c. R. R. Co. v. Dane 43 N. Y. 240 ; Judd v. Day, 50 Iowa, 247. B., the owner of land, made an offer to the plaintiff, that he might take timber from the land upon paying for it in a certain way. The plaintiff said he would accept the offer if he could get his brother to as- sist him. B., the owner, told him that he need not give a decisive answer then, but might do so at some subsequent time. The plaintiff afterwards en- gaged his brother to assist Beckwithu. t> o CheeTer. him in cutting the timber, but did not notify B. that he had accepted the offer. B. afterwards made the same offer to the defendants, who entered upon the land, and cut and carried away the tim- ber, and the plaintiff brought an action on the case against them. It was decided that what passed between the plaintiff and the owner did not constitute a contract. Beckwith v. Cheever, 21 N. H. 41. See The Navan Union o. M'Loughlin, 4 Ir. C. L. R. 451. Gilchvi-t C. J. in Beck- with u. Cheever, su/im, referring to the fact that the plaintiff was to inform B. at some future day whether he would accept his offer, said : " This should have been done within a reasonable time; and the proper time would have been whenever the plaintiff should determine to accept the proposition It cannot with propriety be said that (the fact that the plaintiff' had engaged his brother to assist him), not brought home to the knowl- edge of B., can be regarded as an accept- ance. Neither party did anything to make the proposition binding, and . neither was bound." An either part;: offer is revoked by the death "''"'' "'■ of the person proposing it. Blades v. Free, 9 B. & C. 167 ; Campanari v. Wood- burn, 15 C. B. 400; Lee v. Griffin, 1 B. & S. 272. So, by the death of the person to whom it was made before acceptance. PART I.] MUTUAL ASSENT. 49 ley {r) is the leading case on this point. The declaration was that the defendant had proposed to sell and deliver to q^, the plaintiff 266 hhds. of tobacco on certains terms, if Oxley. the plaintiff would agree to purchase them on the terms afore- said, and 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 requested delivery, and offered payment. Judgment arrested after verdict for the plain- tiff. Kenyon C. J. delivering judgment, said : " Nothing can be clearer than that at the time of entering into this contract the en- gagement was all on one side. The other party was not bound. It was, therefore, nudum pactum." Buller J. said : " It is impos- sible 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 was 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 defendant 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 plaintiff before four o'clock; and it is not stated that the parties came to any subsequent agreement ; there is, therefore, no consideration for the promise." This decision was afterwards affirmed in the exchequer chamber, M. 32, Geo. 3. (s) § 42. In Routledge v. Grant, (t) which was the case jj^utiedge of an offer by defendant to purchase a house, and to give "■ Grant, plaintiff six weeks for a definite answer, Best C. J. nonsuited the plaintiff, on proof that defendant had retracted his offer Leake Contr. 22 ; Werner v. Humphreys, signed by him to another without the Rejection of 2 M. & G. 853. The force of consent of the person making the offer, proposal. a proposal is exhausted by a Meynell v. Surtees, 3 Sm. & Gif. 101, refusal of it. Leake Contr. 22; Sheffield 117; Boulton v. Jones, 2 H. & N. 564. Canal Co. v. Sheffield & Rotheram Ry. See §§ 58 et seq., post] Co. 3 Ry. & Can. Cas. 121, 132 ; Hyde (r) 3 T. E. 653. V. Wrench, 3 Beav. 334; Honeyman v. (s) So stated in note at the end of the Marryat, 21 Beav. 14. The offer of a Report, in 3 T. R. 653. contract can be accepted only (i) 4 Bing. 653. See, also, Humphries acceptance by the party to whom it is u. Carvalho, 16 East, 45. Sade *" proposed, and cannot be as- 50 FORMATION OF THE CONTRACT. [BOOK I. within the six weeks, and on the rule to set aside the nonsuit, 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. Payne i). Oxley with marked approval. In Payne v. Cave, (u) it Cave. .^^g ijeld that a bidder at an auction may retract his bid- ding 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." (m^) 8 43. The latest case on this point is Head v. Diggon. {x) The „ , defendant, on Thursday, the 17th of April, gave the Diggon. plaintiff a written 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 promise to await three days for the plaintiff's ac- ceptance of the offer. The plaintiff went on Monday to accept, but the defendant 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 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 plain- tiff signified his acceptance of the offer, it is disproved by the cir- cumstance that the defendant did not then agree." And Bayley J. concurred on the ground that " unless both parties are bound, neither is." An illustration of the principle now under discus- Smith V. ^^°° ^^ *° ^^ found in the recent case of Smith v. Hud- Hudson, son. Qy) There, a quantity of barley had been verbally sold according to sample, and the goods had been actually deliv- ered 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 buyer had not yet accepted so as to make the contract valid under the (m) 3 T. R. 148. (x) 3 M. & R. 97. (ui) [In connection with the doctrine of (y) 6 B. & S. 431 ; 34 L. J. Q. B. 145. this case see Warlow v. Harrison, 1 El. & See, also, Taylor v. Wakefield, 6 E. & B. El. 295, stated § 471, post] 765. PART I.] MUTUAL ASSENT. 51 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 rail- way company to hold the barley, subject to his orders ; and coun- termanded 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 completion of the contract. § 44. Where parties living at different places are compelled to treat by correspondence through the post, there is a Assent by modification of the rule to this extent, that the party spondence. making the offer cannot retract after the acceptance by his cor- respondent has been duly posted, although it may not have reached him ; (z) nor can the party accepting retract his accept- ance after posting his letter, although prior to his correspondent's receipt of it, nor, indeed, if it never be received, (a) In Adams {z) Adams v. Lindsell, 1 B. & Aid. 681 ; Dunlop V. Higgins, 1 H. L. Cas. 381 ; Potter V. Saunders, 6 Hare, 1 ; [Thompson V. James, 18 Dunlop, 1 ; Stevenson v. Mc- Lean, 5 Q. B. D. 346 ; Byrne v. Van Tien- hoven, 50. P. D. 344. In Byrne v. Van Tienhoven, Lindley J. said : " 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."] (a) Duncan v. Topham, 8 C. B. 225 ; Potter V. Saunders, 6 Hare, 1. [In 1 Chitty Contr. (Uth ed. 17) the rule is „ . , stated thus : " If an offer be Chitty's , , , statement made by letter to a party at of rule. ^ distance, it is presumed to be constantly repeated until the period for acceptance arrives, up to which period it is to be inferred that there is a continua- tion of the intention to contract, and that the acceptance of the exact terms pro- posed, within the precise time limited, shall, when received by him who made the offer, form a complete contract as from the date of such acceptance, provided the party making the offer had not, in the interim, withdrawn it." The conclusion Leake's con- drawn from the cases by Mr. elusion. Leake is, that " an offer by letter or other communication between distant parties continues open until the arrival of the letter or other communica- tion in due course at its destination. If the delivery of the letter of offer is de- layed, by the fault of the sender, the offer is extended until its arrival." On the other hand, "the acceptance is com- plete and the contract valid upon the due posting of the letter of acceptance, not- withstanding delay, or even entire failure in arriving at its destination, provided such delay or failure has not been occasioned by a wrong address of the letter, or other default in the party sending it." Leake Contr. 18, 19. The answer of accept- ance must be placed in the when ao- post- office within the time '^l^"^ limited, if any, or otherwise mailed, with reasonable dispatch, and before any intimation is received that the offer is withdrawn. Potts v. Whitehead, 5 C. E. Green (N. J.), 55 ; S. C. 8 lb. 512 ; Abbott V. Shepard, 48 N. H. 14; Stock- ham V. Stockham, 32 Md. 196 ; Maday 52 FORMATION OF THE CONTRACT. [book I. V. Lindsell, (5) the defendants wrote on the 2d of September to , , ^ the plaintiff, offering to sell a quantity of wool on speci- Lindseii. fied 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 evening accepting the offer. This answer was received by defendants 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 u. Harvey, 90 111. 525. The transmission of the letter accepting an offer is suf- ficient to make a contract, hecause it is an overt act manifesting the intention of the acceptor, and thus consummating the aggregatio mentium which constitutes the contract. Trevor v. Wood, 36 N. Y. 307 ; Hallock V. Commercial Ins. Co. 2 Dutcher (N. J.), 268 ; Howard u. Daly, 61 N. Y. 362. If the letter of acceptance is duly posted, the writer is not responsible for any accident or delay in the post-office. Vassar c. Camp, U Barb. 341 ; S. C. 1 Kernan, 441 ; Duncan v. Topham, 8 C. B. 225; Adams v. Lindsell, 1 B. & Aid. 681. This subject is ably considered and dis- cussed in Hallock v. Commercial Ins. Co. 2 Dutcher (N. J.), 268, where it is decided that a contract arises when an overt act is Various done intending to signify an ceptonc'e'^f acceptance of a proposition, an offer. whether such overt act comes to the knowledge of the proposer or not ; and unless the proposition is withdrawn, it is considered as pending until accepted or rejected, provided the answer is given in a reasonable time. Vredenburgh J. said (p. 281) : "The overt act may be as various as the form and nature of con- tracts. It may be by the fall of the ham- mer, by words spoken, by letter, by tel- egraph, by remitting the article sent for, by mutual signing, or by delivery of the paper, and the delivery may be by any act intended to signify that the instrument shall have a present vitality. Whatever the form, the act done is the irrevocable .evidence of the aggregatio mentium; at that instant the bargain is struck. The acceptor can no more overtake and coun- termand by telegraph, his letter mailed, than he can his words of acceptance after they have issued from his lips on their way to the hearer There is no differ- ence between the acceptance of a proposi- tion by word of mouth and a letter stating an acceptance. In the one case it is ar- ticulate sounds carried by the air; in the other, written signs carried by the mail or by telegraph. The vital question is, was the intention manifested by any overt act, not by what kind of messenger it was sent. The bargain, if ever struck at all, must be eo instanti with such overt act. Mailing a letter containing an acceptance, or the instrument itself intended for the other party, is certainly such an act." See Clarke ... Gardiner, 12 Ir. C. L. E. 472, stated post, § 253 a. A contract may be made and proved in court by telegraphic dispatches. Taylor v. Steam- contracts bj boat Eobert Campbell, 20 Mo. telegraph. 254 ; Leonard v. New York &c. Tel. Co. 41 N. Y. 544 ; Beach v. Raritan &c. E. R. Co. 37 lb. 457 ; Durkee v. Vermont Central Railroad, 29 Vt. 127; Henkel t'. Pape, L. R. 6 Ex. 7 ; Rommel ) Lepage. ^^ 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 & Co. It turned out that, without the broker's knowledge, that firm had been dissolved some months before by the withdrawal of two of the partners, and succeeded by the plain- (o) Chanter D.Hopkins, 4 M. &W. 399; (o^) [See Leake's Dig. Law of Contr. Mondell v. Steel, 8 M, & W. 858 ; Fostei' 334.] V. Smith, 18 C. B. 156. (;,) Holt N P. 253. PART I.J MUTUAL ASSENT. 65 tiff's firm of Mitchell, Armistead & Graabner, the last two tak- ing 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 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." Verdict for plain- tiff. § 59. In Boulton v. Jones, (r) the plaintiff had bought out the stock in trade and business of one Brocklehurst. The bouHoq ^. defendant, ignorant of the fact, sent to the shop a writ- ^"'^^s. ten order for goods, addressed to Brocklehurst, on the very day of the transfer to the plaintiff, and the latter supplied the goods. The goods were consumed by the defendant, he not knowing that they were supplied by the plaintiff instead of Brocklehurst. When payment of the price was afterwards demanded, the defend- ant refused, on the ground that he Jiad a set-off against Brockle- hurst, and had not conti-acted with the plaintiff. The barons of the exchequer were all of the opinion that the action was not maintainable, (s) Pollock 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 dis- advantage, securing to himself all the benefit of the contract." Martin B. said : " Whei-e the facts prove that the defendant meant to contract with A. alone, B. can never force a contract upon him." (fii) Bramwell B. said : " It is clear that if the plaintiff (r) 2 H. & N. 564 ; 27 L. J. Ex. 117. other. See Boston Ice Company v. Pot- Is) [But in the case of Mudge v. 01- ter 123 Mass. 28.] iver, 1 Allen, 74, it was held that a per- (si) [D. sued H. in assumpsit for goods son who bought goods at a shop which sold and deliTered. X., a gas-fitter, was had been occupied by one who owed him, working on defendant's house, and certain under the supposition that he was dealing articles being required for the work, he with his debtor, but was informed before gave the defendant the following mem- leaving the shop, although after the deliv- orandum : " You will require to send to ery of the goods, that another person had D., No. 19 Union Street, Boston, Mass., become owner of the stock of goods there for the following goods for bath room, and was selling them on his own account, [Goods described] ; (signed) X." This and made no objection, but retained the paper was addressed to defendant, but Mudge u. goods, could not afterwards when produced at the trial, defendant's OliTer. resist an action for the price name had been torn off, though it did not brought by such other person. The cases appear by whom. H. gave this memoran- are not inconsistent, but support each dum to T., who took it to the plaintiff, 5 66 FORMATION OF THE CONTRACT. [BOOK I. ■were at liberty to sue, it would be a prejudice to defendant^ be- cause it would deprive him of a set-off, whicb he would have had if the action had been brought by the party with whom 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 any 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 pict- ure, 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 principal 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 the 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 con- sumed the goods, and when he could not, of course, have returned them." (0 and he supposed it to be an order from sue in assumpsit for goods sold and de- X., who was a customer, and treated it livered, he waived the tort, ratified the Dalton V. ^s snch, forwarding the goods sale by T. to defendant, and treated T. as Hamilton. named in the memorandum his agent, and that, therefore, payment to to X. by T., and sending him also an in- him was conclusive. Dalton v. Hainil- voice of the goods in his name. X. re- ton, 1 Hannay (N. B.), 422. See Hills d. fused to receive the goods, and repudiated Snell, 104 Mass. 173, stated ante, § 50, all connection with them. T. then took note (().] them to H., and afterwards obtaining the {() See further observations on this case, invoice from X. obtained payment from post, book III. ch. i. [The case of Boston H. of the amoiint and gave him a receipt. Ice Company v. Potter, 123 Mass. 28, re- in due course of time D. called upon X. sembles Boulton u. Jones. The action fur payment, but he repudiated the lia- was brought for the price of certain quaii- bility. D. pressed his claim and refused tities of ice delivered to the defendant to consider H. as his debtor, but subse- from time to time, between April 1,1874, quently finding that he had mistaken X.'s and April 1, 1875. It appeared that the position, that he was not liable, and T. defendant was being supplied with ice by unable to pay, he called on H., who like- the plaintiff company in 1873 ; ],„5(„„j5e wise repudiated any liability, alleging his but, on account of some dis- Co. f. Pot- dealing to have been with T., and that he satisfaction with the manner '"'' had paid him. It was held, that though of supply, had terminated his contract D. might have maintained trover against with them ; and thereupon had made a the defendant, yet, as he had elected to contract with the Citizens' Ice Company PART I.] MUTUAL ASSENT. 67 § 60. Where a person passes himself off for another, (m) or falsely represents himself as agent for another, for whom Mistake as he professes to buy, (w) and thus obtains the vendor's caMed°by assent to a sale, and even a delivery of goods, the whole *''*'^actum. Buller J. took both grounds, saying that the promise in the morning was without con- sideration ; and that it was not stated that the defendant agreed afterwards, or even that the goods were kept ; in other words, that the plaintiff had not 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, (w) which is strangely construed by Mr. Duer into an assertion that Cooke v. Oxley was misreported. This is the language: "The question in Cooke «. 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 (dlegation that the other party had ac- ceded to the contract of sale." § 66. Both the learned American authors, Mr. Story and Mr. (n) 16 East, 45. [A similar construction to Cooke v. Oxley is given in Leake Contr. 21.] PART I.] MUTUAL ASSENT. 73 Duer, refer to Adams v. Lindsell (o) as overruling Cooke v. Ox- ley, the latter writer saying that " its authority is directly over- thrown " by Adams v. Lindsell. Certainly the king's bench did not in this last case say a word in disparagement of Cooke v. Oxley ; and when this very point was urged by counsel in Rout- lege V. Grant, (|?) Best C. J. pointed out that there was no con- flict 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 par- ties prevented assent at the same instant, and ex necessitate ret, 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 de- termine either that no contract was possible by correspondence between distant parties, or to fi.x 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 con- tinuing offer in contemplation of law until it reached the other ■party, so that when an answer of acceptance was placed in the post, addressed to the party making the offer, the aggregatio men- tium, 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 consideration. 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 ac- ceptance, 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 former case and complete in the latter, both decisions being consistent ap- plications of one and the same principle, namely, that a contract becomes complete only when the mutual assent of the parties con- curs at the same moment of time ; and that no number of alter- nate 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. Dig- (o) 1 B. & Aid. 681. (p) 4 Bing. 6.53. 74 FORMATION OF THE CONTRACT. [bOOK I. gon (g) on the authority of Cooke v. Oxley, without any intima- tion that it had been overruled, and in accordance with the point really decided in that case. § 67. In a recent American case (r) the principle under discus- sion received a further illustration. The defendant wrote an offer to carry for the plaintiffs " not exceeding 6,000 tons gross, in and during the months of April, May, June, July, and August, 1864, upon the terms and for the price hereinafter specified," and on the next day the plaintiiSs answered, " We assent to your agreement, and will be bound by its terms." Held to be no binding contract, because the plaintiffs were not bound to furnish anything for car- riage ; that the offer was a mere promise of an oj^tion to them, for which promise no consideration was given ; and that the de- fendant had the right to withdraw from his offer at any time be- fore such an acceptance as imposed some obligation on the com- pany as a consideration : the acceptance would have been good, if the company had agreed to furnish any specified quantity not exceeding the 6,000 tons, but not otherwise, because the defend- ant could not be bound while the plaintiffs were left free. § 68. On the question of the mode of completing a bargain by American Correspondence, the American authorities are not only ecisions. ^^ accordance with the decisions of our own courts, but completing '''^^^y have gone farther, and covered the point left un- by cOTre-° decided in Adams v. Lindsell, though included in the spondence. dieta. (s) In Mactier's Adm's v. Frifth, («) the court of errors of New York decided, after a full review of the authori- Mactier v. *^®^' ^^^^ where the dealing is by correspondence, " the Fnfth. acceptance of a written offer of a contract of sale con- (?) 3 M. & R. 97. Co. 5 Penn. St. 339 ; Levy v. Cohen, 4 Ga. (r) Chicago & Great Eastern Railway 1; Falls y. Gaither, 9 Porter, 613; Averlll Co. V. Dana, 43 N. Y. 240. v. Hedge, 12 Conn. 436 ; Wheat v. Cross, (s) [In addition to the American author- 31 Md. 99; Potts v. Whitehead, 5 C. E. ities cited by the author, the reader is re- Green (N. J.), 55; S. C. 8 lb. 512; Hal- ferred to Brisban u. Bnyd, 4 Paige, 17; lock v. Commercial Ins. Co. 2 Dutcher Vassar v. Camp, 14 Barb. 342; S. C. 1 (N. J.), 268. See, also, Stocken v. Col- Kernan, 441 ; Clark v. Dales, 20 Barb. Jin, 7 M. & W. 515; Hebb'a case, L. R. 4 42 ; Myers v. Smith, 48 lb. 614 ; Tre- Eq. 9 ; In re Imperial Land Co. of Mar- vor u. Wood, 36 N. Y. 307; Abbott t). seilles, Townsend's case.L. R. 13 Eq. 148; Shepard, 48 N. H. 14; Hutcheson v. Bryant v. Booze, 55 Ga. 438; Maclay r. Blakeman, 3 Met. (Ky.) 80; Chiles v. Harvey, 90 111. 525; Batterman v. Mor- Nelson, 7 Dana, 282 ; The Palo Alto, ford, 76 N. Y. 622.] Davies, 343 ; Hamilton v. Lycoming Ins. {() 6 Wend. 104. PART I.] MUTUAL ASSENT. ' 75 summates 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 revocation of the offer not communicated to the party accepting at the time of acceptance. § 69. In the more recent case of Tayloe v. Merchants' Fire In- surance Company, (m) the supreme court of the United Tavioe v States has closed this last point, in America, by holding Merchants' that under such circumstances, " an offer prescribing the ance Com- terms of insurance is intended and is to be deemed a valid undertaking by the company that they will be bound accord- ing to the terms tendered, if an answer is transmitted in due course of mail, accepting them ; and that it cannot be withdrawn unless the withdrawal reaches the party to whom it is addressed before his letter of reply announcing the acceptance has been trans- mitted." Although this decision was given on an insurance con- tract, the reasoning of the court was quite applicable to all 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 contemplated at the time of enter- ing upon the negotiation, 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 adoption 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 opeh until the company is advised of an acceptance, it fol- lows of course that the acceptance may be repudiated at any time before the notice is received. Nothing is effectually accomplished by an act of acceptance. It is apparent, therefore, that such an interpretation of the acts of the parties would defeat the object which both had in view in entering upon the correspondence The fallacy of the opposite argument, in our judgment, consists in the assumption that the contract cannot be consummated without a knowledge on the part of the company that the offer has been accepted But a little reflection will show that in all cases of contracts entered into between parties at a distance by corre- (u) 9 How. (U. S.) 390. 76 FOEMAtlON OF THE CONTRACT. [BOOK I. spondence, it is impossible 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 acceptance must succeed the offer after the lapse of some interval of time, and if the process is to be carried fai'ther, in order to complete the bargain, and notice of the acceptance must be received, the only effect is to re- verse the position of the parties, changing the knowledge of the completion from one party to the other." (m^) § 70. The civilians do not accord with these views. Pothier Civilians, says : " If I write to a merchant of Leghorn a letter, in tracts by which I propose to purchase of him a certain quantity spuMdence. °^ merchandise at a certain price, and before my letter Pothier. can have reached him I write a second letter withdraw- ing my proposal, although the mei'chant of Leghorn, in ignorance of the change of my intentions, answers that he accepts the pro- posed 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 accepted, 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 mer- chant 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 intermediate time between the receipt of my first and that of my second letter the price of the merchandise falls, and my first let- ter has made him miss the opportunity to sell it before the fall of (ill) [In the Journal of Jurisprudence but it is not applicable in the case of con- Suggestions '™'' Scottish Law Magazine, tracts entered into where thej' are not, and as to cause July, 1880, in a leading arti- cannot be, personally present, and where, tiiotingde- ^^le. the true principle is said consequently, the coutract is entered into aisen'by to be that laid down iu Tayloe by correspondence. The principle of mut- correspond- V. Merchants' Fire Ins. Co. 9 ual assent took the form of its expression How. 390. The writer says : naturally enough from the circumstances " The error which has led to so much diffi- in which the principle was originally ap- culty in this class of cashes lies in the plied. The old principle is still applica- metaphysical notion that there must be ble to a new state of circumstances ; the some moment at i\ hich the minds of the old expression of the principle, which is parties actually meet ; that is to say, with an accident and not of the essence of the a knowledge that they have met. The principle, is not so applicable." See principle is applicable in cases where the Thompson v. James, 18 Dunlop, 1.] contending parties are personally present. PART I.] MUTUAL ASSENT, 77 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 prmgra- vari 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 mer- chant, 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." (a;) § 71. It is impossible to read the reasoning of this eminent jurist in the passages just cited, without feeling that it jrotsajig. fails to meet the difficulties of the case. He places the factory, 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 pro- poser which causes damage to the other, and thus imposes an equitable obligation to repair that damage, is a petttio principii. Ex hypothesi, the party receiving the offer knows that it may legally be retracted by a second letter dispatched 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 premature attempt to execute a non-existent contract, surely it is his own precipitancy, and not his correspond- ent'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 (x) Pothier, Contrat de Vente, No. 32. See the language of Lindley J. in Byrne V. Van Tienhoven, L. R. 5 C. P. 344. 78 FORMATION OF THE CONTRACT. [BOOK I. appeals ; and notwithstanding 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 governed even by the civil law. (?/) § 72. Both the common and the civil law, however, concur in Common relation to the case where an order for purchase or sale and civil jg transmitted by correspondence to an agent of the law as to . . order for writer. If A., in Liverpool, order his correspondent, purchase -r. • -kt -i^ i bycorre- B., in JNew 1 ork, to purchase a cargo ot nour tor ac- count 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 fundum emeres, postea scripsissem ne emeres, tu antequam scias me vetuisse, emis- ses, mandati tibi obligatus ero, ne damno afhciatur is qui manda- tum suscepit." Dig. 1. 17, tit. 1, sec. 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 prin- cipal cannot take effect till it reaches the agent. («) § 73. But although this is a different contract, the analogy 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 civil- ians admit that A. cannot revoke the authority of the agent to make the offer until the revocation reaches him. So that if A. dispatched 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 pro- posal by the public post, which he authorizes to deliver it ? A., by sending a letter from London, addressed to B. in Manchester, really gives to the public post authority to hand to B. a written (,!/) Mr. Story is of a contrary opinion, civil law, acts done by the agent while and lauds this doctrine as "by far the ignorant of the principal's death are valid, fairest and most intelligible rule that can unless the other contracting party knew be found." Story on Sales, § 130, note 1. of the death. Dig. 1. 17, t. 1, 1. 26 58 (z) Story on Agency, § 470, 6th edit. The French Code is to the slme effect. Per Bayley J. in Salte v. Field, 5 T. R. Acts 2003, 2009. The Bank of England Revocation ^'^- ^ revocation by the protects itself against the risk resulting prin^cTpS"*' '^^^"' °^ *® principal oper- from the common law rule by special common ' "'es instantly at common Jaw. clauses in its forms for powers of attor- law; civil See cases in note to Smart z;. ney. Kiddill .. Farnell, 26 L. J. Ch. Sandars, 5 C. B. 917. By the 818. PART I.] MUTUAL ASSENT. 79 offer, and to receive an answer in behalf of A. Even on the doc- trines of the civil law, it would seem to be permissible under such circumstances 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 implied promise that no revocation is to take effect till received by the agent. § 74. The cases that arise in attempts to contract by correspond- ence present at times very singular complexity. In Dunmore Dunmore v. Alexander, (a) the party to whom the pro- ander. posal 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 uncondi- tional acceptance was recalled, the writer proposing some modifi- cation in the conditions. Both letters reached the original pro- poser 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. (IT) § 75. In the case of M'CuUoch v. The Eagle Insurance Com- pany, (c) A. wrote to ask B. on what terms h,e would M'Cuiioch insure a vessel. B. wrote on the 1st January that he i^s^jfnce would insure at a specified rate, and on the 2d January Company. wrote a letter retracting his offer. A. had written an acceptance (a) 9 Shaw & Dunlop, 190. both in England and in this country, and (6) [See In re Constantinople & Alex- appears to me requires for the creation of andria Hotels Co., Eeidpath's caSe, L. E. a contract a fact without significance, or 11 Eq. 86; Finucane's case, 17 W. R. a condition that would render its creation 813.] impossible." The principle of M'CuUoch (c) 1 Pick. 283. [In Hallock v. Com- v. Eagle Ins. Co. is certainly most posi- mercial Ins. Co. 2 Dutcher, 268, 283, tively controverted in the recent cases of Tredenburgh J., referring to M'CuUoch Byrne u. Leon Van TienhoYen, L. R. 5 V. The Eagle Ins. Co., says : " This case is C. P. 344, and Stevenson v. McLean, L. against the whole current of authorities, R. 5 Q. B. Div. 346.] 80 FORMATION OF THE CONTRACT. [BOOK I. of the offer before receiving the second letter, hut after B. had posted the second letter, and it was held that there was no con- tract ; 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, § 69. CHAPTER IV. OP THE THING SOLD. Section Sale of a thing which has ceased to exist 76 Sale of a thing not yet existing, or not yet acquired by vendor . . 78 In America, executory agreement be- Section comes executed as soon as vendor acquires title 83 Sale of a hope dependent on a chance 84 Venditio spei . . . .84 § 76. As there can be no sale without a thing transferred to the purchaser in consideration of the price received, it fol- a thing lows, that if at the time of the contract the thing has ^ea'std to^ ceased to exist, the sale is void. In Strickland v. Tur- *^'s'- ner, (a) a sale was made of an annuity dependent upon a life. It was afterwards ascertained that the life had already ex- g, ■ i , pired at the date of the contract, and not only was the "• Turner, sale held void, but assumpsit by the purchaser to recover back the price paid as money had and received was maintained. In Hastie V. Couturier, (5) a cargo of corn, loaded on a vessel not yet arrived, was sold on the 15th of May. It was afterwards dis- jjagtjg ^ covered that the corn, having become heated, had been Couturier, discharged by 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. § 77. These cases are sometimes treated in the decisions as de- pendent on an implied warranty by the vendor of the existence of the thing sold : sometimes on the want of consideration for the purchaser's agreement to pay the 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 con- In) 7 Ex. 208. See, also, Cochrane u. Willis, L. R. 1 Ch. App. 58 ; 35 L. J. Ch. 36 ; Smith v. Myers, L, E. 5 Q. B. 429 ; 7 Q. B. 139, in error. 6 (6) 9 Ex. 102, and 5 H. L. Cas. 673, reversing the judgment in 8 Ex. 40. See, also, Barr v. Gibson, 3 M. & W. 390. 82 FORMATION OF THE CONTRACT. [BOOK I. tract, and the contract was therefore never completed, (c) This was the principle applied by Lord Kenyon in a case where the leasehold interest which the buyer agreed to purchase turned out to be for six years instead of eight and a half, and where he held the contract void, as founded on a mistake in the thing sold, the buyer never having agreed to purchase a less term than that offered by the vendor. ((^) This is also the opinion of the civil- ians. Pothier (e) says : " 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 ; tlie site and what is left of the house are not the subject of our bargain, but only the remainder of it." And the French Civil Code, art. 1109, is in these words, " There is no valid assent, where assent lias been given hy mistake, extorted by violence, or surprised by fraud." § 78. In relation to things not yet in existence, or not yet be- Things Eot longing to the vendor, the law considers them as divided istence.'^or J^to two classes, one of which may be sold, while the quired'by" ^^^^"^ "^^^ °"ly ^6 the subject of an agreement to sell, of vendor. 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. (e^) A man may sell the crop of bay to be grown on his field, (a^) the wool to be clipped from his sheep at a future time, the milk that his cows will yield in the coming month, (/) and the sale is valid, (g) (c) [Forbes J. in Rice u. DwigluManuf. where the corn is growing in the field, at Co. 2 Cush. 80, 86 ; McLean J. in Allen a stipulated price, to be delivered in the V. Hammond, 11 Peters, 63, 71, 72; 2 future. Sanborn v. Benedict, 78 III. 309. Kent, 468, 469 ; Hitchcock v. Giddings, 4 See Gittings n. Nelson, 86 III. .'591.] Price, 135; Bigelow C. J. in Gardner v. (/) 14 Viner's Ab. tit. Grant, p. 50; Lane, 9 Allen, 492, 499; Franklin v. Shep, Touch. Grant, 241 ; Perk. §§ 65, 90; Long, 7 Gill & J. 407 ; Wilde J. in Thomp- Grantliam u. Hawley, Hob. 132 ; Wood & son V. Gould, 20 Pick. 139.] Foster's case, 1 Leon. 42 ; Robinson .,. (d) Farrar v. Nightingal, 2 Esp. 139. Macdonnell, 5 M. & S. 228 ; [Sanborn ^. (e) Contr.at de Vente, No. 4. Benedict, 78 111. 309.] (el) [Heald v. Builders' Ins. Co. IH {g) [See Low o. Pew, 108 Mass. 350. Mass. 38; Lewis ... Lyman, 22 Pick. 437, An assignment of goods at Assignment 442, 443; Smith!). Atkins, 18 Vt. 461.] sea, and their proceeds, is °^*'/°^°*^'" (e2) [Or a certain quantity of corn, sufficient to pass a legal title Sr^pro- PART I.] OF THE THING SOLD. 83 But he can only make a valid agreement to sell, not an actual sale, where the subject of the contract is something to be aftervyards acquired, (K) as the wool of any sheep, or the milk of any cows, that he may buy within the year, or any goods to which he may obtain title within the next six months. This distinction involves very important consequences, as will be pointed out hereafter. (Book II.) For the present it suffices to say, that in an actual sale the property passes, and the risk of loss is in the purchaser, while in the agreement to sell, or executory contract, the risk re- mains in the vendor. § 79. The leading modern cas^ on the subject is Lunn v. Thorn- ton, (i) decided in 1845. The action was trover for Lunin; bread, flour, &c. The plaintiff, in consideration of a Thornton, sum lent to him, had by deed-poll covenanted that he " sold and delivered unto the defendant all and singular his goods, household furniture, &c. then remaining and being, or which should at any time thereafter remain and he in his dwelling-house," &c. Tindal C. J., in delivering the opinion of the court, said: "It is not a question whether a deed might not have been so framed as to have given the defendant a power of seizing the future personal goods of the plaintiff, as they should be acquired by him, and brought on the premises, in satisfaction of the debt, but the ques- tion arises before us on a plea which puts in issue the property in the goods, and nothing else ; and it amounts to this, whether by law a deed of bargain and sale of goods can pass the property in goods which are not in existence, or at all events, which are not belonging to the grantor at the time of executing the deed." Held in the negative. Subsequent cases are to the same effect.(/i;) to the proceeds, Hodges v. Harris, 6 Pick, in which he has no interest. A mere pos- 360. Parker C. J. said : " It is very clear sibility, coupled with no interest, is not that the transfer of an invoice of an out- the subject of sale, and would not pass by ward cargo, after the sailing of the vessel, bill of sale. But if he has a present in- operates upon the proceeds so as to make terest in the property sold, a sale of it is them the property of the purchaser." The valid."] goods, being the proceeds, were, in fact, (i) 1 C. B. 379. delivered to the purchaser when they ar- (k) Gale v. Burnell, 7 Q. B. 850; Con- rived in port.] greve v. Evetts, 10 Ex. 298, and 23 L. (h) Per Mansfield C. J. in Keed v. J. Ex. 273 ; Hope v. Hayley, 5 E. & B. Blades, 5 Taunt. 212, 222. [See Low v. 830, and 25 L. J. Q. B. 155 ; Chidell k. Pew, 108 Mass. 347. In Thrall v. Hill, Galsworthy, 6 C. B. N. S. 471 ; AUatt 110 Mass. 330, Morton J. said: "It is true v. Carr, 27 L. J. Ex. 385. See, also, that a man cannot sell personal propeirty Moakes v. Nicholson, 34 L. J. C. P. 273 ; 84 FORMATION OF THE CONTRACT. [book I. § 80. But though the actual sale is void, the agreement will take effect if the vendor, by some act done after his acquisition of the goods, clearly shows his intention of giving effect to the origi- nal agreement, or if the vendee obtains possession under authority to seize them. This modification of the rule is recognized in the cases just cited, and rests originally on the authority of the four- teenth rule in Bacon's Maxims : " Licet dispositio de interesse fu- 19 C. B. N. S. 290. [The same principle American '^ adopted in the American decisions decisions upon tliis subject, follow the „ ^ ^ , . „„ T,^ - English Head i.'. Goodwin, 37 Maine, ''"'"■ 181, 187 et seq.; Jones u. Richardson, 10 Met. 481 ; Barnard u. Eaton, 2 Cush. 294, 303 ; Winslow v. Merchants' Ins. Co. 4 Met, 305 ; Codman V. Erecman, 3 Cush. 306, 309 ; Rice v. Stone, 1 Allen, 566, 569 ; Moody i/. "Wright, 13 Met. 17 ; Henshavv v. Bank of Bellows Falls, 10 Gray, 571, 572; Pierce V. Emery, 32 N. H. 484, 505; Ptnnock v. Coe, 23 How. (U. S.) 117 ; Noyes v. Jen- kins, 55 Ga. 586 ; Phelps v. Murray, 2 Tenn. Oh. E. 746 ; Brown v. Combs, 63 N. Y. 508 ; Cressey v. Sabre, 17 Hun, 120. A lessee put furniture and fixtures into the demised premises, under an agreement with the lessor that they should become the property of the lessor at the expira- tion of the lease. During the term, the lessor gave a bill of sale of his interest in them to a third person. It was held that Thrall v. the lessor's right in them 'I'"- passed to such person by the bill of sale, and that he could maintain an action for their conversion after the ex- piration of the lease. Thrall v. Hill, 110 Mass. 328. This subject was very ably discussed and the cases reviewed in Ham- ilton V. Holders, 8 Md. 301 ; and by Chan- cellor Cooper in Phelps f. Murray, 2 Tenn. Ch. R. 746, where it was held that Mortgage a mortgage, made to secure of shifting .5 u. 1 • .. r stock iu debts maturing at a future trade. day, which conveys a stock of goods in a particular store, and any other goods which may from time to time, during the existence of the mortgage, be purchased by the grantors and put into that store to replace any part of said stock which may have been disposed of, or to increase and enlarge the stock now on hand, is per se void. Such is the law in New York. Mittracht v. Kelly, 3 Keyes, 407 ; Spies v. Boyd, 1 E. D. Smith, 445 ; Otis V. Sill, 8 Barb. 102. But jjew York a valid chattel mortgage may doctrine, be made in New York upon the future products of property in which tlie mort- gagor has then an iiiierest. Van Hoozer u. Corey, 34 Barb. 9 ; Couderman v. Smith, 41 lb. 404. 8ce Holroyd u. Mar- shall, 2 De G., F. & J. (Am. ed.) 596, note (1); Wilson v. Wilson, 37 Md. 1, 11; Pettis V. Kellogg, 7 Cush. 456, 461 ; Low r. Pew, 108 Mass. 347, 349; Bellows u. Wells, 36 Vt. 599 ; Robinson v. Elliott, 22 Wallace, 513; Collins v. M_\ers, 16 Ohio, 547 ; Tennessee National Bank v. Ebbert, 9 Heiskell (Tenn.) 153 ; Short v. Ruttan, 12 U. C. Q. B. 79 ; Cummings v. Morgan, lb. 567 ; Mason v. MacDonald, 25 U. C. C. P. 435; Meyer t;. Johnston, 53 Ala. 237; Gittings V. Nelson, 86 111. 591. This principle, as to future acquired property, was recognized in New Brunswick in the case of Lloyd c.'. The European & N. Am. R. W. Co. 2 Pugsley & Burbiidge (X. B.), 194. The California doctrine is that a valid mortgage may be made califoruia of a crop to be grown, even doctrine, before the seed is sown, if the mortgagor is in possession of the land at the time of sale. Arques v. Wasson, 51 Cal. 620. The Indiana doctrine seems to be that even at law subsequently ac- Indiana quired property may be mort- doctrine, gaged, though the only authoiity cited for the decision is an equity case. Headiick V. Brattain, 63 lud. 43S ; and see the ear- lier case of Chissom r. Hawkins, II Ind- 316.] PART I.] (5f the thing sold. 85 turo sit inutilis, tamen potest fieri declaratio pracedens, quse sor- tiatur effectum, interveniente novo actu."(Z) See Brown v. Bate- man (L. R. 2 C. P. 272), where the bargain was in relation to such materials as might be subsequently brought upon the prem- ises under a building contract. § 81. It is well to observe that in equity a different rule pre- vails on this subject ; and that a contract for the sale of Eulediffer- chattels to be afterwards acquired transfers the bene- equity. ficial interest in the chattels, as soon as they are acquired, to the vendee (wi) The whole doctrine with its incidents, both at com- (l) [If the vendor of goods which did Noms actvs "0' belong to him at the time mterventetis. q( sJ^]g subsequently acquires title to such goods, it requires some new act on his part, evincing the purpose of carrying this sale into effect, in order to transfer the title to the purchaser. Head u. Goodwin, 37 Maine, 182; Jopes o. Richardson, 10 iVIet. 481 ; Calkins v. Lock- wood, 16 Conn. 276 ; Mitchell v. Winslow, 2 Story, 636.] (m) [See Langton o. Horton, 1 Hare, 549 ; Calkins !>. Loekwood, 16 Conn. 276; Mitchell V. Winslow, 2 Story, 636 ; Wil- son V. Wilson, 37 Md. 1 ; Pennock v. Coe, 23 How. (U. S.) 117; Philadelphia &c. E. R. Co. V. Woclpper, 64 Penn. St. 366 ; Phillips 1). Winslow, 18 B. Monroe, 431 ; Butt V. Ellett, 19 Wall. 544; Pennock v. Coe, 23 How. 128; Beall v. White, 94 U. S. 382 ; Shaw v. Bill, 95 lb. 10; Booker u. Jones, 55 Ala. 266. In Moody v. Wright, Massachu- 13 Met. 17, it was said that Betta rule. there is no difference between the rule at law and in equity. In Ala- bama this subject, as relates to advances to make crops, is regulated by statute. Code of Ala. (1876) § 3286 ; Abraham u. Carter, 53 Ala. 8 ; McKeithen u. Pratt, lb. 116 ; McLcster v. Somerville, 54 lb. 670 ; Baswell v. Car- lisle, lb. 554 ; Stearns u. GafTord, 56 lb. 544 ; Griel v. Lehman, 59 lb. 419 ; Carter 0. Wilson, 61 lb. 434. Aiao in Georgia. See Code of Ga. § 1978; Stallings u. Harrold, 60 Ga. 478; Lewis u. Lofley, lb. 559; Lee v. Clark, lb. 639 ; Hardwick v. Burtz, 59 lb. Alabama. Georgia. 773; Stephens v. Tucker, 55 lb. 543; Stephens v. Tucker, 58 lb. 391 ; Burrus v. Kyle, 56 lb. 24 ; Ball v. Vason, lb. 264 ; Powell V. Weaver, lb. 288; Story t. Flournay, 55 lb. 56 ; Ware v. Simmons, lb. 94. But in Georgia, apart from stat- ute, the general principle prevails. See Code, § 1954; Reed v. Burrus, 58 Ga. 574 ; Stephens v. Tucker, 55 lb. 543. The equity doctrine is recognized . , . Arkansas, m Arkansas ; Apperson u. Moore, 30 Ark. 56 ; Driver v. Jenkins, lb. 120; Haralett v. Tallman, lb. 505; and the common law doctrine is regulated as to certain points by statute. Tomlinson V. Greenfield, 31 Ark. 557; Jarratt v. Mc- Daniel, 32 lb. 598. This subject was very carefully considered in Brett Brett i-. V. Carter, 2 Low. 458. A bill Carter. in equity was filed by the assignee in bankruptcy of one Sargent against the mortgagee of a stock of stationery and other like goods. It appeared, that Sar- gent purchased the stock in trade of the defendant in 1874, and on the day of pur- chase gave a mortgage back to secure the payment of the purchase-money. The mortgage bill of sale conveyed the stock " and any other goods which may from time to time, during the existence of this mortgage, be purchased by the grantor and put into said store to replace any part of said stock which may have been dis- posed of." It was contended that the mortgage was void as to the subsequently acquired goods. Lowell J. said : " It is undoubtedly the law of courts Equity doo- of ^equity that after- trine stated. 86 FORMATION OF THE CONTKACT. [BOOK I. mon law and in equity, was twice argued, and thoroughly dis- cussed and settled, in the case of Holroyd v. Marshall, (n) Holroyd v. -, -r i /-^t ^ p i i i Marshall, where Lord Westbury and Lord Chelmstord gave elab- orate opinions, concurred in by Lord Wensleydale, although his lordship's first impressions had been adverse to their conclusions. Beiding V. The barons of the exchequer held, however, in Belding ^^'^- ' V. Reed (3 H. & C. 955 ; 34 L. J. Ex. 212), that the doctrine of Holroyd v. Marshall only applies to subsequently ac- quired property when so specifically described as to be identi- fied. § 82. In relation to executory contracts for the sale of goods not yet belonging to the vendor. Lord Tenterden held, in an early case (o) at nisi prius, that if goods be sold, to be delivered at a Goods not future day, and the seller has not the goods, nor any con- m' to'ven- t^f-ct for them, nor any reasonable expectation of receiv- dor- ing them on consignment, but intends to go into the market and buy them, it is not a valid contract but a mere wager on the price of the commodity. But this doctrine is quite ex- ploded, and Bryan v. Lewis was expressly overruled by the ex- chequer of pleas in Hibblewhite v. McMorine, (p) and Mortimer V. McCallan, (rif) after being questioned in the common pleas in Wells V. Porter, (r) The law in relation to time bargains for the sale of chattels not belonging to the vendor, when merely col- orable devices for gambling in the rise and fall of prices, is treated post, book IIL ch. iii. §§ 541 d seq. (s) acquired chattels definitely pointed out, as (n) 10 H. L. Cas. 191 ; [S. C. 2 De G., for instance, by reference to the ship, mill, F. & J. (Am. ed.) 596, note ( I ) ; Language or place into which they are to be brought, of Gwynne, J., in Mason u. MacDonald, may be lawfully assigned as security. The 25 TJ. C. C. P. 435 ; Brett v. Carter, 2 common law recognizes such transfers of Low. 458.] And see judgment in Reeve land by way of estoppel, and of chat- v. Whitmore, 33 L. J. Ch. 63, as to dis- tels when they are the produce of land, tinction between a present transfer of fut- or of chattels already owned by the trans- ure property and a mere power to seize it. ferrer, but not of future chattels simpli- (o) Bryan v. Lewis, Ry. & Moo. 386, in citer, unless there be some novus actus in- 1826. teraen/ens, after the chattels are acquired; (;;) 5 M. & W. 462; [Phillips v. Oc- that is to say, either some new trans- mulgee Mills, 55 Ga. 633; Cole .. Mil- fer, or possession taken under the old." mine, 88 111. 349 ; The Bank of Toronto Judge Lowell then alludes to Moody v. u. McDougall, 28 U. C. C. P. 345 ; Clarke Moody t,. Wright, 13 Met. 17, and in- i.. Poss, 7 Biss. 540.] Wright crit- timates that it is not good {g) 6 M. & W. 58. '"'""'*• law, and that the case will be (r) 2 Bing. N. C. 722, and 3 Scott, reversed by the Supreme Court of Massa- 141. chusetts should opportunity arise.] (s) [By statute in Massachusetts, agree- PART. I.] OF THE THING SOLD. 87 § 83. Ill America it has been decided that if a vendor sell a thing not belonging to him, and subsequently acquires a American title to it before the repudiation of the contract by the decisions. purchaser, the property in the thing sold vests immediately in the purchaser. (i5) So in a contract of " sale or return," vphere the vendor had no title at the time of sale, but acquired one after- wards, 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, (m) § 8i. The civilians held that an expectation dependent on a chance may be sold, and the illustration usually given g^^^ ^^ ^ is that of the fisherman who agrees to sell a cast of his ^°^% **' ° pendent on nets for a given price ; (a;) and this is adopted by Mr. a chance. Story, (t/) The illustration is perhaps not very well chosen. The case supposed is rather one of work and labor done yi,nditio 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 prop- erty of anybody else as of himself. If a third person gives him money to throw a cast of his net for the benefit of that person, the contract is in its nature an employment 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 or piece, for a ments for the sale of stoclc, and certain is stated in the text that the American certificates and evidences of debt, are doctrine is different from the American made void, unless the party contracting to English, for the prevailing '^"'*- sell is at the time the owner or assignee, American doctrine is essentially the same or authorized by the owner or assignee, or as the English, as the cases cited ante, his agent, to sell or transfer the same. §§ 79-81, show.] Genl. Sts. c. 105, § 6. See Barrett v. (u) Hotchkiss v. Oliver, 5 Denio, 314. Hyde, 7 Gray, 160 ; Wyman v. Fiske, 3 {x) Dig. 1. 8, § 1, de Contr. empt. ; Po- AUen, 238 ; Barrett v. Mead, 10 lb. 337 ; thier, Vente, No. 6. Brown V. Phelps, 103 Mass. 313. The {y) Story on Sales, § 185. [In Low u. object of this statute was to prohibit gam- Pew, 108 Mass. 347, the question was bling in stocks. Chapman J. in Brigham directly raised, whether a sale of fish af- V. Mead, 10 Allen, 245, 246.] terwards to be caught has the effect to (() Frazer v. Hilliard, 2 Strobh. 309 ; pass to the purchaser the property in the Blackraore v. Shelby, 8 Humph. (Tenn.) fish when caught; and it was decided in 439. [It is not to be inferred from what the negative.] 88 ■ FORMATION OF THE CONTRACT. [BOOK I. single cast, than when he is paid by the month for all his cast, (z) But though the illustration may be questioned, 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, (a) " if a man will make a purchase of a chance, he must abide by the con- sequences." (5) The rules of law applicable to the sale of things immoral, noxious, or illegal, are discussed post, book III. ch. iii. on " Illegality." (z) The vexed subject of the true test (a) 4 Price, 135. by which to determine whether certain (6) See, also, observations of Lord contracts are in their nature contracts of Campbell C. J. in Hanks v. Palling, 6 E. sale, or contracts for work and labor, and & B. 659 ; 25 L. J. Q. B. 375. materials furnished, is discussed post, part II. ch. i. §§ 94 et seq. CHAPTER V. OF THE PRICE. Section Where no price has been fixed . . 85 What is meant by " a reasonable price" 86 Price to be fixed by valuers . . 87 Valuation is not arbitration Responsibility of valuers . Civil law as to price . Section . 88 89 § 85. It has already been stated that the price must consist of money, paid or promised. The payment of the price in sales for cash or on credit will be the subject of future consideration, when the performance of the contract is discussed. We are now con- cerned solely with the agreement to make a contract of sale. Where the price has been expressly agreed on, there can when no arise no question ; but the price of goods sold may be de- befmfixed termined by other means, (a) If nothing has been said reasonable J ^ y o price im- as to price when a commodity is sold, the law impl -s pi'ed. an understanding that it is to be paid for at what it is reasona- bly worth. In Acebal v. Levy, (a^) the court of common pleas, while deciding this to be the rule of law in cases of executed con- tracts, expressly declined to determine whether it was also appli- cable to executory agreements. But in the subsequent case of Hoadly v. McLaine, (V) the same court decided that in an execu- tory contract, where no price ad been fixed, the vendor could re- cover in an action against the buyer, for not accepting he goods, the reasonable value of them ; (6^) and this is the unquestionable rule of law. (c) (a) [If there be conflicting evidence as to the price agreed upon, the real value may be shown as tending to prove which party is right. Johnson v. Harder, 45 Iowa, 677 ; Bradbury v. Dwight, 3 Met. 31 ; Rennell v. Kimball, 5 Allen 365 ; Sau^nders v. Clark, 106 Mass. 331 ; Brewer V. Housatonic R. R. Co. 107 lb. 277.] (a>) 10 Bing. 376. (6) 10 Bing. 482. (61) [McBride u. Silverthorne, 11 U. C. Q. B. 545.] (c] Valpy 0. Gibson, 4 C. B. 837 ; 2 Saund. 121 e, note (2), by Williams Serj. to Webber v. Tivill; [.Joyce u. Swann, 17 C. B. N. S. 84 ; James v. Muir, 33 Mich. 223, 227. The law implies a contract in such cases to pay the market price at the 90 FORMATION OF THE CONTRACT. [book I. § 86. In Acebal v. Levy, the court further declared that where -jifhat is tlie contract is impUed to be at a reasonable price, this meant by nieans, " Such a price as the jury upon the trial of a reasona- ' ^ , , i ■ , n • n j_ i bie price. the cause shall, under all the circumstances, decide to be reasonable. This price may or may not agree with the current. , , , vrice of the commodity at the port of shipment at the Acebal «. -f^ •' • i tii Levy. precise time when such shipment is made, ihe current price of the day may be highly unreasonable from accidental cir- cumstances, (ci) as on account of the commodity having been pur- posely kept back by the vendor himself, or with reference to the price at other ports in the immediate vicinity, or from various other causes." § 87. It is not uncommon for the parties to agree that the Price to be price of the goods sold shall be fixed by the valuers ap- raiuers. pointed by them. In such cases they are of course bound by their bargain, and the price when so fixed is as much part of the contract as if fixed by themselves, (c^) But it is essential to the formation of the contract that the price should be fixed in ac- cordance with this agreement, and if the persons appointed as val- time and place of delivery. McEwen v. Morey, 60 III. 32. The fact that the price has not been fixed will not necessarily prevent the title from passing, but is merely a fact to be considered by the jury in determining whether or not the title has passed- Callaghan c. Myers, 89 111. 566.] (c^) [See Kountz o. Kirkpatrick, 72 Penn. St. 376, cited post, § 870, in note (a).] (d) [See Brown v. Bellows, 4 Pick. 189; Fuller v. Bean, 34 N. H. 301, 304 Cunningham v. Ahhbrook, 20 Mo. 553 McCandlish v. Newman, 22 Penn. St. 460 Nutting V. Dickinson, 8 Allen, 540 ; New- Ian V. Dunham, 60 111. 233. A sale was made of a quantity of wheat, at .i price McConnell ten cents per bushel less than ti. Hughes. ti,e Milwaukee price should be on a day thereafter, which the seller should name, and the wheat was delivered in pursuance of such contract, and was destroyed by tire before the .seller had named the day with reference to which the price should be determined. It was held that the property in the wheat was in the purchaser, and the seller, having afterwards named such day, was entitled to the payment of the price, as thus fixed. McConnell v. Hughes, 29 Wis. 537 ; Eas- terlin i;. Rylander, 59 Ga. 292; Ames u. QuLmby, 96 U. S. 324. When the price of goods sold is to be fixed by a referee, the contract of sale is not perfect until the price is so fixed. Hutton u. Moore, 26 Ark. 382 ; Tickers v. Vickers, L. R. 4 Eq. 529 ; Scott V. The Corporation of Liver- pool, 3 De G. & J. 334. A sale was made of 183 hogsheads of molasses at 31 cents a gallon, the number of gal- nicLeati. Ions to be determined by the Kotmson. gauge-mark already placed upon the hogs- heads by a customs officer. The plaintiffs paid for the molasses, the amounts paid being determined by the above method. As a matter of fact, there was not so much molasses as indicated by the gauge. It was held that the plaintiiTs could not re- cover for the deficiency. ^^cLea v. Rob- inson, 2 Pugsley & Burbridge (N. B.), 83 ; Brown v. Cole, 45 Iowa, 601.] PART I.J OF THE PRICE. uers fail, or refuse to act, there is no contract in the case of an ex- ecutory agreement, even though one of the parties should himself be the cause of preventing the valuation, (e) But if the agree- ment has been executed by the delivery of the goods, the vendor would be entitled to recover the value estimated by the jury, if the purchaser should do any act to obstruct or render impossible the valuation, as in Clarke v. Westrope, (/) where the defendant had agreed to buy certain goods at a valuation, and the valuers disagreed, and the defendant thereupon consumed the goods, so that a valuation became impossible. § 88. Where the parties have agreed to fix a price by the valu- ation of third persons, this is not equivalent to a submis- ™"**J°^i. sion to "arbitration," within the common law procedure tration. act (^f) (17 & 18 Vict. c. 125, s. 12), and it was therefore held in Bos V. Helsham, (A) that where one party had appointed a valuer, and the other, after a notice in writing, had declined to do the same, as required by the contract, the 13th section of the act did not apply, so as to authorize the valuer appointed to act by himself as a sole arbitrator. It has been held, however, ^^?P°°f'" that if the persons named as valuers accept the office or valuers. employment for reward or compensation, they are liable in dam- ages to the parties to the contract for neglect or default in per- forming their duties, (i) § 89. In the civil law it was a settled rule that there could be no sale without a price certain. (¥) " Pretiuni autem ciyjj j^^ constitui oportet, nam nulla emptio sine pretio esse po- ^' '° P"*^^' test ; sed et certum esse debet," was the language of the Insti- (e) Thurnell v. Balbirnie, 2 M. & W. (i) Jenkins v. Betham, 15 C. B. 189; 786 ; Cooper v. Shattleworth, 25 L. J. Ex. 24 L. J. C. P. 94 ; Cooper v. Shuttle- 114 ; Vickers v. Vickers, L. R. 4 Eq. 529 ; worth, 25 L. J. Ex. 114. Milnes v. Gevy, 14 Ves. 400; Wilks v. (k) ["The language of the civil law Davis, 3 Mer. 507 ; [Wittowsky v. Was- upon this subject is the language of corn- son, 71 N. Car. 451. See Fuller y. Bean, mon sense." Story J. in Flagg v. Mann, 34 N. H. 304 ; De Cew v. Clark, 19 U. C. 2 Sumner, 538. " But if the price can be C. P. 155.] made certain, it is sufficient." Bell J. in (/) 18 C. B. 765 ; [Wittkowsky v. Was- EuUer v. Bean, 34 N. H. 304. See Mad- son, 71 N. Car. 456.] ' dock v. Stock, 4 U. C. Q. B. 118. In El- ig) Collins v. Collins, 26 Beav. 306 ; 28 ridge v. Richardson, 3 U. C. Q. B. 149, L. J. Ch. 184 ; Vickers v. Vickers, L. R. it was held that in an action on the com- 4 Eq. 529. mon counts for goods bargained and sold, (A) L. R. 2EX.72. But see Re Hopper, the plaintiff must show a certain price L. R. 2 Q. B. 367 ; Re Anglo-Italian Bank, agreed upon.] L. R. 2 Q. B. 452. 92 FORMATION OF THE CONTRACT. [BOOK I. tutes. (Z) And it was a subject of long contest among the earlier jurisconsults whether the necessity for a certain price did not ren- der invalid an agreement that the price should be fixed by a third person ; but Justinian put an end to the question by positive leg- islation : " Alioquin si inter aliquos ita convenerit, ut quanti Ti- tius rem asstimaverit tanti sit empta, inter veteres satis abundeque hoc dubitabatur sive constat venditio, sive non. Sed nostra de- cisio ita hoc constituit, ut quotiens sic composita sit venditio, quanti ille cestimaverit, sub hac conditione staret contractus ; ut si quidem ipse qui nominatus est pretium definierit, omnimodo se- cundum ejus sestimationera et pretium persolvatur et res tradatur, et venditio ad effectum perducatur, emptore quidem ex empto ac- tione, venditore ex vendito agente. Sin autem ille qui nominatus est, vel noluerit vel non potuerit pretium definire, tunc pro nihilo esse venditionem quasi nullo pretio statute. Quod jus, cum in venditionibus nobis placuit, non est absurdum et in locationibus et conductionibus trahere." (Z) These rules have been adopted into the Code Napoleon. Art. 1591 : " Le prix de la vente doit etre d^termin^ et d^signe par les parties." 1592 : " II peut cependant §tre laiss^ a I'arbitrage d'un tiers ; si le tiers ne veut ou ne peut faire 1' estimation, il n'y a point de vente." (/) Lib. iii. tit. xxiii. s. 1. PAET II. SALES UNDER THE STATUTE OF FRAUDS. CHAPTER I. WHAT CONTKACTS AKB WITHEST THE STATUTE. History of the statute . The 17 th section . What contracts embraced in it Lord Tenterden's act "Value'' and "price" of lOZ. Section 90 91 92 93 93 Seotioa Distitiction between " sales " and " work and labor done," &o Furnishing a chattel to be affixed to a freehold .... Law in America on the subject Sales at auction .... 94 108 109 110 § 90. The common law which recognized the validity of verbal contracts of sale of chattels, for any amount, and how- ju ^j ever proven, was greatly modified by the statute of 29 '''<^ latute. Charles 2, c. 3. This celebrated enactment, familiarly known as the " Statute of Frauds," is now in force not only in England and most of our colonies, but exists, with some slight variations, in al- most every state of the American Union. Its history was but im- perfectly known till the year 1823, when Lord Eldon gave to Mr. Swanston, the reporter of his decisions, the MSS. of Lord Notting- ham, (a) among which was his lordship's report of the case of Ash V. Abdy, (J) in which he said, on the 13th June,- 1678, less than (a) See note to Crowley's case, 2 Swans. 83. (6) 3 Swans. 664, Appendix. In North's Life of Lord Keeper Guilford, 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 Justice Hale had the preeminence, and was chief in the fixing of that law, although the urging part lay upon him, and I have reason to think it had the first spring from his lordship's notice." [In Wyndham V. Chetwyud, 1 Burr. 418, Lord Mansfield said : " It has been said ' that tiiis act of 29 C. 2, c. 3, was drawn by Ld. Ch. J. Hale.' But this is scarce probable. It was not passed till .nfter his death ; and it was brought in in the common way, and not upon any reference to the judges."] 94 FORMATION OF THE CONTRACT. [BOOK I. two years after the passage of the law, that he overruled a demur- rer 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 civil-* ians." (c) § 91. The section of the statute which is specially applicable to The 17th ^^^^ subject of this treatise is the 17th. In the examina- section. tjon of its provisions, and of the rules for its construc- tion and application, the arrangement of Mr. Justice Blackburn will be followed, as not susceptible of improvement. The language of this 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 (d) of ten pound sterling, or upwards, (e) shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memoran- dum 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." (/) (c) As to the traditions of the aid and {/) [In Townsend v. Hargraves, 118 cooperation of Lord Hale and Sir Lcoline Mass. 334, Colt J., referring to the stat- Jenkins, see Wain v. Wariters, 5 East, 17 ; ute of frauds, said : " The purpose of this Wyndham I,. Chctwynd, 1 Burr. 419; celebrated enactment, as declared in the Wynn's Life of Sir Leoline Jenkins, vol. preamble, and gathered from its provi- '■ P' ' , sions, is to prevent fraud and falsehood, (rf) This word changed to " value," by requiring a party, who seeks to enforce ^"^ > S > ■ an oral contract in court, to Purpose and [e] [The statutes of frauds of the differ- produce, as additional evi- J^^yi^^^fth^ entAinericau States differ from each other dence, some written memo- 8t™ute° and from the English statute in regard to randum signed by the party souo-ht to the amount necessary to bring a contract be charged, or proof of some act con- withm them. In New Hampshire it is firmatory of the contract relied on. It hxedatS33.33; inMaineatv30; in Ver- docs not prohibit such contract. It mont at %40 ; in Xew York, Connecticut, does not declare it shall be void or iUe- Massachusetts.andmostother states, $50; gal, unless certain formalities are ob- in Rhode Is and, this provision has never served. If executed, the efTect of its per- een adopted.] formance on the rights of the parties is PART II.] CONTRACTS WITHIN THE STATUTE. § 92. The first question that obviously presents itself under this enactment is, what contracts are embraced under th^ what con- words " contracts for the sale of any goods," &c. A brat'ed'^in contract may be perfectly binding between the parties, ^^^ so as to give either of them a remedy against the person and gen- eral estate of the other in case of default, but having no effect to not changed, and the consideration may be recovered. Stone v. Dennison, 13 Pick. 1 ; Basford v. Pearson, 9 Allen, 387 ; Nutting v. Dickinson, 8 lb. 540. (i) The memorandum required is the mem- orandum of only one of the parties ; the alternative acts of the seventeenth section proceed from one only ; they presuppose a contract, and are in affirmance or par- tial execution of it; they are not essential to its existence ; need not be contempora- neous, and are not prescribed elements in its formation. It is declared in the fourth section, that no action shall be brought upon the promises therein named, unless some memorandum of the agreement shall be in v?riting ; and in the seventeenth, that no contract for the sale of goods ' shall be allowed to be good,' or, as in our statute [Massachusetts], ' shall be good and valid,' unless the buyer accepts and receives part or gives earnest, or there is some mem- orandum signed by the parties to be charged, or, as in our statute, by the party to be charged. It is true there is differ- ence in phraseology in these sections ; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts, this difference cannot be held to change the force and effect of the two sections. 'Allowed to be good,' means good for the purpose of a recovery under it ; and the clause in the last part of the latter section, which requires the memo- randum to be signed by the party or par- ties to be charged, implies that the validity intended is that which will support an ac- tion on the contract. We find no case in which it is distinctly and authoritatively held otherwise. See Leroux v. Brown, 12 C. B. 810; Carrington «. Roots, 2 M. & "W. 248 ; Reade u. Lamb, 6 Ex. 130 ; Browne St. Frauds, §§115, 136. In car- rying out its purpose, the statute only af- fects the modes of proof as to all con- tracts within it. If a memorandum or proof of any of the alternative require- ments peculiar to the seventeenth section be furnished ; if acceptance and actual receipt of part be shown ; then the oral contract, as proved by the other evidence, is established with all the consequences which the common law attaches to it. If it be a completed contract according to common law rules, then, as between the parties at least, the property vests in the purchaser, and a right to the price in the seller, as soon as it is made, subject only to the seller's lien and rights of stoppage in transitu.'' And upon these considera- ations, it was held in the above case of Townsend v. Hargraves, that the statute of frauds affects the remedy only and not the validity of the contract, and if there is a completed oral contract of sale of goods, the acceptance and receipt of part of the goods by the purchaser takes the case out of the statute, although such acceptance and receipt take place after the rest of the goods are destroyed by fire while in the hands of the seller or his agent. See Leather Cloth Co. , 48 \. H. 297 ; Gil- (/) 2 H. Bl. 63. man v. Hill, 36 lb. 318; Sewall v. Fitch, (,«) 7 T. R. 14. 8 Cowen, 215; 2 Kent, 511, note (rf) ; („) 5 B. & Aid. 613. PART II.] CONTRACTS WITHIN THE STATUTE. tracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be deliv- ered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for deliv- ery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." (w^) It is settled in Scott V. Eastern Counties Railway Company, (o) and in Har- man v. Reeve, (^) that this enactment must be con- "Value" strued as incorporated with the statute of frauds, and "price." that its effect is to substitute the word " value " for " price " in the 17th section. § 94. There have been numerous decisions, and much diversity and even conflict of opinion, in relation to the proper mstin^tion principle by which to test whether certain contracts are ^"^'y^" ^ i- ^ ^ '"sales" " contracts for the sale," &c. under the 17th section, or and contracts for work and labor done and materials fur- labor cime, nished. A review of the cases will exhibit the different j-iais fur- lights in which the subject has presented itself to the "'^''^'i-" minds of eminent judges. Towers v. Osborne (5') was on an agreement to make and furnish a chariot. Held not xowei-s « within the statute. But the ground of decision in this Osborne, case was, that the 17th section did not apply to executory agree- ments, and on this point the case is met bj' Lord Tenterden's act. In Clayton v. Andrews, (r) a contract for the future de- ciavton ». livery of wheat not yet threshed was held not within Andrews. the statute, under the authority of the preceding case. § 95. In Groves v. Buck, (s) the agreement was for the purchase by defendant of a quantity of oak pins, not then in ex- Groves v. 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- (m') [Cameron v. Morrison, Arms., Mac- to be done may be considered as essential artn. & Ogl. 128.] parts of such contracts. See Cason v. (0) 12 M. & W. 33. Cheely, 6 Ga. 554; Sewall u. Filch, 8 (p) 18 C. B. 587, and 25 L. J. C. P. Cowen, 215 ; Downs a. Boss, 23 Wend. 257. 270 ; Courtright v. Stewart, 19 Barb. 455 ; {q) 1 Strange, 506. Jackson v. Covert, 5 Wend. 139 ; Gorhara (r) 4 Burr. 2101. [The court of appeals v. Fisher, 30 Vt. 428; Hijjgins v. Murray, in Maryland, in Eichelberger v. M'Cauley, 73 N. Y. 252.] 5 Harr. & J. 213, followed, with some re- (s) 3 M. & S. 178. [See Gilman v. luctance, the case of Clayton v. Andrews, Hill, 3fl N. H. 317, 318; Cummings v. and declared that it was to be extended Dennett, 26 Maine, 397 ; Abbott u. Gil- only to cases where the work and labor christ, 38 lb. 260.] 7 98 FOKMATION OF THE CONTRACT. [BOOK I. ment was held not to be embraced in the 17th section of the stat- ute of frauds. Lord Ellenborough put his opinion on the ground that the '' subject-matter of this contract did not exist in rerum na- turd : it was incapable of delivery and of part acceptance, and where that is the case, the contract has been considered not within the statute." (0 This ground is again met by the 9 Geo. 4, c. 14, s. 7, but Dam pier J., in declining to apply the case of Ron- deau V. Wyatt (presently noticed), said that this last-mentioned case was distinguishable, because in the other cases cited " some work was to be performed." § 96. In Rondeau v. Wyatt, («) where an executory contract Rondeau was held to be within the statute, Lord Loughborough r. Wyatt. ^^^^ ^^-^^^ u ^^^q page 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 7iecesxary tilings to be found, which is dif- ferent from a mere contract of sale, to which alone the statute is applicable." (a-) His lordship also disposed of the case of Clay- ton V. Andrews («/) (subsequently overruled in Garbutt v. Wat- son), (a) 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." § y7. In Garbutt v. Watson, (2) where a sale of flour, to be Garbutt K. manufactured out of wheat yet unground, was held to Wiit^un. i^g within the statute, Abbott C. J. said that in Towers V. Osborne " the chariot, which was ordered to be made, would never, but for that order, have had any existence.'" This expres- sion, as well as the similar one by Lord Ellenborough in Groves V. Buck (^ante § 9.")), would imply that the distinction 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 (i) [It is very clearly settled, by the more [x) [In Higlit v. Ripley, 19 JIaine, 139, recent English and American cases, that Shepley J. said: "The decision in the it is not essential that the goods be capable case of Towers v. Osborne is esteemed to of delivery at the time of making the con- have been correct, while the reasons for it tract, to bring it within the statute of are rejected as erroneous. The chariot frauds. Pitkin c.. Noyes, 48 N. H. 298 ; bespoken does not appear to have existed Prcscott i). Locke, 51 lb. 97; Finney i,. at the time, but to liave been manufactured Apgar, 31 N. ,1. (2 Vroom) 2G6; Wcgg v. to order.] Drake, 16 U. C. Q. B. 252.] {y) 4 Burr. 2101. (i() 2 H. Bl. 63. (2) 5 B. & A. 613. PART II.J CONTRACTS WITHIN THE STATUTE. of the party desiring to acquire it, or a thing which would have existed, and been the subject 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. "(a) Holroyd J. concurred, " that this was a contract for the sale of goods," but neither of the judges gave a reason for this opinion (undoubtedly correct), and thus no aid is afforded by their language in furnishing a test for distinguishing the two contracts from each other. § 98. In Smith v. Surman (6) an action was brought to recover the value of certain timber, under a verbal contract, by gmith v. which plaintiff agreed to sell to defendant at so much ^'^""'^°- per foot the timber contained in certain trees then growing on plaintiff's land. Bayley J. was of opinion that " this was a con- tract 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 pre- paring it for delivery, was doing work for himself, and not for the defendant." § 99. In Atkinson v. Bell (c) the whole subject was much dis- cussed. The action was in assumpsit for goods sold and Atkinson delivered, goods bargained and sold, work and labor "' done, and materials found and provided. The facts were, that one Kay had patented a certain machine, and the defendants, thread manufacturers, desiring to try it, wrote him an order to procure to be made for them as soon as possible some spinning-frames, in the manner he most approved of. Kay employed 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 superin- tendence. 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 (a) [See Edwards v. Grand Trunk Rail- Noyes, 48 N. H. 298 ; Prescott v. Locke, way Co. 54 Maine, 105, 110.] 51 lb. 97.] {b) 9 B. & C. 568. [See Pitkin v. (c) 8 B. & C. 277. 100 FORMATION OF THE CONTRACT. [BOOK I. Sleddon's premises. On the 23d June, Sleddon wrote to the defendants that the machines had been ready for three weeks, and asked how they were to be sent. On the 8th August, Sleddon became bankrupt, and his assignees required the defendants to take the machines ; but they refused, whereupon action brought. The judges were all of opinion that the property in the goods had not vested in the defendants, (f?) 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 defendants', that is to say, that the contract was an executory agreement for sale, and not one for work, &c. Bayley J. said : " If you employ a man to build a house on your 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^nlone. >^'Ss^ if you employ another to work up his own materTjrtfi^in mftlt^ing a chattel, then he may appropriate the produce of t/ijft/Hsbor kftd materials to any other person. No right to maintai(/any action vests in him during the progress of the work ; but when the chattel has assumed the char- acter bargained for, and the employer has accepted it, the party employed may maintain an action for goods sold and deliv- ered ; (t^i) or if the em^jloyer refuses to accept, a special action on the case for such refusal ; but he cannot maintain an action for work and labor, hecetuse his labor was hestowccl on his oien mate- rials, and for himself, and not for the person who employed him." The concluding passage of this ojjinion is no doubt too broadly expressed, for although true generally, it is not universally the case that an action for work and labor will not lie when performed on materials that are the property of the workman. This inaccurate dictum had the effect for a time of weakening the authority of Atkmson v. Bell, (e) subjecting it to the criticism of Alaule and {d) On this subject see post, book 11.; (e) See remarks on another point dc IHalterline i-. Kice, 62 Barb. 593, 598; cided in Bell v. Atkinson, post, book II. Mixer V. Howarth, 21 Pick. 205, 207.] eh. v. [cP-) IGooderham w.Dasli, 9 U. C. C. P 413.1 PART II.] CONTRACTS WITHIN THE STATUTE. Erie JJ. in Grafton v. Armitage, (/) and of Pollock O^Br-ii^ Clay V. Yates, (^) but it was fully recognized in the subsequent case of Lee v. Griffin. (A) § 100. Grafton v. Armitage (/) was a somewhat singular case. The plaintiff was a working engineer. The defendant Grafton «. was the inventor of a life-buoy, in the construction of -*^''""'*se- which curved metal tubes were used. The defendant employed plaintiff to devise some plan for a machine for curving the tubes. The plaintiff made drawings and experiments, and ultimately pro- duced a drum or mandrel, which 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. 3s. ; 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." Defendant 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 JVlaule 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 pZam- tiff (^sic plainly meaning defendant'), or that are to be handed over to him." Erie J. said : " Suppose an attorney were em- ployed 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 contract 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 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 attaining 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 (/) 2 C. B. 336 ; 15 L. J. C. P. 20. (A) 1 B. & S. 272 ; 30 L. J. Q. B. 252. (g) 1 H. & N. 73 ; 25 L. J. Ex. 237. 102 FORMATION OF THE CONTRACT. [BOOK I. shoemaker is for the price of goods when delivered, and not for the work or labor bestowed by him in the fabrication of them." § 101. In Clay v. Yates, (i) the subject was treated by Pollock ciav V. G. B. in 1856, as a matter entirely res nova. The con- ^""^^^ tract was that the plaintiff, a printer, should print for the defendant a second edition of a work previously published by the defendant, the plaintiff to find the materials, including the paper, field, that this was not a contract for the sale of a thing to be delivered at a future time, nor a contract for making a thing to be sold when completed, but a contract to do work and labor, furnishing the materials ; and that the case was not governed by Lord Tenterden's act. Pollock C. B. said : " As to the first point, whether this is an action for goods sold and delivered, and requiring a memorandum in writing, within the 17th section of the statute of frauds, I am of opinion that this is properly an ac- tion 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 distinctlj', and that is the form in which they are in the habit of suino-. The point made in the case cited, in which Bayley J. gave an opinion (Atkinson v. Bell), I think may be answered by the opinion of Maule J. in the coiu-t of common pleas (Grafton v. Armitao-e) ; 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 doubt, is always found by the printer. But it seems to me the true rule is this, whether the work and labor is of the 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 mar- ble or common 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 dehvered ff the work were completed and sent home. No doubt {i) 1 H. & N. 73 ; 25 L. J. Ex. 237. FART II.] CONTRACTS WITHIN THE STATUTE. 103 it is a chattel that was bargained for and delivered, and it might be recovered as goods sold and delivered : but still it would not prevent the price being recovered 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 statute 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 the true criterion is this : Supposing there was no contract as to payment, and the plaintiff had brought an action, and sought to recover the value of that ivhich he had delivered, would that be the value of the book as a book ? I apprehend 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 ma- terials he had used upon the work ; and, therefore, this is a case of work, labor, and materials, done and provided by the printer for the defendant." The learned baron also put this case : " Sup- pose an artist paints a portrait for 300 guineas, and supplies the canvas for it worth 10s., surely he might recover on a count for work and labor." 104 FORMATION OF THE CONTRACT. [BOOK I. § 102. In Lee v. Griffin, {¥) the last reported case, the fore- Lee i;. going opinions of the chief baron and Baron Martin Giiffiii. ^gj.g questioned, and not followed, though the decision was approved. This action was brought by a dentist, to recover 21/. 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 plaintiff 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 7iot sell the hook to any one else." Cromjpton J. said : " When the contract is such that a chattel is idtimately to he delivered hy the plaintiff to the defoidant. ivhen it has heen 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 peculiar circumstances of the case. I have some doubt upon the joropriety of the decision, but we should be bound by it in a case precisely similar in its circumstances, which the present is not. J do not agree ivith the proposition, that wherever skill is to he exercised in carrying out the contract, that fact makes it a contract for ivork and labor, and not for the sale of a chattel. It may be, the cause of action is for work and labor when the ma- terials supplied are merely auxiliary, as in the case put of an at- torney or printer. But in the present case, the goods to be fur- nished, viz. the teeth, are the jjrincipal suhjcct-matter ; and the case IS nearer that of a tailor, who measures for a garment, and afterwards supplies the article fitted." Hill J. said : " I think the decision in Clay v. Yates perfectly correct, according to the par- ticular subject-matter of tlie 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 suhject-matter of the contract is a chattel to he afterwards de- livered, then the cause of action is goods sold and delivered, and the seller cannot sue for work and lahor. 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 Erie J. in (k) 1 B. & S. 272 ; 30 L. J, Q B. 252. [See Prcscott v. Locke, 51 N. H. 96, 97.] PART II.] CONTRACTS WITHIN THE STATUTE. 105 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 he be- stowed in such a manner as that the result would not be anything which could properly he 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 com- pleted, 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 v?hich it is bestowed can in any case be the test of vchat is the cause of action ; and that if Benvenuto Cellini had contracted to execute a work of art for an- other, much as the value of the skill might exceed that of the materials, the contract would have been [none] the less for the sale of a chattel." (Z) § 103. In i-eviewing these decisions, it is surprising to find that a rule so satisfactory and apparently so obvious as that Remarks laid down in Lee v. Griffin, in 1861, should not have cases, been earlier suggested by some of the eminent judges who had been called on to consider the subject, beginning with Lord Ellen- borough, 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 contract is intended to result in transferring for a price from B. to A. a chattel in ivhich A. had no previous property, it is a contract 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 Amer- ica, but without a satisfactory result, as will subsequently appear. § 104. The principles suggested as affording a test on this sub- {/) [A. ordered from B.a tombstone to held that this was a contract for the sale Manufacture be put up at the grave of her of a chattel, and not one for work and stone'"''" husband. The order was ver- labor, and that it was within the statute. bal. Work upon the tomb-stone was Wolfenden v. Wilson, 33 U. C. Q. B. begun before A.'s death, and the monu- 442.] mentwas put up after her death. It was 106 FORMATION OF THE CONTRACT. [bOOK I. ject prior to the case of Lee v. Griffin were the following : 1st. Principles That if the subject-matter of the contract was not in ex- ^rfoHoLee istence, not in renim naturd, as Lord EUenborough ex- «. Uriffin. pressed it, the contract was not " for the sale of goods." First. Xhis was the opinion of Lord EUenborough in Groves v. Buck ; (0 of Abbott C. J. as shown by his comment on Towers V. Osborne, in the opinion delivered in Garbutt v. Watson ; (m) and may be inferred from Rondeau v. Wyatt (w) to have been the opinion of Lord Loughborough. That the decision in Towers V. Osborne was wrong, if it went upon the ground that Lord Loughborough states, viz. that the order for the chariot was not a contract or agreement for the sale of a chattel, is no longer ques- tionable, (o) 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 cases of contracts for the sale of chattels, is exactly the same as the oi'der in Towers v. Osborne. The intention of the parties was that the result should be a transfer for a price, by Towers to Sir John Os- borne, of a chattel in which Sir John had no previous property, and this was clearly a contract for a sale. § 105. 2d. The second principle suggested as the true test was by Bavley J., fii'st in Smith b. Surman, (jo) afterwards more fully developed in Atkinson v. Bell, (g) viz. that if the materials be furnished by the employer, the contract is for work and labor, not for a sale ; but if the materials be furnished by the workman who makes up a chattel, he cannot maintain " work and labor," because his labor was bestowed on his own ma- terials and for himself, and not for the person who employed him. The first branch of this rule is undoubtedly correct, as shown by the principles settled in Lee v. Griffin ; because where the mate- rials are furnished by the employer, there can be no transfer to (/) 3 M. & S. 178. Dennett, 26 lb. 397 ; Abbott v. Gilchrist, {m) oB, &A. 613. 38 lb. 260; Crooksliank v. Burrell, 18 (n) 2 H. Bl. 63. John. 58 ; Sewall u. Fitch, 8 Cowen, 215 ; (o)^ [There are several leading American Robertson v. Vauphn, 5 Sandf. 1 ; Dono- dccisions based upon the ground on which van v. Willson, 26 Barb. 138; Mead v. Towers v. Osborne went, as stated by Lord Case, 33 lb. 202, all cited and stated post, Loughborough, and which the author de- § 109, note (;/). See Goddard .;. Binney, Clares to be unquestionably wrong. Such 115 Mass. 450.] were Mixer v. Howarth, 21 Pick. 205 ; [p) 9 B. & C. 568. Spencer v. Cone, 1 Met. 283 ; Hight v. {g) 8 B. & C. 277. Eipley, 19 Maine, 137; Cummiugs „. PART Il.J CONTRACTS WITHIN THE STATUTE. 107 him of the property in the chattel, he being previously possessed of the title to the materials, so that nothing can be due from hira save compensation for labor ; and this will be equally true where the employer has furnished only part of the materials, for the con- tract 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 an- other's chattel, as, for example, 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 coach-builder, although be- stowed on a thing which is his, and is to remain his after being repaired at another's expense. § 106. 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, (r) 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 mate- rials that are found." This test was decisively rejected by Cromp- ton and Blackburn JJ. in Lee v. Griffin, (s) It cannot be sup- ported, even in the extreme case put by Martin B. of a portrait worth 300 guineas on a canvas worth 10s. If the employer owned nothing whatever that went into the composition of the picture ; if neither materials, nor skill, 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 shghtest difference in what proportions the elements that com- pose the chattel, namely, the raw material and the skill, are di- vided ; 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, (s^) The test (r) 1 H. & N. 73 ; 25 L. J. Ex. 237. Rentch u. Long, 27 Md. 188. See, also, (s) [This test has been approved and Prescott v. Locke, 51 N. H. 94, 97, 98; applied in several important American Passaic Manuf. Co. u. Hoffman, 3 Daly cases. See Pitkin w. Noyes, 48 N. H. 294, (N. Y.), 495.] 303, 304; Edwards v. Grand Trunk Rail- (si) [See Wright v. O'Brien, fost, p. way Co. 48 Maine, 379 ; S. C. 54 lb. 105 ; 114.] 108 FORMATION OF THE CONTRACT. [BOOK I. suggested by Martin B. in his opinion, as found in the Law Jour- nal Report, is accurate as far as it goes, but it does not cover more than the point in the case before the court. The learned baron said: " Suppose the plaintiff had brought an action to re- cover the value of that which he had delivered, 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." This 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 tliere- fore could not be sold to him by the printer. The only remedy then remaining was an action for work and labor, and materials. § 107. Cases are sometimes put, as a test of principles, that are Be minimis SO extreme as to be best disposed of by the application lex. ™™ of the familiar rule, Je minimis no7i curat lex. Tlius the example 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 parcliment are goods sold and delivered. So, if a 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 furnished the garment. Such matters cannot be considered as having entered into the contemplation of parties when contracting, nor as forming any real part of the consideration for the mutual stipulations. § 108. Where a contract is made for furnishing a machine or A chattel ^ movable thing of any kind and fimng it to the free- intended hold, it is not a Contract for the sale of cjoods. In such fo]' a fixt- ... ure to a Contracts the intention is plainly not to make a sale of freehold. , i i , . "^ movables, but to make improvements on the real prop- erty, and the consideration to be paid to the workman is not for a transfer of chattels, but for work and labor done and materials furnished in adding something to the land, (f) § 109. In America, as before observed, the same perplexity has Law in ^een exhibited as marks the history of the subject in America. 0^^ q^,^ i^^^, . ^^^j '^^ j^,^^^,^ ^_ Crafts, (m) Chief Justice (t) Cotterell v. Apsley, 6 Taunt. 322; (») 12 Mot. 356. Sec, also, the case of Tripp V. Armitage, 4 M & W. 687 ; Clark Smith v. The N. Y. Central Kail. Co. 4 Lj. Bulraer, 11 M. & W. 243. PART II.] CONTRACTS ^Y^THIN THE STATUTE. 109 Shaw said : " 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 fin- ished, it is essentially a contract of sale and not a contract for labor ; otherwise when the article is made pursuant to the agree- ment." This opinion seems to have been deduced from some ob- servations of Abbott C. J. in Garbutt v. Watson, and rests on no satisfactory principle. Mr. Story, whose treatise in the last edition of 1862 contains no reference to the then recent case of Lee v. Griffin, avows his difficulty, and suggests that it would probably be held " that where the labor and service were the essential con- siderations, 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 subject-matter in esse, the statute would apply." (2;) This is the rule suggested by Pollock C. B. in Clay V. Yates, and rejected in Lee v. Griffin. (?/) In Mr. Hilliard's Keyes, 180, in which all the authorities are reviewed. (x) Story on Sales, § 260 c. iU) [One of the earliest American cases Massachu- on this Subject is Mixer t. setts de- Howavth, 21 Pick. 20,^, de- Mixer II. cided in 1838. Howarth, the Howarth. defendant, went to Mixer's shop, and selected a lining for a carriage. Mixer had on hand the body of a carriage nearly finished, but not lined, and upon a conversation between the parties it was agreed that Mixer should finish a carriage for Howarth in a fortnight, and the unfin- ished carriage was finished accordingly. Howarth had notice of the fact, and was requested to take the carriage away. Shaw C. J. said : " It is very clear, we think, that by this contract no property passed to the defendant. The carriage contem- plated to be sold by the plaintiff to the defendant did not then exist. It was to be constructed from materials, partly wrought indeed, but not put together. It was, therefore, essentially an agreement by the defendant with the plaintitf to build a carriage for him, and on his part to take it when finished and pay for it, at an agreed or at the reasonable value. This is a valid contract, and made on a good consideration, and therefore binding on the defendant. But it was not a contract of sale, within the meaning of the statute of frauds, and therefore need not be proved by a note in writing. When the contract is a contract of sale, either of an article then existing, or of articles which the ven- dor usually has for sale in the course of his business, the statute applies to the con- tract, as well where it is to be executed at a future time, as where it is to be executed immediately. But where it is an agree- ment with a workman to put materials togelher and construct an article for the employer, whether at an agreed price or not, though in common parlance it may be called a purchase and sale of the arti- cle, to be completed in future, it is not a sale until an actual or constructive de- livery and acceptance; and the remedy for not accepting is on the agreement." Compare with this case the case of Flint V. Corbitt, 6 Daly, 4t9, post, p. 114. It will be observed that the distinction between the contract in this case, which is held not to be within the statute, and an ordi- nary executory agreement for the sale of chattels, which is held to be within the statute, is not very clearly marked, — most of the distinguishing suggestions 110 FORMATION OF THE CONTRACT. [book I. Treatise on Sales, the contradictory decisions are given without any attempt on the part of the learned author to reconcile them would apply to the one as well as to the other. In the subsequent case of Spencer V. Cone, 1 Met. 283, it was decided, on the authority of Mixer u. Hoivarth, that an agreement to malie machines for a speci- fied price, and to find the materials there- for, is not within the statute. Tlie court said : " The agreement was, in substance, for the furnishing of labor and materials, and not a contract of sale." In the later case of Gardner v. Joy, 9 Met. 177, it ap- peared that the plaintiff, Gardner, asked Gardner v. the defendant what he would •'"y- take for candles; the defend- ant said he would take twenty-one cents per pound; the plaintiff replied he would take one hundred boxes; the defendant answered the candles were not manufact- ured, but he would manufacture and de- liver them in the course of the summer. Held, that this was a contract of sale. Shaw C. J. said : " If it is a contract to sell and deliver goods, whether they are completed or not, it is within the statute. But if it is a contract to make and deliver an article or quantity of goods, it is not within the statute." " The case," says the learned judge, " seems not to be dis- tinguishable from that of Garbutt v. Wat- Clark i>. son." In Clark v. Kichols, Nichols. 107 Mass. 547, the paities en- tered into an oral agreement under which the dcfendanis agreed to deliver to the plaintiff a quantity of ash bcnding-stuff, and a quantity of ash plank, for a price amounting to more than lifiy dollars, and it also appeared that the bending-stutf was the butts of trees, sawed so as to rea- der them suitable to be manufactured into wagon shafts, and that the defendant was to saw all the logs not suitable for bend- ing-.siutf into plank of various dimensions, uiuler the diiection of the plaintiff. Chap- man C. J. said : " We think this was a contract to sell and deliver the bending- stuff and plank, and not a contract for labor in manulacturing the articles. It is not like the cases of Mixer v. Howarth, 21 Pick. 20.'), and Spencer v. Cone, 1 Met. 283, but like Gardner v. Joy, 9 Met. 177, Lamb v. Crafts, 12 Met. 353, and Water- man z;. Meigs, 4 Cush. 497, and was within the statute of frauds." The distinction be- tween a contract to sell and deliver goods, and a contract to manufacture them, was again discussed in Goddard v. Binney, 115 Mass. 450, by Ames J., who said that the rule established in Mixer v. Howarth, 21 Pick. 205, " has been recognized and af- firmed in repeated decisions of more re- cent date. The effect of these . . . Massachu- decisions we understand to be setts crite- this, namely, that a contract "'"^' for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But, on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute. We see no ground for hold- ing that there is any uncertainty in the rule itself. On the contrary, its correct- nets and justice are clearly implied or ex- pressly affirmed in all of our decisions upon the subject-matter." In this case of Goddard u. Binney, supra, Qcddard^. it appeared that the plaintiff Hinney. agreed to build a buggy for the defendant, and to deliver it at a time certain. The defendant gave directions as to the style and finish of the buggy, and it was built in conformity with his directions, and marked with his monogram. Before the buggy was finished the defendant called to tee it; and in answer to an inquiry of the plaintiff, asking if he might sell the buggy, replied that he would keep it; when the buggy was finished, the plaintiff notified the detendant of the fact, and sent him a bill of it. The defendant retained the bill and promised "to see" the plain- tiff "about it." The buggy was after- PAET II.] CONTRACTS WITHIN THE STATUTE. Ill or deduce any general principle applicable to the controverted question, (g) wards destroyed by fire while in the plain- tiff's possession ; and it was held, in a suit by the plaintiff for the price, that the agreement was not a contract of sale within the statute of frauds ; and that the property iu the buggy had passed to, the defendant and he was liable. Ames J. said : " It is proper to say also that the present case is a much stronger one than Mixer v. Howarth. In this case the car- riage was not only built for the defendant, but in conformity in some respects with his directions, and at his request was marked with his initials. It was neither intended nor adapted for the general mar- ket. As we are by no means prepared to overrule the decision in that case, we must therefore hold that the statute of frauds does not apply to the contract which the plaintiff is seeking to enforce in this ac- tion." In Hight V. Kipley, 19 Maine, 137, Maine de- '^^"'^^'^ ^"- ^^'"^^ (l^*!), it cisions. appeared that the parties had Hight 71. entered into a contract in which the defendants prom- ised, on terms agreed, to furnish " as soon as practicable," 1,000 to 1,200 lbs. mal- leable hoe-shanks, agreeable to patterns left with them by the plaintiff, — and to furnish a larger amount, if required, at a diminished price; and it was decided that this must be considered a contract for the manufacture of the articles referred to, and so not within the statute of frauds. Shepley J. said : " A contract for the man- ufacture of an article differs from a con- tract of sale in this ; the person ordering the article to be made is under no obliga- tion to receive as good or even a better one of the like kind purchased from an- other and not made for him. It is the peculiar skill and labor of the other party combined with the materials for which he contracted, and to which he is en- titled. In Crookshank v. Burrell, 18 John. 58, the contract was, that the defendant should make the wood-work of a wagon for the plaintiff by a certain time; and it was decided not to be a contract for a sale." The court also rely on Mixer V. Howarth, above cited ; and in the case of Cummings v. Dennett, 26 Maine, 397, 401, the same court, on the authority of Mixer v. Howarth and Spencer v. Cone, supra, say ; " It is very clear that if ap- plication is made to a mechanic or manu- facturer for articles in his line of business, and he undertakes to prepare and furnish them in a given time, such a contract, though not in writing, is not affected by the statute." In Abbott v. Abbot!; -u. Gilchrist, 38 Maine, 260, it Oi'christ. was decided upon the distinction above quoted from the decision in Hight v. Rip- ley, between contracts for the manufacture of articles and contracts of sale, that an oral agreement to procure and deliver, at a time and place fixed, a vessel frame, to be hewn and prepared according to certain moulds, was not affected by the statute of frauds, but binding. In a later case of Ed- wards V. The Grand Trunk Ti .. ^ n, ■ Edwards u. Kauway Co. 48 Mame, 379, Grand the defendants contracted " to ^''"°'' '^y- take all the wood the plaintiff would put on the line of their road during the season, at the same price they had paid him before for wood, or more, if the wood was better." This was held to be a sale within the stat- ute of frauds. The court maintained the distinctions taken in their former decisions, but said ; " The fact that the article con- tracted for does not exist at the time of the contract, but is to be Maine rule, made or manufactured, will not necessarily take the case out of the statute. It must also appear that the particular person who is to manufacture it, or the mode and manner, or materials, enter into and make part of the contract. Hight V. Ripley ; Pickett u. Swift, 41 Maine, 68, 69 A test, in some cases, is whether the person contracting to take the article is bound to receive one which (z) Hilliard on Sales, pp. 464-467. 112 FOEMATION OF THE CONTRACT. [book I. § 110. It was at one time questioned whetlier sales of goods by . . miblic auction were embraced within the statute. Lord Auction r _ sales. EUenborough's strong dicta in Hinde v. Whitehouse, (a) may be bought or procured by the other party after the contract. If he is, then it is a case of sale." The case of Edwards V. Grand Trunk Eailway Co. was again before the same court, in 54 Maine, 105, and they maintained the ground taken in their former decision. This last test was suggested by Mr. Justice Hubbard, in his charge to the jury, in the case of Gardner Crockett f. '■■ Joy. 9 Jlet. 178. In Crock- Scribner. f.^^ y^ Scribner, 64 Maine, 447, the court held it to be a well-established doctrine, that a contract to manufacture and deliver an article to be made out of a particular lot of timber already cut for the purpose and belonging to the manu- facturer, is not within the statute of frauds, and is valid though not in writ- ing. This subject was thoroughly dis- cussed, and the English and Amciican cases ably and extensively examined and New ilamp- reviewed, by Bellows J. in tons."""" ^i'^'^'" "■ Noyes, 48 N. H. Pitkin D. 294. The learned judge said : Noyes. '* If a person contract to man- ufacture and deliver at a future time cer- tain goods, at prices then fixed, or at rea- sonalde prices, the essence of the agree- ment being that he will bestow his own labor and skill upon the manufacture, it is held not to be within the statute. If, Newl-Iamp- O" 'h^ Other hand, the bar- shire rule. gajn be to deliver goods of a certain description at a future time, and they are not existing at the time of the contract, but the seller docs not stipulate to manufacture them himself, or procure a particular person to do so, the contract is witlun the statute. The distinction is, that in the one case the party stijiulates that he will himself manufacture the arti- cle, and the buyer has the right to require him to do it, and cannot be compelled to take one as good, or even better, if made by another, while in the ether case the seller only agrees to sell and deliver the rticle, and is under no obligation to make it himself, but may purchase it of an- other." In this case the doctrine was held to apply to an agreement by the defend- ant to raise three acres of potatoes, and deliver them to the plaintiffs, who were manufacturers of starch, at a fixed price per bushel. And it was deemed proper to leave it to the jury, in view of all the circumstances of the case, to find whether the contract was essentially for the labor and materials of the defendant in raising the potatoes, so that he was bound him- self to raise them, or whether it was sub- stantially a sale of potatoes, which he might raise himself, or procure by pur- chase or otherwise. See the remarks of Foster J. upon this, in Prescott r. Locke, 51 N. H. 98. In the previous case, in New Hampshire, of Gilman Gilman V. Hill, 35 N. H. 311, where ^'- ™'- there was a, contract made in August to sell to the plaintiff all the sheep pelts taken off by the seller, who was a butcher, between the first of July and the first of October, it was held that, in respect to all, as well those not then taken off as those that were ready for delivery, it was a contract of sale of goods, and not for work and labor, and was within the stat- ute. The case of Prescott u. Locke, 51 N. H. 94, disclosed a contract for the purchase ut such walnut spokes as the plaintiff should saw at his prescott mill, not exceeding 100,000 ^- Locke, at S40 per 1,000 to be delivered at the mill in lots of 10,000 each, subject to the defendant's selection. The court, adopt- ing substantially the principles stated in the two preceding cases, held that this was not a contract for the plaintiff's labor, but for the sale of merchandise to be sub- sequently manufactured. The decision of Lee V. Gi'ifRn, cited and stated at length by the author in the text, was noticed both in Pitkin i). Noyes and Prescott v. (a) 7 East, 558, PART II.] CONTRACTS WITHIN THE STATUTE. 113 in 1806, seem to have put an end to the doubt, and the authority of that case was recognized in Kenworthy v. Schofield, (5) so that Locke, supra, particularly in the latter case, where Mr. Justice Foster has stated, and apparently adopted, the rule of dis- tinction in this class of cases laid down by Mr. Justice Blackburn, and quoted by the author, ante, § 102. Foster J. said : " Where the contract is for a chattel to be made and delivered, it clearly is a con- tract for the sale of goods. In such case, the party supplying the chattel cannot re- cover for his labor in making it. If the contract be such that when carried out it would result in the sale of a chattel,- the party cannot sue for labor; but if the re- sult of the contract is that the party has done work and labor which end in noth- ing that can become the subject of a sale, the party cannot sue for goods sold and delivered. Illustrations of the former prop- osition are : Where a carriage was or- dered to be made, which would never, but for the order, have had an existence, but when made becomes the subject of sale. This principle has been applied even to a contract for the making of a coat, a statue, a set of artificial teeth, from mate- rials provided by the maker, even where the peculiar skill of the maker is consid- ered to be an important element in the consideration of the contract ; for the value of the skill and labor, as compared with that of the material supplied, is not a criterion to determine what the contract is. The true construction in this case is, that the con- tract was for the future sale of the spokes, when they should be in a state fit for de- livery. The vendor, so long as he was sawing the timber and doing any other work preparing it for delivery in the form of spokes, was doing work for himself upon his own materials, and not for the defend- ants. The plaintiff was to convert the tim- ber into spokes, and, when so converted, the delivery and acceptance thereof were to occur. Until that time the contract would remain executory, and the title to the property would continue to be in the plaintiff. If the plaintiff had caused or permitted the spokes to be improperly or imperfectly manufactured, or to be made from other than good walnut timber, the defendants would not have been bound to accept or pay for them. Gorham v. Fisher, 30 Vt. 428." In Connecticut it was held that an agreement to deliver Connecticut to a party one hundred sew- (lecision. ing-machines of a certain description, at a time and place designated, on condition that a part of them, not then completed, were finislied in season by a third person, who worked in the seller's shop, and with his materials, was a contract of sale, and not for the manufacture of the machines ; but even if it were otherwise as to the part not completed, sixty-four in number, still, as the contract was entire, and as it was clear that in respect to the thirty-six it was a sale, the whole, it was said, must be regarded as within the statute. At- water v. Hough, 29 Conn. 508. See Allen V. Jarvis, 20 Conn. 38. In New York the distinction is said to be fully New York recognized between an agree- "''^■ ment for the sale and delivery at a fut- ure day of articles then existing, and an agreement to sell and deliver articles not then manufactured, but to be made after- wards, holding that the latter are con- tracts for work and labor and materials found, and not within the statute. Bel- lows J. in Pitkin v. Noyes, New York •48 N. H. 259." In Crook- decisions, shank o. Burrell, 18 John. 58, the contract was, that the defendant should make the wood-work of a wagon for the plaintiflT by a certain time, and it was decided not to be a contract for a sale. In Sewall k. Fitch, 8 Cowen, 215, a contract for nails of a particular manufacture, but not then made, was held not to be within the stat- ute.; so, a contract to make and deliver one thousand molasses shooks, at a fixed price. Robertson u. Vaughn, 5 Sandf. 1. So, in Bron.=on v. Wiman, 10 Barb. 406, (6) 2 B. & C. 945. 114 FORMATION OF THE CONTRACT. [book I. the question suggested on this point by Lord Mansfield, in Simon V. Motivos, (c) has long been at rest. ((7) a contract for flour to be ground from ■wheat, bargained for, but not then re- ceived, was decided not to be within the statute. See, also, to the same effect, Donovan v. Willson, 26 Barb. 138; Par- ker V. Sehenck, 28 lb. 38; Mead v. Case, 33 lb. 202 ; Higgins v. Murray, 73 N. Y. 252. But in Downs v. Koss, 23 AVend. 270, this subject was discussed with great ability by Bronson J., and the English and some American c.isis re- viewed; and the court decided that a sale of seven hundred bushels of wheat, part of which was yet to be threshed, and the rest to be cleaned more thoroughly, and all to be delivered in six days, at a price fixed, was a sale of goods, and within the statute. Cowen J. dissented, upon the ground that the question ivas closed by the early English and New York deci- sions ; but said that, were it an open ques- tion, he would not deny that a contract to manufacture and sell would more cor- rectly be considered a sale within the stat- ute. In Wright v. O'Brien, 5 Daly, 54, the plaintiff^ employed an artist to copy in Wright D. cr.iyon, from a small photo- OBrien. graph, a likeness of the plain- tiff's child. Of the contract Daly C. J. said : " This was not a contract for the sale and delivery of goods, wares, and merchandise, in which both delivery and acceptance are essential to the validity of the contract under the statute of frauds. It was the employment of an artist to copy in crayons a photograph, for which he was to be paid a specified sum— an agreement for the performance of work and labor, in which almost the sole in- gredient was his labor and skill ; the ma- terials, which consisted of the canvas upon which the work was executed, .and the crayon pencils with which it was done, being unimportant and merely ancillary to his contract for skill, work, and labor." Flint t). Cor- I" Flint V. Corbitt, 6 Daly, bitt. 429^ the plaintiff kept a large warehouse for the sale of furniture, which he manufactured at another place in New York city, and finished at the warehouse. The defendant went to the warehouse and selected a sofa, two arm-chairs, and four other chairs, from patterns shown there, which were not covered, or only covered in part, the plaintiff having a large num- ber of the like articles already manufact- ured and in the warehouse ready to be covered according to the taste of custom- ers. The defendant chose brocatelle for the covering, this not being a usual cover- ing. All that remained to be done to the furniture was to cover and varnish it. The articles were covered, varnished, and sent to the defendant's house, but he refused to receive them. Daly C. J. said : " This was a contract of sale When the contract is for the purchase of an article which the vendor usually has for sale in the course of his business, which he keeps in his ware- house substantially made, but not entirely finished, that the taste or wish of the pur- chaser may be consulted as to the final finish, the finishing of it in the w.iy that the purchaser ]jrefers does not change it from a contract of sale into a contract for work and labor. What is in contem- plation of the parties is the purchase and sale of an article which is examined and selected, but upon which something more is to be done, which, as a matter of taste, choice, or expense, is left to the purchaser." See Rentch v. Long, 27 Md. 188 ; 2 Kent, 511, note (d) ; Phipps v. M'Farlane, 3 Minn. 109; Seymour v. Davis, 2 Sandf. 239; O'Neil v. N. Y. Mining Co. 3 Nev. Ul ; Cooke v. Millard, 5 Lansing, 243 ; S. C. 65 N. Y. 352 ; Passaic Manuf. Co. V. Hoffman, 3 Daly (N. Y.), 495 ; Bates v. Coster, 1 Hun, 400; Kellogg u. Wither- head, 4 lb. 273 ; Smith o. N. Y. Cent. Ey. 4 Keyes, 180; Parsons u. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 lb. 652; Courtwright v. Stewart, 19 Barb. 455.] (c) 3 Burr. 1921, and 1 W. Bl. 599. (d) [Davis v. Rowell, 2 Pick. 63 ; Pike V. Balch, 38 Maine, 302, 310; O'Donnell (^. Leeman, 43 lb. 158, 160; Morton (■. Dean, 13 Met. 385 ; People v. White, 6 Cal. 75 i Talman v. Franklin, 3 Duer (N. Y.), 395; 2 Kent, 539.1 CHAPTER 11. WHAT AEE GOODS, WAEES, AND MEECHANDISE. 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 prop- erty passes Second principle. Where property passes before severance Section . Ill 113 113 114 115 116 120 Section If fructus nnturales, 4th section applies 120 J.i fructus industrialeSj 17th sec- tion applies . . .121 General proposition as to growing crops . .... 126 Are fructus industriales " goods," &c. while growing ? . . 127 Intermediate class of crops . .128 Crop not yet sown .... 131 Crops when mere accessories to the land 132 § 111. The ITfch section of the statute applies to contracts for the sale of " goods, wares, and merchandise," words which com- prehend all corporeal movable property. The statute, therefore, does not apply to shares, stocks, documents of title, chosesin choses in action, and other incorporeal rights and prop- ^fth^ "he erty. (a) The following cases have been decided on statute. Indiana. (a) [In some of the American States the " Goods," same construction of the cor- *"'• responding provision of their statute of frauds has been adopted. In Indiana the word " goods " alone is used in the seventh section of the statute of frauds, which corresponds to the seventeenth section of the English statute ; but it is held that the legal effect of the section remains the same and that it does not apply to contracts for the sale of shares, notes, checks, bonds, or evidences of value. Vawter v. Griffin, NewHamp- 40 Ind. 593, So in New shire. Hampshire, it was held that promissory notes are not embraced in the terms " goods, wares, and merchandise," Georgia. as used in the statute of frauds. Whitte- more v. Gibbs, 24 N. H. 484. See Hudson V. Weir, 29 Ala. 294. In Beers v. Crowell, Dudley (Ga.), 28, it was de- cided that treasury checks on the Bank of the United States were not within the statute. But in jiassaohu- Baldwin v. Williams, 3 Met. s«"'- 367, it was decided in Massachusetts that a sale of promissory notes is within the statute. So of shares in a manufacturing corporation. Tisdale «. Har- Connecticut, ris, 20 Pick. 9 ; North v. For- est, 15 Conn. 404; Pray v. Mitchell, 60 Maine, 430; Colvin v. Wil- Maine, liams, 3 Harr. & J. 38; Maryland. Thompson v. Alger, 12 Met. 428; Eoss J. 116 FORMATION OF THE CONTRACT. [book I. this point : The statute does not apply to a sale of shares in a joint stock banking company, Humble v. Mitchell ; (5) nor to a sale of stock of a foreign state, Heseltine v. Siggers ; (e) nor to a sale of railway shares. Tempest v. Kilner, (d) Bowlby v. Bell, (e) Brad- ley V. Holdsworth, (/) and Duncroft v. Albrecht ; (g) nor of shares in a mining company on the cost-book principle, Watson t;. Spratley, (A) Powell v. Jessop. («) § 112. Most of the foregoing decisions went upon the ground jects of common sale and barter, and which have a visible and palpable form. To include in them an incorporeal right or franchise, granted by the government, se- curing to the inventor and his assigns the exclusive right to make, use, and vend the Florida. in Fay u. Wheeler, 44 Vt. 292, 29.3. A sale of bank bills was held nithin the stat- ute of frauds in Maine. Gooch v. Holmes, 41 Maine, 52.3 ; Riggs u. Magruder, 2 Cranch C. C. 143. In Somerby v. Buntin, 118 Mass. 279, 285, Gray C. J. said : " It was held by the court of chancery in Eng- land, before the American Revolution, that shares in a corpor.ation were goods, wares, and merchandise within the statute of frauds. Mussel «. Cooke, Pre. Ch 533; CruU V. Dodson, Sel. C'as. in Ch. 41." In Florida the statute of frauds quite far enough.' contains the expression " per- 118 Mass. 279, 285, sonal property," in addition to the words used in the 17th section of the English statute ; and it lia< been held in that stale that shares are included in the statute. Southern Life Ins. & Trust Co. u. Cole, 4 Florida, 359. See Gadsden i-. Lance, 1 jMcJIullan Eq. 87. In New York choses in action are ex- pressly named as requiring a writing for the sale u( them, and the eases below will help to show the effect of the enactment. People 1. Beebe, 1 Barb. 379 ; Allen v. Aguirre, 3 Seldeu, 543; S. C. 10 Barb. 74 ; Thompson r. Alger, 1 2 Met. 436 ; Artcher v. Zeh, 5 Hill, 200; Peabody v. Speyers, 56 N. Y. 230 ; Ha;;ar v. King, 38 Barb. 200 ; Kessel v. Albetis, 56 lb. 362. Inacase where the ques- tion arose whether an oral agreement for the sale of an interest in an invention, before letters patent are ob- tained, is a contract within the statute of frauds, Gray C. J. said : " The words of the statute have never ^et been extended by any court beyond securities which are sub- New York. As to sale of an inttn'esfc iu ao iii- veation be- fore and af- ter letters patent granted. article patented ; or a share in that right, which has no separate or distinct exist- ence at law until created by the instru- ment of assignment ; would be unreason- ably to extend the meaning and effect of words which have already been carried Somerby v. Buntin, Chanter i.'. Dickinson, 5 M. & G. 253, was cited in support. In Galpin V. Atwater, 29 Conn. 93, p. 98, Ellsworth J. expressed an opinion to the contiiiry, but the point was not necessa- rily involved in the decision. The point is rendered somewhat unimportant as re- gards the statute of frauds by virtue of Congressional enactments. R. S. of U. S. § 4S'J8. Jordan i: Dobson, 4 Fisher, 232 ; Ualgleish i. Conboy, 26 U. C. C. P. 254. See Blakeney r. Gn.de, 30 O. St. 350. In Springfield v. Drake, 58 N. H. 19, Bing- ham J. said : " A patent is personal projierty . . and, if it were not for the law of Congress, could be couve_\ed by parol." Burke v. Partridge, 58 N. H. 349, p. 353.] (6) 11 A. &E. 20.5. ('-■) 1 Ex. 856. id] 3 C. B. 249. (e) 3 C. B. 234. (/) 3 M. & W. 422. [r/] 12 Sim. 189. (A) 10 E.x. 222, and 24 L. J. Ex. 53. (i) 18 0. B. 336, and 25 L. J. 0. P. 199. PART II.J WHAT ARE GOODS, WARES, AND MERCHANDISE. 117 that the sales were of choses in action not properly embraced in the words " goods, wares, and merchandise," 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 sec- ondly, the exemption in the stamp act, of agreements relating to the sale of goods, wares, and merchandise. § 11 3. The 4th section (0 of the act of 29 Car. 2, c. 23, enacts, " that no action shall be brought wherebv to charge any ** section . . ° '' " ■' of statute executor or admmistrator upon any special promise to of frauds, answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, de- fault, or miscarriages of another person ; or to charge any person upon any agreement made upon consideration 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 mak- ing thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed bj' the party to be charged therewith, or some other person thereunto by him lawfully authorized." The stamp act, 55 Geo. 3, c. 184, in the schedule (reenacted in the stamp stamp act, 1870), title " Agreements," exempts frona '""''• stamp duties every " memorandum, letter, or agreement, made for or relating to the sale of any goods, wares, or merchandise." § 114. It is often important to determine whether a sale of cer- tain articles attached to the soil, such as fixtures and ^.^^^ growing crops, is governed by the 17th section as being between a sale of " goods, wares, and merchandise," or by the nth aec- 4th section, as a sale of an " interest in or concerning land." Though these two sections, on a cursory perusal, might seem to be substantially the same, both requiring some written note or memorandum, signed by the party to be charged, a more attentive consideration will show very material distinctions. Agreements under the 4th section require a written note or mem- orandum, under all circumstances, and for any amount or value. But under the 17th section,, the necessity for the writing does not exist when the value is under lOL, and it may be dispensed with (I) It was held in Leroux u. Brown, made in a foreign country. See remarks 12 C. B. 801, and 22 L. J. C. P. 1, that on the case by Willes J. in Gibson v. Hol- this section is applicable to a contract land, L. R. 1_C. P. 1 ; 35 L. J. C. P. 5. 118 FORMATION OF THE CONTRACT. [BOOK I. in contracts for larger sums, by proof of part acceptance or part payment by the buyer, or by the giving of something in earnest to bind the bargain. Again, a contract for sale under the 17th sec- tion is exempt from stamp duty, but if the agreement be for a sale of any " interest in or concerning land," a stamp is required. Practically, therefore, the whole controversy between the parties to an action is often finally disposed of by this test. § 115. Complaint has been made at different times of the un- satisfactory character of the decisions in which the courts i^toesMn" have sought to establish rules distinguishing with accu- tfTeVh"*^" racy and certainty whether a contract for the sale of section. tilings attached to the soil be or not a sale of an interest in land within the 4th section. Lord Abinger, in 1842, gave ex- pression to this complaint in a somewhat exaggerated form when he said, " It must be admitted, taking the cases altogether, that no general rule is laid down by any one of them that is not con- tradicted by some other, (m) ^ 116. Before entering upon an examination of the decisions, it will conduce to a proper understanding of the subject to tran- scribe in full the remarks of Mr. Justice Blackburn on the gen- eral principles of law involved in the question. " The statutes are now applicable to all contracts for the sale of ' goods, wares, and merchandise,' words which, as has been already said, compre- hended all tangible movable property ; I say movable property, for things attached to the soil are not goods, though when severed from it they are ; thus, growing trees are part of the land, but the cut logs are goods ; and so, too, bricks or stones, which are goods, cease to be so when built into a wall, — they then become a part of the soil. Fixtures, and those crops which are included amongst emblements, though attached to the soil, are not for all purposes part of the freehold. § 117. " It seems pretty plain upon principle that an agree- ment to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be trans- ferred, is an agreement for the sale of goods within the meaning of the 9 Geo. 4, c. 14, (n) if not of the 2'J Car. 2, c. 3. The agree- ment is, that the thing shall be rendered into goods, and then in that state sold ; it is an executory agreement for the sale of (m) Rodwell v. Phillips, 9 M. & W. 505. (n) Lord Tenterden's act, ante, § 93. PART II.] WHAT ARE GOODS, WARES, AND MERCHANDISE. 119 goods not existing in that capacity at the time of the contract. And when the agreement is, that the property is to be transferred before the thing is severed, it seems clear enough that it is not a contract for the sale of goods ; it is a contract for a sale, but the thing to be sold is not goods. If this be the principle, the true subject of inquiry in each case is, When do the parties intend that the property is to pass ? If the things perish by inevitable acci- dent before the severance, whom do they mean to bear the loss ? for in general that is a good test of whether they intend the prop- erty to pass or not ; in other words, if the contract be for the sale of the things after they have been severed from the land, so as to become the subject of larceny at common law, it is, at least since the 9 Geo. 4, c. 14, a contract for the sale of goods, wares, and merchandise, within the 17th section. On the whole the cases are very much in conformity with these distinctions, though there is some authority for saying that a sale of emblements or fixtares, vesting an interest in them whilst in that capacity and before sev- erance, is a sale of goods within the meaning of the 17th section of the statute of frauds, and a good deal of authority that such a sale is not a sale of an interest in land within the 4th section, which may, however, be the case, though it is not a sale of goods, wares, and merchandise, within the seventeenth." (o) Nothing is to be found in the cases reported since this perspicuous exposition was published to affect its accuracy, or to shake the deductions drawn by the learned author from the authorities then extant. There can be little hazard, therefore, in laying down the rules that govern this subject, supporting them by the appropriate de- cisions, and calling attention to such cases as seem to conflict with the general current of authority. § 118. The first principle then is, that an agreement to transfer the property in anything attached to the soil at the time First prin- of the agreement, but which is to be severed from the soil, where ' and converted into goods, before the property is trans- f™7is?o f erred to the purchaser, is an agreement for the sale of ^gfQ^.g'"* goods, an executory agreement, governed by Lord Ten- property terden's act, and therefore within the 17th section. (») ' Smith V. In Smith v. Surman (§') the agreement was to sell stand- Surmaa. (o) Blackburn on Sales, 9-10. (q) 9 B. & C. 561. (p) [See/)os«, § 126, note (y), and cases cited,] 120 FORMATION OF THE CONTRACT. [BOOK I. ing timber, which the proprietor had begun to cut down, two trees liaving already been felled, at so much a foot. Held to be within the 17th section. Bayley B., in referring to this case, in Earl of Falmouth v. Thomas, (r) lays stress on the fact, "that the acller was to cut down ; the timber was to be made a chattel by the seller^ (s) In Parker v. Staniland (i) the sale staniiand. -^yas by the plaintiff of all the potatoes on a close of two acres, at 4s. Qd. a sack, and the defendant was to get them imme- diately. Here, also, it was held tliat there was a sale of chattels, and no transfer of any interest in the land ; but both Lord Ellen- borough and Mr. Justice Bayley put the case on the ground that the potatoes were to be taken awaj' iiinnediately, and to gain nothing by further growth in the soil ; («) and they made this fact the ground for distinguishing the case from Crosby v. Wads- worth, (x) and Waddington v. Bristow, (?/) where the sales of Warwick growing crops of grass had been held to come under the "■ ^™'^'- 4th section. In ^^^arwick v. Bruce, (2) decided by the f.^iiat"'*' king's bench in 1813, which was followed by Sainsbury v. thews. Matthews, (t() in the exchequer, in 1838, the sale was of potatoes not mature, and that were to be dug by the purchasers when ripe, in the former case for a gross sum, and in the latter at 2s. per sack ; and in both cases the distinctions suggested in Smith V. Surman and Parker v. Staniland were disregarded ; and the sale in Warwick v. Bruce was held not to be of an interest in land under the 4th section, while the decision in the exchequer case went the full length of deciding that the sale was one of goods and chattels, governed by the 17th section. The distinc- tion between crops of mature and immature fnictus industriales (r) 1 C. & M. 105. ,,. Green, that a s.ile of growing timber to (s) [See post, § 126, note {y), and cases be taken away as soon as possible by the cited. In Marshall ;;. Green, 1 C. P. Div. purchaser is not a contract for the siile of 40, Lord Coleridge C. J., referring to the land or any interest therein, within the case of Smith v. Surman, said : " The only 4th section of the statute of frauds.] distinction that I can see between that (() 11 East, 362. » and the present case is, that there the (11) [Post,^ 126, note («/); Byasse ,/. trees were to be cut by the vendor; but Reese, 4Metc. (Ky.) 372 ; Huff v. McCau- Littled.ale J. held that, ' if in that case the ley, .53 Penn. St. 206 ; Marshall v. Green, contract had been for the sale of the trees, 1 C. P. Div. 35.] with a speciac liberty to the vendee to (.,) 6 East, 602. enter the land to cut them, it would not {t/) 2 B. & 1^. 452. have given him an interest in the land (c) 2 M. & S. 205. within the meaning of the statute.' " It (a) 4 M. & W. 343. was decided in the above case of Marshall PART II.J WHAT ARE GOODS, WARES, AND MERCHANDISE. 121 was also expressly repudiated by Littledale J. in Evans v. Rob- erts. (5) In Washbourn v. Burrows, (c) where the plead- ■^y^,^,,„ ,.„ ings averred that certain crops of grass, growing on a "• Burrows. particular estate, were assigned as security, it became necessary to inquire whether this averment necessarily implied the transfer of an interest in land. The court, after taking time to consider, intimated that this plea would be satisfied by proving that the grass was to be severed from the soil, and delivered as a chattel. Rolfe B., in delivering the judgment, said : " Certainly, where the owner of the soil sells what is growing on the land, whether nat- ural produce, as timber, grass, or apples, or fructus industriales, as corn, pulse, or the like, on the terms that he is to cut or sever them from the land, and then deliver them to the purchaser, the purchaser acquires no interest in the soil, which in such case is only in the nature of a warehouse for what is to come to him merely as a personal chattel." (d) § 119. In most of the foregoing cases it will be observed, that under the contracts the property in the thing sold remained in the vendor till after severance. In Smith v. Surman the price de- pended on the measurement of the timber after cutting it, for it was sold at so much a foot ; and in Parker v. Staniland and Sains- bury V. Matthews the potatoes were also to be measured after being gathered, in order to determine the price. If the thing sold had been destroyed before measurement, the loss would have fallen on the vendor, because the property remained in him. (Post, book II. ch. iii.) The bargain therefore was simj^ly that the things sold were to be severed and converted into chattels be- fore the sale took effect, and fell under the first principle above stated, (e) But Warwick v. Bruce is governed by the rule next to be stated. § 120. The second principle on this subject is, that where there is a perfect bargain and sale, vesting the property at ^^^ once in the buyer before severance, a distinction is made principle. . , ., . , Where between the natural growth of the sou, as grass, timber, property fruit on trees, &c. &c. which at common law are part foTesever- of the soil, und fructus industriales, fruits produced by '""=''■ the annual labor of man, in sowing and reaping, planting and (b) 5 B. & C. 836. {d) [^nn post, § 124, note (;)); Grove J. (c) 1 Ex. 107. in Marshall v. Green, 1 C. P. Div. 44.] (e) [Posl, § 126, note («/).] 122 FORMATION OF THE CONTRACT. [BOOK I. gathering. The former are an interest in land, embraced in the Ufructus 4th section ; (/) the latter are chattels, for at common naturaies, ^^^ ^ growing crop, produccd by the labor and expense applies. of the occupier of lands, was, as the representative of that labor and expense, considered an independent cliattel. (g} § 121. The first and leading case in which this distinction was -r, , , fully considered was Evans v. Roberts, (tf) A verbal llfructus ■' J- ^ industri- contract was made, by which the defendant agreed to section purchase of the plaintiff a cover of potatoes then in the *PP '^'- ground, to be turned up by the plaintiff, at the price of Evans w. ° i i'ii- rn, Roberts. 51., and the defendant paid one shilling earnest. The action was assumpsit " for crops of potatoes bargained and sold," and it was objected that this was a contract of sale of an interest in or concerning land, within the meaning of the 4th section of the statute of frauds. Bayley J. said : " I am of opinion that in this case there was not a contract for the sale of any lands, tene- ments, or hereditaments, or any interest in or concerning them, but a contract only for the sale or delivery of things, which, at the time of the delivery, should be goods and chattels. It appears that the contract was for a cover of potatoes ; the vendor was to raise the potatoes from the ground, at the request of the vendee. The effect of the contract, therefore, was to give to the buyer a right to all the potatoes which a given quantity of land should produce, but not to give him any right to the possession of the land ; he was merely to have the potatoes delivered to him when their growth was complete. Most of the authorities cited in the course of the argument to show that this contract gave the vendee an interest in the land, within the meaning of the 4th section of the statute of frauds, are distinguishable from the present case. In Crosby v. Wadsworth, (K) the buyer did acquire an interest in the land, for by the terms of the contract, he was to mow the grass, and must therefore have had possession of the land for that purpose. Besides, in that case the contract was for the growing (/) [If the parties to a contract for the (7) Per Bayley J. in Evans v. Roberts, sale of (growing trees intend that the prop- 5 B. & C. 836 ; [Kingsley v. Holbrook, 45 erty in the trees shall pass presently he- N. H. 313, 318, 319 ; Dunne w. Ferguson, fore severance from the soil, the contract Hayes Ir. R. 542 ; Haydon v. Crawford, comes within the statute, and must he in 3 U. C. Q. B. (0. S.) 583; Brown v. writing. Colt J. in White u. Foster, 102 Stanclift, 20 Alb. L. J. 55; Killmore v. Mass. 378 ; Owens v. Lewis, 46 Ind. 488. Howlett, 48 N. Y. 569.] Sec pnst, § 126, note (,j).] (/,) g East, 602. PAET II.J WHAT ARE GOODS, WARES, AND MERCHANDISE. 123 grass, which is the natural and permanent produce of the land, renewed from time to time without cultivation. Now, growing grass does not come within the description of goods and chattels, and cannot be seized as such under •A.fi.fa.; it goes to the heir and not to the executor ; but growing potatoes come within the description of emblements, and are deemed chattels by reason of their being raised by labor and manurance. They go to the ex- ecutor of tenant in fee simple, although they are fixed to the free- hold, (i) and may be taken in execution under a. fi.fa. by which the sheriff is commanded to levy the debt of the goods and chattels of the defendant ; and if a growing crop of potatoes be chattels, then they are not within the provisions of the 4th section of the statute of frauds, which relate to lands, tenements, or heredita- ments, or any interest in or concerning them." And again, at p. 835 : " It has been insisted that the right to have the potatoes re- main in the ground is an interest in the land, but a party entitled to emblements has the same right, and yet he is not by virtue of that right considered to have any interest in the land. For the land goes to the heir, but the emblements go to the executor. In Tidd's Practice, 1039, it is laid down, that under a fieri facias the sheriii may seWfructus industriales, as corn growing, which goes to the executor, or fixtures, which may be removed by the tenant ; but not furnaces, apples upon trees, which belong to the freehold, and go to the Jieir. The distinction is between those things which go to the executor and those which go to the heir. The former may be seized and sold under \he fi.fa., the latter can- not. The former must, therefore, in contemplation of law, he consid- ered chattels.''^ At the close of his opinion, the learned judge said : " I am of opinion that there was not in this case any contract or sale of lands, &c. hut that there was a contract for the sale of goods, wares, and merchandise, within the meaning of the 11th section, though not to the amount which makes a written note or memo- randum of the bargain necessary." Holroyd J. said : " The con- tract, being for the sale of the produce of a given quantity of land, was a contract to render what afterwards would become a chattel." Littledale J. was as explicit as Bayley J. in taking the distinction above pointed out. He said, p. 840 : " This contract only gives to the vendee an interest in that growing produce of the land which constituted its annual profit. Such an interest does not constitute {i) Com. Dig. tit. Biens, G. "124 FORMATION OF THE CONTRACT. [BOOK I. part of the realty Lord Coke in all cases distinguishes be- tween the land and the growing produce of the land ; he considers the latter as a personal chattel independent on, and distinct from, the land. If, therefore, a growing crop of corn does not in any of these cases constitute any part of the land, I think that a sale of any growing produce of the earth (reared l)y labor and expense), in actual existence at the time of the contract, whether it be in a state of maturity or not, is not to be considered as a sale of an in- terest in or concerning land within the meaning of the 4th section of the statute of frauds; hut a eontrartfor the mle of fjooih, wares, and mcrcJicmdtse, witJiin thellth sect/ij)i oftJuit statute." § 12-2. In Jones v. Flint, (/) decided in 1839, Evans v. Rob- erts was followed and approved, on the ground of the dis- Flint. tinction between fructus vulustr talcs, which are chat- tels, and the natural growth of grass, &c. which are part of the freehold ; and any distinction between crops matui-e and immature, as well as between cases where the buyer or the seller is to take the crop out of the ground, was expressly rejected. In both cases, also, the earlier dictum of Sir James J\Iansfield, in Emmerson v. Heelis, (ni) is practically overruled. The two cases of Evans v. Roberts and Jones v. Flint have remained unquestioned to the present time as authority for the rule that fructus industrialcs, even when growing in tlie soil, are chattels ; while another series of decisions have maintained tlie principle that the natural growth of the land is part of the freeliold, and that contracts for the sale of it, transferring the property before severance, are governed by the 4th section. § 123. In Rodwell v. Phillips, (n) a written sale of " all the crops of fruits and vegetables of the upper portion of the garden, from the large pear trees, for the sum of -30/.," the purchaser hav- Rofiweii V. "^S P^'*^ down 11. as deposit, was held by Lord Abinger Phillips. to be the sale of an interest in land ; but the ratio deci- dendi was that it certainly was not such a contract for the sale of goods, wares, and merchandise as under the stamp act was ex- empted, and the plaintiff was nonsuited, the agreement not being stamped. § 124. In Carrington v. Roots, (o) plaintiff, in May, made a verbal agreement to buy a crop of grass growing on a certain (1) 10 Ad. &E. 753. („) 9 M. & "W. 502; [Brown v. Stan- (m] 2 Taunt. 38, clift, 20 Alb. L. J. 55.] (o) 2 M. & W. 248. PART II.] WHAT ABE GOODS, WARES, AND MERCHANDISE. 125 close, to be cleared by the end of September,, at 51. 10s. per acre : half the price to be paid down before any of the grass was q^^^-^„ f^^ cut. Held by all the judges, to be void under the 4th "• i^o'""- section. This case is in entire conformity with Crosby Crosby w. V. VVadsworth, (5) where Lord EUenborough held a wonh' similar contract to be an agreement for the sale of an interest in land, " conferring an exclusive right to the vesture of the land during a limited time and for given purposes." In Sco- g . ,, rell V. Boxall, (r) a parol contract for the purchase of Boxaii. standing underwood, to be cut down by the purchaser, and in Teal V. Auty, (s) an unstamped agreement for the sale ^ , of growing poles, were held to be agreements for the -^-^'y- sale of an interest in land, (i) In the former case, Hullock B. cited with approval, and recognized as authority, the case of Evans V. Roberts. (i«) § 125. In all of these cases it will be remarked that the distinc- tion pointed out by Mr. Justice Blackburn in his treatise is found to prevail. In Rodwell v. Phillips, the whole crop of fruit on the trees ; in Carrington v. Roots, and Crosby v. Wadsworth, the whole growth of grass on the land; and in Scovell v. Boxall, and Teal v. Auty, the standing undergrowth, and the growing poles, were all transferred to the purchasers before sevei'ance from the soil. § 126. From all that precedes, the law on the subject of the sale of growing crops may be summed up in the following propo- sition, viz. : Growing crops, if fructus industriales, are General chattels, and an agreement for the sale of them, whether arto°Kiw" mature or immature, whether the property in them is ing crops. transferred before or after severance, is not an agreement for the sale of any interest in land, and is not governed by the 4th sec- tion of the statute of frauds. (») Growing crops, if fructus nat- urales, are part of the soil before severance, and an agreement, (q) 6 East, 602. 23; Cutler i^. Pope, 13 lb. 377; Bricker (r) 1 Y. & Jerv. 396. v. Hughes, 4 lud. 146 ; Sherry v. Picken, (s) 2 B. & B. 101. 10 lb. 375 ; Marshall v. Ferguson, 23 (t) [See, to the same effect, Kingsley v. Cal. 65 ; Austin v. Sawyer, 9 Cowen, 39 ; Hulbrook, 45 N. H. 313, 319.] Whipple v. Foot, 2 John. 422 ; Stewart v. (u) 5 B, & C. 836. Doughty, 9 lb. 112; Miller v. State, 39 (x) [See Kingsley v. Holbrook, 45 N. Ind. 267 ; Britain o. McKay, 1 Ired. 265 ; H. 313, 318, 319; Howe w. Batchelder. 49 Bull v. Griswold, 19 111. 631; Boss v. lb. 204, 208; Buck e v. Kee-e, 4 Mete. (Ky.) 372 ; Huff V. MeCaulex , .^3 I'eun. St. 206, and cases cited above; I>aiker ». Stani- land, U East, 362; ante, § 118. See 1 Sugden V. & P. (8th Am. ed.) 126, note (a); 1 Chitty Contr. (11th Am. ed.) 41.5, 416, and note (_;■ ). In Marshall v. Green, 1 C. P. Div. 35, 40, Lord Coleridge C. J. said : " Apart from any decisions on the subject, and as a matter of common sense, it would seem obvious that a sale of twenty-two trees to be taken away imme- di:>tily was not a sale of an interest in land, but merely of so much timber." Grove J. said : " Here the trees were to be cut as soon as possible, but even assuming that they were not to be cut for a mouth, I think that the test would be whether the parties really looked to their deriving ben- efit from the land, or merely intended that the land should be in the natitreof aware- house for the trues during that period." See, further, on the point ol intention, Littledale J. and Park J. in Smith !;. Sur- man, 9 B. & C. 561. In Kennedy v. Rob- inson, 2 Or. & Dix, 113, Pennefather B. said : " This is a contract ibr tiie sate of growing timber, winch is a contract for the sale of an interest in land." Khodes V. Baker, 1 Ir. C. L. R. 438.] (a) Taylor on Ev. S'.il, s. 'J.jS, ed. 1864. {b) Blackburn on Sales, pp. 19, 20. (c) 3 B. & C. 3.57. [Sec Kuight v. The New England Worsted Co. 2 Cush. 289, 290.] (d) 1 C, M. & R. 207 ; [Strong v. Doyle, 110 Mass. 93.] (e) Blackburn, p. 17. PART II.] WHAT ARE GOODS, WARES, AND MERCHANDISE. 129 they are not goods, but are so far a part of the soil that larceny at common law could not be committed on them," and Lord El- lenborough was also of this opinion. (/) This point must, it is apprehended, be considered as still undetermined. § 128. It is sometimes a matter of doubt whether growing crops are properly comprehended in the class of fructus indus- Interme- . r / , rr^i • . -,. diate class triales or fructus naturales. i here is an intermediate of crops, class of products of the soil, not annual, as emblements, not per- manent as grass or trees, but affording either no crop till the second or third year, or affording a succession of crops for two or three years before they are exhausted, such as madder, clover, teasles, &c. The only reported case on this subject is graves a Graves v. Weld, (^) which was urged by very able "^^'d. counsel, and decided, after consideration, by Lord Denman, who delivered the unanimous judgment of the court, consisting of him- self and Littledale, Park, and Patterson JJ. The facts were that the plaintiff was possessed of a close under a lease for ninety- nine years, determinable on three lives. In the spring of 1830, the plaintiff sowed the land with barley, and in May he sowed broad clover seed with the barley. The last of the three lives expired on the 27th July, 1830, the reversion being then in de- fendant. In January, 1831, the plaintiff delivered up the close to the defendant, but in the mean time had taken off, in the autumn of 1880, the crop of barley, in mowing which a little of the clover plant, that had sprung up, was cut off, and taken together with the barley. According to the usual course of good husbandry, broad clover is sown about April or May, and is fit to be taken for hay about the beginning of June of the following year. The clover in question was cut by defendant about the end of May, 1831, more than a twelvemonth after the seed had been sown. The defendant also took, accordiug to the common course of hus- bandry, a second crop of the clover in the autumn of the same year, 1831. The jury found, on questions submitted by the judge : 1st. That the plaintiff did not receive a benefit from taking the clover with the barley straw sufficient to compensate him for the cost of the clover seed, and the extra expense of sowing and roll- ing. 2d. That a prudent and experienced farmer, knowing that his term was to expire at Michaelmas, would not sow clover with (/) See his decision in Parker v. Stan- (y) 5 B. & Ad. 105. iland, 1 1 East, 365. 9 130 FORMATION OF THE CONTRACT. [BOOK I. his barlej' in the spring, where there was no covenant that he should do so ; and would not, in the long run and on the average, repay himself in the autumn for the extra cost he had incurred in the spring. The case was argued by Follett for plaintiff, and Gambier for defendant, and Lord Denman, in delivering the judg- ment of the whole court, said : " In the very able argument be- fore us, both sides agreed as to the principle upon which the law which gives emblements was originally established. That princi- ple was that the tenant should be encouraged to cultivate by being sure of the fruits of his labor ; but both sides were also agreed that the rule did not extend to give the tenant all the fruits of his labor, or the right might be extended in that case to things of a more permanent nature, as trees, or to more crops than one ; for the cultivator very often looks for a compensation for his capital and labor in the produce of successive years. It was therefore ad- mitted by each that the tenant would be entitled to that species of product only which grows by the industry and manurance of man, and to one crop only of that product. But the plaintiff in- sisted that the tenant was entitled to the crop of anj' vegetable of that nature, whether produced annually or not, which was grow- ing at the time of the cesser of the tenant's interest ; the defend- ant contended that he was entitled to a crop of that species only which ordinarily repays ^the labor by which it is produced within the year iu which that labor is bestowed, though the crop may, in extraordinary seasons, be delayed beyond that period. And the latter jjroposit ion ive considrr to be law. § 129. Again, " The principal authorities upon which the law of emblements depends are Littleton, sec. 68, and Coke's Com- mentary on that passage. The former is as follows : ' If the lessee soweth the land, and the lessor, after it is sowne and before the come is ripe, put him out, yet the lessee shall have the corne and shall have free entry, egresse and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him.' Lord Coke says (Co. Lift. 5.") a), ' The reason of this IS, for that the estate of the lessee is uncertaine, and tlierefore lest the ground should be unmanured, which should be hurtful to the commonwealth, he shall reap the crop which he sowed, in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he sets rootes or sow hempe or flax or any other annmll profit, if after the same be planted, the lessor oust the lessee, or if PART [I.J WHAT ARE GOODS, WARES, AND MERCHANDISE. 131 the lessee dietb, yet he or his executors shall have that yeare's crop. But if he plant young fruit trees or young oaks, ashes, elms, &c. or sow the ground with acornes, &c. there the lessor may put him out notwithstanding, because they will yield no present annuall profit.'' These authorities are strongly in favor of the rule contended for by defendant's counsel ; they confine the right to things yielding present annual profit, and to that year's crop which is growing when the interest determines. Tlie case of hops, which grow from ancient roots, and which yet may be emblements, though at first sight an exception, really falls within this rule. In Latham v. At- wood, (A) they were held to be like emblements, because they were ' such things as grow by the manurance and industry of the owner, by the making of hills and setting poles : ' that labor and expense, without which they would not grow at all, seem to have been deemed equivalent to the sowing and planting of other, vegeta- bles." § 130. Accoi-ding to' the principles here established, it would seem that the crop of the first year in such cases would be fructus industriales, but that of subsequent years, like fruit on trees planted by tenants, would he fructus naturales, unless requiring cultivation, labor, and expense for each successive crop, as hops do, in which event they would he fructus industriales till exhausted. But the law as to the application of the statute of frauds to sales of growing crops of this character, especially of crops subsequent to the first gathered, cannot be considered as settled. § 131. A singular case of the sale of crop not yet sown was de- termined in Watts v. Friend, (i) The bargain was, that Crop not the plaintiff should furnish the defendant with turnip- ^^ seed to be sown by the latter on his own land, and that Friend. the defendant should then sell to the plaintiff the whole of the seed produced from the crop thus raised at a guinea a bushel. The contract was held to be within the 17th section of the statute of frauds. The amount of the seed produced turned out to be 240 bushels, and as the agreement was that the crop should be severed before the property was ti-ansferred, it was clearly not a sale of an interest in land ; but the reporter, in a note to the case, calls attention to a point not discussed in it, viz. that when the bargain was made, it was uncertain whether the value of the seed (K) \ Cro. Car. 515. (i) 10 B. & C. 446. [See Pitkin v. Noyes, 48 N. H. 294, 303.] 132 FORMATION OF THE CONTRACT. [BOOK I. to be produced would reach 10?., and that under the 4th section it has been held, that cases depending on contingencies which may or may not happen within the year are not within that section, though the event does not in fact happen within the year. § 132. In the Earl of Falmouth v. Thomas, (A) where a farm p was leased, and the tenant agreed to take the growing when mere crops and the labor and materials expended, according accessories •■■ . i i t i i i i totheiaiui. to a Valuation, it was held that the whole was a contract Earl of for an interest in land under the 4th section, and that i'almouth V. Thomas, plaintiff could not maintain an indebitatus count for goods bargained and sold to recover the price of the crops accord- ing to the yaluation. Littledale J. expressed the same opinion in Mayfield v. Wadsley, (?) saying that " where the land is agreed to be sold, the vendee takes from the vendor the growing crops, the latter are considered part of the land." This rule seems founded on sound principles, for in such cases the fact of his hay- ing acquired an interest in the land is part of the consideration which moves the purchaser to buy the crops ; or, as it is put in Blackburn on Sales, (wz) the purchaser pays for an abandonment by the lessor or vendor of the right to injure the freehold. He buys an interest " concerning land," and that is covered by the language nf the 4th section. § 133. In the early case of Waddington v. Bristow, (?i) in 1801, tm r'''"^" an agreement for the purchase of growing hops at 101. Bristow. per cwt., to be put in pockets and delivered by seller, was held to require a stamp, and not to come within the exemp- tion of agreements for the sale of goods, wares, and merchandise. The case is quite irreconcilable with the principles settled in the more modern decisions ; and in Rodwell v. Phillips, (o) Parke B. said of it: " Hops ■Arefructns industriales. That case would now probably be decided differently." It may therefore be consid- ered as overruled. (4) 1 Cr. & M. 89. („) o B. & P. 452. (/) 3 B. & C. .366. (o) 9 M. & W. 503. (m) Page 20. CHAPTER III. WHAT IS A CONTRACT FOR THE PRICE, OR OF THE VALUE, OF \0l. Section Several articles sold on one occa- sion 134 Auction sales of several lots . . 135 Section Uncertain value .... 136 Different contracts for a single con- sideration 137 § 134. In several cases, questions have been raised as to the construction of the words, " for the price of lOL and upwards," and " of the value of ten pounds and upwards," as used in the 17th section of the statute of frauds, and in Lord Tenterden's act. In Baldey v. Parker, (a) the plaintiffs were linen-drapers. Several ar- and the defendant came to their shop and bargained for auTme several articles. A separate price was agreed for each, '''"^' and no one article was of the value of lOZ. Some were Pariter. measured in his presence, some he marked with a pencil, others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. The account as sent amounted to 101., and he demanded a discount of 20L per cent, for ready money, which was refused. The goods were then sent to his house, and he refused to take them. Held, that this was one entire contract within the 17th section. (J) All the judges, Abbott C. J., Bayley, Holroyd, and Best JJ., gave separate opinions. Abbott C. J. said : " Looking at the whole transaction, I am of opinion that the parties must be considered to have made one entire contract for the whole of the articles." Bayley J. said : " It is conceded that on the same day, and indeed at the same meeting, the defendant contracted with the plaintiffs for the purchase of goods to a much greater amount than 101. See Price v. Lea, I (a) 2 B. & C. 37. B. & C. 156. (b) [Jenness v. "Wendell, 51 N. H. 63 ; Oilman „. Hill, 36 lb. 311 ; AUarJ v. Greasert, 61 N. Y. 1. It was deciiled in Jenness v. Wendell, supra, that a delivery and acceptance of a part of the goods sold in such case will take the entire contract out of the operation of the statute. See Gault V. Brown, 48 N. H. 183, 185 ; Mills V. Hunt, 17 Wend. 333 ; S. C. 20 lb. 431.] 134 FORMATION OF THE CONTRACT. [BOOK I. Had the entire value been set upon the whole goods together, there cannot be a doubt of its being a contract for a greater amount than lOZ. within the 17th section ; and I think that the circumstance of a separate price being fixed upon each article makes no such difference as will take the case out of the operation of that law." Holroyd J. said : " This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less vahie than 10?., but in the course of the dealing it grew to a contract for a much larger amount. At last, therefore, it was one entire contract within the meaning and mischief of the statute of frauds, it being the intention of tJiat stat- ute, that where the contract, either at the commencement or the con- clusion, amounted to or exceeded the value of 101. , it should not bind, unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of lOZ. as if it had been originally of that amount." Best J. said : " Whatever this might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account was all made out together, and the conversation about discount was witli reference to the whole account." § 135. But where at an auction the same person buys several successive lots as they are offered, a distinct contract arises for each lot, and the decision to this effect in Em- lots. merson v. Heelis (c) was not questioned in Baldey v. Parker, (c?) § 136. Although at the time of the bargain it may be uncertain UncCTtain whether the thing sold will be of the value of 10/. ac- value. cording to the terms of the contract, yet, if in the result it turn out that the value actually exceeds 10/., the statute ap- (c) 2 Taunt. 38. Also per Lo Blanc J. a farm or a hotel are sold, or where the in Rugs V. Minett, 11 East, 218; lioots sale also includes the stable stock, as in V. Lord Dormer, 4 B. & Ad. 77, and per this case, or the farm stock and produce, the Law Lords in Coiiston v. Chapman, we think there is ordinarily very little dif- L. R. 2 Scotch App. 250; [Wells r. Day, ference in fact between sales s,idtobeno 124 Mass. 38.] at a„ auction and a sale at aifference (rf) [See 1 Ci,i.ty Contr. (11th Am. cd.) any other place, or contracted \TZZ'- M2, 533 ; Messer v. AVoodman, 22 N. H. in any other way, of several '^'■""^J »'»»^- 172, 176, 177. In Jenness ,. Wendell, 51 articles at an agreed price. wl,ich are all N. H. 63, 67, Sargent J. said : " But in this put together in one account." See Coff- Auction sales of several country, where the household furniture man r. Hanipton, 2 W:\tts & S. 377 farming tools, and such like articles about Tompkins v. Haas, 2 Pcnn. St. 74 PART II.J " PKICE OR VALUE OF TEN POUNDS." 135 plies. This point was involved in the decision in Watts v. Friend, (e") where the sale was of a future crop of turnip-seed which might or might not amount to 10?., the price stipulated being a guinea a bushel. But the point was not argued nor men- tioned by counsel or by the court. § 137. Where a contract includes a sale of goods, and other matters not within the statute, if the goods included in Different the contract be of the value of 10/., the 17th section of foiPonecon- the statute will apply. In Harman v. Reeve, (/) the ■|''„'™'j™' plaintifl had sold a mare and foal to defendant, with forcible . . . . . ^^^ ^"y the obligation to agist them at his own expense till part be en- . forced? Michaelmas, and also to agist another mare and foal be- „ longing to defendant, the whole for 30L Averment of Reeve, full performance by plaintiff, and breach by defendant. It was admitted that the mare and foal agreed to be sold were above the value of 10/. Held, that the contract for the sale was within the 17th section of the statute. Senible, however, that although the contract was entire, and the price indivisible, plaintiff might have recovered the value of the agistment of defendant's mare and foal. Per Jervis C. J. and Williams J. (^g) ' (e) 10 B. & C. 446. (/) 18 C. B. 586 ; 25 L. J. C. P. 257. ((?) See, also. Wood v. Benson, 2 Cr. & J. 95 ; and Astey v. Emery, 4 M. & S. 263 ; Cobbold v. Caston, 1 Bing. 399 ; 8 Moore, 456. [In Irvine o. Stone, 6 Cash. Irvine f. 508, the defendant made an Stone. Qi-jii contract for the purchase of coal of the plaintiff, at Philadelphia, at a certain price per ton, and to pay the freight of the same to Boston, and the coal was sent to the defendant at Boston, and he declined to receive it. The action was brought to recover the price of the coal, together with the freight for the same. The plaintiff admitted that he could not recover for the price of the coal, because the contract for the sale of it was not in writing, but claimed that the contract for the coal and for transporting it could be severed, so that he could recover pay for the transportation ; an oral contract for that being valid in law. MetcalE J. said : " The question is whether the good part of the contract before us can be separated from the bad, so that the plaintiff can en- force the part which is good, in his gen- eral counts. And we are of opinion that, from the nature of the contract, this can- not be done. It is, in its nature, entire. The part which respects the Depends transportation stands wholly "[^"tyof" on the other part which re- contract, spects the sale, and which is invalid ; and both must fall together. The good part of the contract cannot practically be sev- ered from the bad and separately en- forced." See Page v. Monks, 5 Gray, 492, 496 ; Robinson v. Green, 3 Met. 159, 161 ; Hite «.' Wells, 17 111. 88; Noyes v. Hum- phreys, 11 Grattati, 636; Collins «. Mer- rell, 2 Mete. (Ky.) 163 ; Thayer v. Rock, 13 Wend. 53 ; Mechelen v. Wallace, 7 Ad. & E. 49 ; Hodgson u. Johnson, EL, Bl. & El. 685 ; Smith u. Smith, 14 Vt. 440 ; Dock V. Hart, 7 Watts & S. 172 ; Dun- can V. Blair, 5 Denio, 196; 1 Sugden Y. & P. (8th Am. ed.) 127 ; Hobbs v. Wether- wax, 38 How. (N. Y.) Pr. 395 ; Fuller v. Reed, 38 Cal. 99. If an entire agreement 136 FORMATION OF THE CONTEACT. [book I. be made for the sale of real and personal estate, and the agreement as to the land be within the statute, and void, it cannot be supported as to the personal property which was sold with it. Cooke v. Tombs, 2 Anst. 420 ; Lea v. Barber, lb. 42.5 ; Hodg- son V. Johnson, El., Bl. & El. 685 ; Mech- elen v. Wallace, 7 Ad. & E. 49 ; Vaughan V. Hancock, 3 C. B. 766 ; Falmouth v. Thomas, 1 Cr. & M. 89 ; Smith v. Smith, 14 Vt. 440 ; Gould v. Mansfield, 103 Mass. 408 ; Duncan i\ Blair, .5 Denio, 196 ; Dock V. Hart, 7 Watts & S. 172; Thayer v. Eoek, 13 Wend. 53 ; Van Alstine v. Wim- ple, 5 Cowen, 162 ; Crawford «. Morrell, 8 John. 253. But "if any part of an agree- ment is valid, it will avail pro tanto. though another part of it may be pro- hibited by statute ; provided the statute does not either expressly, or by neces- sary implication, render the whole void ; and provided, furthermore, that the sound part can be separated from the unsound, and be enfoi-ced without injustice to the defendant." Metcalf J. in Rand v. Math- er, 11 Cush. 1, 7. See Page v. Monks, 5 Gray, 492 ; Haynes v. Nice, 100 Mass. 327; Allen u. Leonard, 16 Gray, 202 ; 1 Chitty Contr. (11th Am. ed.) 420, 421; Walker v. Lovell, 28 N. H. 138 ; Carlton V. Woods, lb. 290; Boyd v. Eaton, 44 Maine, 51 ; Pecker v. Kennison, 46 N. H. 488.] CHAPTER IV. OF ACCEPTANCE AND EECEIPT. SECTION I. — ACCEPTANCE, General observations American law the same . Acceptance of sample as part Constructive acceptance When buyer does an act of owner ship Formation of contract distinct from performance Acceptance may precede receipt Acceptance after action brought Carrier has no authority to accept Curtis V. Pugh reviewed Silence and delay as proofs of ac ceptance .... Marking the goods Where part of the goods not in existence Where goods are of different kinds Where the bargain is for sale and resale Section 139 140 141 144 145 150 157 159 160 161 162 166 167 168 169 Section Effect of proof of acceptance and receipt 170 Acceptance after disaffirmance by vendor 171 SECTION II. — WHAT 13 AN ACTUAL KECEIPT. When goods are already in buyer's possession . . . . 173 When goods are in possession of a third person . . . .174 When goods are on premises of third persons not bailees . . 178 When goods are in possession of vendor ... .180 When goods are delivered to a com- mon carrier . . . 181 Vendor may become bailee of pur- chaser 182 OF THE CONSTETJCTION OF THE WOKDS " EXCEPT THE BUYER SHALL ACCEPT PAET OF THE GOODS SO SOLD, AND ACTU- ALLY RECEIVE THE SAME." § 138. Having considered the meaning of the words " no con- tract for the sale of any goods, wares, or merchandise for the price of 101. or upwards," so as to ascertain what contracts are within the 17th section, the next step in the investigation is to inquire into the several conditions required by the law before such con- tracts "shall be allowed to be good." The language is that they shall not be allowed to be good " except — 1. " The buyer shall accept part of the goods so sold, and actu- ally receive the same ; " 2. " Or give something in earnest to bind the bargain, or in part payment ; " General ob^ servations. 138 FORMATION OF THE CONTRACT. [BOOK I. 3. " Or that some note or memorandum in writing of the said bargain be made and signed by tlie parties to be charged by such contract, or their agents thereunto lawfully au- thorized." The first of these exceptions is the subject of the present chapter. SECTION I. — WHAT IS AN ACCEPTANCE. § 130. In commenting on this clause, J\Ir. Justice Blackburn makes the following remarks : (a) " If we seek for the meaning of the enactment, judging merely from its words, and without reference to decisions, it seems that this provi- sion is not complied with, unless the two things concur : the buyer must accept, and he must actually receive part of the goods ; and the contract will not be good unless he does both. And this is to be borne in mind, for as there may be an actual receipt without anv acceptance, so may there be an acceptance without anjr re- ceipt. (Z)) In the absence of authority, and judging merely from the ordinary meaning of language, one would say that an accept- ance of part of the goods is an assent by the buyer, meant to be final, that this part of the goods is to be taken by him as his prop- erty under the contract, and as so far satisfying the contract. So long as the buyer can, without self-contia,diction, declare that the goods are not to be taken in fulfilment of the contract, he has not accepted them. And it is immaterial whether his refusal to take the goods be reasonable or not. If he refuses the goods, assign- ing grounds false or frivolous, or assigning no reasons at all, it is still clear that lie does not accept tlie goods, and the question is not whether he ought to accept, but whether he lias accepted them.(c) The question of acceptance or not is a question as to what was the intention of the buyer, as signified by his outward acts. § 140. '' The receipt of part of the goods is tlie taking pos- session of them. Wlien the seller gives to the buyer the actual control of the goods, and the buyer accepts such control, he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing; indeed, the receipt by the buyer may be, and often is, for the express purpose of seeing (a) Blackburn on Sales, 22, 23. (,•) [See Gilih^ r. Benjamin, 45 Vt. 124, (h) [See Prescolt v. Locke, 51 N. H. 94, 131, Ttcdfield .1. ; Endicott J. in Knight v. 100, Foster J. ; Grovcr v. Cameron, 6 U. Mann, 118 IMass. 143, 145.] C. Q. B. (0. S.) 196.] PART II.] OF ACCEPTANCE AND RECEIPT. 139 whether he will accept or not. If goods of a particular descrip- tion are ordered to be sent by a carrier, the buyer must in every case receive the package to see whether it answers his order or not : it may even be reasonable to try part of the goods by using them ; but though this is a very actual receipt, it is no acceptance so long as the buyer can consistently object to the goods as not answering his order. It follows from this that a receipt of goods by a carrier, or on board ship, though a sufficient delivery to the purchaser, is not an acceptance by him so as to bind the contract, for the carrier, if he be an agent to receive, is clearly American ' => . ; •'law the not one to accept the goods." (c?) And this is also the same. law in the United States. Caulkins v. Hellman, 47 N. Y. 449. § 141. The decisions upon the same question, what constitutes an acceptance, have been numerous. In a leading case. Acceptance J- ^ ^ ot sample Hinde v. Whitehoiise, (e) where sugar had been sold as part, by auction, the defendant, as highest bidder, had re- ^[jffg"' ceived the sample of sugar knocked down to him, and house, it wfas proved that at such sales the samples were always deliv- ered to the purchasei's as part of their purchase to make up the quantity. This was held to be an acceptance of part of the goods sold, Lord Ellenborough saying, " Inasmuch as the half pound sample of sugar out of each hogshead in this case is, by the terms and conditions of sale, so far treated as a part of the entire bulk to be delivered, that it is considered in the original weighing as con- stituting a part of the hulk actually weighed out to the buyer ; and to be allowed for specifically if he should choose to have the com- modity weighed ; I cannot but consider it as a part of the goods sold under the terms of the sale, accepted and actually received as such hy the buyer, (^d) And although it be delivered partly alio intuitu, namely, as a sample of quality, it does not therefore pre- vent its operating to another consistent intent, also in pursuance of the purposes of the parties as expressed in the conditions of sale, namely, as a part delivery of the thing itself, as soon as, in virtue of the bargain, the buyer should be entitled to retain, and should retain it accordingly." § 142. In Phillips v. BistoUi, (/) where a purchaser of some [d) [See Maxwell y. Brown, 39 Maine, (e) 7 East, 558; [McNeil u. Keleher, 98, a case of delivery to a carrier em- 15 U. C. C. P. 470.] ployed by the vendor. So Frostburg Min- (/)2B. &C. 511. See, also, Klimtz ing Co. V. New England Glass Co. 9 ^. Surry, 5 Esp. 267. Cush. 115; Rodgers v. Phillips, 40 N. Y. 519.] 140 FORMATION OF THE CONTRACT. [book I. jewelry at an auction sale held it in his hands a few minutes and tendered it back to the auctioneer, saying there had been BistoUi. a mistake, the court set aside a verdict for plaintiff, and ordered a new trial, saying, " To satisfy the statute there must be a delivery of the goods by the vendor, with an intention of vest- ing the right of possession in the vendee ; and there must be an actual acceptance by the latter, with an intention of taking to the possession as owner." (^) § 143. In Gardner v. Grout, (A) after the sale agreed on, the Gardner buyer went to the vendor's warehouse and got samples V. Grout. Qf |.|jg goods sold, which he promised to pay for when he took away the bulk ; and the samples so taken were weighed and ig) [Endicott J. in Knight u. Mtinn, 802. And "as mere words constituting a part of the original contract words not do not constitute an accept- enouBt. ance, so we are of opinion that mere words afterwards used, looking to the future, to acts afterwards to be done by the pur- chaser towards carrying out the contract, do not constitute an acceptance or prove the actual receipt required by the statute." Bell J. in Shepherd v. Pressey, 32 N. H. 57 ; Bowers u. Anderson, 49 Ga. 143. See § 155, note (o), post. A mere delivery is not sufficient; there must jj|,j.gjie. further be an acceptance and livery not receipt by the purchaser, else he will not be bound. Appleton J. in Maxwell v. Brown, 39 Maine, 101 ; Den- ny V. Williams, 5 Allen, 3; Shindler v. Houston, 1 Comst. 261 ; Gibbs v. Benja- min, 45 Vt. 124, 130, 131; Johnson i>. Cuttle, 105 Mass. 449 ; Edwards v. Grand Trunk Railway Co. 54 Maine, 111 ; S. C. 48 lb. 379 ; Hewes v. Jordan, 39 Md. 472, cited post, § 152, note [k^] ; Hawley u. Keeler, 53 N. Y. 114. In truth, "the statute is silent as to the delivery of goods sold, which is the act of the sell r. It re- quires the acceptance -. nd receipt of some part thereof, which are subsequent acts of the buyer." Foster J. in Boaidman v. Spooner, 13 Allen, 357 ; Prescott v. Locke, 51 N. H. 94.] (/() 2 C. B. N. S. 340. See, also, IvUn- itz V. Surry, 5 Esp. 267 ; Talver v. West, Holt, 178. No act of vendor enough. 118 Mass. 143, 145 ; Morton J. in Safford V. McDonough, 120 lb. 290, 291; Dev- ens J. in Remick u. Sandford, 120 lb. 316 ; Alvey J. in Hewes u. Jordan, 39 Md. 479 ; Clarke v. Marriott, 9 Gill, 331 ; Jones V. Mechanics' Bank, 29 Md. 293 ; Stone V. Brown ng, 51 N. Y. 211 ; Shep- herd V. Pressey, 32 N. H. 49, 55 ; Shind- ler V. Houston, 1 Comst. 261 ; Young v. Blaisdell, 60 Maine, 272 ; Gray v. Davis, 10 N. Y. 285; Brand v. Focht, 3 Keyes, 409 ; Marsh v. Rouse, 44 N. Y. 643 ; Dole u. Stimpson, 21 Pick. 384. "No act of the vendor alone, in however strict conformity to the terms of the contract, will satisfy the statute. There must be acta of the buyer, of accepting and actually receiving part of the goods sold, beyond the mere fact of entering into the contract, to bind the latter." Bell J. in Shepherd v. Pres- sey, 32 N. H. 55 ; Messer v. Woodman, 22 lb. 172, 182; Hawley v. Keeler, 53 N. Y. 114. Something more than mere words is necessary. Shindler u. Houston, 1 Comst. 261 ; Dole v. Stimpson, 21 Pick. 384 ; Artcher v. Zch, 5 Hill, 205 ; Denny u. Williams, 5 Allen, 3 ; Howard v. Bor- den, 13 lb. 299 ; Edwards v. Grand Trunk Railway Co. 54 Maine, 111 ; Bra- bin V. Hyde, 32 N. Y. 519; Marsh v. Rouse, 44 lb. 643 ; O'Brien v. Credit Val- ley Ry. Co. 25 U. C. C. P. 275 ; Brews- ter V. Taylor, 63 N. Y. 587 ; Ham v. Van Orden, 4 Hun, 709 ; Moore v. Bixby, lb. PART II.j ' OF ACCEPTANCE AND RECEIPT. 141 entered against him in the vendor's book. The vendor then re- fused to complete the sale, but held that there had been a part acceptance making the bargain complete. In this case the de- fendant cited Simonds v. Fisher, not reported, in which si^^nag Wightman J. had nonsuited the plaintiff, the facts being *• Ksher. that plaintiii 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 on the labels the prices agreed on ; and this taking of the samples was relied on as a part accept- ance, 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. (k~) But here the plaintiii' re- ceives part of« the very things which he has already bought.'' (Z) So, in Foster v. Frarapton, (m) the drawing of samples postg^^ by a vendee from hogsheads of sugar forwarded to him Frampton. by the vendor, when the sugar was in the carrier's warehouse at the place of destination, was held to be a taking possession of part of the goods, "a complete act of ownership " (per Littledale J.), putting an end to the vendor's right of stoppage in tran- GiiiiatD. situ. In GiUiat v. Roberts, (n) the defendant having ^°^^'^^- (j) [The acceptance and receipt need not (k) See, also, Cooper u. Blston, 7 T. E. Acceptance ^^ simultaneous with the ver- 14, where the sample was not part of the and receipt \yg\ contract of sale ; it is suifi- bulk. simultane- cient if they take place within (/) [The acceptance and receipt of a °"'- a reasonable time afterwards, sample will be sufficient to sat- Acceptance Bush V. Holmes, 53 Maine, 417; Marsh isfy the statute, if it is con- and receipt V, Hyde, 3 Gray, 331 ; Damon v. Osborn, sidered and treated by both 1 Pick. 480; Davis v. Moore, 13 Maine, parties as part of the goods bargained 421 ; McKnight v. Dunlop, 1 Selden, for, and diminishes the bulk thereof to 537 ; Richardson <.■. Squires, 37 Vt. 640 ; be finally delivered ; otherwise if the sam- Danforth v. Walker, lb. 239 ; Vincent c, pie is considered only a specimen, and Germond, II John. 283; Thompson u. forms no portion of the goods sold ; and Alger, 12 Met. 435 ; Chapiu v. Potter, 1 which it is to be considered is a question Hilton (N. Y.), 366; Sale v. Darragh, 2 of fact for the jury, the burden being lb. 184; Sprague v. Blake, 20 Wend. 61 ; upon the party alleging the validity of the McCarthy v. Nash, 14 Minn. 127 ; Ladd contract. Davis u. Eastman, I Allen, J. in Pinkham w. Mattox, 53 N. H. 604 ; 422; Bush ■;. Holmes, 53 Maine, 417, Alvey J. in Hcwes v. Jordan, 39 Md. 418; Pratt o. Cliase, 40 lb. 269; Dan- 484; Amson v. Dreher, 35 Wis. 615; forth v. Walker, 40 Vt. 257 ; Atwood w. Phillips V. Ocmulgee Mills, 55 Ga. 633. Lucas, 53 Maine, 508.] Morse v. Chisholm, 7 U. C. C. P. 131 ; (m) 6 B. & C. 107. Buckingham v. Osborne, 44 Conn. 133; (») 19 L. J. Ex. 410. Van Woert u. Albany & Susquehanna R. R. Co. 67 N. Y. 538.] 142 FORMATION OF THE CONTRACT. [book I. purchased 100 quarters of wheat, sent his servant for three sacks of it, which were deUvered, 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 re- ceived the usual final dressing before delivery. On these facts, the defendant, who had not returned the tliree 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 re- ceived and accepted part of the goods sold, so as to take the case out of the statute. § 144. It is quite well settled that the acceptance of the goods Acceptance or part of them, as required by the statute, may be con- structive only, and that the question whether the facts proven amount to a constructive acceptance is one " of fact for the jury, not matter of law for the court." (o) The acceptance must be clear and unequivocal, (^) but may be construc- tive. Question of fact, not of (o) Per Denman C. J. in Eden a. Dud- field, 1 Q. B. 302; [Frostburs Mining Co. V. New England Glass Co. 9 Cnsh. US L.Tdd J. in Pinkham v. xMattox, 53 N. H. 605.] (p) [See Prcscott v. Locke, 51 N. H. 94; Snow c, Warner, 10 Met. 136; Chap- man J. in Denny r. Williams, 5 Allen, 3 ; Dole V. Stimpson, 21 Pick. 3S4 ; Bojnton c. Veazie, 2-1 Maine, 286; Gibson v. .Ste- vens, 8 How. (U. S.) 38-1 ; Carver !■. Lane, 4 E. D. Smith (N. Y.), 168. In Snow i;. Warner, 10 Jlct 132, .Mr. Justice Hubbard said : " We are fully of o|)inion that the Acceptance acceptance ninst be proved by Deed not be i . . , by vendeo some clear and unequivocal PHrsonally. act of the party to be charged. The statute, by its lan^;uaj.'e, requires it, and the construction it has received gives full force to that language. But we can- not say that, to bind the purchaser, the acceptance can only be by him personally. The statute, in terms, provides that an agent may bind his | rincipal by a memo- randum in writing. If, then, an agent'can purchase, we think it clearly follows — there being no prohibitory clause — that an agent duly authorized may also receive purchased ]jroperty, and thus bind the principal. It is in accordance with the rights and duties of principals and agents in other cases, and for the furtherance of trade and commerce." Sec Frostburg Mining Co. V. New England Glass Co. 9 Ciish. 115; Cutwater v. Dodge, 6 Wend, 400; Barney o. Brown, 2 Vt. 374; Vin- cent V. Germond, 11 John. 283; Spencer V. Hale, 30 Vt. 314 ; Gibbs >'. Benjamin, 45 lb. 130 ; Quintard f. Bacon, 99 .Mass. 185 ; Gray J. in Johnson c. Cuttle, 105 lb. 449; Endicott J. in Knight v. Mann, 118 lb. 146; S. C. 120 lb. 219, 220; Morton J. in Safford v. McDonough,Ib. 290, 291 ; Dcveus J. in Remick u. Sandford, lb. 309, 316; Barklcy u. The Rensselaer R. R. Co. 71 N. Y. 205; Rogers r. Gould, 6 ?Iun, 229. The plaiutifF sold wine to the defendant, the liability of the defendant depending upon whether there had been caulkinsn. an acceptance and receipt by Hellman. bim within the meaning of the statute. The sale was made by one Gordon as agent PART II.] OF ACCEPTANCE AND RECEIPT. 143 " it is a question for the jury whether, under all the circumstances, the acts which the buyer does, or forbears to do, amount to an ac- ceptance." (g') All the cases proceed on this principle. § 145. The constructive acceptance by the buyer may properly be inferred by the jury when he deals with the goods as when owner, when he does an act which he would have au thority to do as owner, but not otherwise, (g''-) In the ownership. language of an eminent judge, (r) " if the vendee does any act to the goods, — of wrong if he is not the owner of the goods, and of right if he is owner of the goods, — the doing of that act is evi- dence that he has accepted them." Thus, in Chaplin v. chapiinti. Rogers, (s) where the purchaser of a stack of hay resold "S^"'^" buyer does an act of for the plaintift^ and it also appeared that Agent of Gordon had been employed bothpavties J, jhe defendant to see to canoot make .' TOlid accept- the shipping of the wine to bind defend- the defendant after the plain- ant- tiff had delivered it at a cer- tain place, and that the defendant had told Gordon that he wanted him to be very particular to see that the wine corre- sponded with the sample. It was held that an acceptance by Gordon did not bind the defendant, as lie could not be the agent of both parties, and make an acceptance which would conclude the defendants. Caulkins v. Hellman, 14 Hun, 330.] (q) Per ColeridHO J. in Bushel v. Wheeler, 15 Q. B. 442, quoted and ap- proved by Campbell C. J. in Tibbett v. Morton, 15 Q. B. 428, and 19 L. J. Q. B. 382 ; [Borrowscale v. Boswonh, 99 Mass. 381 ; Kappleye r. Adee, 65 Barb. 589 ; Sawyer v. Nichols, 40 Maine, 212 ; Bailey u. Ogden, 3 John. 399, 420 ; Wartman u. Breed, 117 Mass. 18; Clark v. Wright, 11 Ir. C. L. R. 402. See, also, Parker u. AVallis, 5 E. & B. 21. Butwhere the facts in relation to a contract of sale, alleged to be within the statute of fraiids, are not in Province ot . Brown, 39 Maine, of them by him, are not a sufficient accept- 98, 103; Shepherd v. Pressey, 32 N. H. ance, if it appear that he has taken them 55; Frostburg Mining Co. w. New Eng- into his possession and kept them for no land Glass Co. 9 Cush. 115, 118, 119; greater time thin was reasonably neces- Ed wards v. Grand Trunk Railway Co. 54 sary to enable him to examine their quan- Maine, 111 ; S. C. 48 lb. 379.] tity and quality, and to declare his ap- {B) [In Plewes v. Jordan, 39 Md. 472, proval or his disapproval of them. See Vendee iaal- '' ""^^ ^^^'^ *"' '''^ delivery Stone v. Browning, 51 N. Y. 211 ; Heer- loweU time of the goods to the intended mance v. Taylor, 14 Hun, 149.] to exiunine. ^^^^]^^^^^^ ^^^ the unpacking (/) 8 Ex. 814 ; 22 L. J. Ex. 293. 150 FOKMATION OF THE CONTRACT. [BOOK I. them to be sent to his wharfinger. The bags were received on the 9th, and examined 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 been an acceptance after separa- tion, otherwise than by the wharfinger's receipt, which was insuffi- cient for that purpose, but Martin B. said : " There are various authorities to show that, for the jDurpose of an acceptance within the statute, the vendee must have had the opportunity of exercis- ing his judgment with respect to the articles sent. Morton v. Tibbett has been cited as an authority to the contrary, but in reality that case decides no more than this, that where the pur- chaser of goods takes upon himself to exercise dominion over them, and deals with them in a manner inconsistent with the right of property being in the vendor, that is evidence to justify the jury in finding that the vendee has aecept(;d the goods, and actually re- ceived 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 nothing to pi-eclude himself from objecting that they do not correspond with the contract. But, in my opinion, an accept- ance, to satisfy the statute, must be something more than a mere receipt; it means smiic act dune, after tlie vendee Juts exercised, or had the vwuhh eif e.eercisine/, Jus right of rcji-iiion.'" (ra) § l,j.5. In the case of Coombs v. The Bristol & Exeter Railway rr,,„ni.s«. Company, («) decided in 18.")8, the same court had oo- Bristoi & casion to review the subject, and Pollock C. B. said that Kaiiway Huut V. Hccht had decided " that the vendee should Company. ^ , . ™ . . have an opportunity of rejecting tlie goods. The statute requires not only delivery but accei)tanee." 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 coi'rect : but I adhere to that which I said in (m) [Eastm.in J. in Gilman v. Hill, 36 Presscy, 32 N. H. 55 ; Mosser v. Wood- N. H. 311, 320, 321. "There is no accept- man, 22 lb. 181,182; Belt c. Jlarriott, 9 aucc, unless the purchaser has exercised Gill, 331 ; Gorham i-. Fisher, 30 Yt. 428; his oi.tion to receive the goods sold, or Clark r. Tucker, 2 Sandf. 157.] not, or has done something to deprive him («) 3 II. & N. 510 ; 27 L. J. Ex. 401. of his option." Bell J. in Shcplierd v. PART II.] OF ACCEPTANCE AND RECEIPT. 151 Hunt V. Heclit, that mucli that was 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 cases establish that there can be no acceptance where there has been no opportunity of rejecting." Watson B. concurred, (o) (o) [Tn B )-rc],t~ § 157. Acceptance by the vendee may be prior to the precede re- actual receipt of the giioils, as, for instance, when he "'■''• has inspected and approved the specific goods at or be- (?) 6 H. & N. 832; 30 L. J. Ex. 310. (ri) [See LailJ J. in Knkham v. Mat- (r) 6 'E. & B. 726 ; 25 L. J. Q. B. 309. to.K, 53 N. H. 0O5, 60C.] PART 11.] OF ACCEPTANCE AND RECEIPT. 155 fore the time of purchasing. Thus, in Cusack v. Robinson, (s) where the buyer was shown a lot of 156 firkins of butter ^ , , , ,, Cusack «. in the vendor s cellar, and liad the opportunitj' of inspect- Robinson. ing 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 sufiicient evidence to justify the jury in finding an acceptance, and that the acceptance before the bargain was concluded was a compliance with the stat- ute. 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. § 168. In deciding Cusack v. Robinson, the court distinguished it from Nicholson v. Bower, (it) because in the latter Nicholson case there had been no specific goods selected and fixed ^- Bower. on in advance. Bower had made a verbal sale of about 140 quar- ters of wheat, by sample, to be delivered by rail in London. The wheat was received at the London depot, and warehoused by the railway company, and t\^e purchasers sent a carman to get a sam- ple, and after inspecting it, told him not to cart the wheat home at present. The purchasers were really in insolvent circumstances, and immediately after the interview with, the carman determined to stop payment, and they therefore thought it would be dishonest 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, and the assignees of the purchasers were not allowed to retain a verdict in their favor. In Saunders ^ aunders V. Topp (<) the defendant had selected forty -five couples ''• Topp. of ewes and lambs at the plaintiif's farm, and ordered them to be sent to his own farm, where they were received by his agent, (f) He then ordered them to be sent to another place, where lie saw them and counted them over, and said, " It is all right." The court declined to decide whether the previous selection was equiv- alent to an acceptance (a point subsequently decided in the afiirm- ative in Cusack v. Robinson, ut s%ipra), but held that the subse- quent action of the defendant was sufficient to justify the jury in finding an acceptance after delivery. (s) 1 B. & S. 299 ; 30 L. J. Q. B. 261. (v) [See Snow v. Warner, 10 Met. 132, (t) i Ex. 390. per Hubbard J., ante, §.144, note (p).] (u) 1 E. & E. 172 ; 28 L. J. Q. B. 97. 156 FORMATION OF THK CONTRACT. [book I. § 159. In one case, (x) Maule J. seems to have been strongly Acee t- of opinion that it was sufficient to prove acceptance of ance after ^^^.j^ ^f the goods by the buyer, after action brought, but brought. the court decUned 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 iNIaule J. in Bill v. Ba- ment. (2) § 160. It is settled that the receipt of goods by a carrier or Carrier has wharfinger appointed by the purchaser does not constitute \t'7o\7' ^" acceptance, these agents having authority only to re- cept. ceive, not to accept, the goods for their employers, (a) (x) Fricker v. Tomlinson, 1 Man. & G. 772. iy) [Until acceptance and receipt no binding contract exists ; and when they take place, the act of the parties unites with their previous verbal agreement to create a full, complete, and obligatory con- tract. In all cases of this sort, a single in- quiry operates as a test by which to ascer- tain whether a contract is binding upon the parties under the statute of frauds. It is whether the acceptance and receipt, whenever they took place, were in pursuance of a previous agreement. If the verbal contract is proved, and an acceptance and receipt in pursuance of it are shown, the requisites of the statutes are fulfilled. See per Bigelow J. in Marsh V. Hyde, 3 Gray, 333 ; Eudicott J. in Knight V. Alann, U8 ila^s. 145.] (z) 9 M. & \V. 36. [" Except that the statute provides that no action shall be broiiijht, there would he no good reason to hold that a memorandum signed, or an act of acceptance proved, at any time be- fore the trial, would not be sufficient," Colt J. in Townsend i. Hargraves, 118 Mass. 336.] (a) Abtey v. Emery, 4 M. & S. 262; Ac ep ance and receipt must be in pursuance of previous agieemeat. Hanson «. Armitage, 5 B. & A. 557 Johnson v. Dodgson, 2 M. & W. 656 Norman v. Phillips, U il. & W. 277 Hunt 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 over- ruled ; Cusack i'. Robinson, 1 B. & S.299, and 30 L. J. Q. B. 361 ; Hart u. Bush, E., B. & E. 494, and 27 L. J. Q. B. 271 ; Smith u. Hudson, 6 B. & S. 431, and 34 L. J. Q. B. 145 ; [Johnson v. Cuttle, 105 Mass. 447,449 ; Boardman v. Spooner, 13 Allen, 353; Grimes v. Van Yechten, 20 Mich. 410; Rodgers v. Phillips, 40 N. Y. 519; Denmead v. Glass, 30 Ga. 637 Jones V. Mechanics' Bank, 29 JMil. 287 Shepherd v. Pressey, 32 N. H. 49, 55, 56 Maxwell f. Brown, 39 Maine, 98; Erost burg Mining Co. u. New England Glass Co 9 Cush. 115 ; Spencer v. Hale, 30 Vt. 315; Cross v. O'Donnell, 44 N. Y. 661; Quintard v. Bacon, 99 Mass. 185, 186; Snow V. Warner, 10 Met. 1 2; Nicholson V. Bower, 1 E. & E. 172; Allard v. Greasert, 61 N. Y. 1 ; Atherton ii. New- hall, 123 Mass. 141; Tower u. Tudhope, 37 U. C. Q. B. 200, 210; Hausman D. Nye, 02 Ind. 485 ; Lloyd v. Wright, 25 Ga. 215. But it is held that if after PART II. J OF ACCEPTANCE AND RECEIPT. 157 § 161. Among the numerous cases in which the courts have set aside verdicts on the ground that the jury had found ac- Curtis «. ceptance by tlie buyer without sufficient evidence, some viewed. may be found which are not readily reconcilable with the prin- ciple that a dealing with the article in a manner inconsistent with the continuance of the right of property in the vendor is a con- structive acceptance. Curtis v. Pugh (5) 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 con- sidered the glue inferior to the quality ordered, and so informed plaintiff's agent on the next day. The plaintiff's brother ad- mitted, on inspection two days later, that part of the glue, but not an unusual proportion, was inferior, and offered to make an allow- ance, but refused to take it back because it had been unpacked and put into bags, which was not necessary for the purpose of ex- amination, and because the glue, when once unpacked, could not be replaced in the same condition in the hogsheads. Lord Den- man C. J. was of opinion that the defendant had not in fact in- tended to accept the glue, but told the jury that "if the defend- ant 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 ow7i," or had done no more than was neces- sary to examine the quality. All these questions 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 certainly carried the doctrine, as to acceptance, a step farther than I ought." Patteson, J. said : " My lord chief justice went a step farther in his ruling than the authorities war- rant," and Coleridge and Wightman JJ. concurred. This case acceptance the vendor deliyera the goods by the purchaser. Cross .t it to the case before them. Defendant ordered from PtiUips. 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, 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 27th April, which defendant received and kept, but it did not appear that he had ever seen the deals. On the 28th May, defendant in- formed plaintiff that he declined to take the goods. Pollock C. B. refused to nonsuit, and directed the jury to find for plaintiff, with leave reserved to defendant to move for 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. Wiieeler, and it is percepti- ble, from the language of all the judges, that they did not yield entire assent to that case. Bushel v. Wheeler was, however, men- tioned as a " well-considered case " in Morton v. Tibbett (ante^ § 149) ; and in Parker v. Wallis (/) Lord Campbell said m-gu- endo, 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 so7ne evi- dence of acceptance ; and observations to a similar effect are to be found in the opinion delivered by Parke B. in Cunliffe v. Har- rison, 6 Ex. 906. § 165. In Nicholle v. Plume (^) a quantity of cider was sent to defendant, who had ordered it verbally, but he refused j^jciioiie w. to receive it, and caused it to be lodged in a warehouse Pi"m«- (e) 14 M. & W. 277. (^r) 1 C & P. 272. (/) 5E. &B, 21. 160 FORMATION OF THE CONTRACT. [book I. 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 acceptance by unreasonable delay. § 166. When goods are marked with the name of the purchaser, bv his consent, this constitutes an acceptance of the Mar ng .^ '■ the goods, 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. (A) § 167. 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 manu- factured, (i) In Scott V. The Eastern Counties Rail- way Company, (/c) 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 mean time, 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 ob- Whei-e some of the goods not yet ill ex- istence. Scott V. Eastern Counties Kailway Company. (/i) Bill V. Bament, 9 M. & W. 36; Baldcy v. Parker, 2 B. & C. 37 ; Proctor V. Jones, 2 C. & P. 532 ; Hodgson u. Le Bret, 1 Camp, 233; Boulter v. Arnott, 1 C. & M. 334 ; [Hapjileye v. Adee, 65 Barb. 589 ; S. C. 1 N, y. Sup. Ct. 126 ; Dyer v. Libby, 61 Maine, 45 ;] Anderson v. Scott, in note to Hodgson ;;. Le Bret, 1 Camp. 235, in which Lord Ellenborough held that the cutting off ihe pegs by which the wine in ca-ks was tasted, and the marking of defendant's initials on the cask in his Effect of presence, was an incipient de- nt rking ^■t''. Willard, 19 114; but see Kirkby v. Johnson, 22 Mo. lb. 1 ; Appletou v. Bancroft, 10 Met. 236; 85*-] Olyphant v. Baker, 5 Benio, 379 ; Ely v. {!:) 1 East, 192. Ormsby, 12 Barb. 570 ; Green v. Merri.m, (/) 1 Taunt. 458; [Rappleye v. Adee, 28 Vt. 801 ; Vincent u. Germond, 11 John. 65 Barb. 589 , was a very similar case.] 283.] PART II.J OF ACCEPTANCE AND RECEIPT. 169 vendor, from owner to bailee and agent of the purchaser. The bench on this occasion was composed of Campbell C. J. and Cole- ridge and Erie JJ. So, in Beaumont v. Brengeri, (w) Beaumont the carriage bought by the defendant remained in the geri. 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. § 185. Two cases decided in the king's bench, in 1820 and 1821, may seem at first sight to trench upon the doctrine established in Elmore v. Stone and Marvin v. Wallis. In the first, a, ' lempest v. Tempest v. Fitzgerald, (o) the purchaser of a horse Fitzgerald. agreed, in August, to give forty-five guineas for it, and to take it away in September. The parties understood it to be 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 another week, which was as- sented to as a favor. The purchaser said he would call and pay for the horse about the 26th or 27th. He returned on the 27th with the intention of taking it, but the hoi"se had died in the in- terval, and he refused to pay. Held, that there was no actual re- ceipt. The ground of the decision was that defendant had no right of property in the horse until the price ivas paid ; that if he had gone away with the horse, vendor might have maintained trover: and the case was distinguished by the judges from Chap- lin V. Rogers, (p) and Blenkinsop v. Clayton, (^q) on this basis. In the second case. Carter v. Toussaint, (V) the j^lain- carter v. tiffs, who were farriers, sold defendant a race-horse which T°"^s^'"'- required firing, and this was done in defendant'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 en,tered in plaintifli's name, and this was also done by the direction of 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 p?-ice. {n) 5 C. B. 301. (?) 7 Taunt. 597. (o) 3 B. & A. 680. (r) 5 B. & A. 855. {p) 1 East, 192. 170 FORMATION OF THE CONTRACT. [BOOK I. Held, that there had been no actual receipt, because the seller was not bound to deliver the liorse without payment of the price, and that he had never lost possession or control of the. horse. If the horse had been put in tiie jDark-keeper's books in the name of de- fendant and by his request, that would have amounted to an actual receipt of it by the purchaser: but, on the facts, the pm-- chaser could not have maintained trover against the park-keeper on tenderino- the keep. It is apparent, from the reasoning of the judges in both the above cases, that there is nothing irreconcilable between the principles on which they were decided and those which have 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 concurrently witli delivery of possession; and that as nothing had been assented to by tlie vendors which impaired this right, there had been no actual receipt by the vendees, (s) § 186. In Cuaaok v. Robinson (f) the court treats the rule as Cusnck 11. settled, that, " though tlie goods remain in the personal Eobmson. possession of the vendor, yet it is agreed between the vendor and vendee that the possession shall thenceforth be kept, not as vendor, but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the stat- Castle V, wte." (fi) The subject was very thoroughly discussed in Castle V. Sworder, (m) in which an unanimous decision Su'order. (s) See, also, Holmes, v. Hoskius, 9 parties are changed." Endicott J. in ^^■''53. Knight V. Mann, 118 Mass. 143, 146; (t) 1 B. & S. 299 ; .30 L. J. Q. B. 261. Cliapman J. in Weld u. Came, 98 Mass. («i) [In relation to the law laid down in 152, 154. It appeared that the defend- the Un^xu.v^e quoted in the text from Cu- ant wished to buy » chaise which was sack c. Kohiniun, as to the loss of lien, owned by the plaintiff. The chaise was see§§ 770, 771, and soi et seq. In Safford in a stable attached to plaintiffs house. u. McDonou-h, 1-20 Mass. 290, 291, Mor- The parties went out to look at it, and Goods re- '™ ^' ^"^''^ • " ^^ '^ "'"6 there soon returned to the pla'ntiff's store and ":''^,''"i„nof ""^ ^'^ "''""' '" "■''''^'' "'^ ■^'^"3 '^ conversation as to the price and venaor;' goods remain in the posscs- manner of payment. The price was fixed Wi™ ™ly ''°" "^ ^^^ ^'""^'"'' ""'^ y<^' "t S.S.nuO, to be paid for in wood, to be An- beiiccpt- may have been accepted and livcred by the defendant. The defendant Sp" received by the vendee. But spoke of not having at that time a proper in such cases the vendor holds place to keep the chaise, and Meais v. possession of the goods, not by virtue of said he should have to build a mni™™"- h s lien as vendor, but under some new shed. The witness also stated that the contract by which the relations of the substance of the conversation was that (i() 29 L. J. Ex. 235 ; 6 H. & N..832, and SOL. J. Ex. 310. PART II.] OF ACCEPTANCE AND RECEIPT. 171 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, Byles, 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 kept in plaintiffs' bonded warehouse, two spe- cific puncheons of rum and a hogshead of brandy, marked and described in an invoice sent by post to defendant. These pack- ages 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 inclosed to 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 continuance 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, aud wrote to them saying : " You will oblige by informing me of the present value of the rum and brandy, that is to say, what you are willing to give for it." On these facts, Bramwell B. di- rected a nonsuit, with leave to plaintiffs to move, the defendant having objected that there was no delivery nor acceptance to satisfy the statute of frauds. Held, by the court of exchequer, that there had been no delivery nor actual receipt ; that as the the chaise was to remain where it was un- maining to be done, the sale was com- til the defendant should build his shed, pleted, if there was a legal delivery. For The defendant never delivered any wood that purpose it is not necessary that the or removed the chaise. Shepley C. J. said : property should pass into the actual pos- " The witness appears to have stated, session of the vendee. When it was so without objection, ' the substance of the situated that he is entitled to, and can conversation was that the chaise was to rightfully take possession of it at his remain where it was until the defendant pleasure, he is considered as having actu- should build his shed.' It was to remain, ally received it as the statute requires, not as security for the payment, but at although it may by his request have con- the pleasure of the defendant, and for tinued in the custody of the vendor." his accommodation. Nothing further re- Means v. Williamson, 37 Me. 556.] 172 FORMATION OF THE CONTRACT. [BOOK I. goods remained under control of the vendors, and in their posses- sion till after the credit had expired, their 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 cliamber, Coclcburn C. J. in giving his opin- ion 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 re- mained in the sellers, was a possession in the sellers hij virtue of their ori(/inal property in the goods, or whether it had become a possession as agents and hailees of the buyers." The learned chief justice then went on to point out that there was sutficient evidence of a change of character in the possession to go to tlie 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 that request, in asking the plaintiffs to sell the goods for liim." 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 " according 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." (a;) [In Falls V. JMiller (x^') it appeared that on Saturday the defend- [x] [In Barrett i>. Gnddard, 3 Mason, manual actual possession is necessary. It 107, it was decided that, where goods were is sufficient if, in the intent of all the Vendor the ^o\&, Ijing in the vendor's parties, the one parts with, and the other warehouse- warehouse, on a credit of six receives the property, although there is no dee; effect months, for which a note was change of place. There is nothing in ° given, and the goods were sold reason or i)rinciple to make the present by marks and numbers, and it was a part case differeut, s-iniply because the bales of of the consideration of the purchase that cotton remained in the plaintiff's own they might lie, rent free, in the warehouse, warehouse. It was a part of the bargain at the option of the purchaser, and for his that they should 'so remain, and a part of benefit, until the vendor should want the the consideration of the purchase. The room, there was a complete delivery of the warehouse must be deemed, after the pur- goods, so tliat, on the insolvency of the chase, to be virtually the warehouse of the purchaser, they would not be stopped by purchaser, for this purpose, or so much the vendor. Story J. said : "If theware- storage as actually hired by him." See house had belonged to a third person. Chase t). Willard, .57 Maine, 157; Hatch there would be no pretence to say, after v. Lincoln, 12 Cush. .31; Moans «. Wil- notice and assent by the warehouseman, liamson, 37 Maine, 556.] that the delivery was not complete in con- (x^) 2 Cr. & Dix, 416, struction of law. For such a purpose no PART II.] OF ACCEPTANCE AND EECEIPT. 173 ant bought a number of pigs from the plaintiff at a certain price agreed upon. The defendant at the time of sale said he had no change about him and could not pay any earnest, but he wished the plaintiff's servant to keep the pigs without any food from Sat- urday until the following Monday, when he would call for them and take them away. The pigs were accordingly kept in the plaintiff's house in pursuance of the defendant's directions, but he never took them away, and the plaintiff afterwards sold them and brought suit for the difference between what the sale realized and the contract price. The defence was that the statute had not been complied with. The cases of Carter v. Toussaint and Tem- pest V. Fitzgerald, ante, § 185, were referred to, but Burton J. said : " I feel myself bound by the cases which have been cited on the part of the respondent, and must hold that there was no such delivery here as would prevent the necessity of a memoran- dum or note in writing as required by the statute."] § 187. It will already have been perceived that in many of the cases the test for determining whether there has been Actual re- an actual receipt by the purchaser has been to inquire Jg*g'fjf^ (, whether the vendor has lost his lien. C«) Receipt im- '"ss of ^t/ y r vendor's » plies delivery, (s) and it is plain that so long as vendor I'^n. has not delivered, there can be no actual receipt by vendee, (a) The subject was placed in a very clear light by Holroyd J. in his decision in Baldey v. Parker : (6) " 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 con- trol over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute." (S^) No exception is known in the whole series of {)/) See post, book V. part I. ch. iv. on Knowledge by a subsequent purchaser that Lien of Vendor, §§ 801 et seq. a previous verbal contract of Subsequent (j) Per Parke B. in Saunders v. Topp, sale, invalid under the statute f^^^'lf^'^;.!. 4 Ex. 394. of frauds, had been made of edge of pre- (n) [In Shindler v. Houston, 1 Comst. the same property, does not ™liacou- 261, Gardner J. said : "The language of afiect the validity of his pur- Tact. the act is unequivocal and de- chase. Young v. Blaisdell, 60 Maine, 272.] implies de- mands the action of both par- {b) 2 B. & C. 37. """^- ties, for acceptance implies (i'J [Saiford u. McDonough, 120 Mass. delivery, and there can be no complete de- 290. See TownSend i/. Hargraves, 118 livery without acceptance." See, also, Mas». 325, 333, cited ante § 170, note {q). Young V. Blaisdell, 60 Maine, 272, 275. See §§ 770, 771, and 801, post.] 174 FORMATION OF THE CONTRACT. [BOOK I. decisions to the propositions here enounced, and it is safe to as- sume, as a general rule, that whenever no fact has been proven showing an abandonment by the vendor of his hen, no actual re- ceipt by the purchaser has taken place. This has been as strongly insisted on in the latest as in the earliest cases. The principal de- cisions to this effect are referred to in the note, (c) § 188. It may be useful here to advert to one case in which Dodsie'f ^^^® circumstances were very peculiar. In Dodsley v. Varicy. Varley (ti) 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 jDaid 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 court held that the property had passed, that the goods had been delivered, and were at the risk of the purchaser-. In relation to the vendor's right, the court said: " The plaintiff had not what it called a lien, determinable on the loss of possession, but a special interest, some- times, but improperly, called a lien, growing out of his original ownership, and consistent with the property being in the defend- ant. This he retained in respect of the term agreed on, that the (c) Howe V. Palmer, 3 B. & A. .321 ; iffactoiy note, the jnircliaser examined Tempest v. Fitzgerald, 3 B. & A. 680; the merchandise, had it weii;hed, marked Carter v. Toussaint, 5 B. & A. 555 ; Bal- with his initials, and piled up by itself in dey f. Parker, 2 B. & C. 37; Smith u. the seller's warehouse, to be takeu away Surman, 9 B. & C. 561 ; Bill v. Bament, upon payment for it or giv- Saffordi'. 9 M. & W. 37 ; Phillips v. BistoUi, 2 B. ing a satisfactory note for" its Si'^Konough. & C. 511; 1-Iawes u. Watson, 2 B. & C. price. The purchaser never comj.lied with 540; Maherley r. Slieppard, 10 Bin^'. these terms, and the seller refused to al- 101 ; Holmes v. Hoskins, 9 Ex. 753 ; Cu- low him to take the merchandise away, sack, V. Robinson, 1 B. & S. 299 ; Castle v. claiming a lien upon it for its iirice. After Swordcr, 29 L. J. Ex. 235 ; S. C. 30 L. remaining for several mouths it was de- J. Ex. 310, and 6 H. & N. 832 ; Morton stro\'ed iu the warehouse by fire. It was V. Tibbett, 15 Q. B. 428, and 19 L. J. Q. held that there was no such delivery of B. 382 ; [Russell v. ilmor, 22 Wend. 659 ; the goods as to constitute the seller a Rathbun u. Rathbun, 6 Barb. 98 ; Brand bailee for the jrarchaser. Safford v. Mc- V. Focht, 3 Keyes, 409; Bailey v. Oudeii, Donough, 120 Mass. 290.] 3 John. 399 ; Jackson v. Watts, 1 JlcCord, (t^) 12 Ad. & E. 632 ; [Spencer v. Hale, 288; .Marsli v. Rouse, 44 X. Y. 643. 30 Vt. :!14 ; Dows v. Montgomery, 5 Upon iiu agreement for the sale of mer- l{obertson, 445.] chandise and payment therefor by a sat- PART II. J OF ACCEPTANCE AND RECEIPT. 175 goods should not be removed to their ultimate place of destination before payment." (c^i) It is plain that there is nothing in this case which conflicts with the rule, that there can be no actual re- ceipt by purchaser while vendor's lien continues, for the court held that the lien was gone. It may, -however, be remarked, that the effect attributed by the court to the special agreement, that the goods should remain in the defendant's warehouse without removal till paid for, is much greater than was accorded to a sim- ilar stipulation in the case of Howes v. Ball, (e) where tt the question was raised in a more direct form than in ^ '■ Dodsley v. Varley. In this last mentioned case, where the litiga- tion 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 ven- dor to retake the thing sold, if not paid for at the expiration of the credit allowed ; but that such license could not be available against a transferee of the thing, as a sub-vendee, or the adminis- trator of the vendee. (/) , (d}) [Ladd J. in Pinkham v. Mattox, 53 it was agreed that the machine should re- N. H. 600.] main the property of the plaintiif until (c) 7 B. & C. 484. paid for. The machine was delivered and (/) [In Pinkham v, Mattox, 53 N. H. accepted on these terms at the time of the 600, it was maintained that if tlieve is a contract. Tlie defendant made no pay- contract for sale, although upon condition ment, but suffered forty-five dollars to that the property shall not pass until the become due at the rate of five dollars price is paid, and the purchaser receives per month ; and thereupon the plaintiif , , and accepts the goods upon brought an action to recover this sum, Acceptance j o r o and receipt the terms of such contract, his and in this action it was held that the ac- tional oon-'" acceptance will be sufBcient to ceptance of the machine by the defend- tracts as to answer the requirement of the ant was a sufficient acceptance under the statute of frauds. In this case statute of frauds. This case was very the plaintiflf sold to the defendant a sew- fully considered by Ladd J., but no case ing-machine for eighty dollars, to be paid was cited more nearly resembling it than in monthly instalments of from five to Dodsley v. Varley, supra.\ ten dollars, at the option of the buyer ; and CHAPTER V. OF EARNEST OR PART PAYMENT. Section Earnest and part payment distinct things ... .189 Either suffices to make the contract good 190 Something must be actually given to constitute earnest . . . .191 Part payment 192 Agreement to set off deht due to the buyer . . ... 193 Section Analogous decisions under statute of limitations . . . . 194 Goods supplied "on account" of a debt 194 Board and lodging supplied in part payment . ... 194 Giving a bill or note on account . 194 Civil law doctrine of earnest . . 195 Pothier . . ... 199 French Code ... .200 § 189. The giving of earnest, however common in ancient Earnest times, lias fallen so much into disuse, that the two ex- ^r'ment pressions in this clause of the statute, "giving something distinct. in earnest " and " giving something in part payment," are often treated as meaning the same thing, (a) although the language clearlj' intimates that the earnest is " something " that " binds the bargain," whereas it is manifest that there can be no part payment till after the bargain has been bound, or closed. (6) Earnest maybe money, or some gift or token (among the 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 prevalent custom in England, (c) Examples are found in Bach v. Owen, (d) in 1793, and Goodall V. Skelton, (e) in 1794, in the former of which a halfpenny, and in the latter a shilling, was given in earnest of the bargain. (a) ["As used in the statute of frauds, ' earnest ' is regarded as ii part payment of the price." Howe u. Hayward, 108 Mass. 54, 55, Chapman C. J.] (h) [See Bissell u. Balcoru, 39 N. Y. 275.] (c) Bracton, 1, 2, u. 26. [Mr. Browne says: "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 St, Frauds, § 341 ; Artcher v. Zeh, 5 Hill (N. Y.), 200.] (d) 5 T. R. 409. (e) 2 H. B1.316. PART II.J OF EARNEST OR PART PAYMENT. 177 § 190. Whether giving earnest has the effect of passing the property in the thing sold from vendor to vendee will be consid- ered in a subsequent part of this treatise, (/) but for the present we are only concerned with the question of its effect in _.,^ . ^ Either suf- giving validity to a parol contract. The giving of ficesto earnest, and the part payment of the price, are two facts contract. 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 con- tract good without a writing. (^) § 191. The former of these facts, that of giving something in earnest to " bind the bargain," has been the subject of Something only one reported case, that of Blenkinsop v. Clay- actually ton, (A) in which the buyer drew a shilling across the coIsSt'ute vendor's hand, and which the witness called " striking tamest. «.,.-,.,, T , - , Blenkinsop Oil the bargain according to the custom of the country; v. Clayton, but as the buyer then returned the coin to his own pocket, instead of giving it to the vendor, the court necessarily held that the statute had not been satisfied. There is another case, Qi) Goodaii v. in which the plaintiff was nonsuited in an action on a ^''^<="o°- 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 (f) Post, boot II. eh. iv. is necessary to supply the part omitted. (jr) [A verbal stipulation to give and to Edgerton v. Hodge, 41 Vt. 676, 680, 681. receive something in earnest to bind the It is not sufficient to bind the bargain for bargain, or in part payment, or' a verbal the purchaser to offer or tender something promise to make a note or memorandum in earnest or in part payment; the vendor in writing necessary to ex- must accept and receive it. Edgerton y. lation to give empt the agreement from the Hodge, 41 Vt. 676, 679; Andrews J. in earnest. operation of the statute, is as Hawleya. Keeler, 53 N. Y. 114, 119; Hicks much within the statute as is the agree- v. Cleveland, 48 lb. 84. Pay- Payment to ment or contract, taken as a whole ; and a ment to an agent of the ven- °s™t good, note or memorandum in relation to giving dor of a portion of the purchase-money is something in earnest to bind the bargain^ as effectual as payment to the principal, or in part payment, which is insufficient Resort cannot be had to the verbal agree- in itself to take the contract out of the ment, however, to establish the agency, statute, is also insufficient to make the But the agency may be proved by a sub- contract binding upon either party. Thus sequent ratification of the act of an as- it may be stated as a general proposition, sumed agent in receiving the payment, that where the parties in making a con- Hawley v. Keeler, 53 N. Y. 114.] tract omit to do anything which the stat- (A) 7 Taunt. 597. ute of frauds requires, the consent of both (i) Goodall v. Skelton, 2 H. Bl. 316. 12 178 FORMATION OF THE CONTEACT. [bOOK I, 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. § 192. On the subject of part payment, there is but one im- p . portant decision under this clause of the statute ; but the ""^n'- cases which have arisen under analogous clauses in the statutes of limitations and the bankruptcy acts may be considered with advantage in this connection. ((/) § 193. An agreement for the purchase of goods exceeding IQl. Agreement in value was made with the understanding, and as part debt due to o^ ^^^ contract, that the vendor should deduct from the the buyer, pj-jcg i\^q amount of a debt previously due by him to the purchaser. The vendor then sent the goods to the purchaser with an invoice charging him with the price, 201. 18s. lid., under which was written, " By your account against me, 4:1. lis. lid." The purchaser returned the goods as inferior to sample. It was con- tended, on behalf of the vendor, who brought an action for goods sold and delivered, that this credit of 4/. 14s. llcZ. was a part pay- ment 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." Pol- lock C. B. said : " Here was nothing but one contract, whereas the statute requires a contract, and if it be not in writing, some- thing besides." Parke B. said : " Had there been a bargain to sell the leather at a certain price, and subsequently 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 equivalent 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 plaintift''s debt was merely a por- tion of the contemporaneous contract, it was not a giving some- thing to the plaintiff by way of earnest or in part payment then or subsequently." Alderson B. said : " The 17th section of tbe statute of frauds implies that to bind a buyer of goods of 10/. value without writing he must have done two things : first, made (?) [A. agreed to sell B. 500 cords of as owner of the trees. Held, that a pay- wood at 3 shillings 9 pence per cord. M. ment on account to JI. by B. took tlie had contracted to cut this wood for A. at contract ont of the statute of frauds. 2s. 6rf. per cord, and B. was to pay M. prady v. Harrahy, 21 U. C. Q. B. 340; the 2s. dd. and the plaintiff A. Is. 3rf., Furniss v. Sawers, 3 lb. 77.] PART II.] OF EARNEST OR PART PAYMENT. 179 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 bargain is for the seller to take something in part payment, that term cannot alone be equivalent to part payment." (A) From this case it may be inferred that an agree- ment to set off a debt due to the buyer would be held to be a part payment, taking the case out of the statute, if made subsequently to the sale, (J) or by an independent contract at the time of the 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 for the pur- chase, one of the terms of the contract of sale itself, is not suc]3,a part payment as is required to make a parol sale valid for an amount exceeding 101. (m) [k) "Walker v. Nussey 16 M. & W. 302. [See Teed v. Teed, 44 Barb. 96 ; Mattiee V. Allen, 3 Keyes (N. Y.), 492; Brabin v. Hyde, 32 N. Y. 519.] (/) [It is not necessary in most states Part pay- *'''*' P*'' payment should be ment may be made at the time of the sale ; subsequent to time of It may be made afterwards, sale. Thompson v. Alger, 12 Met. 435, 436 ; Davis v. Moore, 13 Maine 424; Gault V. Brown, 48 N. H. 183, 189 ; Vin-. cent V. Germond, 11 John. 283; Sprague V. Blake, 20 Wend. 61. But see now Bis- sell V. Balcom, 39 N. Y. 275 ; AUis v. Read, 45 lb. 142; and see Hunter v. Wet- sell, 57 lb. 375, where it was held by the court, after reviewing many of the au- thorities, that a payment upon a parol contract for the sale of personal property for a price of $50 or more, made at a time subsequent to that of the making of the contract, does not, of itself, take the contract out of the operation of the stat- ute. To have that effect the subsequent payment must be made and received for the express purpose of thus complying with the statute and rendering the con- tract valid ; or when payment is made, the parties must reaffirm or restate the terms of the contract ; in which case the payment is made " at the time '' of making the contract, within the meaning of the statute. Haw- payment must be a payment of a part of the purchase money of the goods thus contracted to be sold. . Organ v. Stewart, 60 N. Y. 413.] (m) [When, by the oral agreement of sale, the price is to be paid by „ ' ^ ^ . •' If part pay- crediting the amount against ment is an indebtedness of the vendor f^l^^^^J^ ,^^ to the purchaser, and no act amount on , ^ .^ ^ .... an indebted- is done to carry it out, it is n(,ss some not to be regarded as pay- »"' ™"" •'« ment. Until an application of the payment is actually made by in- dorsement, receipt, or otherwise, it goes " no farther than the mere contract to pay in that mode ; and, so far as the statute is concerned, it no more aids to prove the contract valid than does the agreement to pay the price in an ordinary sale, where actual payment is expected." Clark u. Tucker, 2 Sandf. 157, 164. See Gilman V. Hill, 36 N. H. 319; Brabin v. Hyde, 32 N. Y. 519; Mattiee u. Allen, 3 Keyes, 492; S. C. 3 Abb. App. Dec. 248; ,Wal- rath V. Ingles, 64 Barb. 265. But a prom- ise by the purchaser to pay the price to a creditor of the vendor, which Acta in nat- promise is accepted by the ure of no- creditor, who thereupon dis- ^'^'"^soo charges the vendor, is a part payment suflRcient to satisfy the statute. Coiterill u. Stevens, 10 Wis. 442. But where the ley i,. Keeler, 53 N. Y. 114. The part purchaser of a lot of logs, at the time of the 180 FORMATION OF THE CONTRACT. [book I. §194. Analogous decisions under stat- ute of limi- tations. Goods "on account" of a debt. Blair v. Ormond. Board and lodging 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 deci- sion to this effect given by the exchequer in Hart v. Nash (w) was followed by the queen's bench in Hooper V. Stephens, (o) And the decisions under the bank- ruptcy acts have been to the same effect, (p) So, also, in Blair v. Oi-mond, (9') it was held, under the statute of limitations, that an agreement by the debtor to board supplied in ^^-^^ lodge the creditor at a fixed price per week in de- part pay- ° ' ^ . _ ment. duction of the debt was a part payment constituting a sufficient acknowledgment of the debt to take it out of the statute. 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 anything of value which by mutual agreement is given by the buyer and accepted by the seller, " on account " or in part sat- Biii or isfaction of the price, will be equivalent to part payment. The transfer to the vendor of a bill or note " on account " or in part payment would seem also to suffice to render the bargain valid, (r) In Maber v. Maber (s) a gift of the interest due was held to be a part payment, (s^) 195. The Roman law on the subject of earnest was very pe- culiar, and the texts wliich govern it might readily be misunderstood unless careful discrimination be observed. Earnest was of two kinds : one was an independent contract ante- rior to the agreement of sale ; the other was accessory to the con- tract of sale after it had been agreed on, and was, like the earnest of the common law, a proof that the bai-gain was concluded, arffu- mentwm contractus factl. by the purchaser to the vendor. Dow u. Worthen, 37 Vt. 108.] (n) 2 Cr., M. &R. 337. (0) 4 Ad. & B. 71. (;;) Wilkins 0. Casey, 7 T. E. 711; Caiman v. Wood, 2 M. & W. 465. (q) 17 Q. B. 423, and 20 L. J. Q. B. 444. (r) Chamberlyn v. Delariye, 2 Wils, 353 ; Kearslake c. Morgan, 5 T. E. 513 | Griffiths V. Owen, 13 M. & W. 58. (s) L. R. 2 Ex. 15.3. (si) [Part payment may be made by cheek, if it be received in payment. Hua- ter V. Wetsell, 17 Hun, 135.] note trans- ferred in part pay- ment. jMaber v. Maber. Civil law. purchase and as a part of the price, agreed to jjay, and afterwards did pay, a debt ot the seller, the creditor not know- ing or consenting to the agreement, it was decided that this did not take the sale out of the statute ; there being no payment down of the purchase-money, no memo- randum of sale, and no delivery. Paine V. Fulton, 34 Wis. 83. The part payment required by the statute may be made by a settlement for, and an actual transfer of the title to, property previously delivered PART II.] OF EARNEST OB PART PAYMENT. 181 § 196. The independent contract of earnest was an agreement 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 after- wards took place, the earnest-money was deducted 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 re- turn the earnest-money and an equivalent amount by way of for- feiture for disappointing the other in his option, (t) § 197. 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 generally the buyer, gave to the other as a sign, proof, or symbol of the conclusion of the bargain (u) — and wlien money was given in earnest it was con- sidered as being in part payment of the price, (a;) Varro gives this as the etymology of the word : («/) " Arrhabo sic dicta, ut re- liquum reddatur. Hoc verbum a Greeco arrabon, reliquum, ex eo quod debitum reliquit ; " and the Institutes of Gaius (g) give its true nature, " Qnod saepe arrhse nomine pro emptione datur, non eo pertinet 'quasi sine arrha conventio nihil proficiat ; sed ut evi- dentius probari possit eonvenisse de pretio." § 198. At a later date, however, the Emperor Justinian made by statute an important change in the law of earnest, by provid- ing that in all cases where it was given, whether the sale was in writing or not, and whether there was any stipulation to that eiiect 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 as to fo-nn 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 nuraeratum sit ac ne arrha quidem data fuerit ; nam quod arrhse nomine datur argumentum est emptionis et venditionis contractse. Sed haec (0 L. 17, Cod. de Fid. Instr.; Pothier, (u) Dig. 19, 1, de Act. Emp. et Vend. Vente, Nos. 497, 8, 9. [But money de- 11, § 6, XJIp. posited with a third person, "as a forfeit- (x) Dig. 18, 3, de Lege Commissoria, 8 lire, to be paid over to the party who was Scaav. ; [Chapman C. J. in Howe v. Hay- ready to perform the contract, if the other ward, 108 Mass. 55, quoted ante, § 189, party neglected' to do so," was held not to note (a).] be given in earnest to bind the bargain, {y) De Lingua Latina, lib. 5, § 175. within the statute of frauds, in Howe v. {z) Com. 3, § 139. Hayward, 108 Mass. 54.] 182 FORMATION OF THE CONTRACT. [BOOK I. quidem de emptionibas et veBditionibus quse sine soriptura consis- tunt obtinere opertet, nam nihil a nobis in hijusmodi venditioni- bus innovatum est. In his autem quas soriptura confieiuntur, non aliter perfectam esse venditionem et emptionem constituimus, nisi et instrumenta emptionis fuerint conscrlpta, vel manu propria con- trahentium, vel ab alio quidem scripta, a eontrahentibus autem subscripta ; et si per tabelliones fiunt, nisi et completiones accepe- rint et fuerint partibus absoluta. Donee enim aliquid deest ex his, et poenitentiee locus est, et potest emptor vel venditor, sine poena recedere ab emptione. Ita tamen impune eis recedere concedimus, nisi jam arrharum nomine aliquid fuerit datum. Hoc etenim sub- secuto, sive in scriptis, sive sine scri'ptis venditio celebrata est, is qui recusat adimplere contractum, si quidem est emptor, perdit quod dedit : si vero venditor, duplum restituere compellitur, licet super arrhis nihil expressurn est." («) This text not only changed the antecedent law, by allowing either party to rescind the bar- gain 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 com- pleted ; in derogation of the ante- Justinian law, which made the contract perfect by mutual assent before the writings were drawn up.(^) § 199. Pothier struggles, on the authority of Vinnius, to escape from the apparently plain meaning of this text of the "Pot QIGr Institutes, and maintains the old distinction, that after earnest given to bind the bargain, neither party can escape from his obligations as vendor or purchaser, by the sacrifice of the amount of the earnest, (c) But his reasoning is scarcely satisfac- tory, and later authors consider the language of the text too abso- lute to be explained away. ((/^ § 200. The French civil code seems to reject Pothier's doctrine, French ^^^ provides, art. 1590, " Si la promesse de vente a &i& '^<"'<*- faite avec des arrhes, chacun des contractants est maitre de s'en d^partir, celui qui les a donn(jes en les perdant, et celuiqui les a re9ues en restituant le double." Singularly enough, how- ever, the same discussion has sprung up under this text as under (a) lust. lib. iii. tit. xxiii. 1. (c) Pothier, Vente, No. 508. (h) Dig. 18, 1, de Contrah. Einpt. 2, § 1, (d) Ortolan, Explication Hist, des Inst. Paul; Gaius, Comm. 3, § 139. vol. 3, p. 269. PART II. J OF EAENKST OR PART PAYMENT. 183 that of Justinian, and the commentators are divided ; TouUier, Maleville, Duranton, and some others, taking the side of Pothier, while Duvergier, Coulon, Devilleneuve, and Ortolan, are of the contrary^ opinion. («) (e) The references are given in Sirey & Gilbert, Code Annot^, art. 1590. CHAPTER VI. OF THE MEMORANDUM OR NOTE IN WRITING. Section Law of evidence as to written con- tracts not clianged by tlie statute 201 Common law principles . . . 202 Parol evidence, when admissible where there is a written note of the bargain 207 True theory of the statute . . 208 Parol evidence admissible to show that the writing is not a note of the whole bargain .... 209 Inadmissible to supplement an imperfect note . . . 210 Inadmissible to connect sepa- rate written papers . 211 Admissible to identify the sub- ject-matter of the note . . 212 Admissible to show the situa- tion, and circumstances, and to explain mercantile lan- guage, and show date . . 213 Also to show the meaning of words, according to trade usage 213 Also mistake in omitting goods in bought and sold notes . 213 Also to show that writing was intended only to take effect conditionally .^ . 214 And to explain latent ambi- guity . ... 214 As to particular commercial usages 215 Admissibility of parol evidence to change or annul written note . 216 Admissible to show buyer's order for alterations in chattel to be manufactured . . . .217 Section Or to show abandonment of the contract .... 218 Rule where note is signed by agent in his own name . . .219 SECTION I. — "WHAT IS A NOTE OK MEMOKANDUM IN" WRITING. Must be made before action brought 221 Need not be written at one time nor on one piece of paper . . . 222 Separate papers not to be connected by parol . . .222 Must be consistent . . . .223 4th and 17th sections of statute compared .... 224 Cases reviewed ..... 225 Note in writing may be addressed to a third person . . . .230 Writing in pencil . . . .231 SECTION II. — "WHAT IS A SUFFIOIENT NOTE OF THE BARGAIN MADE. 4th section rigorously construed . 231 17th section more liberally con- sti-ued 233 Note must contain names or descrip- tion of the parties . . 234 Description suffices instead of name 237 Where agent signs his own name . 238 When agent is personally bound . 239 Agents for non-existent principals 244 What terms of the bargain must be contained in the note . . 245 Distinction between " agreement" and " bargain " . . . . 245 Price, when agreed on, must be stated 247 PART II.] OP THE MEMORANDUM OR NOTE IN WRITING. 185 Section Price, need not be stated, when not fixed by the terms agreed on . 248 General rule as to stating price in note 249 Other terms of contract must be so expressed as to be intelligible . 250 Section A letter repudiating a contract may be a sufficient note of it A mere written proposal is a suf- ficient note, if supplemented by parol proof of acceptance by the party seeking to enforce it . Decisions in the United States 252 253 254 § 201. This clause of the statute is as follows : " Except that some note or memorandum in writing of the said bargain be made and ^gned by the parties to be charged by such contract, or their agents thereunto duly authorized." For an accurate notion of the true extent and bearing of this clause, it is indispensa- Law of ble to keep constantly in view the leading principles of as to^writ- the law of evidence relating to written contracts. The ten con- tracts not framers of the statute have in no way interfered with changed . . •' by the these principles. They have simply said that if the par- statute. ties 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 re- spects is left entirely as it was at common law. § 202. Now at common law parties entering into any contract may either reduce its terms to writing, or may refer to Common •' . . . . law prm- some other writing already in existence, as containing ■ cipies. the terms of their agreement, and when they do so, they are bound by what is written, whether signed by them or not ; (a) 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 con- tents, 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 re- duced to writing, or by mutual assent is to be taken as embraced in a preexisting writing, neither party is allowed to offer proof that any additional terms were agreed to, (a^) although of course, Simp- form any part of their bargain ; and every- thing said respecting the transaction in the previous conversations, and not incor- porated into the written agreement, will be considered as intentionally rejected. 1 Chitty Contr. (11th Am. ed.) 153, and note (u) ; Carter v. Hamilton, 11 Barb. 147 ; Eidgway v. Bowman, 7 Cush. 268 ; Hakes v. Hotchkiss, 23 Vt. 231 ; Pitcher v. (a) [The Bank of Br. N. Am, son, 24 U. C. C. P. 354.] (fli) [Whatever may have been the pre- „ vious conversations and verbal Written con- tract ex- communications between the vlourcom-" P"ti^8' if '•'^y '^t '^5' '•«'1"<=« rrmnica- their agreement to writing, this will be looked upon to contain all that the parties intended should 186 FORMATION OF THE CONTRACT. [BOOK I. whenever 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 consid- eration as if expressed in the written paper, and cannot be con- tradicted or qualified by parol evidence, (b) § 203. But the common law does not prohibit parties from mak- ing contracts of which only part is in writing. A man may agree to build a carriage for another, and the description of the vehicle may be put in writing and the price may be agreed on by parol, or vice versa, or the parties may say in substance, " We agree to what is contained in such a writing, with such additions and ex- ceptions as we now agree upon by word of mouth," and there is no legal objection to this. Parol evidence may be used to show what were the additions and exceptions, and the writing is con- clusive as to the rest. (5^) § 20-1. When either a part, or the whole of an agreement, is thus made in writing, or b}'' reference to a writing, the agreement in general cannot be proven by any other means than by adduc- ing the writing itself in proof, so that independently of the stat- ute, the writing is an indispensable part of the case of him who seeks to pi'ove the agreement. (J^) But this result only takes place when the writing is by the consent of both parties agreed to be that which settles and contains their contract in whole or in part. The case is different, if one of the parties chooses to write down for himself without the concurrence and assent of the other, or if a by-stander, without the authority of both, should write out what they said. The writing of the by-stander 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 accuracy, it would be Hennessy, 48 N. Y. 415 ; Small v. Quincy, ham, 3 B. & S. 669 ; 33 L. J. Q. B. 17. 4 Greenl. 497 ; Tayloe ;;. Eiggs, 1 Peters But see the language of Williams J. in (U. S.), 591 ; Clark ;;. New York Life Ins & Trust Co. 7 Lansing, 322 ; Eden Blake, 13 M. & W. 614, 617, 618 ; Stoops 98 V. Smith, 100 Mass. 63, 65; Groot Story, 44 Vt. 200 ; Henderson v. Cotter, 15 XJ. C. Q. B. 345; Mason v. Brunskill lb. 300,] ' 327. (i) Per Blackburn J. in Burges v. Wick- Clapham u. Langton, 34 L. J. Q. B. 46. See, also, Fawkes v. Lamb, 31 L. J. Q. B. (61) [McBride v. Silverthorne, 11 U. C. Q. B. 545.] (i2) [Caldwell v. Green, 8 U. C. Q. B. PART II. ] OF THE MEMORANDUM OR NOTE IN WRITING. 187 receivable in evidence against him as an admission, and the same would be the case as to what one party had written down for him- self. But such writing, not binding on both, would not be indis- pensable for legal proof of the contract, nor, although of great weight, would it be conclusive upon him against whom it is evi- dence, as being his admission. § 205. 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 stat- ute to make the contract good, and though there be sufficient evi- dence of part payment or of part acceptance and receipt to estab- lish the validity of the contract, (c) 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 had never been passed. And where a party has signed a paper which is not a writing agreed upon between the two, as containing the terms of their agreements, 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 neces- sary to distinguish whether the writing is the contract of both parties, or the admission of one. (c^) § 206. The two cases of Ford v. Yates (c?) and Lockett v. Nick- lin (e) afford an illustration of the effect of the statute j.^j.^j ^_ of frauds, taken in connection with the common law Yates, rules of evidence on this subject. In Ford v. Yates the memo- randum of the sale made between the parties said nothing as to credit ; it was a sale of two parcels of hops, one of thirty-nine pockets, and the other of five pockets, both at seventy-eight shil- lings. The vendor delivered the smaller parcel, but refused to de- liver the thirty-nine 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 (c) [As to effect of loss of memoran- are chiefly extracted from the very valua- dum, see Ryan v. Salt, 3 XJ. C. C. P. 83.] able treatise of Blackburn J. (ci) The foregoing preliminary remarks {d) 2 M. & G. 549. (e) 2 Ex. 93. 188 FORMATION OF THE CONTRACT. [BOOK I. between the parties. But in Lockett v. Nicklin where the goods were ordered in a letter containing a reference to a con- Nicklin. versation between the parties, and were supphed with an invoice, nothing being said either in the letter or the invoice about the terms of payment, parol evidence was received of an agree- ment to give six months' credit. The distinction made was, that in Ford v. Yates the action was based on a lurltten contract con- tained in the memorandum which could not be varied by parol evidence, while in Lockett v. Nicklin the sale ivas really by parol, and the subsequent writings were merely offered in proof of a parol bargain which had become binding by the delivery and ac- ceptance of the goods ; so that the purchaser was at liberty to supplement the proof of the bargain by showing that there was an additional stipulation, namely, an agreement for six months' credit. § 207. It is of course quite beyond the scope of the present Parol evi- treatise to enter with any minuteness into the law of deuce, evidence, but the examination of this clause of the stat- wnen ad- missible ute would be very incomplete without some reference to there is the decisions which determine in what cases, for what note of the purposes, and to what extent, parol evidence is admissi- bargam. ^j^g (.^ g^ffg^j; \^\^q rights of the parties, when there exists a note or memorandum in writing of the bargain sufficient to sat- isfy the 17th section. § 208. It must be steadily borne in mind that the statute was True the- not enacted for cases where the parties, either in person dJuse S'^ °^" ^y agents, have signed a written contract ; for in those the statute, cases the common law affords by its rules quite a suffi- cient guaranty 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 defend- ant could be shown to have executed the alleged contract by partial performance, as manifested by part payment, or part acceptance, or unless his signature to some written note or mem- orandum oi the bargain — not to the bargain itself — could be shown. (/) The existence of the note or memorandum presup- (/) See the remarks of Erie J. in L. J. C. P. 150; and of Lord Wensleydale Sicvewright v. Archibald, 17 Q. B. 104; in Ridgway v. Wharton, 6 H.L. Cas. 30.^. 20 L, J. Q- B. 529 ; of Williams J. in The statement in the text is to be found Bailey v. Sweeting, 9 C. B. N. S. 8.13 ; 30 passim in the cases on this subject. PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 189 poses an antecedent contract by parol, of which the writing is a note or memorandum. (^) § 209. It is a very simple deduction from this theory of the stat- ute, that parol evidence is admissible for the purpose of p^^^j ^^_ showing that the written paper is not a note or memo- denceisad- ° ^ ^ missible to randum of the antecedent parol agreement, but only of show that ,».. liin-. •• T •! "i^ writing part 01 it, and the decisions are quite in accordance with is not a this view. Thus, if the writing offered in evidence con- ^^ofe bar- tains no reference to the price at which the goods wer^ ^*'"" 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 agree- ment, but only of some of its terms. (Ji) 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 ad- {g) ["It must be observed that the contract itself, and the memo- Contract randam which is necessary to and memo- . , -' randum dis- its validity under the statute tmct. ^^ frauds, are, in their nature, distinct things. The statute presupposes a contract by parol. Marsh v. Hyde, 3 Gray, 333. The contract may be made at one time, and the note or memorandum of it at a subsequent time. The contract may be proved by parol, and the memo- randum may be supplied by documents and letters, written at various times, if they all appear to have relation to it, and, if coupled together, they contain by state- ment or reference all the essential parts of the bargain, signed by the party to be charged, or his agent. Williams o. Ba- con, 2 Gray, 387, 391." Hoar J. in Ler- ned V. Wannemacher, 9 Allen, 412, 416; Gale V. Nixon, 6 Cowen, 445 ; 1 Sugden V. & P. (8th Am. ed.) 129; Thompson v. Menck, 4 Abb. (N. Y.) App. Dec. 400. "I make a distinction between the con- tract and the memorandum of the con- tract ; the latter may be made long after the terms have been agreed to ; and the making of the one is entirely distinct from the other." Erie C. J. in Parton v. Crofts, 16 C. B. N. S. 11, 21. See Ide a. Stan- ton, 15 Vt. 690; Webster v. Zielly, 52 Barb. 482; Davis i>. Moore, 13 Maine, 424 ; ante, § 143, note {i) ; Hunter w. Gid- dings, 97 Mass. 41, 44; Phillips v. Oc- mulgee Mills, 55 Ga. 633; Bird v. Mon- roe, 66 Me. 337; Richey v. Garvey, 10 Ir. L. R. 544. So where a parol contract of sale, originally void under the statute of frauds, is made valid by performance and delivery of property, it creates no new contract. It only makes binding the orig- inal agreement, which thereupon be- comes valid and effectual as to both par- ties, to be enforced and carried out ac- cording to its original terms. Lawton v. Keil, 61 Barb. 558. In a recent case in the queen's bench, a memorandum in writing made by the defendant, after the goods had been delivered to a carrier and been totally lost at sea while in his hands, was held sufficient to take the Memoran- case out of the statute, and no dum may be , . , „ made after notice IS taken in the case oi goods de- the fact that the goods were stroyed. not in existence when the memorandum was furnished. Leather Cloth Co. v. Hie- ronimus, L. R. 10 Q. B. 140. See Town- send „. Hargraves, 118 Mass. 325, cited ante, § 91, note (/").] (A) Elmore v. Kingscote, 5 B. & C. 583 ; Goodman v. Griffiths,! H. & N. 574; S. C. 26 L. J. Ex. 145 ; Acebal v. Levy, 10 Bing. 376. 190 FORMATION OF THE CONTRACT. [book I. raitted to show this fact, and thus to invalidate the sold note signed by the broker, which omitted that stipulation, (z) § 210. And the same principle which permits the defendant to offer parol evidence, showing that the written note is Inadmissi- ' j.' c i bie to sup- imperfect, and therefore not such a note as satisfies the fm™r"ecr statute, forbids him who sets up the writing for the pur- °°'''' pose of binding the other from supplementing the writ- ing by parol proof of terms or stipulations not contained in it ; (A) for it is manifest, that by offering such proof, he admits that the writing does not contain a note of the bargain, but only of part of it. (0 § 211. It is also on this principle that when the bargain is to be made out by separate written papers, parol evidence is not allowed to connect them, but they must either be physically attached together, (l^') so as to show that they constitute but one instrument, or they must be connected by reference in the contents of one to the contents of the other, (m) as will be fully seen infra, §§ 212-248. Inadmissi- ble to con- nect sepa- rate writ- ten papers. (i) Pitta V. Beckett, 13 M. & W. 743. [So it may be shown that it was one of the terms of an oral contract of sale that the goods sold were to be subject to the purchaser's approval, in order to establish the insufficiency of a, broker's note in writing of the sale, which omitted that portion of the oral contract, to take the case out of the statute. Board man v. Spooner, 13 Allen, 353, 3.58, 3.59. And in Cnddington v. Goddard, 16 (Iray, 436, it was held that if the broker, in his en- try, omitted any essential element of the contract, it would be an insufficient note or memorandum of it. See Davis u. Shield, -26 Wend. 341.] (k) [See Jenness !'. Mount Hope Iron Co. 53 Maine, 20; Salmon Tails Manuf. Co. u. Goddard, 14 How. (U. S.) 44B; O'Donncll c. Leeman, 43 Maine, 158; Dana v. Hancock, 30 Vt. 616. In Lee V. Hills, 66 Ind. 474, the, memorandum was in the following form : " Terre Haute, Ind., 187 , — A. P. Lee& Bro. (then Astn sup- fallowed a list of the articles plying omis- contracted for) Freight. Ship sions in ti t • ,. , nieuiorau- x!imp. L,ine, 60 days accept- ■ii"!- ancc. (Signed) Hills Bros." It was held that this was an incomplete memorandum, and that the vendees could not show that the word " sold " was omit- ted before A. P. Lee & Bro. by mistake.] (I) Boydelli'. Drumraond, 11 East, 142; Fitzmauriee v. Bay ley, 9 H. L. Cas. 78; Holmes v. Mitchell, 7 C. B. N. S. 361, and 28 L. J. C. P. 201 ; Harnor v. Groves, 15 C- B. 667 ; 24 L. J. C. P. 53. [See 1 Sugden V. & P. (8th Am. ed.) 140, note (d).] (/I) [Kaitling v. Parkin, 23 U. C. C. P. 569.] (m) Hinde v. Whitehouse, 7 East, 558; Kcnworthy v. Schofield, 2 B. & C. 945; [Freeport v. Bartol, 3 Greenl. 340 ; Mor- ton V. Dean, 13 Met. 385 ; Lerned u. Wannemacher, 9 Allen, 417 ; Smith u. Arnold, 5 Mason, 416 ; O'Donnell v. Lee- man, 43 Maine, 158; Fowler v. Eedican, 52 111. 405 ; Kurtz v. Cummings, 24 Penn. St. 35 ; Adams v. McMillan, 7 Porter, 73; Moale V. Buchanan, 11 Gill & J. 314; Price u. Griffith, 1 De G., M. & G. 80; Peek V. North Staffordshire Railway Co. 10 H. L. Cas, 473,568; Williams w. Bacon, 2 Gray, 391 ; Johnson d. Buck, 6 Vroom (N. J.), 344; Knox v. King, 36 Ala. 367 ; PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 191 § 212. But where a purchaser agreed to pay by a check on his brother, the court held that this was not one of the terms which need appear in the writing ; and further, that parol 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 writ- ing which described them as " candlesticks complete." (w) § 213. Although parol evidence is not admissible to supply omis- sions or introduce terms, or to contradict, alter, or vary . , . .,, ' ' •' Admissible a written instrument, it is admissible for the purpose of to identify identifying the subject-matter to which the writing re- ject-mat- fers. (o) Thus, where the written letter contained an ter. Eidgway v. Ingram, 50 Ind. 145, 148; Peirce v. Corf, L. R. 9 Q. B. 210. In Ridgway v. Wharton, 6 H. L. Cas. 238, "instructions" were referred to, and it was held that it might be shown by parol evidence that instructions had been given in writing, and that there had been no other instructions than the written docu- ment, which was produced. Lord Cran- Lor4 Cran- worth said : " The authorities Ttrplrof^ l^*"! '° '^'^ conclusion, that if evidence. there is an agreement to do something, not expressed on the face of the agreement signed, that something which is to be done being included in some other writing, parol evidence may be admitted to show what that writing is, so that the two taken together may con- stitute a binding agreement within the statute of frauds." 6 H. L. Cas. 2.57 ; Baumann v. James, L. E. 3 Ch. Ap. 508, was similar. See Jackson v. Oglander, 2 H. & M. 465 ; Lee v. Mahony, 9 Iowa, 344; Ida v. Stanton, 15 Vt. 685 ; Rhoades V. Castner, 12 Allen, 130; Spear v. Hart, 3 Rob. .420; Phippen v. Hyland, 19 U. C. C. P. 416 ; Beckwith v. Talbot, 2 Col. 639 ; Boyce v. Greene, Batty (Ir.), 608.] (n) Sari v. Bourdillon, 26 L. J. C. P. 78; 1 C. B. N,S. 188. [See Coddington u. Goddard, 16 Gray, 436.] (o) Batenian t). Phillips, 15 East, 272; Shortrede v. Cheek, 1 Ad. & B. 57 ; Mum- ford V. Gething, 7 C. B. N. S. 305, and 29 L. J. C. P. 105 ; [Caulkins v. Hellman, 14 Hun, 330 ; Waldron v. Jacob, Ir. R. 5 Eq. 131. Wells J. in Stoops v. Smith, 100 Mass. 63, 66, and cases cited; Colt J. in Sweet V. Shumway, 102 Mass. 367, 368 ; Miller v. Stevens, 100 lb. 518, 522. Such evidence must be confined to PHrol evi- the question of identity in ?Sify°8ub- kind, and must not be ex- joct-mattor. tended to comparisons in degree or qual- ity. It is admissible only when the writ- ing does not distinctly define the article to be delivered, so as to enable its iden- tity to be seen upon the face of the trans- action. Wells J. in Pike v. Fay, 101 Mass. 134, 137. Where an action was brought for breach of a written agreement to receive " white willow cuttings," and pay for them, parol evidence was held ad- missible to show that the sale was by sam- ple, and that the cuttings tendered did not correspond with the sample, and were not identical in kind with those described by the vendor, and which he undertook to deliver. Pike v. Fay, 101 Mass. 134. See Hart u. Hammett, 18 Vt. 127 ; Gray v. Harper, 1 Story, 574; Hill v. Rewee, 11 Met. 268; Miller „. Stevens, 100 Mass. 518, 522, and cases. Parol evidence has been admitted to explain or tq explain show the meaning of the fol- Phrases, lowing terms and phrases employed in written contracts ; " Consigned 6 ms." at the bottom of a bill of parcels of goods sold. Georgei). Joy, 19 N. H. 544. "Terms cash," upon a bill of parcels. George u. Joy, supra. " Their freight," in a con- tract to transport. Noyes u. Canfield, 27 Vt. 79. The "12i" in a memorandum "bought 150 tons of madder, 12 J, 6 ms.' 192 FORMATION OF THE CONTRACT. [BOOK I. agreement to purchase "your wool," parol evidence was ad- mitted to apply the letter, and to show what was meant by " your Also to wool." (/>) Parol evidence is also admitted to show the show situ- situation of the parties at the time the writing was made, ation ot ■•■ I'll parties. and the circumstances ; (g) to explam the language, as for instance, to show that the bought and sold note have the same meaning among merchants, though the language seems to Also the vary ; (r) and to show the date when the bargain was of woidf made, (s) Parol evidence was hkewise admitted to according -^^^ that a Sale of " fourteen pockets of Kent hops, at to trade i- i i usages. lOOs., meant 100s. per cwt., according to the usage ot the hop trade, (t) Also to show a mistake in drawing up the Also mis- bought and sold notes (whereby certain goods were omi'ttJTi omitted), in an action of trover by the vendors against goods in tjjg purchaser for the goods so omitted after they had bought and '^ , . • i i sold notes, been paid for, and taken into possession by the pur- chaser, (u) § 214. Parol evidence is also admissible to show that a written Also to document, purporting to be an agreement, and signed wrltln"^"' ''^y *^^® parties, was executed, not with the intention of wasoni.yto niakins a present contract, but like an escrow, or writ- take eftect & f • ... 1 1 • j: condition- ing to take effect only on condition of the happening of a Dana v. Fielder, 2 Kern an, 40. " Cash,'' ing attached to them by the parties to the in a contract, to mean a credit of a few contract. Whitmarsh v. Conway Ins. Co. days, by custom. Steward u. Scudder, 4 16 Gray, 359."] Zabr. (N. J.) 96. But see Foley v. Mason, (p) Macdonald i/. Longbottom, 28 L. J. 6Md. 37. " Horn chains," Sweet I'. Slium- Q. B. 293; S. C. on appeal, 1 E. & E. way, 102 Jlass. 365. In an action on a 977, and 29 L. J. Q. B. 256. written contract for the delivery of a cargo (g) Per Tindal C. J. in Sweet o. Lee, 3 of coal, " water nine and one half feet," 1M.&G.466; [Wells J. in Stoops w. Smith, parol evidence is competent to show what 100 Mass. 63, 66, and cases.] number of tons of coal usually constituted (i-) Bold u. Kayner, 1 M. & W. 343; the cargo of a vessel drawing that depth and per Erie C. J. in Sievewright v. of water. Ehuades v. Castner, 12 Allen, Archibald, 17 Q. B. 124; 20 L. J. Q. B. 130. If goods are sold with " all faults," 529. parol evidence is admissible to show that (s) Edmunds v. Downs, 2 C. & M. 459 ; these words have a well established mean- Hartley u. Wharton, 11 Ad. & E. 934; ing in the trade in such goods, and what Lobb v. Stanley, 5 Q. B. 574. that meaning is. Whitney w. Boardman, (() Spicer v. Cooper, 1 Q. B. 424; 118 Mass. 242, 247. Devens J. said in [Nelson .J. in Salmon Falls Manuf, Co. i). this case: "It is not necessary that terms Goddard, 14 How. (U. S.) 455.] should be technical, scientific, or ambig- {«) Steele u. Haddock, 10 Ex. 643; 24 uous in themselves, in order to entitle a L. J. Ex. 78. party to show by parol evidence the mean- PART II.] OF THE MEMORANDUM OK NOTE IN WRITING. 193 future event ; (a;) or was even to be modified upon some future contingency. (?/) Parol evidence is also admissible to explain a latent ambiguity in a contract of sale, as where a To explain T . , latent am- bargain was made for the sale of cotton, " to arrive ex biguity. Peerless from Bombay," pai-ol evidence was held admissible to show that there were two ships Peerless from Bombay, and that the ship Peerless intended by the vendor was a different ship Peer- less from that intended by the buyer, so as to establish a mistake defeating the contract for want of a consensus ad idem, (s) § 215. The admissibility of parol evidence of particular com- mercial usages to engraft terms into the bargain, or even to introduce conditions apparently at variance with the ticuiar implication resulting from the written stipulations (as ciai usages, was done in Field v. Lelean, (a) where evidence was ad- Field ». mitted 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 future'), 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 Wig- glesworth v. Dallison, in the first volume of Smith's Leading Cases. (5) its effect, either upon the contract or the legal title or rights of parties, are not competent to show the character or force of the usage. Neither is it competent for them to testify what is the understanding of others in regard to its effect. The ef- fect is to be determined by the court, or by the jury under its direction. Like other facts and circumstances attending a trans- action, usage serves to aid in interpreting and applying the words and acts or con- duct of parties in their dealings with each other, when the words and acts them- selves are equivocal or not explicit and decisive. Their dealings are supposed to be conducted with reference to, or at least in accordance with, the usage, and it may therefore be resorted to for aid in supply- ing the unexpressed terms of their agree- ments, on the ground of presumed inten- tion and mutual nnderstanding In this way it may modify the application of gen- eral rules of law. But it cannot be al- lowed to control the express intention of (x) Pym V. Campbell, 6 B. & B. 370 ; 25 L. J. Q. B. 277 ; Furness v. Meek, 27 L. J. Ex. 34. (y) Rogers u. Hadley, 2 H. & C. 227; 32 L. J. Ex. 241. (z) Eaffles v. Wichelhaus, 2 H. & C. 906; 33 L. J. Ex. 160. (a) 6 H. & N. 617; 30 L. J. Ex. 168. (6) Vol. i. p. 546 ei sey. ; [Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446,454; Boardman v. Spooncr, 13 Allen, 353, 359, 360 ; Morse v. Brackett, 98 Mass. 209; Clark v. Baker, 11 Met. 186. In Haskias v. Warren, 115 Mass. 535, Wells J. said ; " Usage is a matter of fact, not of opinion. Usage of trade is a Usage; what •^ j. . ," , „ it is, and its course of dealing; a mode of '**"^°'- conducting transactions of a particular kind. It is proved by witnesses testifying of its existence and uniformity from their knowledge obtained by obser- vation of what is practised by themselves and others in the trade to which it relates. But their conclusions and inferences as to 13 194 FORMATION OF THE CONTRACT. [book I. dence as to subsequent agreement to alter or annul the written note. § 216. After a contract has been proven by the production of Parol evi- a written note or memorandum suiBcient 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 115 Mafs. 536. And in this case it was decided that, if goods sold are delivered to the purchaser, and there is evidence that the delivery was for the purpose of exam- ination or other special and limited pur- pose, and not for the purpose of giving absolute possession to the purchaser, evi- dence is admissible that it was in the usual course of dealing to give opportunity for examination in that mode. But if goods sold are delivered for the purpose of com- pleting the sale, evidence of a usage that the sale is not completed is inadmissible. So a usage that no title passes upon an ordinary sale and delivery, without actual payment of the consideration within a cer- tain number of days, is unreasonable and invalid. Evidence of usage is inadmissible to contradict the terms of an express con- tract. Brown c. Foster, 113 Mass. 136. In Bailey r. Bensley, 87 111. 556, Sheldon J. said : " A person who deals in a partic- ular market must he taken to ihe parties to an agreement ; nor the inter- pretation and effect which result from an established rule of law applicable to it; nor to engraft on a contract of sale a stipulation or obligation different from or inconsistent with the rule of the common law on the same subject." Dickinson c. Gay, 7 Allen, 29; Dodd o. Farlow, 11 lb. 426 ; Boardman c. .Spooner, 13 lb. 353; Reed (... Eichardson, 98 Mass. 216; Odiorne v. New Enjiland Ins. Co. 101 lb. 551; Snelling v. Hall, 107 lb. 134; Car- kin V. Savory, 14 Gray, 528 ; Read u. Pres. &c., of Hud. & Del. Canal Co. 2 Alb. L. J. 392 ; Brown v. Browne, 9 U. C. Q. B. 312 ; Hayes v. Nesbitt, 25 U. C. C. P. 101 ; Polhcmus v. Heiman, 50 Cal. 438; Jlears t;. Waples, 4 Houston (Del), 62; Coffman v. Campbell, 87 111. 98; The Chicago Packing & Provision Co. a. Tilton, lb. 547 ; Lyon v. Culbertson, 83 lb. 33 ; Corbett v. Underwood, lb. 324 ; Doane v. Dunham, 79 lb. 131 ; Smyth u. Exr's of Ward, 46 Iowa, 339; Barker i. Borzonc, 48 Md. 474 ; Farmers' & Mechan- ics' Bank v. Erie K. W. Co. 72 N. Y. 188 ; Marshall !-. Perry, 67 Me. 78 ; Malcomson u. Morton, 1 1 Ir. L. R. 230 ; Page v. Myers, 6 Ir. Jur. N. S. 364. "The understand- Knowledge deal according to the known, of urage; general, and uniform custom ".'^"^Ijagj or usage of that market ; and Botneces- he who employs another to ""^^' act for him at a particular place or mar- ket must be taken as intending that the ing of a community or of a class, as to a business to be done will be done according to the usage and custom of that place or market, whether the principal in fact knew of the usage or custom or not." White u. Fuller, 67 Barb. 267. In Swift V. Gifford, 2 Low. 110, it appeared that there was a custom among Massachusetts whalemen, by which a whale captured by the joint labors of two or Q„.,ton, ^ more vessels' crews belonged whale fish- . T_ 1 1 ,. ery ^^ to to tJiat vessel whose crew first property in harpooned the whale, pro- "'''*'^' vided the harpoon remained in the whale, and claim was made before cutting in. legal effect or an implication of law, is not a valid usage ; and evidence to prove it is not competent to determine legal rights \mder contracts. So, too, the in- tent or understanding with which jjarties enter into a particular contract, or con- duct in its execulion, is not properly shown by evidence of the intent or under- standing wiih which others perform like transactions, although the evidence is suf- ficiently comprehensive to establish a cus- tom or usage, if its nature would admit of it." Wells J. in Haskins u. Warren, PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 195 been reduced to writing and signed, to make a fresh parol agree- ment, either to waive the written bargain altogether, 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 written agreement, and partly by the subsequent verbal terms engrafted upon what is left of the written agreement, (c) But this princi- ple 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. (cZ) Thus parol evidence is not admissible It was decided that this was a good custom, though it was ledognized that the usage of English and Scotch whalemen was that the iron held the whale only so long as the , harpoon line remained fast to the boat.] (c) Per Denman C. J. in Goss v. Lord Nugent, 5 B. & Ad. 65 ; [Clifford J. in Swain u. Seamens, 9 "Wallace, 25+, 271 ; Miles 0. Eoberts, 34 N. H. 245 ; Richard- son V. Cooper, 25 Maine, 450, 452 ; Cum- mings V. Putnam, 19 N. H. 569 ; Goodrich V. Longley, 4 Gray, 383; Richardson v. Hooper, 13 Pick. 446 ; Munroe v. Perkins, 9 lb. 298; Franklin v. Long, 7 Gill & J. 407; Coates v. Sangston, 5 Md. 121 ; Cummings v. Arnold, 3 Met. 489; Vicary V. Moore, 2 Watts, 456, 457 ; Heatherly v. Record, 12 Texas, 49; McGrann v. New Lebanon R. R. Co. 29 Penn. St. 82 ; Haynes v. Fuller, 40 Maine, 162 ; 1 Sug- den V. & P. (8th Am. ed.) 158, and note (e), and cases cited ; Allen v. Sowerby, 37 Md. 411.] (d) [In Tyers v. Rosedale & Ferryhill Iron Co. L. R. 8 Ex. 315, Kelly C. B. said : " It is now established that a new verbal contract cannot be substituted for the original contract, where by the statute of frauds such original contract must be in writing." In Plevins v. Downing, 1 C. P. Div. 220, 225, Brett J. said: "Where the vendor, being ready to deliver within Contract the agreed time, is shown to ^jfn^^j" have withheld his offer to de- ute CELDnot le Taried by liver till after the agreed time, sub.sequent . « parol agree- ^^ consequence of a request to ment. ^[^ (q (Jq go made by the ven- dee before the expiration of the agreed time, and where after the expiration of the agreed time, and within a reasonable time, the vendor proposes to deliver and the vendee refuses to accept, the vendor can recover damages. He can properly aver and prove that he was ready and willing to deliver according to the terms of the orig- inal contract. He shows that he was so, but that he did not offer to deliver within the agreed time because he was within such time requested by the vendee not to do so. In such case it is said that tli« original contract is unaltered, and that the arrangement has i-eference only to the mode of performing it. But if the altera- tion of the period of delivery were made at the request of the vendor, though such request -vtro 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 arid prove that he was ready and will- ing 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 sub- stituted 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 as summed up in Hickman u. Haynes." L. R. 10 C. P. 598. In Swain V. Seamens, 9 Wallace, 254, 272, it was said by Clifford J. to be " the better opin- ion, that a written contract falling within the statute of frauds cannot be varied by 196 FORMATION OF THE CONTRACT. [book I. to change the place of delivery fixed in the writing, (e) nor the time for the delivery ; (/) nor to prove a partial waiver of a prom- ise to furnish a good title ; (^) nor a modification of a stipulation for a valuation ; (h) nor a cliange in any of the terms ; for the courts can draw no distinctions between stipulations that are ma- terial and those that are not. (/) § 217. But where there was an executory contract for the build- Aiterations i'lg of a landaulet described in the agreement, parol evi- dence 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." (/c) In Brady v. Oastler (J) 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 consid- eration 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 de- livery ; but the evidence was rejected by Bramwell B. at nisi prius, and his ruling was approved by Pollock C. B. and Chan- ordered by biiytr ia chattel manufact- ured for him. Brady v. Oastler. any subsequent agreement of the parties, unless such new tigreement is also in writ- ing." See, also, Ladd v. King-, 1 R. I. 224; Espy V.Anderson, 14 Penn. St. 308; Dana i.. Hancock, 30 Vt. 616 ; Emmet r. Dewhurst, 3 Mac. & G. 587 ; Uault €. Brown, 43 N. H. 183, 186. But the law is settled otherwise in Jlassa- AhtLT in jliL>..iL- chusetts, where it is held that ' """"■ parol e\ idence may be admit- ted to prove a subsequent oral agreement enlarging the time o£ performance of u. simple contract, or varying its terms, or to show a waiver or discharge, although the original contract was required by the stat- ute of frauds to be, and was, iu writing. Stearns u. Hall, 9 Gush. 31 ; C'ummings o. Arnold, 3 Met. 486; Norton i.. Simonds, 124 Mats. 19. The decisions in New Hamp- shire, Maine, and Maryland bear in the same direction. Richardson v. Cooper, 25 Jhiine, 450; Blood u. Hardy, 15 lb. 61 ; Franklin v Long, 7 Gill & J. 407 ; Watkius V. Hodges, 6 Harr. & J, 38; Kribs V. Jones, 44 Md. 396 ; Gault v. Brown, 48 N. H. 183,186; BuelU'.Miller, 4 lb. 196; 1 Sugden V. & P. (8th Am. ed.) 165, and note [m^). Also in Ohio, Bever v. Butler, Wiight, 367 ; Reed i^ Jlc- Grew, 5 Ohio, 376 ; Negley v. Jeffers, 28 Ohio St. 90.] (p) Moore r. Campbell,:iO Ex. 323, and 23 L. J. Ex. 310; Stowell v. Robinson, 3 Bing. N. C. 928 ; Marshall v. Lynn, 6 JI. & \V. 109 ; Stead c. Dawber, 10 Ad. & E. 57. if) Noble c. Ward, L. R. 1 Ex. 117; 35 L. J. Ex. 81. ((7) Uoss V. Lord Nugent, 5 B. & Ad. 65. (h) Harvey v. Grabham, 5 Ad. & E. 61. (i) Per Parke B. in Marshall v. Lynn, 6 U. & W. 116. See, al,-o, Emmett v. Bewhirst, 21 L. J. Ch. 497. The cases in the notes to this paragraph overrule Cuff u. Penn, 1 M. & S. 21 ; Warren r. Stagg, cited in Littler v. Holland, 3 T.K. 591, and Thresh r. Rake, 1 Esp. 53. {k) Hoadley v. McLaiu, 10 Bing. 489. (/) 3 H. & C. 112; 33 L. J. Ex. 300. PAET II.] OF THE MEMORANDUM OR NOTE IN WRITING. 197 nell B. ; a strong dissenting opinion, however, was delivered by- Martin B. § 218. Whether or not parol evidence is admissible to show a subsequent asfreement for a waiver and. abandonment of „ , . '■ ^ . Parol evi- the whole contract, proven by a written note or memo- dence to -, ^ . , , n • T 1 T show aban- randum under the statute, has not been decided, and donment of the dicta on the subject are uncertain and contradic- tory, (m) Where, however, 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, (n) § 219. Parol evidence may be offered to show that a signature to a note or memorandum, though made by A. in his ,^, , ° •' . . Where own name, was really made in behalf of B., his prin- note is cipal, when the action is brought for the purpose of agentinhis charging B. ; (o) but it is not admissible in behalf of A. ° in such a contract, for the purpose of showing that he is not per- sonally bound, and had acted only as agent of B. (p) Where the paper was signed by " D. M. & Co., Brokers," and purported to be a pu,rchase by them for " our principals," not naming the principals, parol evidence was held admissible, of a usage in such cases, that the brokers became personally liable, (^q) And in (m) Dicta of Lord Denman iti Goss v. note (o) ; Huntington u. Knox, 7 Cush. Lord Nufcent, 5 B. & Ad. 65, and in Har- 371, 374 ; Fuller v. Hooper, 3 Gray, 341 ; vey u. Grabham, 5 Ad. & E. 61 ; of Sir Baldwin v. Bank of Newbury, 1 Wallace, Wm. Grant in Price v. Dyer, 17 Ves. 356 ; 234.] and of Lord Hardwicke in Bell u. How- (p) Higgins u. Senior, 8 M. & "W. 834 ard, 9 Mod. 305 ; [anic, § 216, note (rf).] Cropper v. Cook, L. R. 3 C. P. 194 (n) Moore v. Campbell, 10 Ex. 323, and Eawkes u. Lamb, 31 L. J. Q. B, 98 23L. J. Ex. 310; Noble v. Ward, L. R. Calder u. Dobell, L. R. 6 C. P. 486 1 Ex. 117; L. R. 2 Ex. 135; in error, 35 [Huntington v. Knox, 7 Cush. 371, 374 L. J. Ex. 81. Hancock y.Eairfield, 30 Maine, 299; Chap (o) Trueraany. Loder, 11 Ad. &E.589; pell ^. Dann, 21 Barb. 17; Williams v. [Sanborn v. Flagler, 9 Allen, 477 ; Salmon Christie, 4 Duer, 29.] Palls Manuf. Co. c. Stoddard, 14 How. (q) Humfrey w. Dale, 7 E. & B. 266, and (U. S.) 446, 454, 455 ; Williams v. Bacon, 26 L. J. Q. B. 137 ; E., B. & B. 1004 ; 27 2 Gray, 387, 393; Dykers u. Townsend, L. J. Q. B. 390; Mollett v. Robinson, L. 24 N. Y. 57 ; Eastern Railroad Co. v. R. 5 C. P. 646 ; Fleet v. Murton, L. R. 7 Benedict, 5 Gray, 561 ; Hunter v. Gid- Q. B. 126 ; [Southwell v. Bowditch, 1 C. dings, 97 Mass. 41 ; Winchester v. Howard, P. D. 100, 374 ; Gadd v. Houghton, 1 Ex. lb. 303, 305; Lerned u. Johns, 9 Allen, D. 357.] And see 2 Smith's L, C. 6th 419; Hubbert v. Borden, 6 Whart. 79; ed. 349, for the authorities on this sub- 1 Chitty Contr. (lllh Am. ed.) 149, 303, jeet. 198 FORMATION OF THE CONTRACT. [BOOK I. Wake V. Harrop (r) (not under statute of frauds), it was held Wak V *'^^*' parol evidence was admissible to show that by viis- HaiTop. take the written contract described the agent as prin- cipal, contrary to express agreement between the parties. § 220. We may now proceed to the examination of this clause of the statute, 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 ? SECTION I. — WHAT IS A NOTE OR ME.MOrvANDUM IN WEITING ? § 221. It may be premised that the note or memorandum must Must be be one made and signed before the action brought. To fore Action Satisfy the statute, there must be a good contract in ex- brought, istence at the time of action brought, (.s) § 222. But the statute does not require that the whole of the Need not terms of the contract should be agreed to at one time, atone"'^" nor that they should be written down at one time, nor timenoron qj^ Qj-,g piece of paper: and accordingly it is settled, one piece ^ i r ' & ./ ' of paper. that where the memorandum of the bargain between the parties is contained in separate pieces of paper, and where these papers contain the ivhole bargain, they form together such a memorandum as will satisfy tlie statute, provided the contents of the signed paper make sach 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 the same result will follow if the other papers were attached or Separate fastened to the signed paper at the time of the sig7iature. papers can- g^^ if it be necessary to adduce parol evidence, in order not be con- ^ ^ ^ ^ nectedby to conuect a signed paper with otliers unsigned, by rea- son of the absence of any internal evidence in the con- tents 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, (m) (r) 6 II. & N. 768 ; 1 H. & C. 202 ; 30 lips v. The Ocmulgee Mills, 55 Ga. 633 ; L. J. Ex. 273 ; 31 L. J. Ex. 451. Bird u. Munroe, 66 iVtaine, 337.] (s) Bill V. Bament, 9 M. & W. 36. See (t) [See Ehoades ..•. Castncr, 12 Allen, remarks ofWillcs.T. in Gibson v. Holland, 130,132; Johnson v. Buck, 6 Vroom,338, L. B. 1 C. P. 1 ; 35 L. J. C. P. 5 ; [ante, 344, 345 ; Phippen u. Hyland, 19 U. C. §91, note (/), §208, note (.7); Kent J. in C. P. 416.] Horton u. McCarty, 53 Maine, 394 ; Phil- (u) [Ante, § 211, and note (m) ; Kidg- PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 199 § 223. Further, in order to satisfy the statute, when the memo- randum relied on consists of separate papers, which it is g^ ^^^^^ attempted to connect by showing from their contents papers \ . ■' ^ must be tliat they refer to the same agreement, these separate consistent. papers must be consistent and not contradictory in their state- ment of the terms, for otherwise it would be impossible to deter-, mine what the bargain was without the introduction of parol tes- timony to show which of the papers stated it correctly. § 224. 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 sec- ^J^^ ^<"=- tions com- tion of the statute, the language of which is, on this pared, subject, almost 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 per- son thereunto by him lawfully authorized." Seventeenth section. " Except that some note or memorandum in writing of the said bargain be made, and signed by the parties 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. § 225. The leading case in which it was held that the intention of the signer to connect two written papers, not physi- Q^^^^g ^^_ cally joined, and not containing internal evidence of his viewea. purpose to connect them, could not be proven by parol, occurred early in the present century. Hinde v. Whitehouse (a;) Hinde «. in 1806, was the case of a sale by auction. The auc- house. tioneer, who, as will be shown hereafter (post, ch. viii.), is by law an agent authorized" fo 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 tlie cata- logue the name of the purchaser. The auctioneer also had a sepa- « way V. Ingram, 50 Ind. 145 ; Peirce v, (x) 7 East, 558. Corf, L. R. 9 Q. B. 210.] But seeBau- mann v. James, L. E. 3 Ch. App. 508. 200 FORMATION OF THE CONTRACT. [BOOK I. rate paper containing the terms and conditions of the sale, which he read, and placed on his desk. The catalogue contained no ref- erence to the conditions. Held, that the signature to the catalogue was not sufficient to satisfy the statute, on the ground that it did not contain the terms of the bargain, nor refer to the other writ- Kenwortiiy ing Containing those terms, (y) Kenworthy v. Scho- fiekL'""" fields («) in t'^e king's bench in 1824, was decided in the same way, on circumstances precisely the same. Lord West- Peek r. bury recently stated the general principle, in a case North Staff, ^ijigi-i arose under a similar clause in the railway and Kailway ^ Company, canal traffic act, in these words : " In order to embody in the letter any other document or memorandum, or instrument 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 becomes part of the instrument it refers to." («) § 226. The first reported case decided in banc, in which a signed Saunder- paper referring to another writing was deemed sufiioient Jackson. to Satisfy the statute, was that of Saunderson v. Jack- son, (5) in 1800 ; but the case does not state how this connection between the two papers was made apparent, and can, therefore, give little aid in construing the clause of the statute, although it has been constanth' quoted as authority for the general proposi- tion, that the memorandum may be made up of different pieces of Allen V paper. In Allen v. Bennett, (c) decided in 1810, the Bennett. agent of the defendant sold rice to the plaintiff, and en- tered 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 authoriz- ing 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 mem- Cooper ti. orandum of the bargain sufficiently to render the two Smith. together a signed note of the bargain. In 1812 Cooper (.y) [Peircew. Corf, L. R. 9 Q. B. 210.] [Johnson v. Buck, 6 Vroom, 338, 344, (z) 2 B. & C. 945. 345.] (a) Peek v. North Staffordshire Rail- (b) 2 B. & P. 238. way Company, 10 H. L. Cas. 472-569; (c) 3 Tannt. 169; [Townsend v. Hiir- graves, 118 Mass. 335, 336.] PART II.J OF THE MEMORANDUM OR NOTE IN WRITING. 201 V. Smith (cZ) was distinguished from the foregoing ease, because the letter offered to prove the contract, as entered on the plaintiff's books, falsified instead of confirming the entry, by stating 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 contract, as in a former jj^^^son^ case." (d^) In Jackson v. Lowe & Lynam, (e) the com- Lowe, mon 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 contract, and complaining of the defendants' default in not delivering flour of proper quality ; and the second from the defendants' attorney in reply to it, saying that the defendants had " performed their contract as far as it has gone, and are ready to complete the re- mainder," and threatening action if " the flour " was not paid for within a month. § 227. Richards v. Porter (/) was decided in the king's bench in 1827, and on the face of the report it is almost im- Richavdss. possible 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 Janu- ary, 1826, five pockets of hops, which were delivered to the car- riers on that day, and an invoice was forwarded containing 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 27th 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 consequently cannot accept them." The plaintiff was nonsuited, and the king's bench held the nonsuit right. Lord Tenterden say- ing : " I think this letter is not a sufficient note or memorandum in writing of the contract to satisfy the statute of frauds. Even (rf) 15 East, 103. [e) 1 Bing. 9. (di) [Haughton v. Morton, 5 Ir. C. L. (/) 6 B. & C. 437. R. 3291. 202 FORMATION OF THE CONTRACT. [BOOK I. connecting it with the invoice, it is imperfect. If we were to de- cide that tliis was a sufficient note in writing, we should in effect hold that if a man were to write and say, ' I have received j'our 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." Tlie facts as reported certainly are not the same as those used in illustration by Lord Tenterden. No doubt, if the defendant had said, " Our bargain was that you should ncnd the hops in time, and you delayed beyond the time agreed on," there would have been no proof of the contract in writing as alleged by the plaintiff. But the report shows that the goods were delivered in due time to the carrier, which, in contem- plation of law, was a delivery to the purchaser, and the complaint was not that the goods had not been sent 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 ter?ns of the bargain, which were com- pletely proven by the letter and invoice together, but on the exe- cution 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 contained a term, not stated in the in- voice ; that the term was that the goods should be delivered with- in a given time." It is difficult to find in the letter, as quoted in the report, the statement said by the learned chief justice to be contained in it. The decision in Richards v. Porter seems to be reconcilable with settled principles only on the assumption that there was some proof in the ease that the carrier was by special agreement the agent of the vendor, not of the vendee. (A) § 228. The case of Smith v. Surman (■«) followed in the king's Smith ». bench, in 1829. The written memorandum was con- Surman. tained in two letters, one from the vendor's attorney, who wrote to ask for payment " for the ash timber which you pur- chased of him The value, at Is. 6d. per foot, amounts to the sum of 111. 3.s. 6i^. I understand your objection to complete your contract is on the ground that the timber is faulty and un- ig) L. E. 1 C. P. 407; 35 L. J. C. P. as expressed by Erie C. J., in Bailey v. 224- Sweitin;;, iufra, § 252. (/i) Richards v. Porter seems also irrec- (i) 9 B. & C. 561. See also, Archer i;. oncilable with the opinion of the court Baynes, 5 Ex. 625; 20 L. J. Ex. 54. PART 11.] OF THE MEMORANDUM OR NOTE IN WRITING. 203 sound, but there is sufiScient evidence to show that the same tim- ber is very kind and superior, " &c. &c. The defendant replied, " I have tlais moment received a letter from you respecting Mr. Smith's timber, which I bought of him at Is. 6d. per foot, to he sound and good, which I have some doubts whether it is or not, but he promised to make it so, ajid 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 contract were is left in doubt, and must be ascertained by verbal testimony. The ob- ject of the statute was that the note in writing should exclude all doubt as to the terms of the contract, and that object is not satis- fied by defendant's letter." The other judges concurred, (/c) § 229. The leading case under the fourth section of the statute of frauds, usually cited in all disputes as to tke construe- Boj-deii o. tion of the words now under consideration, is Boydell v. mond. Drummond, (I') 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 terms of the subscription were set out in a prospectus. The proof offered was the defendant's signature in a book entitled Shakespeare's 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, with- out parol testimony. Some letters of the defendant were also offered, but equally void of reference to the terms of the bargain. The plaintiff was nonsuited at nisi prius, and the nonsuit was con- firmed by the unanimous opinion of the judges, Lord Ellenborough C. J., Grose, Le Blanc, and Bayley JJ. In Dobell v. Dobeiis. Hutchinson, (m) in 1835, the king's bench held, under son. the 4th section of the act, that in a sale at auction where the let- ters 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, be- cause no parol evidence of any kind was requisite to show the con- tract, except proof of handwriting, which is necessary in La,.thoarp all cases. So in Laythoarp v. Bryant, (w) in 1836, the "■ Bryant. {Ic) See Buxton v. Bust, L. R. 7 Ex. o. Bayley, 9 H. L. Cas. 78, and Crane v. 1, 279. Powell, L. E. 4 C. P. 123. (?) 11 East, 142. See, also, Pitzmaurice (tm) 3 Ad. & E. 370. [n] 2 Bing. N. C. 735. 204 FORMATION OF THE CONTRACT. [book I. § 230. Note in writing may be addressed to a tliird person. Gibson V. Holland. exchequer of pleas held that the defendant, who had signed a mem- orandum of his purchase at auction, was bound by it, although im- perfect in itself, because it referred to the conditions of sale, and those conditions were on the same paper, the agreement having been written on the back of a paper containing the terms and con- ditions. It was held in a recent case in the common pleas 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, (o) decided in 186.5, one of the pieces of paper relied on as constituting the written note of the bargain 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 Purchasers, (p) in which he says: "A note or letter written hj the vendor to any third person, contain- ing 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, (^q) § 231. No case has arisen under the statute on the question Writing in whether the writing is required to be in ink, but there pencil. seems no reason to doubt that the common law rale would apply, and that a writing in pencil would be held sufficient to satisfy the 17th section, (r) (o) L. R. 1 C. P. 1 ; 35 L. J. C. P. 5. (/)) At p. 139, par. .39, in 14th ed. See, nlso, 1 Smith's Leading Cases, 28-t, notes to Birkniyr v. Darnell. (7) [See Fnjiate v. Ilanford, 3 Litt. 2C2 ; Buck !•■ Pickwell, 27 Vt. 167; Clark c. Tucker, 2 Sandf. I.'j7 ; Kinloch v. Savage, Speer's Eq. 470 ; Leroux v. Brown, 12 C. B. 801 ; Goodwin v. Fielding, 4 De G., M. &, G. 90 ; Bradford ,>. Poulston, 8 Ir. C. L. Rep. 473. Colt J. in Townseml v. Hargraves, 118 Mass. 333, 336, said: "The memorandum is sufficient if it be only a letter written by the party to his own agent; or an entry or record in his own books, or even if it contain an ex- press repudiation of the contract. And tliis because it is evidence of, but does not go to make the contract. Gibson v. Hol- land, L. R. 1 C. P. 1 ; Buxton u. Rust, L. R. 7 Ex. 1, 279; Allen u. Bennet, 3 Taunt. 169 ; Tufts r. I'lj mouth Gold Min- ing Co. 14 Allen, 407; Argus Co. u. Al- bany, 55 N. Y. 495,"] (r) See Geary v. Physic, 5 B. &C. 234; [Clason V. Bailey, 14 John. 484 ; Merritt ( . Cla«ou, 12 lb. 102 ; McDowel v. Cham- bers, 1 Strobh. Eq. 347 ; Draper v. Pat- tina, 2 Speers, 292; Ryan v. Salt, 3 U. C. C. P. 83,1 PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 205 SECTION II. — WHAT IS A SUFFICIENT NOTE OR MEMORANDUM OP THE BARGAIN MADE. § 232. After the production and proof (by the party seeking to enforce the contract) of a written note or memorandum, whether contained in one or several pieces of paper, the next inquiry whicli arises is whether the contents of the writing so proven form a sufficient note " of the bargain made." 4th section So far as the 4th section of the statute is concerned, a "o^^rueii^ very i-igorous interpretation was placed on it in an early -^j^j^j ^ case, and is now the settled rule. In Wain v. Warl- Warlters. ters, (s) which was the case of a promise in writing to pay the debt of a third person, but where the consideration for the 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 hoth par- ties had 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 memorandum of it, to be in writing, the court inferred that a memorandum 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 this case was strongly controverted, chiefly in the courts of equity, as will be seen by reference to the argument of Taun- ton in the case of Phillips v. Bateman, (t) where he sums up all the objections to the decision, it was upheld and followed in subsequent cases, (w) and the law now remains settled as pro- (s) 5 East, 10. chasers, p. 134, 14th ed. [In TheAmer- It) 16 East, 356-370. some of the American states "crm rule \ I > as to coDSid- (u) Saunders v. Wakefield, 4 B. & A. the courts have adopted the enitionap- 595; Jenkins u. Reynolds, 3 B. & B. 14, English doctrine, that it is v<"^™S- and Lyon v. Lamb, there cited at p. 22 ; necessary that the consideration of the Morley v. Boothby, 3 Bing. 107; Fitz- agreement should appear in the memoran- maurice v. Bayley, 9 II. L. Cas. 79. And dum. In New York, Sears v. Brink, 3 seethe authorities under the 4th section John. 210; Leonard «. Vredenburgh, 8 collected in Sugden'a Vendors and Pur- lb. 37; Kerr ;;. Shaw, 13 lb. 236; Gates 206 FORMATION OF THE CONTRACT. [book I. pounded in Wain v. Warlters, except so far as guaranties are con- cerned in relation to which the legislature intervened and made special provision in 19 & 20 Vict. c. 97, s. 3 (Mercantile Law Amendment Act, 1S;j6). § 233. But under the 17th section of the statute the decisions 17th sec- have not maintained so rigorous a construction, and the liberaii'r j^'^o^s ^^*"^® repeatedly referred to the distinction be- coustmed. tween the word " agreement " in the 4th section and " bargain " in the seventeenth. The cases will now be considered with reference exclusively to the contract of sale under the latter V. McKee, 3 Kernan, 232 ; Bennett u. Pratt, 4 Denio, 278 ; Rogers v. Kneelaml, 10 Wend. 218, 25G ; Newbery f. Wall, 65 N. Y. 484; Stone v. Browning, 68 lb. 598; Castle v. Bcardsley, 10 Hun, 343; D'Wolf V. Rabaud, 1 Peters, 501. In New Jersey, Laing v. Lee, .Spencer, 337 ; but see Buckley u. Beardsley, 2 South. 570. In Maryland, Wyman u. Gray, 7 Harr. & J. 409 ; Elliott f. Giese, lb. 457 ; Edelen v. Goiigh, 5 Gill, 103. lu Georgia, Henderson r. Johnson, 6 G.a. 390. In South Carolina, Meadows !■. Meadows, 3 McCord, 458; Stephens v. Winn, 2 Nott & McC. 372, note. In Wisconsin, Rey- nolds V. Carpenter, 3 Chand. 31 ; Taylor V. Pratt, 3 Wis. 674. In Michigan, Jones u. Palmer, 1 Doug. 379. In New Hamp- shire, Neelson v. Sanborne, 2 N. H. 414; Underwood u. Campbell, 14 lb. 393. In Pennsylvania, Soles v. Hickman, 20 Penn. St. 180. In Delaware, Weldin e. Porter, 4 Houst. 236. In Minn'.sota, Nichols v. Allen, 23 Jllnn. 542. In Indiana, before the present statute fixed the rule, Greg- ory V. Logan, 7 Blackf. 112; R. S. of Ind. (1852) c. 42, § 2. Such is now the statute law «{ Ni-w York. See 2 Rev. St. pt. 2, c. 7, tit. 2, § 2 ; Parker v. Wil- son, 15 Wend. 346; Miller v. Couk, 23 N. Y. 495. In other states the courts have rejected the English rule upon a judicial construction of the same language in their statutes. Such appears to be the current of decisions iir Maine. Cun;mings v. Den- nett, 26 Maine, 399, 400; Levy v. Blcr- riil, 4 Greenl. 189; Gilligan v. Boardman, 29 Maine, 81. In Connecticut, Sage u. Wilcox, 6 Conn. 81.- In North Carolina Jlillerw. Irvine, 1 Dev. & Bat. 103; Ash- ford V. Robinson, 8 Ired. 114. In Massa- chusetts, Packard r. Richardson, 17 Mass 122, confirmed by statute; Gen. Sts. c, 105, § 2. In Texas, Adkins i. Watson 12 Texas, 199. In Ohio, Reed v. Evans 17 Ohio, 128. In ilissouri, Halsa v. Halsa, 2 Missou. 103. By statute in Indiana the considertaion may be proved by parol. Rev. St. Ind. 1852, c. 42, § 2. In some states where the word " promise " or some like term has been substituted for the word " agreement," or has been coupled with it in their statutes, a statement of the consideration has been deemed unnec- essary. See Violet v. Patton, 5 Cranch, 151 ; Wren v. Pearce, 4 Sm. & M. 91; T.aylor r. Ross, 3 Yerger, 330 ; Oilman v. Kibler, 5 Humph. 19; Campbell v Find- ley, 3 lb. 330; Thompson t/. Hall, 16 Ala. 204; Ratliff v. Trout, 6 J. J. Marsh. 606 ; Dorman v. Bigelow, 1 Florida, 281. Even where it is held necessary that a consideration should be stated, it is suffi- cient if it can be collected from the whole instrument. The words " value received" sufficiently expresses it. Howard r. Hol- broke, 9 Bosw. 237 ; Douglas u. How- land, 24 Wend. 35; Edelen v. Gough, 5 Gill, 103; Watson v. McLaren, 19 Wend. 557 ; Cooper v. Dedrick, 22 Barb. 516; Day v. Elmore, 4 Wis. 190; Rogers V. Kneeland, 10 Wend. 218; Waterbury ('. Graham, 4 Sandf. 215; Laing v. Lee, Spencer, 337 ; Caslle v. Bcardsley, 10 Hun, 343.] PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 207 section, and to the inquiry whether, and to what extent, it is nec- essary that the writing should show, 1st, the names of the par- ties to the sale ; 2dly, the terms and subject-matter of the con- tract. § 234. On the first point it is settled to be indispensable that the written memorandum should show not only who is Names or the person to be charged, but also who is the party in ^jo^n^'o'f whose favor he is charged. The name of the party to Parties = . must be be charged is required by the statute to be signed, so shown, that there can be no question of the necessity of his name in the writing. But the authorities have equally established that the name or a sufficient description of the other party is indispensa- ble, because without it no contract is shown, inasmuch as a stipu- lation or promise by A. does not bind him, save to the person to whom the promise is made, and until that person's name is shown it is impossible to say that the writing contains a memo- randum of the bargain. (») § 235. In Champion v. Plummer («/) the plaintiff:, by his agent, wrote down in a memorandum-book the terms of a Champioa verbal sale to him by the defendant, and the defendant mer. 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 con- tract, or memorandum of a contract, which does not state who are the contracting parties ? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other . person as well as to the plaintiffs." In Allen v. Bennett (2) the agreement was written in a book belonging to the plain- ^1,^^^ „ tiff, and was signed by the defendant's agent. But the Bennett. (x) [Coddington d. Goddard, 16 Gray, guish between the buyer and the seller. 442, 443; Sanborn v. Flagler, 9 Allen, See Bailey d. Ogden, 3 John. 399; Nichols 476; Salmon Falls Manuf. Co. v. God- v. Johnson, 10 Conn. 198; Cunis J. in dard, 14 How. (U. S.) 446; Bailey v. Salmon Falls Manuf. Co. y. Goddard, 14 Ogden, 3 John. 399 ; Nichols v. John- How. (U. S.) 446 ; Osborne v. Phelps, 19 son, 10 Conn. 198; Osborne v. Phelps, Conn. 73; Calkins v. Falk, 1 Abbott N. 19 lb. 73 ; Waterman v. Meigs, 4 Cush. Y. App. Dec. 291 ; S. C. 38 How. (N. Y.) 497 ; Webster v. Ela, 5 N. H. 540 ; Barry Pr. 62 ;, Flintoft v. Elmoje, 18 U. C. C. P. V. Law, 1 Cranch C. C. 77 ; Harvey v. 274.] Stevens, 43 Vt. 653; Johnson u. Buck, 6 {y) 1 B. & P. N. E. 252. Vroom, 338, 343; Brown u. Whipple, 58 {z} 3 Taunt. 169. See, also, Cooper u. N. H. 229. The written memorandum Smith, 15 East, 103, and Jacob u. Kirke, should not only show who were the con- 2 M. & R. 222. tractiug parties, but should also distin- 208 FORMATION OF THE CONTRACT. [BOOK I. plaintiS's name was not in the book, and was not mentioned in the written memorandum. Tliis was considered 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, (a) which was under the 4th section, the de- Wiiiiams fendant wrote a note binding himself as guarantor, and V. Lake. 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 satisfjr the stat- ute, and this decision was approved and followed in Williams v. Sari» Byrnes, 1 iloore P. C. C. N. S. 154. In Sari v. Bour- Bourdiiion. diHon, (5) under the 17th section, the defendant signed an order for goods in the jDlaintiff's order-book, and the plaintiff's name was on the fly-leaf of his order-book in the usual way, and this was lipid sufficient under the statute, (c) § '236. Vandenbergh v. Spooner (ci) was a case in which the Vanden- facts were peculiar. The plaintiff had purchased a quan- SpMner. tity of marble at the sale of a wreck. He sold it to the defendant, the amount being more than lOZ. The defendant signed this memorandum : " D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenbergh, 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 gen- uine copy, signed. This was in the following words : " Mr. J. Vandenbergh 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, although it contained the plaintiff's name, only mentioned it as a part of the description of the goods so as to iden- tify them, but did not mention the plaintiff as seller of the goods, and that the memorandum was therefore insufficient. The latest Newell V. ^^^^ C*^) "^^^ ^" ^^^ common pleas on these facts. The Kadford. defendant was a flour dealer, and the plaintiff a baker. The defendant's agent entered in the plaintiff's book the follow- ing words : " Mr. Newell, 32 sacks culasses, at 39s. 280 lbs. To await orders. John Williams." The defendant insisted, on the ia) 2 E. & E, 349 ; 29 L. J. Q. B. 1. (rf) L. R. 1 Ex. 316 ; 35 L. J. Ex. 201. (b) 1 C. B. N. S. 188 ; 26 L. J. C. P. 78. [e) Newell c. Radford, L. R. 3 C. P. (c) [See Harvey v. Stevens, 43 Vt. 653.] 52 ; 37 L. J. C. P. 1. PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 209 authority of Vanderbergh v. Spooner, that as it was im tell from this memorandum which was buyer and which was 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 circum- stances of the case that the baker was the buyer of the flour. There was also some correspondence referred to, showing who was the buyer and who the seller. (/) § 237. Bht although the authorities are consistent in requiring that the memorandum should show who are the parties j)(,g(,rin. to the contract, it suffices if this appear by description 'ionofpar- , , ties sunices instead of name. If one party is not designated at all, instead of 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 testimonj'' to show who the other is, but this is forbidden by the statute. But if the writing shows by descrip- tion with whom the bargain was made, then the statute is satisfied, and parol evidence is aduiissible 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 de- scription. This is no infringement of the statute, for in all cases where written evidence is required by law there must be parol evidence to apply the document to the subject-matter in contro- versy. The cases in which this principle has been most clearly illustrated are those which arise in a very common course of mer- cantile dealing, where an agent signs a contract in his own name and without mentioning his principal. § 238. It is settled that though in dealings of this kind it is not competent for the agent thus contracting to introduce where parol proof to show that he did not intend to bind him- l^^fj^^'^^ self, because this would be to contradict what he had name in- ' stead of written, it is competent for the other party to show that principal's, 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 admissible to show his identity if he had used a feigned name. (/') In Trueman v. Loder (^) the defendant was sued on a Trueman broker's sold note in these words : " London, 28th April, "■ ^oder. (/) [Coate V. Terry, 24 U. C. C. P. 571.] Gray, 387, 393 ; ante, § 219, and cases in (/I) [Sanborn v. Flagler, 9 Allen, 477, note (o).] per Bigelow C. J. ; Williams u. Bacon, 2 ig) \l Ad. & E. 587. 14 210 FORMATION OF THE CONTRACT. [BOOK I. 1835. Sold for Mr. Edward Higginbotliam," &c. &c. The proof was, that in 1832 the defendant, a merchant of St. Peters- burg had established Higginbotliam 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 con- tracts. The ao'ent 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 Denmau delivered the opinion of the court, composed of himself and Patterson, Williams, and Cole- rido-e JJ. '^)n the question made, that the name of the defend- ant was not in the written contract, the court said : " Among the ingenious 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 Higginbotliam, but by the defendant, who gave him the authority. Parol evidence is always necessary to show that the party sned 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 bj^ that of an agent, are inquiries not differ- ent in their nature from the question who is the person who has just ordered goods in a shop. If he has sued for the price, and his identity made out, the contract is not varied by appearing to have been made by him in a name not his own." (Ji) § 239. The leading case for the converse proj30sition, namely, When t^'A.^ the agent who has contracted in his own name will agent is uq^ ^q allowed to offer parol evidence for the purpose of personally ^ ^ ^ ^ respou- proving that he did not intend to bind himself, but only nin^'hist). I'is principal, is Higgins v. Senior, (i) decided in the Seiu.ir. 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, Gur- ney, and Rolfe BB. Tlie opinion states the question submitted to be, " Whether in an action or an agreement in writing purport- ing on the face of it to be made by the defendant, and to be sab- (A) Scu, also, 2 Smith's Leading Cases, port, 352 et seq. ; and Calder v. Dobell, L. ed. 1867, in notes to Thomson u. Daven- K. 6 C. P. 486, 499. {i) 8 M. & W. 834. PAKT II.] OF THE MEMORANDUM OR NOTE IN WRITING. 211 scribed by him, for the sale and delivery by him of goods above the value of lOZ., it is competent for the defendant to discharge himself on an issue on the plea of non assumpsit by proving 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 agreement 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 unnamed prin- cipals ; and this, whether the agreement be or be not required to be in writing, by the statute of frauds ; (Ic) and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind ; but shows that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his authority, 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." (V) § 240. Where the broker bought expressly for his principals but without disclosing their names in the sold note, he ^lamiT&r was held liable to the vendor on evidence of usage that '"■ ^aie. the broker was liable personally when the name of the principal was not disclosed at the time of the contract, {rn) In ^■^^^^^ ^ Fleet V. Murton (n) the contract note was, " We have Murton. this day sold for your account to our principal," (Signed) M. & {k) [1 Chitty Contr. (lUh Am. ed.) Smith's Leading Cases, 349, in notes to 149, 303, and note (o) ; ante, § 219, and Thomson ;;. Davenport, where the whole note (o) ; Williams v. Bacon, 2 Gray, 387, suliject is more liully treated than com- 393 ; Fuller o. Hooper, 3 lb. 341 ; Dy- ports with the design of the present trea- kers V. Townsend, 24 N. Y. 57 ; Eastern tise. Kailroad v. Benedict, 5 Gray, 561 ; The (m) Humfrey v. Dale, 7 E. & B. 266, Havana, Rantoul & East. K. R. Co. u. E., B. & E. 1004; 26 L. J. Q. B. 137 ; 27 Walsh, 85 111. 58 ; Bank v. Raymond, 57 L. J. Q. B. 390. See, also, Tetley u. N. H. 144.] Shand, 20 W. R. 206. (0 [Indianapolis, Peru & Chicago R. R. (n) L. R. 7 Q. B. 126. Co. V. Tyng, 63 N. Y. 653, 655.] See 2 212 FORMATION OF THE CONTRACT. [BOOK I. 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. § 241. But in Mollett v. Robinson (o) the plaintiff obtained a verdict which he succeeded in holding, because, on the Mollett V. 1 • T II T • 1 Robinson. niotion to Set it aside, the judges were equally divided, both in the common pleas and the exchequer chamber, so that the rule dropped. The circumstances were that the plaintiffs, tal- low brokers, were employed by the defendant to purchase fifty tons of tallow in the London market ; and had like orders from other purchasers. The plaintiffs bought in their own names, with- out disclosing their principals, tallow enough for all the orders which they had received, and divided it among the principals who had employed tliem, — sending to the defendant a bought note, signed by themselves as " sworn brokers," stating fifty tons of tallow to have been bought " for his account," with quality, price, &c. but no vendor's name given. There was no corre- sponding 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 accord- ance 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 jNIontague Smith J. that the defendant was bound to acci'pt ; by Willes and Keating JJ. that usage could not be invoked to change the character of the con- tract, and that the broker conld not make himself the principal in the sale to the defendant without the hitter'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 and Haiinen JJ. and Cleasby B. were of tlie opposite opinion. § 242. Where a broker gives a contract note describing himself In what as acting for a named principal, he cannot sue persoii- brokw can '^^^ o'l ^he contract. Q?) And semhle, not even if prin- suedpe'l-- '^^P^^ ^^'''^ undisclosed, (g-) unless in case of such usage sonaiiy. as was proved in Mollett v. Robinson, mpra. But if tlie (o) L. R, 5 C. P. 648 ; 7 C. P. s+. well )•. Spiller, 21 L. T. N. S. 672; Fiiir- (p) Fawkes u. Lamb, 31 L, J. Q. B. lie v. Kenton, L. R. 5 Ex. 169. 98; Pishcr v. Marsh, 6 B. & S. 416, jjcr (?) Sharman v. Brandt, L. R. 6 Q. B. Blackburn J. ; 34 L. J. Q. B. 178 ; Brain- 720, in exchequer chamber. PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 213 broker contract in his own name, even though he is known to be an agent, he may sue or be sued on the contract, (r) And the same rules apply to auctioneers, (s) And if the broker, though sign- ing as brolter, be really the principal, his signature will not bind the opposite party, (g) and he cannot sue on the contract, (^) unless perhaps when he can prove a trade usage to justify him, as in MoUett V. Robinson, supra. Where a person describes him- self as agent in the body of the contract but signs his own name, he is personally liable on the contract, (t) § '24:3. An extremely able discussion of the subject of a bro- ker's responsibility is found in the remarkable case of -p^^^^i^^ Fowler v. Hollins, (m) recently decided in the exchequer HoUins. chamber by a divided court, in affirmance of a judgment (not reported) of the queen's bench. The facts were that the plain- tiffs, 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 day sent a delivery order for the cotton ()■) Short V. Spakeman, 2 B & Ad. 962 ; lb. 413 ; Mauri v. Heffernan, 13 John. 58 ; Jones u. Littledale, 6 A. & E. 486 ; Eeid I'. M'Comb v. Wright, 4 John. Ch. 669; Draper, 6 H. & N. 813 ; 30 L. J. Ex. 268. Waring v. Mason, 18 Wend. 425 ; Mills (s) Franklyn v. Lamond, 4 C. B. 637 ; v. Hunt, 20 lb. 434 ; Allen u. Eostain, 11 Fisher v. Marsh, 6 B. & S. 411 ; 34 L. J. Serg. & R. 362; Bacon i/. Sondley, 3 Q. B. 177 ; [Woolfe v. Home, 2 Q. B. Div. Strobh. 542 ; Keen c. Sprague, 3 Greenl. 355.] 77,80; Scott v. Messick, 4 Monroe, 535; («) Paice V. Walker, L. R. 5 Ex. 173, Wilkins v. Duncan, 2 Litt. 168. Where and cases there cited. [Paice ti. Walker an agent enters in his own Agent liable was commented on in Gadd u. Houghton, name into an agreement in on contract ° ,. , . entered mto 1 Ex. D. 357 ;] Thomson u. Davenport, 2 writing, he cannot relieve him- in on-n Smith's L. C. 352 ; [Cabot Bank u. Mor- self from his liability thereon, '"""^■ ton, 4 Gray, 156; Raymond v. Crown & even by showing that, at the time such Eagle Mills, 2 Met. 319 ; Royce v. Allen, agreement was made and signed, the other 28 Vt. 234 ; Merrill v. Wilson, 6 Ind. 426 ; contracting party knew tha-t he was only Canal Bank ^. Bank of Albany, 1 Hill an agent in the transaction. 1 Chitty (N. Y.), 287; Taintor v. Prendergast, 3 Contr. (11th Am. ed.) 309, and note (A) lb. 72 ; Wilder v. Cowles, 100 Mass. 487 ; and cases cited ; Tabcr v. Cannon, 8 Met. Sumner v. Williams, 8 lb. 198; Torry «. 460.] Holmes, 10 Conn. 500; Cunningham u. (u) L. R. 7 Q. B. 616. _ Soules, 7 Wend. 106; Bebee v. Robert, 12 214 FORMATION OF THE CONTRACT. [BOOK I. in favor of their principals, whom they named in the order, and paid for it. They were reimbursed the price by their principals, together with their commissions and charges. All these transac- tions took place on the 23d of December, 1869. The cotton was at once sent by the defendants to the railway station, whence it was taken to the mills of the principals at Stockport, and there manufactm-ed into yarn. On the 10th January, 1870, the defend- ants 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 defend- ants that any fraud had been committed on the plaintiffs, and they replied to the plaintiffs' demand, saying : " The cotton was bought by one of our spinners, Messrs. j\iicholls, Lucas & Co., for cash, and has been made into yarn long ago, and as everything is settled up, we regret we cannot render your clients any assistance." The plaintiffs thereupon brought trover, and it was left to the jury by Willes J. to say vrhether 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 hj Martin, Chan- nell, and Cleasby BB. (dis. 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 respon- sibility of principals by dealing in their own names for an undis- closed principal ; INIartin and Channell BB. being also of opinion that tlie plaintiffs were entitled to recover, whether the defend- ants had acted as principals or agents, and that the " facts found by the jury are 'immaterial. The plaintiffs were strangers to the sale by Bayley [the fraudulent broker], whether it was to the defendants or to Micholls. I think they are entitled to treat the defendants as wrong-doers, wrongfully 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 depos- ited 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. 034, 635. Brett J., on the other PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 215 hand, delivered a powerful judgment, which the chief baron char- acterized 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 the broker seems to be that he is an agent employed to make bargains and contracts between other persons 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 con- tract of purchase and sale, the property in the goods, even if they belong to the supposed seller, may or may not pass by the con- tract. The property may pass by the contract at once, or may not pass till a subsequent appropriation 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 con- tract, his signature has no effect as his, but only because it is in contemplation of law the signature of one or hoth 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 undertaken a further duty with regard to the contract of the purchase and sale of goods. If the goods be in existence, the broker frequently passes a de- livery 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 as a mere intervenor between the principals. He him- self, considered as only a broker, has no possession of the goods ; no power, actual or legal, of determining the destination 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 tlie one or kept by the other. He is throughout merely the negotiator between the parties ; and, therefore, 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 aqpording to English law. He could not be sued by either party to the contract for any 216 FORMATION OF THE CONTRACT. [BOOK I. 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 fulfilled, and making himself the intermediary passer on or carrier of a document [i. e. the delivery order], without any lia- bility therebj' attaching to him towards either party to the con- tract. He is, so long as he acts only as a broker in the way de- scribed, claiming no property in or use of the goods, or even pos- session of them, either on his own behalf, or on behalf of any one else. Obedience or disobedience to the contract, and its etfects 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, it seems to me clear that a broker cannot be sued witli effect bj^ any one. If goods have been delivered under a contract so made and a de- livery order so passed, still he has had no power, actual or legal, of control either as to the deliverj' 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 for a wrong- ful conversion. But then, in some cases, a broker, though actino- as agent for a principal, makes a contract of sale and purchase in his own name. In such case he niay be sued by the party witli whom he has made such contract for a non-fulfilment of it. But so, also, may his undisclosed principal ; and although the agent may he liable upon the contract, yet I apprehend nothing passes to him hy 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 m which it-was necessary to assert that he was the owner of the goods. Tiie 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 m a form which passes property in goods by the contract itself, PART II. j OF THE MEMORANDUM OE NOTE IN WRITING. 217 — 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 ob- struction, 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 /or 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, (x) further held that the mere asportation of the goods through the agency of the defendants lefore Itnowledge 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. § 244. Where a party contracts in writing as agent for a non- existent principal he will be personally bound, and no Agents for subsequent ratification by the principal afterwards com- H "j^' priil " ing into existence can change this liability, nor is evi- '^'P^''" dence admissible to show that a personal liability was Baxter, not intended. Thus, in Kelner v. Baxter {y) the plaintiff wrote to the three defendants, addressing them " on behalf of the pro- posed Gravesend Royal Alexandra Hotel Company Limited," pro- posing to sell certain goods for 900?., which offer the defendants accepted by a letter signed by themselves, " on behalf of the Gravesend Royal Alexandra Hotel Companj' 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 prin- cipal 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 [x) See on Conversion, case of England (y) L. R. 2 C. P. 174. See, also, Scott V. Cowley, L. R. 8 Ex. 126 ; \ante, § 6, and t. Lord Ebury, L. R. 2 C. P. 255. note {h).\ 218 FORMATION OF THE CONTRACT. [book I. 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. § 245. We now come to the second point of the inquiry, and What writ- 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 memorandum "of the bargain." («) It has already been seen that the decisions establish the necessity under the 4th Distinction section of proving the whole " agreement " in writing, "\fiTee" i'^ order to satisfy tlie statute. Independently of au- "bar-'*"'^ thority, one would think that "bargain" and " agree- gain." ment" are words so identical in meaning, when applied to a contract for the sale of goods, as to admit of no possible dis- tinction ; but the authorities do nevertheless distinguish them in a manner too plain to permit a doubt as to the law. (a) § 246. In Egerton v. Mathews (J) the plaintiff had been non- Eperton v. suited at Guildhall, by Lord Ellenborough, on the au- thority of Wain v. Warlters. (c) The writing was : ten note of tlie terms of tlie con- tract suf- fices. Mathews. (2) [It is not necessary that the note Memoran- '"' niemorandura should be drawn up in any particular dum Deed not be in . , . , any particu- form ; no technical precision larferm. jg required; nor need it be drawn up for the express purpose of au- thenticating tlie agreement; if it recog- nizes the barcain and is delivered and ac- cepted, it will be sufficient. De Beil v. Thompson, 3 Beav. 469 ; Tallman v. Franklin, 4 Kernan, 584 ; 1 Rngdcn V. & P. 140, note (d) ; Ellis , . Deadman, 4 Bibb, 467 ; Bairy u. Coombe, 1 Peters (U. S.), 6.'J1 ; Smith v. Arnold, 5 JIason, 416; Reeves v. Pye, 1 Tranch C. C. 219; Bailey r. Opdcn, 3 John. 399; Curtis J. in Salmon Falls Manuf. Co. v. God- dard, 14 How. (U. S.) 446; Hurley u. Brown, 98 Mass. 546 ; Coddinffton v. God- It must dard, 16 Gray, 443,444. The show terms andeondi- memorandum must show the tions. terms and conditions of the sale ; Norris v. Blair, 39 Ind. 90, 94 ; Eidffway o. Ingram, 50 lb. 145; but it need not contain a detail of all the par- ticulars ; Ive.s i>. Hazard, 4 P. I. 14; JIc- Connell v. Biillhart, 17 111. 354; Chase v. Lowell, 7 Grtiy, 33 ; Shaw C. J. in At- wood V. Cobb, 16 Pick. 230 ; Coddington 1. Goddard, 16 Gray, 442, 443,444; John- son u. Buck, 6 Vroom, 343 ; Sanborn u. Flayier,,9 Allen, 476, 477 ; Barickman u. Kuydendall, 6 Blackf. 21 ; Kay v. Curd, 6 B. Jlon. 100; Davis v. Shields, 26 Wend, 341 ; McLean v. Nicolle, 4 L. T. N. S. 863; Parker C. J. in Packard o. Richardson, 17 JIass. 122, 130, 131 ; Min- gaye ;;. Corhett, 14 U. C. C. P. 557; Jla- halcn V. Dublin & Chapelizod Distillery Co. Ir. R. lie. L. S3. It is not neces- sary that the note or memorandum should state independent and collateral stipula- tions which formed no part of the sale, nor any matters concerning which the verbal agreement made no provision. Cod- dington V. Goddard, 16 Gray, 436, 443.] (a) [See the remarks of Chief Justice Parsons upon the suggested distinction between " bargain" and '' agreement," in Hunt V. Adams, 5 Mass. 360, 361 ; Parker C. J. in Packard v. Richardson, 17 Mass. 131, 132. 1 ib) 6 East, 307. (c) 5 East, 10. PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 219 " We agree to give Mr. Egerton 19d. 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 com- plete because the plaintiff had not signed (a point not fully settled by authority till 1836, in Laythoarp v. Bryant, (^d) as will be seen hereafter), (e) But Lawrence J. said : " The case of Wain V. Wa.rlters 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 consider- ation 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 include 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 the terms of it ; " and by Bay ley J. when he held in the same case (/) that the language of the two sections of the statute was in substance the same, and that the word " bargain " means " the terms upon which parties contract." (g~) In Hinde V. Whitehouse (K) the memorandum consisted of the Hinde ». . . Wliite- auctioneer's catalogue, signed by him as agent of both house, 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 written note of the bargain by in- ternal evidence contained in the signed paper. In Laythoarp v. Bryant, (z) in 1836, which was on the 4th section. Tin- Laythoarp dal C. J. said : " Wain v. Warlters was decided on the «'■ Biyant. express ground that an agreement under the 4th section imports more than a bargain under the 17th." Park J. said : "The cases (rf) 2 Bing. N. C. 735. Co. v. Goddard, 14 How. (U. S.) 446, (c) Post, ch. vii. 454.] , (/) Kenworthy v. Schofield, 2 B. & C. ' (A) 7 East, 558. 948. ' (ij 2 Bing. N. C. 735. ((?) [Nelson J. in Salmon Falls Manuf. 220 FORMATION OF THE CONTRACT. [BOOK I. on the 17th section of the statute might very much be put out of question, because the hinguage of that section is diilerent from the „ , lanffuase of tlie 4th." In Sari v. Bourdillon (/c) the Bourciiiion. -^yi-itten 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 deli^■ered by Cresswell J., who said: "We do not feel obliged to yield to this argument. The memorandum states all that was to he done hy the person cliargnj, viz. the defendant, and, according to the case of Egerton V. ]\Iathews, (V) that is sufficient to satisfy the 11th section of the statute of frauds, though not to make a valid agreement in cases within the 4th section." § 247. In Ehriore v. Kingscote (m) there had been a verbal Piicenot sale of a horse for 200 guineas, but the only writing was wh"e a letter from defendant to plaintiff, in the following agreed on. -^grds : " jMr. Kiiigscote begs to inform Mr. Elmore that Elmore r. i ^ n i n i Kingscote. if the liorse can be proved to be hve 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, " Tlie price agreed to be paid constituted a material part of the bargain." In Ashcroft v. Asiicroft K J^Iorrin ()() defendant ordered certain goods to be sent Monin. him, saying, " Let the qualitj^ be fresh and good, and on moderate terms." On objection made that the price 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. Aeebai c. Levy (o) there was a special count alleging an agree- L^'^T- ment for the sale of a cargo of " nuts, at the then ship- ping price at Gijon, in Spain," and the parol evidence was to tliafc effect. Plaintiff not being successful in establishing 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 [k) 26 L. J. 0. P. 78; 1 C. B. N. S. (m) 5 B. & C. 5S3. 188. („) 4 M, & G. 450. (/) 6 Eiist, 307. (o) 10 Bing. 376. PART II.J OF THE MEMORANDUM OR NOTE IN WRITING. 221 the price, and by insisting th'at a contract of sale was valid with- out statepaent 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 insufficiefit to satisfy the statute, (o^) [Jeffcott v. No. Br. Oil Co. Ir. R. 8 C. L. 17, was an action for the non-de- livery, according to contract, of paraffin oil sold by the defendant to the plaintiff. The contract was for 100 barrels, to be delivered as wanted. The plaintiff proved a parol contract, and in order to take the contract out of the statute gave in the memo- evidence a memorandum of the alleged contract signed fatally de- by the defendant's agent. The memorandum was silent contract' ^ as to price, which had been asrreed on. Some ten casks "^y.,'^** ^"" J- ' o forcible by of oil were delivered to the plaintiff after the contract reason of ■ 1 r 1 • compliance was made, and were accepted and paid for, and it was with other held that though the memorandum was insufficient, parol ments of evidence was admissible to show the price, as the stat- ute was satisfied by the part performance.] § 248. In Hoadley v. McLaine, (jt?) the same court was called on to decide, in the ensuing term, the very point which Price not . statftd. had been left .undetermined in Acebal v. Levy. The where it defendant gave plaintiff an order in these words : " Sir been"" Archibald McLaine orders Mr. Hoadley to build a new, ''eree'i on- fashionable, and handsome landaulet, with the following McLaine. ' appointments, &c the whole to be ready by the 1st 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 ascertain 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 price be agreed on, and that price is omitted in the mem- orandum, the memorandum is insufficient." In Good- goofinjan man v. Grifiiths (g) the plaintiff showed defendant an "• G'iffltii«- (oi) [James ,,. Muirl 33 Mich. 223 ; (p) 10 Bing. 582. Mahalen u. Publin & Chapelizod Distil- (q) 26 L. J. Ex. 145, and 1 H. & N. lery Co, Ir. K. n C. L. 83.] 574. 222 rOEMATlON OF THE CONTRACT. [book I. invoice o," li's prices, and tlien agreed verbally to sell to him at a deduction of twenty-five per cent, on those prices for cash, where- upon 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. § 249. It is plainly dedacible from the foregoing decisions, that General SO far as price is concerned the rule of law is, that where price^'*"' 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 ordei- to satisfy the statute, (r) (r) [See Smith v. Arnold, 5 Mason, 416 (a case of contract for sale of I'eal estate) ; Ide V. Stanton, 15 Vt. 685, 691 (contract for sale of wool) ; Kay d. Curd, 6 B. Mon. 103 ; liinluch o. Savage, Speers Eq. 472; Adams v. Jl'Mdlan, 7 Porter, 73; Waul u. Kirkinan, 27 Mu. 823; Ellis v. Deadman, 4 Bibb, 467 ; Soles v. Hickman, 20 Penn. St. 180; Mahaleu v. Dublin & Chaijelizod Distillery Co. Ir. E. 11 C. L. Price may ^3. In Gowcn u. Klous, 101 beiiiaicated Mass. 449, 454, it was said in any way. , , . , , that tlie price may be stated in the memorandum in any words or fig- ures which clearly indicate, as applied to the subject, what that price is. If the figures or letters, or both, used in the memorandum, do in fact, and in the light ol a pre\ ailing usage, afford this informa- tion, the memorandum, to that extent, is sufficient. Salmon Falls Manuf. Cu. i\ Goddard, 14 How. (U. S.) 446; Sjiicer v. Cooper, 1 Q. B. 424. See Smith u. Ar- nold, sujira ; Carr v. The Passaic Land Imp. & Building Co. 4 C. E. Green (N. J.), 424 ; 1 Sugden V. & 1^ (8th Am. ed.) 134, and note («) ; Bird u. Richardson, 8 Pick. 252; Atwood v. Cobb, 16 lb. 227 ; 1 Cbitty Coutr. (Uth Am. ed.) 91, note Observaticms {a) and cases. It is provitled chusetts'" '^y '''^ 3d section of the Mas- statute, sachusetis statute of frauds, that the consideration of the contract need not be set forth in the memoran- dum made necessary by the 1st scctmn of that statute, but may be proved by any other legal evidence. Gen. Sts. c. 105, §§ 1, 2. The 1st section of the Jliissachu- setts statute, above referred to, corresponds with the 4th section of the English stat- ute. To this extent it would seem that, even where the price or consideration has been expressly agreed upon in the verbal contract, the memorandum of that con- tract need not contain a statement of it. It is to be observed, however, that the 2d section of the Massachusetts statute, above referred to, is not made expressly appli- cable to cases arising under the 6th sec- tion, which corresponds with the 17ih sec- tion of the English statute. But there is no doubt that the same rule would be ap- plied to cases under the 5th section. See Packard v. Kichardson, 17 Mass. 122. A distinction is to be observed between cases ■where the only evidence in- troduced is a memuraudum containing the entire agree- ment, but disclosing no con- sideration, and those where the evidence consists of a ver- bal agreement containing a stipulation of a price or consideration, and a memoran- dum of it which 'omits to state such con- sideration. It was held in James v. Muir, 33 Mich. 223, that the memorandum of a Iso price fixeil, no price uced be men- tioned in njeujoran- duui. PART II.] OF THK MEMORANDUM OR NOTE IN WRITING. 223 and, finally, that parol evidence is admissible to show that a price \yas actually agreed on, in order to establish the insufficiency of a memorandum which is silent as to price, (s) § 250. As to the other terms of the contract, it is Other " terms oi necessary that they should so appear by the written the con- . , 1 , , , , , -, , , tract must papers as to enable the court to understand what they be so ex- actually were, in order to satisfy the statute, (i) t'o^bruifeV § 251. It has already been shown that where these ^'S'''''=- terms are contained in different pieces of paper, the several writ- ings which are offered as constituting the bargain must be consist- ent, and not contradictory, (u) In Jackson v. Lowe (x) and Allen V. Bennett (t/) 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. Srhith, (g) Richards V. Porter, (a) Smith v. Surman, (6) and Archer v. Baynes. (c) In Thornton v. Kempster (t^) the broker's bought note on on described the article bought as " sound and merchant- "' ^'"''" able 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 sub- stance of the contract was not shown by the written bargain evi- denced by two papers that materially varied from each j^rchem other. lu Archer v. Baynes (e) the court held the corre- Baynes. contract which is within the statute of man v. Meigs, 4 Cush. 497 ; Kay v. Curd, frauds and is executory must name the 6 B. Mon. 100 ; Morton u. Dean, 13 Met. price, as well where a reasonable price is 385; Nichols v. Johnson, 10 Conn. 192; agreed upon as where any other is.] Tallman v. Franklin, 4 Kernan, 584 ; (s) See ante, § 209, and note (z). O'Donnell o. Leeman, 43 Maine, 158, (() [kiee Sanborn v. Flagler, 9 Allen, 160; Washington Ice Company v. Weh- 474; Salmon Falls Manuf. Co. u. God- ster, 62 lb. 341; Harvey r. Stevens, 43 dard, 14 How. (U. S.) 446,455; Johnson Vt. 656; Sale c-. Darragh, 2 Hilton (N. V. Buck, 6 Vroom, 338, 343. The mem- Y.), 184; Norris u. Blair, 39 Ind. 90; orandum should contain the substantial Soles «. Hickman, 20 Penn. St. 180,183; terms of the contract expressed with such 2 Kent, 511 ; Carroll v. Cowell, 1 Jebb & certainty that they may be understood Sym. 43 ; McMuUeu v. Helberg, 4 L. 11. from the memorandum itself, or some Ir. 94.] other writing to which it refers, without (li) Ante, § 223. resorting to parol evidence. Buck r. Pick- (x) 1 Bing. 9. well, 27 Vt. 167 ; 1 Sugden V. & P. (8th (y) 3 Tauut. 169. Am. ed.) 134, and note (o^) and cases (z) 15 East, 103. cited ; ante, § 24.5, note (z) and cases (u) 6 B. & C. 437. cited; Bailey v. Ogden, 3 John. 399; (6) 9B. &C. 561. Johnson v. Buck, 6 Vroom, 338, 343; (c) 5 Ex. 625 ; 20 L. J. Ex. 54 ; [Hough- Curtis J. in Salmon Falls Manuf. Co. v. ton v. Morton, 5 Ir. C. L. R. 329.] Goddard, 14 How. (U. S.) 446; Water- (d) 5 Taunt. 786. 224 FORMATION OF THE CONTRACT. [BOOK I. spoiidence between the parties an insufficient note of the bargain, because not containing all the terms of the contract. The 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 de- livered to him on the condition 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 writing." In Valpy v. Gibson, (e) in which the stat- Gibson. ^ite of frauds was not in question, it was contended, on behalf of the plaintiffs, that the terms of the contract did not ap- pear, because the mode and time of payment had not been speci- fied. But the court said : " The omission of the particular mode or time of payment, or even of the price itself, does not necessa- rily invalidate a contract of sale. Goods may be sold, and fre- quently 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 jDayment, leaving them to be settled by some future agree- ment, or to be determined by what is reasonable under the cir- cumstances." (/) And the court held in the case before it, that the contract between the parties was one of the nature above de- scribed, and was valid. § 252. A recent decision of the common pleas has decided, in A letter re- Opposition to the intimation of opinion in Blackburn on coi'itVc't^'' Sales, ((/) that a letter repudiating a contract may be so ni.-iy be a vvorded as tu furnish a sufficient note of the bargain to sulncient ^ note of it. satisfy the ITth section. In Bailey v. Sweeting (A) the Bailey !■. letter produced was as follows : "In reply to your letter of the 1st instant, I beg to say that the only parcel of (e) 4 C. B. 835. of the descriplion. Nelson J. in Salmon (/) [1 <^'l'iity Contr, (nth Am. ed.) F.alls M.inuf. Co. v. Goddard, 14 How. No time or ^^°' """^ "°'^ '^') '""^ <^'^'''* f^' ^■) +46,455,456; Cocker v. Franklin placemen- ciied. So where there is not Hemp & Flax Manuf. Co. 3 Sumner, 530; n'°emoran- '" 'he memorandum any spec- 1 Chitty Contr. (11th Amer. ed.) 160, and dum : con- ified time or place of delivery, note Ih) and cases cited. 1 sequence. , , -i, the law will supply the omis- {g) Page 66. sion, namely, a reasonable lime after the (k) 30 L. J. C. P. 150; 9 C. B. N. S. goods are called for, and the usual place 843; [Townsend v. Hargraves, 118 Mass. of business of the purchaser, or his cus- 335, 336.] tomary place for the delivery of goods PART II.] OF THE MEMORANDUM OR NOTE IN WRITING. 225 goods selected for ready money was the chimney-glasses, amount- ing to 38Z. 10s. 6d., 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 38?. 10s. Qd., but I declined to have them because the carrier broke them.' Now, the first part of the letter is unquestionably a note or memoran- dum 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', concurred. (^■) In Wilkinson v. Evans (^) the defendant also refused the goods, writ- ^viikinson ing on the back of the invoice : " The cheese came to- '"■ K™ns. 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 stipula- tions of the contract, and that defendant's objection was not to the plaintiff's statement of the contract, but related to the per- formance of it. Nonsuit set aside. § 253. A note or memorandum of the bargain is sufficient, although it contain a mere proposal, if supplemented by p^jjoi-^oof parol proof of acceptance. (Q This had been held by of acccpt- Kindersley V. C. in Warner v. Willington, (m) and written that case was followed by the court of common pleas, in sufficient (i) See ante, § 227, remarks on Richards it valid and capable of enforcement is sup- V. Porter. plied by the signature of the party sought (jfc) L. R. 1 C. P. 407 ; 35 L. J. C. P. to be charged to the offer to sell. Bigelow 224. [To the same effect was Buxton v. C. J. in Sanborn v. Flagler, 9 Allen, 474, Rust, L. R. 7 Ex. 279, in which Black- 475. See Smith v. Gowdy, 8 Allen, 566. burn J. concurred. See Leather Cloth But a verbal offer, though Q^^„ff„^ot Co. V. Hieronimus, L. R. 10 Q. B. 140.] sufficiently full and explicit, taltenoutby {1} [In such case, if the memorandum is is not taken out of the stat- ceptance Written of- otherwise sufficient when it is ute by " written acceptance ?°'™°^'°' fer orally assented to by him to whom which does not contain its may'biiid the proposal has been made, terms. Washington Ice Co. v. Webster, offerer. the contract is consummated 62 Maine, 341.] by the meeting of the minds of the two par- (m) 3 Drew. 523, and 25 L. J. Ch. 662. ties, and the evidence necessary to render 15 226 FORMATION OF THE CONTEACT. [BOOK I. to bind Smith V. Neale, (w) and by the exchequer, in Liverpool pr^po^siTi. Borough Bank v. Eccles. (o) 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 chancellor in Warner v. Willington. § 25;:; a. [In Clarke v. Gardiner, 12 If. C. L. R. 472, the defend- Paroi ac- ^"*' '^^^ '^ Londonderry merchant and employed an agent ceptanceof jj-j Liverpool named Galliland to sell some guano which ■written ^ _ ^ ° ^ offei-. was on a quay in Liverpool. Galliland communicated with Clarke about the matter, the result of which was that the defendant sent Clarke a letter, the substance of which was that he accepted Clarke's offer of 121. 5s. for the guano, but instead of taking ten or more tons of some guano belonging to the plaintiff, as the plaintiff had proposed, he ivould take only five tons at the specified price, this to be paid for by a bill at three or four months, Clarke 1) while Clarke was to make his payment in cash. This Gardiner, letter was received by the plaintiff on the 7th of June, and it appeared tliat the plaintiff immediately on receipt of the letter shipped on board the steamers for Londonderry the five tons of guano which he was to furnish. On the same day, but after the saihng of the vessel, Galliland called on Clarke and told him that the guano could not be had except on new terms. Monahan C. J. said : " The question therefore arises, whether the fact that before he was aware of the receipt of tiie letter from Gardiner, Clarke had, in pursuance of the proposal, put on board five tons of guano, and by the post of that day apprised Gardiner that he had done so, was, in itself, a comjjlete acceptance, so as to prevent Gardiner having the power to withdraw his offer, and render him liable for the non-performance thereof ? There are many deci- sions of both the equity and common law courts in England to the effect that, although, according to the statute of frauds, a memorandum in writing is required to evidence a sale of land, it need only be signed by the party sought to be charged thereby, and that the other party may accept by parol, and that, if he do so, he may maintain an action at law or a suit in equity, to en- force the contract, though there be a want of mutuahty, and though no cross action can be maintained by the opposite party. (n) 2 C. B. N. S. 67, and 26 L. J. C. P. (o) 4 H. & N. 139 ; 28 L. J. Ex. 123. ^*^- {p] L. R. 1 Ex. 342 ; 35 L. J. Ex. 218. PART II.J OF THE MEMORANDUM OR NOTE IN WRITING. 227 It was admitted during the argument, and we are of opinion, that though there was some difference in the wording of the respective clauses relating to the sale of land and of goods, one speaking of the ' parties ' and the other the ' party ' chargeable, that vari- ance is of no consequence ; and that, according to the true con- struction of the statute of frauds in England, and the correspond- ing statute in this country, that if one of the parties signs a pro- posal, the acceptance by the other may be by parol. Therefore the question arises, whether the fact of the goods having been put on board the vessel amounts to such an acceptance, though not immediately communicated to the other party, as renders it a com- plete contract ? " It was held that the shipping of the guano com- pleted the contract. See the opinion of Christian J.] § 254. In the United States it has been held that if terms of credit have been agreed on, or a time for performance Decisions fixed by the bargain, the memorandum will be insuffi- ica. cient if these parts of the bargain be omitted, (g) {}) Davis V. Shields, 26 "Wend. 341 ; Boardman v. Spooner, 13 Allen, 353 ; Salmon Falls Company v. Goddard, 14 Norris v. Blair, 39 Ind. 90 ; M'Farson's How. (U.S.) 446; Morton v. Dean, 13 Appeal, 11 Penn. St. 503 ; Mingaye v. Cor- Met. 388 ; Soles v. Hickman, 20 Penn. bett, 14 U C. C. P. 557 ; Fisher v. Kuhn, St. 180; Back v. Pickwell, 27 Vt. 167; 54 Miss. 480; Johnson v. Granger, 57 Fife V. Gadsden, 2 Rich. (S. Car.) 373; Texas, 42; O'Neil v. Grain, 67 Mo. 250 [Coddington v. Goddard, 16 Gray, 436; McElroy «. Buck, 35 Mich. 434.] CHAPTER VII. OF THE SIGNATURE OF THE PARTY. Section Only signature required is that of the party to be charged . . • 255 Contract good or not at election of the party who has not signed . 255 Signature not confined to actual sub- scription 256 Mark sufficient, or pen held by a third person 256 Description of himself by the writer of the note insufficient . . 257 Signature by initials . Signature may be in print, or by stamping the name, and in any part of the writing . When not subscribed, a question of fact whether it was intended as a signature . . . . Signature may be referred, from what is signed in one part of a paper to what is unsigned, not reversely Section . 257 259 259 264 § 255. The 17th section requires the writing to be " signed by Signature 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 at election ^gt at the election of the party who has not signed, (a) who has In Allen v. Bennett, (6) in 1810, the court of common , , ' pleas considered the question as already settled under Bennett. the 17th sectlou by authority and practice. And in Thornton v. Kempster (c) the same court declared that contracts of the party to be charged alone is sufficient. Contract good or not (a) [Shirley v. Shirley, 7 Blackf. 452 : Smith V. Smith, 8 lb. 208; Newby u Rogers, 40 Ind. 9, 11, 12; Barstow v Gray, 3 Greenl. 409 ; Old Colony R. R, Co. u. Evans, 6 Giay, 25 ; Hawkins v Chace, 19 Pick. 502; Penniman u. Harts- horn, 13 Mass. 87; Getcbell c. Jewett, 4 Greenl. 350 ; Higdon v. Thomas, 1 Harr. & G. 139 ; Clason v. Bailey, 14 John. 484 ; Dresel v. Jordan, 104 Mass. 412 ; Hunter V. Giddings, 97 lb. 41 ; Cook v. Anderson, 20 Ind. 15; Davis v. Shields, 26 Wend. 340; Lent o. Padelford, 10 Mass. 236; Ivory V. Murphy, 36 Mo. 534 ; "Worrall V. Munn, 1 Selden, 229 ; Fenley v. Stew- art, 5 Sandf. 101; Lowry v. Mehaffey, 10 Watts, 387; M'Farson's Appeal, 11 Penn. St, 503; De Cordova v. Smith, 9 Texas, 129 ; Laning v. Cole, 3 Green Ch. 229; Young v. Paul, 2 Stockt. Cli. 4U2 ; Ide V. Stanton, 15 Vt. 687; Doug- lass V. Spears, 2 Nott & McC. 207 ; Adams V. McMillan, 7 Port. 73 ; Ballard v. Walker, 3 John. Cas. 60 ; Justice v. Lang, 52 N. Y. 323; Justices. Lang, 42 lb. 494; Jus- tice (/. Lang, 7 J. & Sp. 283 ; Mason v. Decker, 72 N. Y. 595.] [b) 3 Taunt. 169. (c) 5 Taunt. 786. PART II.] OF THE SIGNATURE OF THE PARTY. 229 may subsist which, by reason of the statute of frauds, could be enforced by one party, though not by the other. In Laythoarp v. Bryant (i) the point was decided under the 4th section, La^.t^^ar after full argument. The foregoing decisions have never "■ ^Bryant, since been questioned, and the law on the subject is settled, not only by them, but by the very recent case of Reuss v. Picksley, (e) in Cam. Scacc, and the decisions quoted, ante § 253, in which it was held that a written proposal, signed by the party to be charged, was a sufficient note of the bargain, if supplemented by parol proof of acceptance by the other party. § 256. The signature required by the statute is not confined to the actual subscription of his name by the party to be ^^f^aj charged. Thus, a mark made by a party as his signa- subscrip- ture is sufficient, if so intended. (/) And in Baker v. necessary. Dening, () [West. Union Tel. Co. v. Chicago v. Hobbs, 56 lb. 231. See Beckwith v. Tal- & Paducah R. R. Co. 86 ni, 246 ; Cossitt bot, 95 U. S. 289 ; § 222 ante.] CHAPTER VIII. AGENTS DULY AUTHORIZED TO SIGN. Section Agent must be a third person, not the other contracting party . . . 265 What evidence suiBcient to prove au- thority 266 Auctioneer is agent of both parties to sign the contract at public sale . . 268 But is the agent of vendor alone at a private sale 268 Parol evidence admissible to rebut presumption of auctioneer's agency for the buyer 269 Auctioneer's agency for the buyer only begins when goods are knocked down to him as last bidder . . 270 Signature, clerk of auctioneer . . 270 Signature, clerk of telegraph coni- 271 pany 271 Signature of agent as a witness is not a signature of the party . . 272 Brokers — their general authority . 273 Brokers in city of London . . 274 Contract notes 275 Brokers in London bound by customs of trade 275 Bought and sold notes, their form and purport .... 276 Signed entry in broker's book — con- flict of authority as to its real effect — cases reviewed .... 278 General propositions deduced fiom the authorities .... 294 Broker's signed entry constitutes the contract 294 Section The bought and sold notes do not . 295 But they suffice to satisfy the statute when complete and not inconsist- ent 296 Either note will suffice, unless vari- ance shown 297 If plaintiff offers only one note, de- fendant may offer the other to show variance 298 Where there is variance between signed entry and bought and sold notes 299 Variance between written correspond- ence and bouglit and sold notes . 300 Where there is variance between bought and sold notes, and there is no signed entry .... 301 Where note signed by party himself varies from that signed by his broker 301 Where sale is made by broker on credit, vendor may retract, if dis- satisfied with buyer's solvency . 302 Where sold note is delivered by bro- ker employed by buyer only . . 303 No variance between bought and sold notes if meaning is the same, al- though language differs . .301 Revocation of broker's authority . 305 Alteration of bought or sold note after delivery 306 Broker's clerk 307 § 265. It is not within the scope of this treatise to enter into the general subject of the law of agency, which is in no way al- tered by the statute. The agency may be proven by parol as at 238 FORMATION OF THE CONTRACT. [book I. Agent must be a third per- son, not the other contract- ing party. "What evi- dence suffi- cient to prove authority. Graham v. Musson. common law, (a) and may be shown by subsequent ratification as well as by antecedent delegation of authority. (5) But such rati- fication is only possible in the case of a principal in existence when the contract was made (ante, § 244). It is necessary that the agent be a third person, and not the other con- tracting party, (c) § 266. The decisions as to the sufficiency of the evi- dence to prove authority for the agent's signature have not been numerous under the 17th section. In Graham V. Musson, (c?) 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 ; 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., Graham v. Vaughan, Coltmau, and Erskine JJ., in 1839, and was followed by the same court in 1841, in Graham v. Fret- Fretwell. (a) [See Graham v. Musson, 7 Scott, 769; Rucker u. Cammcyer, 1 Esp. 105) Harrison v. Jackson, 7 T. R. 207 ; John- son V. Dodge, 17 111. 433 ; McWhorter v. McMahan, 10 Paige, 386; Alna v. Plum- mer, 4 Grcenl. 258 ; Worrall v. Munn, 1 Selden, 229; Doty v. Wilder, 15 111. 407 ; Long u. Hartwell, 5 Vroom (N. J.), 116; Bl.icknall u. Parish, 6 Jones Eq. 70; Heard o. PiUey, L. R. 4 Ch. Ap. 548; Yourtw. Hopkins, 24 111. 326; 1 Sugden V. & P. (8th Am. ed.) 145, note (a) ; Hawkins v. Chace, 19 Pick. 502, 506; Shaw V. Nudd, 8 lb, 9 ; Blood v. Hardy, 15 Maine, 61; Champlin „. Parish, 11 Paige, 405; Lawrence v. Taylor, 5 Hill, 107, 112; Tomlinson u. Miller, Sheld. 197.] (b) Maclean v. Dunn, 4 Bing. 722; Gosbell V. Archer, 2 Ad. & E. 500; Ace- bal V. Levy, 10 Bing. 378; Fitzmanrice V. Bayley, 6 E. & B. 868 ; afterwards re- versed, 9 H. L. Gas. 78, but not on the point stated in the text; Sugden V. & P. 145. [See Hawkins v. Chace, 19 Pick. 502, 506. A letter signed by the principal referring to his agent's unauthorized con- tract and adopting it, will render the con- tract valid under the statute of frauds as if made originally by him. Newton o. Bronson, 3 Keman, 587.] (c) Sharman v. Brandt, in Ex. Ch. L. R. 6 Q. B. 720. [See Bent v. Cobb, 9 Gray, 387 ; Smith v. Arnold, 5 Mason, 414; Johnson v. Buck, 6 Vroom (N.J.), 338, 342,] (d) 5 Bing. N. C. 603. PART II.J AGENTS DULY AUTHOEIZED TO SIGN. 239 well, (e) with the concurrence of Maule J., who had succeeded Vaughan J. on the bench. § 267. The whole subject was fully discussed in Durrell v. Evans, decided in the exchequer by Pollock C. B. and D„n.gii^ Bramwell and Wilde BB. in 1861, (/) and reversed by Evans. the unanimous opinions of Crompton, Willes, Byles, Blackburn, Keating, and Mellor JJ. in the exchequer chamber in 1862. (g) The facts were these : The plaintiff, Durrell, had hops for sale, in the hands of his factor, Noakes, and the defendant failed in an at- tempt 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 memoran- dum 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 memorandum, the defendant requested that the date might be altered from the 19th to the 20th of Octo- ber (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 33 Ryarsh & Addington. " Oct. 40*fe 20th, 1860." The entry on the counterfoil was as follows : — " Sold to Messrs. Evans. " Bags. Pockets. T. Durrell | -j^g^ j^g^ 33 Ryarsh & Addington. ) " Oct 4SA 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 re- quired by the 17th section to bind the bargain. The plaintiff contended that the name " Messrs. Evans " written on the coun- (e) 3 M. & G. 368. [g) 1 H. & C. 174 ; 31 L. J. Ex. 337. (/) 30 L. J. Ex. 254; S. C. mm. Dar- rell V. Evans, 6 H. & N. 660. 16Z. 16s. 240 FORMATION OF THE CONTRACT. [BOOK I. terfoil was so written bj' Noakes as the defendant's agent ; that if written by himself, it would have been a sufficient signature ac- cording to the authority of Johnson v. Dodgson (_ante, § 262), 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 vendor, and that the request of the defend- ant that the memorandum should be changed from the 19th to the 20th was to obtain an advantage from the vendor, but in no sense to make Noakes the agent of the purchaser. 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, § 266), 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. JMusson 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 invoice, and that all that the defendant did was simply taking an invoice and asking to have it altered ; and if the jury had found that, a non- suit would have been right. But, on the contrary, I think that there was plenty of evidence to go to the jury on the question whether Noakes the agent was to make a record of a binding con- tract between the parties, and that there was at least some evi- dence from which the 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 defend- ant'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 deUvered out to him was a sale note in duplicate, and accepts and keeps it. The evidence of wliat the defendant did, both before and after Noakes had written the memorandum, shows that Noakes was au- thorized by the defendant." Blackburn J. : " The case in the PART II.] AGENTS DULY AUTHORIZED TO SIGN. 241 court below proceeded on what was thrown out by my brother Wilde, and I agree with the decision of that court, if this docu- ment 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 instrument 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 memorandum 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 Dj^son was used as equivalent to Musson, there was no signature by the defendant : but in point of fact, ' J. Dyson ' was equivalent to ' for or per pro North & Co., J. Dyson.' " § 267 a. [In Murphy v. Boese, L. R. 10 Ex. 126, it appeared that the plaintiff brought an action for the price of Mm.ph„„ clocks sold by him to the defendant ; and the plaintiff's ^o^^^- traveller, when he took the order for the goods, wrote out in the presence of the defendant, upon printed forms, two memoranda of it, putting the defendant's name upon them, and handing one of the papers to the defendant, who kept it; and it was held (distinguishing Durrell v. Evans) that there was no evidence that the plaintiff.'s traveller signed the memoranda as agent of the de- fendant, so as to bind him within § 17 of the statute of frauds. Pollock B. said : " I think Durrell v. Evans can only be supported if it decides that the agenc}' did not commence till after the mem- orandum was written out, and tiiat 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 adoption of his act iii preparing it, or a recognition ah initio of the whole document as containing the contract. Or one might go farther and say that, from the nature of the transaction, and the meeting of the parties at the office, it might be thought that there 16 242 FORMATION OF THE CONTRACT. [book I. 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?" Bramwell B. said: "We are, no doubt, bound by the decision of the exchequer chamber in Durrell v. Evans, but this case is distinguishable from it, and when I remember that my brother Crompton took part in that de- cision, I am bound to speak of it with the utmost respect."] § 2G8. It will have been observed that, in some of the cases already referred to, it is taken for granted that an auc- tioneer is an agent for both parties at a. public sale, for the purpose of signing. (A) This has long been estab- lished law. (i) fSir James Mansfield, in Emmerson v. Heelis, (i) thus gave the reason for the decisions: " By what authority does he write down the purchaser's name? By the authority of the purchaser. These persons bid, and announce their biddings loudly aud 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. Tlierefore he writes But of the name by the authority of the purchaser, and he is an alone°It agent for the purchaser." It follows from this reasoning Mir'^ ^"^^^^ ^^'"^ '■'"1'^ «i"es not apply in a case where the auction- (h) [Hart c. Woods, 7 Blackf. 568 ; Jen- kins u. Hou;.', 2 Ti-eadwiiy, S'Jl ; Bfiit u. Cobb, 9 Clray, 397; Gordon c. Sims, 2 McCorJ Ch. 1C4; Piigh ;■. CliL-.vrldiin., U Auctioneer is agent of both par- ties at a public sale for signing the note. Oliio, 109 ; Bnrkc v. Halc.\ , 2 (Jilm. 6U ; M'Comb 1. Wright, i John. Ch. 659; Johnson v. Buck, 6 Vroom (X. J.), 338, 342 ; Hathaway J. in Pike v. Balcli, 38 Maine, 302, 311; Harvey r. Sicicns, 43 Vt. 655, 6.)6 ; Bient v. Green, 6 I.cigh, 16 ; White V. Creu-, 16 Ga. 416; Anderson v. Chick, 1 Bailey Kc|. 118; Adams v. M'Mil- lan, 7 Porter, 73 ; Smith v. Arrold, 5 Mason, 414; Jlurton v. Dean, 13 Met. 388; Cleaves v. Poss, 4 Greenl. 1; Linn Boyd Toliaeeo Warehouse Co. v. Tcriill Auctioneer 13 Bush, 463. The auctioneer must iict lit J I ■ 1 ^, saletobhid ^"^'^ "°^ l^""' t'le purchaser purehasur. by his sigTiature, unless the memorandum he made at the time of the sale. Hortou u. McCarty, 53 Jlaine, 394; Gill v. Bickncll, 2 Cu-h. 355; Alna 0. Plummer, 4 Greenl. 258; O'Donncll V. Lceman, 43 Maine, 158, 160; Smith V. Arnold, 5 Mason, 414; Flintoft v. El- more, 18 U. C. C. P. 274. As to memo- randums made by officers, and persons act- ing in fiduciary capacities, see 1 Sugden V. & P. (8th Am. ed.) 147, aud notes (r) and (u) ; Flintoft t. Elmore, 18 U. 0. C. P. 274. When on a sale of real „ , , .^ Stakebolder estate a deposit is made m ad- of deposits Vance with the auctioneer, he 'I'^i™'"^*' is regarded as stakeholder, and should not pay to either party without the consent of the other. Ellison v. Kenn, 86 111. 427; Early v. Smyth, 7 Ir. C. L. R. 397.] (i) Hiiidc I'. Whitehouse, 7 East, 558; Emmerson c. Heelis, 2 Taunt, 38 ; White u. Proctor, 4 Taunt. 209 ; Kenworthy v. Schotield, 2 B. & C. 945 ; Walker i: Con- stable, 1 B. & P. 306 ; Farebrother v. Sim- mons, 5 B. & A. 333 ; Durell u. Evans, 1 H. & C. 174 ; 31 L. J. Ex. 337 ; [Clark- son V. Noble, 2 U. C. Q. B. 361.] PART II.J AGENTS DULY AUTHORIZED TO SIGN. 243 eer 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 j^^^^ ^ the purchaser. And such was accordingly the decision Can-. of the exchequer court in Mews v. Carr. (/c) § 269. And on the same principle it has been held, that the circumstances of the case may be used to rebut the een- „. . His agency eral inference that the auctioneer is agent to sign the for pur- ch&S6r flt name of the highest bidder as purchaser, according to public sale the conditions of the sale. Thus, in Bartlett v. Pur- p.-oW.'^''' nell, (V) the defendant bought goods at public auction, Bartlett ». under an agreement with the plaintiff, who was the ex- ^"™'^"- ecutor of the defendant's deceased husband, that the defendant should be at liberty to buy, and that the price should go towards payment of a legacy of 200L, to which the defendant was entitled under the will of the deceased. The conditions of the sale were that the purchasers were to pay a certain percentage 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 pur- pose of settling the price at which the purchaser was to take the ' goods under the antecedent bargain : and that the auctioneer was not the agent of the pui'chaser. Denman C. J. saying, " We do not overrule the former cases, but we consider them inapplicable." § 270. But the agency of the auctioneer for the purchaser only begins where the contract is completed by knocking f^^^^^^j^. down the hammer. Up to that moment he is the agent ^'^^''^ , i- o agency for of the vendor exclusively. It is only when the bidder buyer only •' •' , begins has become the purchaser, that the agency arises ; and -when the until then the bidder may retract, and the auctioneer knocked may do the same in behalf of the vendor, (m) In Bird tuyeV" {k) 1 H. & N. 484 ; 26 L. J. Ex. 39. over, the auctioneer !s agent for the seller (/) 4 Ad. & E. 792. only. Horton v. McCarty, 53 Maine, 394, (m) Warlow v. Harrison, 1 E. & E. 295 ; 398 ; ante, § 268, note (A).] 28 L. J. Q. B. 18. [But when the sale is 244 FORMATION OF THE CONTRACT. [BOOK I. Bird „ V. Boulter (n) the person who signed the purchaser's Boulter. j-iame was not the auctioneer, but his clerk. Held to be Auction- re • L. eer's clerk. SuttCient. Clerk of § 271. The signature of a clerk of a telegraph com- teiegraph ^ dispatch was held to be sufficient where the company. h""'J ■•" t • n i i Godwin!), original instructions had been signed by the party, m Francis. Godwin v. Francis, L. R. 5 C. P. 2a5. (o) § 272. The signature required by the statute is that of the party to be charged, or his agent. If, therefore, the sig- Signature i J « , s i • by an nature be not that of the agent, qua agent, but only ni witness.' ^ the capacity of witness to the writing, it will not suf- Auction- fice. In Gosbell v. Archer ( p) the clerk of the auction- ar^itiess.' eer, who had authority to act for his master, signed Gosbell V. a memorandum of the sale, as witness to the signature Archer. ^j ^j^^ 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 unsuccessful, and a dictum of Lord Eldon {q) 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 lie bound signs as, tvhat lie cannot be, a witness, he cannot be understood to sign otherwise than as principal." § 273. Tliere is a class of persons who make it their business to act as agents for others in the purchase and sale of goods, known to the common law as brokers. These persons, as a general rule, are agents for both parties, and their signature k) the memorandum or note of the agreement is bind- ing on both principals, if the memorandum be otherwise sufficient Tinir Ken- under the statute, (r) The authority of a broker to tiiority" bind his principals may by special agreement be carried (n) 4 B. & Ad. 443 ; [Smith i'. Jones, 7 (?) In Coles c. Trecothick, 9 Ves. 251 ; Leigh, 16.=). See Fiske u. JleGref;ory, 34 and see the observations of Sir Edward N. H. 414, 418, 419; Alua r, Plummer, Sugden, V. & P. 143. 4 Greenl. 1^.)S ; Meadows u. Meadows, 3 (>) [Bigelow C. J. in Coddingtoii u. MeCord, 458; Gill i\ Bieknell, 2 C'u^h. Goddard, 16 Gray,442 ; Hinckley i). Arey, 355; Catheart v. Keirnaghau, 5 Strobh. 27 Maine, 362 : Story Agency, §§28,31; 129; Johnson I'. Buck, 6 Vrooni, 33S, 342, Lawrence i'. Gallaglier, 10 Jones & S. 343; Norris r. Biair, 39 Ind. 90; Coate u. 309. See Sliaw v. Finney, 13 IVIet. 453, Terry, 24 U. C. V. P. 571.] 456. A memorandum of a contract of (o) [See Bundy i.. Johnson, 6 U. C. C. sale signed by one who is agent of both P. 221.] , the buyer and tlie seller, expressing that ip) 2 Ad. & E. 500. certain property has been sold at a certain PART II.] AGENTS DULY AUTHORIZED TO SIGN. 245 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 brancli 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, (s) § 274. Before, entering into an examination of the authorities, it will be convenient to give a short svimmary of the Brokers in statutes in relation to brokers in the city of London, as undL. many of the 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 Geo. 3, c. 60, (0 contain provi- sions for the regulation of brokers, and for defining the power of the corporation. Under these acts the city formerly required a bond and an oath, the form of which, prior to the year 1818, may be found given in Kemble v. Atkins, 7 Taunt. 260 ; S. C. Holt N. P. 431. The regulations imposed, and form of the bond as altered in 1818, are printed at length in the appendix to Russell on Fac- tors 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 Christian and surname at full length of both the buyer and seller, and the quantity and quality of the articles 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, respectively, containing therein a true copy of such entry ; and shall upon demand made by any or either of the par- ties, 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 priie, necessarily imports that it hag been wall, 4 Camp. 279 ; Baines v. Ewing, L. R. purchased at that price, and both parties 1 Ex. 320; 35 L. J. Ex. 194. are bound by it. Butler v. Thompson, 2 [t) These statutes will be found in the Otto, 412.] notes at p. 426 of vol. i. Chitty's CoUec- (s) See, for example, Dickinson v. Lil- tion of Statutes, ed. 186.5 ; that of 6 Anne is in the text, at p. 424 of the same. 246 FORMATION OF THE CONTRACT. [BOOK I. London brokers' relief act, 1870, most of these powers were taken Brokers' away, the bonds are no longer required, the rules and 1870* '"''' regulations are no longer to be enforced by the corpora- tion, and now brokers are only required to be 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 speci- fied in the act. § 275. Mr. Justice Blackburn (m) warns his readers not to con- found the contract notes here mentioned, which are a Contract notes. 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 Ellenborough expressly says, in Hinde v. Whitehouse, (a;) 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 fre- quently made in the manner stated by Blackburn .J., as is also ap- parent in the reported cases. The brokers in London Brokers in c i • London are bound by the customs of trade, just as all other customsof brokers are, and such customs are valid in spite of *'''"^'^' anything to the contrary in the bonds and regulations, which are purely municipal. (?) § 276. When a broker has succeeded in making a contract, he Bought reduces it to writing, and delivers to each party a copy notes. of the terms as reduced to writing by him. He also ought to enter them in his book, and sign the entry. What he delivers to the seller is called the sold note : to tiie 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 professes 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 : tlie 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. The second form is where the broker does not disclose in the bought L.Q.- («) P- 98. (,y) 2 Camp. 337. {x) 7 East, 5.59. (z) Ex parte Dyster, 2 Rose, 349. PART II.J AGENTS DULY AUTHORIZED TO SIGN. 247 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 princi- pal. 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 only 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 es- cape 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 was an unnamed principal, and to make this principal responsible (^ante, §§ 239-241). The fourth form is where the broker professes to sign as a broker, but is really a principal, as in the cases of Sharman v. Brandt and Mollett v. Robinson (^ante, §§ 241, 242), in which case his signature does not bind the other party, and he cannot sue on the contract, ex- cept perhaps on proof of such usage as was shown to exist in Mol- lett V. Robinson. § 277. 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, and as his agent, and the signature of the broker is therefore the signature of the party ac- cepting and i-etaining such a note (g^) ; but according to the third form, the broker says, in effect : " I myself sell to you," and the acceptance of a paper describing the broker as the princi[)al 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 signatui-e would not be that of an agent «'f the party re- taining the note : and by the fourth form, the language of the written contract is at variance with the real truth of the matter, unless understood as qualified by the usage proved to exist in Mol- lett V. Robinson. These observations (many of which are ex- tracted from Blackburn on Sales) have a direct bearing on points long in dispute, and some of which are yet vexed questions, as will abundantly appear on a review of the authorities. § 278. 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 (zi) [Thompson v. Gardiner, 1 C. P. D. 777.] 248 FORMATION OF THE CONTRACT. [bOOK I. and sold notes differ from each other, and even that neither cor- responds 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 some- times great change in the opinions of the same judge. As re- Entry in gards the signed entry in the broker's book, it has been broker's j^ j^j ^^ different times that it did, and that it did not, book — flictof constitute the contract between the parties : («) and it con opinion i.^ Till- 1 ■ •! 1 to its effect, 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 contracted, or was assented to by them. The most convenient method of reviewing the de- cisions will be to follow the leading cases in order of time, and then educe the propositions fairly embraced in them. § 279. In 1806 there was this dictum of Lord Ellenborough in Review of Hinde V. Whitehouse (5) on the subject: "In all sales the cases, made by brokers acting between the parties buying and Hinde I'. sellinff, the memorandum in the broker's book, mid the \i lute- ° house. bought and sold notes trattseribcd therefrom, and deliv- ered 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 in- ference would be that he considered the book, as the original, to be of more weight than copies from it. § 280. In 1807 he gave this opinion expressly in Heyman v. Hevman'i). Neale, (c) Saying : "After the broker has entered the Neaie. contract in his book, I am of opinion that neither party can recede from it. The bought and sold note is not sent on ap- pi'obation, nor docs 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 bind- ing, 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. (a) [See Coddlngton o. Gocldard, 16 (6) 7 East, 558. Gray, 442, Bigelow C. J. ; Remick v. (c) 2 Camp. 337. Sandford, 118 Mass. 106, 107.1 PART 11.] AGENTS DULY AUTHORIZED TO SIGN. 249 § 281. In 1810, in Hodgson v. Davies, Qd) the sale was through a broker who rendered bought and sold notes, showing j^^^ ^^^^ that payment was to be by bill at two and four months. Davies. 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 Ellenborough thought at first that the contract concluded by the broker was absolute, un- less Ms authority was limited hy writing of which the purchaser had notice. But the gentlemen of the special jury said that un- less the name of the purchaser 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 sufficiency of the purchaser, and annulling the contract. Lord Ellenborough allowed this to be a valid and reasonable usage, but left it to the jury whether the delay of five days in objecting was not unreasonable according to the usual commercial practice, and the jury found that it was. § 282. In 1814, the court of common pleas decided the case of Thornton v. Kempster (e) (^ante, § 251), where the Thornton broker's sold note described a sale of St. Petersburg ster.*^" hemp, and the bought note described the goods as Riga Rhine hemp, a different and superior article. The court considered the case as though no broker had intervened, and the parties had per- sonally exchanged the notes, holding that there never had been any agreement as to the subject-matter of the contract, and there- fore no contract at all between the parties. In 1816 Gumming V. Roebuck (/) was tried before Gibbs C. J. at nisi dimming prius, and it appeared that the bought and sold notes buck, 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 contradicted." It has been surmised that the case al- luded 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. § 283. In 1826 the subject first came before the full court in the queen's bench in two cases. In the first, Grant v. Fletch- (d) 2 Camp. 530. (/) Holt, 172. (c) 5 Taunt. 786. (?) 2 Camp. 337. 250 FORMATION OF THE CONTRACT. [BOOK I. er, (A) there was a material variance between the bought and sold notes, and the broker had made an unsigned entry Grant v. i 51 i • i Fletcher. j^ Jiig " memorandum book, which entry was incomplete, not namino- the vendor. The plaintiff was nonsuited at the as- sizes, 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 par- ties, 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 con- tract for both parties, neither will be bound The entry in the broker's book is, propcrhj i^pcnhunj, the original, and ought to be signed by him. The bought and sold notes delivered to the parties ought to be 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." § 284. In Goom v. Aflalo, (i) the other case, the decision whs Goom V express that the bought and sold notes suffice to satisfy Aflalo. j-|jg statute, if otherwise unobjectionable, even though the entry in the broker's book be unsigned. The broker in this case made his entry complete in its terms on the 2.jd 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 hy him, copied from the entrj^ in his books. Next morn- ing th(^ defendant objected to, and returned the sold note, and re- fused to deliver the goods. The court held the contract binding, notwithstanding the absence of signature to the entry in the book, Abbdtt C J. saying, " The entry in the book has been called the original, and the notes copies : but there is not ang aetued deci- sion that a valid contract mag not he made by iiotes dulg signed, if the entry be unsigned We have no doubt that a broker ought to sign his book, and that every punctual broker will do so. But; if -ire were to hold, such a signature essential to the validitij of a contract, we should go further than the courts have hitherto gone, and might possibly lay down a rule that would be followed by se- rious inconvenience, because we .. Delano, 4 Cush. 33 ; Wil- shown that such was not the intention of. lis v. Willis, 6 Dana, 48; Hall v. Richard- the parties. Colt J. in Townsend v. Har- son, 16 Md. 396. It is said that this rule graves, 118 Mass. 325, 332; Morse v. does not apply to a sale of stock in an in- Sherman, 106 lb. 430; Foster v. Ropes, corporated company. Currie w. White, 1 lU lb. 10; Wells J. in Huskins v. War- Sweeny, 166.] ren, 115 lb. 533; Ames J. in Goddard v. (e) 5 B. & Ad 313, 340. 272 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. Park J. said : " I take it to be clear that by the law of England tlie sale of a specific chattel passes the property in it to the ven- dee without delivery Where there is a sale of goods gen- erally, no property in them passes till delivery, because until then the very goods sold are not ascertained, But where by the con- tract 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 parties are then in tiie 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 possession. The effect of the contract, therefore, is to vest the prop- erty in the bargainee." (^f^ (/) [Webber v. Davis, 44 Maine, 147; Moi-se V. Sherman, 106 Mass. 430, 432, 433 ; Barrett c. Goddard, 3 Mason, 107, 110; Hotclikiss v. Hunt, 49 Maine, 213; Martin v. Adams, 104 Mass. 262 ; Colt J. in Merchants' National Bank v. Bangs, 102 lb. 295; Foster J. in Thayer v. Lap- ham, 13 Allen, 28; Page v. Carpenter, 10 N, H. 77; BufEngton v. Ulen, 7 Bush (Ky.), 231; Means r. Williamson, 37 Maine, 556; Waldron u. Chase, lb. 414; Merrill v. Parker, 24 lb. 89; Wing v. Claris, lb. 366; Hooban u. Bidwell, 16 Ohio, 509; Frazer v. HilliarJ, 2 Strobh. 309 ; Willis V. Willis, 6 Dana, 48 ; Craw- ford u. Smitli, 7 lb. 59, 60; Hurlburt v. Simpson, 3 Led. (Law) 233; Olyphant V. Baker, 5 Dcnio, 379; Swe^iey v. Ous- ley, 14 B. Mon. (Ky.J 413; Terry v. Wheeler, 25 N. Y. 520, 524, 525; "Warden V. Marslull, 99 Mass. 305; Bigelow C. J. in Gardner v. Lane, 9 Allen, 498 ; Mar- ble u. Moore, 102 Mass. 443; Chase v. Willard, 57 Maine, 157; Bailey v. Smith, 43 N. Ji. 143; Felton v. Fuller, 29 lb! 121 ; Ivieo V. Codman, 1 Allen, 377; Les- ter u. East, 49 Ind. 588; Bigler v. Hall, 54 N. Y. 167. Where, on a sale of lumber then in the vendor's yard, the pieces sold were selected and designated, and the price paid, but the vendor agreed to de- liver the lumber at a railroad station, it vendor did not prevent the passing of the title to the purchaser by jactthat a sale otherwise complete, vendor agrees to do Terry v. Wheeler, 25 N. Y. BomcthiDg 520. So it was held that a 1° "'"'t™ to the prop- survey of a large quantity of erty docs not 1 1 J J ^ necessarily logs, landed on a stream pre- prevent title paratoryto driving, by a per- pn^tag. son mntually agreed upon by the parties to a sale, and the putting thereon, by the ven- dor, the purchaser's mark as they were thus landed, would constitute a sufficient delivery to pass the title, even as against subsequent purchasers, although by the terms of the contract of sale the vendor was bound to deliver the logs at a spec- ified place many miles below the landing. Bethel Steam Mill Co. v. Brown, 57 Maine, 9. See Walden v. Murdock, 23 Cal. 540 ; Dyer v. Libby, 61 Maine, 45 ; Cummings V. Giiggs, 2 Duvall, 87; Russell v. Car- rington, 42 N. Y. 118; Filkins v. Why- land, 24 lb. 341. Where the evidence showed that A. " bargained a hog to B. before it was altered, with an agreement that A was to alter the hog and keep it until it fully recovered from the operation, if it did successfully recover therefrom, and if it did not so recover, then A. was to pay B. forty dollars," it was held that it would warrant, if it did not require, n finding that the sale to B. was uncondi- was held that this act to be done by the tional and passed the title. Marble v. BOOK II.] SALE OF SPECIFIC CHATTELS UNCONDITIONALLY. 273 § 316. The principles so clearly stated by these two eminent judges are the undoubted law at the present time. (^) ^^^^^^ Thus, in Tarling v. Baxter, (^) the defendant agreed to Baxter, sell to the plaintiff a certain stack of hay for 145Z. payable on the ensuing 4th of February, and to allow it to stand on the premises until the 1st 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 re- mains 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. (A) § 317. In Giliuour v. Supple, (i) Sir Cresswell Cresswell in giv- ing an elaborate judgment of the privy council, says: oiimoure. " By the law of England, by a contract for the sale of Supple. 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 intention of the parties." And in The Calcutta Company v. De Mattos, (A;) in 1863, Blackburn J. pro- nounced this to be " a very accurate statement of the law." (Z) Moore, 102 Mass. 443. So, in Thorndike Company u. De Mattos, 32 L. J. Q. B. V. Bath, 114 lb. 116, it was held that evi- 322; Wood v. Bell, 6 E. & B. 355, and 25 dence that a person offered to purchase an L. J. Q. B. 148, and in Cam. Scacc. 321 ; unfinished piano at the shop of the maker. Chambers v. Miller, 10 C. B. N. S. 125; if he would finish it; that the offer was 32 L. J. C. P. 30; Turley v. Bates, 2 H. thereupon accepted, and a bill of sale & C. 200, and 33 L. J. Ex. 43 ; Joyce v. made ; and that the price was paid on a Swan, 17 C. B. N. S. 84. subsequent day, the piano being left to be {h) Martindale v. Smith, 1 Q. B. 389. finished, will authorize a jury to find a See, also, Chinery v. Vial, 5 H. & N. 288, delivery of the piano suflScient to pass the and 29 L. J. Ex 180 ; Sweeting v. Turner, title as against a subsequent purchaser. L. R. 7 Q. B. 310. See Bates !). Coster, 3 Thomp.&C.(N.Y.) (i) 11 Moore P. C. 566. 580. The risk of property, which is the {k] 32 L. J. Q. B. 322, 328. subject of a sale, attends the title. Willis (/) [If the goods are capable of being V. Willis, 6 Dana, 49; Joyce v, Adams, 4 identified, and by the contract of sale are Selden, 296 ; Terry v. Wheeler, 25 N. Y. identified, that is sufficient, and the prop- 520; Taylor v. Lapham, 13 Allen, 26; erty passes; as, if there are Smith V. Dallas, 35 Ind. 255 ; Whitcomb one hundred bales of cotton, contract th» V. Whitney, 24 Mich. 486. See § 334, numbered from one to one f^°^a^^ note (t), post.] hundred, and the contract is that will en- (j) Hinde v. Whitehouse, 7 East, 558; for the fifty odd numbers, or to pass, Tarling v. Baxter, 6 B. & C. 360 ; Martin- the fifty even numbers, or any ^°^^J^^^ dale V. Smith, 1 Q. B. 389 ,' Spartali •>. other specified fifty numbers, with other Benecke, 10 C. B. 212; Gilmour v. Sup- the bales sold are identified, ^°°^' pie, 11 Moore P. 0. 551; The Calcutta though not separated. Shaw C. J. in Ar- 18 274 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. nold V. Delano, 4 Cush, 40. " A designa- tion by some visible mark is a sufficient separation. It is not necessary that an artificial mark should be made for this sole purpose. If the barrels have been in- spected and marked as of diflTerent quali- ties, e. g. No. 1, No. 2, No. 3, and the whole of that which is marked No. 1 is sold, a bill of sale fj:iven, and a formal de- livery made, the property will pass with- out any further separation or designation, and the delivery will have been perfected, though the barrels No. 1 are left intermin- gled with the other barrels, which have different marks. So if there are one hun- dred barrels marked No. 1, and the owner makes a contract to sell one hundred and fifty barrels of that mark, and makes his bill of sale and formal delivery, affirming that there are that number of barrels in the lot, the property in the one hundred barrels will pass to the vendee." Chapman J. in Kopes v. Lane, 9 Allen, 502, 510.] CHAPTER III. SALE OF SPECIFIC CHATTELS CONDITIONALLY. Section Two rules given by Blackburn J. First. Where vendor is to do any- thing to the goods before delivery, property does not pass Second. Where goods are to be test- ed, weighed, or measured, property does not pass . . . , A third rule given. Where buyer is bound to the performance of a con- dition, property does not pass, even by actual delivery, before perform- ance of condition . Goods measured by buyer for his own satisfaction .... Where buyer assumes risk of delivery he must pay price, even where prop- erty has not passed, if destruction of goods prevents delivery 318 319 320 322 329 Section Goods sold to be paid for on delivery at a particular place Goods put in buyer's packages Where something is to be done by vendor to the goods after delivery . 331 Where something is to be done to the goods by the buyer Where chattel is unfinished or incom- plete, property does not pass unless contrary intention be proved . Where payment for a ship is to be made by fixed instalments, as work progresses When property passes in the mate- rials provided for completing the chattel . Authorities for third rule above given 343 American cases on the subject of this chapter 346 330 330 332 335 335 . 340 § 318. Two rules on this subject are stated by Blackburn J. (a) as follows : First. Wbere by the agreement the vendor Two rules is to do anything to the goods for the purpose of putting ject given" them into that state in which the purchaser is to be bound burn J.°'^" to accept them, or, as it is sometimes worded, into a de- Where liverable state, the performance of those things shall, in to do any- the absence of circumstances indicating a contrary inten- 'q'"^ '^g. tion, be taken to be a condition precedent to the vest- '°™ '^^''^' ing of the property. (5) § 319. Secondly. Where anything remains to be done to the goods, for the purpose of ascertaining the price, as by weighing, measuring, or testing the goods, where tested, weighed, ery, prop- erty does not pass. Where goods are to be (a) On Sales, 151, 152. Ill Mass. 10; Paton v^ Currie, 19 U. 0. (6) [See Bailey v. Smith, 43 N. II. 141 ; Q. B. 388 ; Gilbert v. N. Y. Cent. E. R. Strauss v. Ross, 25 Ind. 300 ; McClung v. Co. 4 Hun, 378.] Kelley, 21 Iowa, 508; Foster v. Ropes, 276 EFFECT OF CONTRACT IN PASSING PEOPEETY. [BOOK II. the price is to depend on the quantity or quality of the goods, the performance of these things also shall be a condition precedent to the transfer of the property, although the individual goods be ascertained, and they are in the state in -which they ought to be accepted, (c) or meas- ured, prop- erty does not pass. (c) [Although these rules have been generally adopted in the American de- cisions, they have been variously inter- preted and applied. They were recognized and quoted by Judge Story, and the au- thorities maintaining or recognizing them In America were reviewed by him, in Bar- these rules rett V. Goddard, 3 Mason, 107. variously interpreted. See § 334, note («),;jos(. They were referred to by Chief Justice Shaw in Sumner v. Hamlet, 12 Pick. 82, 83 as rules applicable only " to cases of con- structive delivery and constructive pos- session, and resorted to for the purpose of determining when the contract of sale is so far complete as to pass the property, according to the intent of the parties in their contract." Again, in Arnold v. De- lano, 4 Cush. 40, the same learned judge, said : " The reason why marking, measur- ing, weighing, &c. are necessary, is, that the particular goods may be identified. If ten barrels of oil are sold, lying in a tank of thirty barrels, the buyer can identify no part of it as his until it is measured. So if fifty bales of cotton are sold out of one hundred, no particular bales are iden- tified until separation. But, if they are capable of being identfied, and by the contract of sale are identified, that is suffi- cient, and the property passes." And the same view seems to have been entertained by Chancellor Kent when he said ; '■ If the goods be sold by number, weight, or measure, the sale is incomplete, and the risk continues with the seller, until the specified property be separated and iden- tified." 2 Kent, 496. So, Strong J. in Crofoot u. Bennett, 2 Comst. 260, said : "But if the goods sold are clearly identi- fied, then, although it may be necessary to number, weigh, or measure them, in order to ascertain what would be the price of the whole at a rate agreed upon between the parties, the title will pass. 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 en- tire price of the whole, the sale is valid and complete." This opinion is quoted more at length, post, § 346. See Lockhart V. Pannell, 22 U. C. C. P. 597. In Den- nis V. Alexander, 3 Barr, 50, the court say : " It is not the law, that the right of property in a chattel cannot pass by a sale, so long as the quantity of the thing sold remains to be ascertained. It is only when something is to be done for the as- certainment of the quantity hy the very ' terms of the contract, that it is incomplete." See, also, Adams Mining Co. v. Senter, 26 Mich. 73, 79, 80 ; Hyde v, Lathrop, 2 Abb. (N. Y.) App. Decis. 436. Massa- chusetts. A contract was „ Massachu- made to sell the vendor's " fare setts deci- of fish," then at Newburyport, "°'"- at a certain sum per quintal, and a certain other sum per quintal for carrying them to Boston, the fish to be properly dried for shipping, the wharfage to be paid by the purchaser, and all other shawu. incidental charges to be paid ^'"^^' by the vendor, the fish to be at the pur- chaser's risk when on board the vessel. It was held that the property in the fish was not changed. " The fish were agreed to be sold, not sold." Shaw v. Nudd, 8 Pick. 9, 13. "When a bargain is made for a chattel, and the price is paid, the contract is executed, so that the vendee may main- tain trover for the chattel against the ven- dor, upon demand and refusal to deliver. But if, at the time of the contract, it is understood and intended that some after act is to be done to complete the sale, such as a formal delivery or a bill of sale, the transfer is not complete until such act is done." Parker C. J. in Higgins v. BOOK II.J SALE OF SPECIFIC CHATTELS CONDITIONALLY. 277 Chessman, 9 Pick. 7, 10. In Macomber ti. Parker, 13 Pick. 175, 183, Wilde J. langnage of said : " The general principle Wilde J. jg^ tfiat where any operation of weight, measurement, counting, or the like, remains to be performed, in order to ascertain the price, the quantity, or the particular commodity to be delivered, and to put it in a deliverable state, the contract is incomplete until such operation is per- formed. Brown on Sales, 44." This branch of the case, however, turned on a question of delivery. In Mason v. Thomp- Masonii. son, 18 Pick. 305, it appeared ThompBon. jjjjjj o^g rj,_ jjpi^g indebted to one B., a contract was made between them, in the month of September, as follows : "I, B., agree to purchase and do hereby purchase of T." a certain quantity of cheese, " if he makes as much,'' and cer- tain cattle, at fixed prices, " T. to keep the cattle on his farm free of expense un- til foddering time, if there cannot be any sale made that will answer before ; the cheese to be kept until the 1st of Novem- ber next, unless called for sooner ; and for the payment of the amount of these articles, B. is to discharge all the claims he may have against T., and the balance he is to pay in cash whenever demanded." It was held that this did not constitute a complete sale, but that, as the articles were from time to time delivered, the con- tract was pro tanto executed ; but the prop- erty in the'articles not delivered remained in T. Morton J. said : " There must at any rate be a perfect contract of sale. The owner must intend to part with his property, and the purchaser to become the immediate owner. Their two minds must meet on this point ; and if anything remains to be done before either assents, it may be an incho- ate contract, but it is not a perfect sale." This seems to put the point upon the true ground of inquiry — the aggregatio men- tium of the parties. What has been done or left undone respecting the property is mere matter of evidence, by which their intent is to be determined by the court or jury as the inquiry falls within the prov- ince of the one or the other. Ante, § 31 1. In Riddle v. Varnum, 20 Pick. 280, one point of inquiry was whether RUtUg ^, there had been a completed Tamum. sale of certain timber and plank lying in a mill-pond at the termination of a canal. In pursuance of the negotiation for the purchase of the property, the purchaser had signed a writing in which he acknowl- edged that he had " Received of the ven- dor four shots of white oak plank, &c. for which I promise to pay him twenty-six dollars per thousand, board measure. The above timber delivered in the mill-pond," &e. and the vendor at the same time exe- cuted a writing by which he acknowl- edged that he had received of the pur- chaser two hundred dollars in part pay for "the timber in question. Remainder to be paid in ninety days from surveying. The canalage to be paid by the purchaser, when he takes the plank and timber from the pond." The vendor further agreed that the purchaser might procure the timber to be measured l^y the superintendent of the canal, and that he would abide by the meas- urement. Before the timber was measured it was attached by one of the creditors of the purchaser. Dewey J. said : " The lead- ing objection to the alleged transfer of the property is founded upon the fact that the timber and plank were contracted for at a certain price by the thousand feet, and that at the time of the attachment they had not been surveyed and the measure of them ascertained. The general doctrine on this subject is, undoubtedly, that when some act remains to be done in relation to the articles which are the subject of the sale, as that of weighing or measuring, and there is no evidence tending to show an intention of the parties to make an absolute and complete sale, the perform- ance of such act is a prerequisite to the consummation of the contract ; and until it is performed the property does not pass to the vendee. But in the cases of sales where the property to be sold is in a state ready for delivery, and the payment of the money, or giving security therefor, is not a consideration precedent to the trans- fer, it may well be the understanding of 278 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. the parties that the sale is perfected, and the interest passes immediately to the ven- dee, although the weight or measure of the articles sold remains yet to be ascer- tained. Such a case presents a question of the intent of the parties to the contract. The party affirming the sale must satisfy the jury that it was intended to be an ab- solute transfer, and all that remained to be done was merely for the purpose of as- certaining the price of the articles sold, at the rate agreed upon. The court are of opinion that upon a proper application of these principles to the present case, the jury would have been warranted from the testimony to find that it was the intention of the parties here contracting to make the sale of the articles complete and abso- lute before the measure of them was ascer- tained." See Eopes v. Lane, 11 Allen, 591. The rule laid down in Riddle l<. Varuum, supra, was referred to with ap- probation by Tenney J. in Stone v. Pea- cock, 35 Jlaine, 385, 388, which, however, was a case of sale of fifteen tons of hay out of a larger mass, and not separated. Marble v. In JIarble r. Moore, 102 Mass. Moore. 4^3^ ^jjg ^.^^^ ,y35 Submitted to the jury on the evidence that the ven- dor "bargained a hog to the purchaser before it was altered, with an agreement that the vendor was to alter the hog and keep it until it fully recovered from the operation, if it did successfully recover therefrom; and if it did not so recoier, then the vendor was to pay the purchaser forty dollars ; " and it was held that this evidence warranted, if it did not require, a finding of the jury that the sale to the purchaser was unconditional. The case does not show for what sum the hog was sold, nor whether the price was paid. It appears that there was no actual delivery. It must have been understood that the leaving the hog in the possession of the vendor operated as a bailment for the purpose named. As a bailment it must have been nudum jmctnm for want of con- sideration, unless it derived its aliment of consideration from the contract of sale and was a part of it. It is clear that the en- tire agreement embraced the purchase of the altered hog, and that he was not in a deliverable state, as such, at the time of the purchase. The learned judge of the su])erior court, at the trial before the jury, instructed them in accordance with the principles of law stated in Riddle v. Var- num, above cited. The jury having found the sale to be unconditional, the case went to the full bench of the supreme court on exceptions. The rulings were sustained ; but the supreme court added : " We think the findihg is in conformity with the legal effect of the contract as stated." This seems to us to decide that a contract of sale of a specific ascertained chattel, with- out evidence of payment or delivery, but with an important act to be done to put the property in a deliverable state, that is, the state in which by the agreement the purchaser is bound to receive it, may, in point of law, be a complete sale to pass the title ; that upon such a sale the vendor may hold the property as bailee to do the act agreed upon. The next important case in Massachusetts is Fos- joster v. ter u. Ropes, 111 Mass. 10, R»P«s- in which there was a sale of a fare of fish, lying in two piles, one pile in each of two of vendor's fish-houses, in all about 800 quintals, at a certain price per quintal, to be paid for, cash in thirty days from de- livery, " one half to be thrown, that is, put on the flakes to be dried, for half a day or more, at once, or on the first fair day, and weighed at Beverly, and there received by purchaser, and by him carted to Salem ; the other half to be thrown in the course of ten days, and then to be weighed and carted as the others." This sale was in the spring of 1870. These fish, according to the course of the cod- fishing business, had been caught and cured the preceding fall, and h.ad been piled in the fish-houses and there kept during the winter. Both piles had been examined by the purchaser before he pur- chased, and were in a marketable state; but they were not in the particular state of dryness in which the purchaser wished to have them and stipulated they should BOOK II.J SALE OF SPKCIFIC CHATTELS CONDITIONALLY. 279 be put. The exact purpose of throwing the fish does not appear. Probably it was either to prepare them for the particular use of shipping, or to give the purchaser an advantage on the weight ; or, possibly, for both these purposes ; but, at any rate, it seems to have been for the benefit of the purchaser. It seems to have been con- ceded that the title to the fish would have passed, and the sale been complete, had there been no stipulation as to the throw- ing and weighing. The case was put to the jury upon the evidence of the inten- tion of the parties that the title should pass by the sale notwithstanding the acts to be done before the purchaser took the fish. The case was clear of any question under the statute of frauds. The jury found that it was the intention of the par ties to pass the title at the time of the sale. The case went to the court of law on exceptions to the effect that the evi- dence, which is not here stated, was not sufficient to sustain the verdict, and so the court of law held. But in deciding the case, the court, by Mr. Justice Colt, who de- Language of livered the opinion, said : " In Colt J. (jjg sfiig of personal property, the general rule of law is, that where, by the terms of the contract, the seller agrees to do anything for the purpose of putting the property into a state in which the buyer is bound to accept it, or into a con- dition to be delivered, the title will remain in him until he has performed the agree- ment in this respect." The learned judge then cites and states the case of Eugg u. Minett, 11 East, 210, and adds: "This general rule will not prevail, where, by the terms of the agreement, the title is to vest immediately in the buyer, notwith- standing something remains to be done to the goods by the seller before delivery." " In all cases, however, the intention of the parties as to the time when the title is to pass can be ascertained only from the terms of the agreement, as expressed in the language and conduct of the parlies, and as applied to known usage and the subject- matter. It must be manifested at the time the bargain is made. The rights of the parties under the contract cannot be af- fected by their undisclosed purposes, or by their understanding of its legal effect." After stating the facts bearing upon the point as understood by the court, the learned judge adds : "By the general sale, therefore, the property, not actually taken away by the defendant, remained in the plaintiff^, unless there is evidence which would justify the jury in finding that, by further agreement, notwithstanding this feature of the contract, the title was to pass immediately to the defendant." From this case it follows, that upon the sale of a specific ascertained chattel, if things such as those stated in this case remain to be done before the purchaser is actually to take the property, the burden is on the vendor, if he alleges the intent of the par- ties that the title shall pass notwithstand- ing, to establish the fact affirmatively. This seems to be in accordance with the ruling in Riddk ;;. Varnum, and approved in Stone v. Peacock, 35 Maine, 385, 388. Compare the case of Marble o. Moore, supra. Vermont. In the case of Gibbs V. Benjamin, 45 Vt. 124, it appeared that the defendant agreed to pur- Vermont de- chase all the wood piled on q1^t^^\„ the plaintiff's farm on the Benjamin, margin of Lake Champlain at $3.50 per cord. It was part of the contract that the parties should measure the wood and ascertain the quantity. They met for that purpose, and disagreed. The plain- tiff insisted that it was agreed, and jiart of the contract, that defendant should take the wood at " running measure ; " the defendant claimed that he purchased solid cords, and that issue grew into con- troversy, but was never settled. In the mean time the wood was carried away by a flood on the lake and lost. It was as- sumed by the court that the price was to be paid on delivery. The action was brought to recover for the price of the wood. Redfield J. said: "The principle is well settled, and uniform in all cases, that when anything remains to be done by either or both of the parties, precedent to the delivery, the title does not pass. And 280 EFFECT OF CONTRACT IN PASSING PEOPERTY. [BOOK II. so inflexible is the rule, that when the property has been delivered, if anythine; remains to be done by the terms of the contract, before the sale is completed, the property still remains in the vendor. The contract must be executed, to effect a completed sale, ' and nothing further to be done to ascertain the quantity, quality, or value of the property.' Bennett J. in Hutchins v. Gilchrist, 23 Vt. 88. ' The general rule in relation to the sale of per- sonal property is, that if anything re- mains to be done by the seller before delivery, no property passes to the vendee, even as between the parties.' Poland J. in Hale v. Huntley, 21 Vt. 147. This rule applied to the facts as reported in this case, retains the wood in the plaintiff, and leaves the contract executory, and, as a sale, incomplete.'' Several equally strin- gent applications of the rule have been New Hamp- made in New Hampshike. luUer^. I" ^""^-^ "• S^^l"' 3+ N. H. Bean. 290, 300, 301, Bell J. said: "If the goods are sold by number, weight, or measure, the sale is prima facie not complete till their quantity is ascertained, and if they are mixed with others, not until they are separated and designated. There are many other cases where, as there is the same reason, the same rule of law applies. In some of the cases we find at common law the language used is capable of being understood as importing that if an act remains to be done be- tween the parties, it must he an act to be done by the seller, and one necessary to designate and identify the goods to he sold, and not an act to be done by the buyer, or merely to ascertain the price to be paid, in order to render the sale imper- fect and to prevent the property from passing. But we think there is no such limitation of the rule, and that it is indif- ferent whether the act to be done to render the sale complete is to be done hy 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 goods to be sold by their designation or measure- ment, or their quality, by the buyer or the puhlic inspector ; or merely to ascer- tain the price to be paid by the appraisal of a third person, or by counting, weigh- ing, 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 payment of duties on goods imported, or their transportation to a dif- ferent place." In Prescott v. prcscott Locke, 51 N. H. 94, it ap- f • Licte. peared that the defendant had orally agreed to purchase of the plaintiff such walnut spokes as the plaintiff should saw at his rain, not exceeding 100,000, to be delivered at the mill in lots of about 10,000 each, as soon as sawed by the plaintiff; subject to the defendant's culling and se- lection ; each lot to be paid for on deliv- ery at $40 per thousand. Nothing was said ahout counting the spokes, but the vendor understood that he was to count each lot selected by the purchaser, and the purchaser understood that he was to count each lot selected before it was taken from the mill ; and it appeared that upon a sale of spokes between the parties on a previ- ous occasion, each party had counted them. On January 14, 1869, after the vendor had sawed a lot of 10,000 to 12,000, the pur- chaser culled them, handling every spoke, throwing aside those rejected, and laying those selected in a pile by themselves. The purchaser was to send and take away the selected pile with his own team on January 18, 1869, and to pay for them on the first of February. The vendor him- self, on January 16th and 18th, counted the selected pile, found the number to be 9,130, and then, on the said 18th January, charged that number of spokes to the de- fendant on his books. The purchaser did not send for the spokes until January 22, when they were burned with the mill. There was sufficient reason for the delay. The purchaser never counted the spokes nor accepted the plaintiffs count of them, though he made no question of its cor- rectness. The question made, as the court stated it, was, whether there was such a delivery and acceptance of the spokes as transferred the property and title from BOOK II.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 281 the vendor to the purchaser. The case was discussed by the court, as involving both a question of acceptance and receipt to satisfy the statute of frauds, and also a question whether at common law, or under the civil law, the facts showed a sale BO complete as to transfer the title ; and it was held that the sale was not per- fected, and the title to the property re- mained in the plaintiff at the time of its destruction, on the ground that the count- ing of the spokes was a material act, in which both parties were equally interested, and the defendant had not counted them nor verified the plaintiff's count. The court said : " The culling of the spokes was not an acceptance of quantity, but only of quality, — for at the time of culling, the quantity and price of the quantity were indeterminate; still there was a manual caption of the spokes by the buyer at the place of delivery. Such delivery and re- ception were not enough to transfer the title and risk, without the acceptance of the property as a determined quantity; for such an acceptance depended upon a counting of the spokes. If a sale is not complete, if anything remains to be done concerning the property by either party, a present right of property does not vest in the buyer. If any condition precedent, such as the ascertainment of the quantity, and thereby the gross price, is not performed or waived, the sale is not complete; such is the rule of the com- mon law. In the present case the spokes were to be taken by the defendant from the mill, and they were deposited in the place from which the defendant might re- move them on the completion of the con- tract. But this fact alone would not con- stitute a delivery in law. The defendant had no right to remove them before the quantity and the price regulated by the quantity were ascertained. An important act, the act of counting the spokes, re- mained to be done, in which both parties had the right to participate, unless that right was waived by the defendant." See Messer v. Woodman, 22 N. H. 172 ; Gil- man l: Hill, 36 lb. 311, 320; Smart v. Michigan. Batchelder, 57 lb. 140; Jones v. Pearce, 25 Ark. 545 ; Abat a. Atkinson, 21 La. Ann. 414 ; Bailey o. Smith, 43 N. H. 141, 143 ; Kaufman u. Stone, 25 Ark. 336 ; Strauss v. Ross, 25 Ind. 300 ; McClung v. Kelley, 21 Iowa, 508. Mich- igan. One of the most satis- factory discussions of this subject will be found in the opinion of the court given by that eminent and distinguished jurist. Judge Cooley, in Lingham v. Lingtiam v. Eggleston, 27 Mich. 324. The Eggleston. contest in this case related to a sale of lumber by Eggleston, the defendant in error, to Lingham & Osborn, the plain- tiffs in error, and the question involved was, whether the contract between the parties amounted to a sale in presentt and passed the title, or merely to an executory contract of sale. The lumber, subsequently to the contract and before actual delivery to the purchasers, was accidentally de- stroyed by fire, and the purchasers re- fused to pay for it on the ground that it never became their property. The action was brought by Eggleston, the defendant in error, for goods bargained and sold. It appeared that the lumber was piled in Eg- gleston's mill yard at Birch Run. In September, 1871, he sold his mill to a Mr. Thayer, reserving the right to leave the lumber in the yard until he disposed of it. To most of the lumber Eggleston had an exclusive title ; but there were four or five piles which he owned jointly with one Robinson. The whole amount was from 200,000 to 250,000, excluding Robinson's share in the four or five piles. Lingham & Osborne went to the mill yard Septem- ber 23, 1871, and proposed to buy the lumber. Eggleston went through the yard with them, pointed out the several piles, and designated those in which Robinson had an undivided interest, and also some piles of shingles which they proposed to take with the lumber. After Lingham & Osborne had examined the whole to their satisfaction, they agreed upon a purchase, and the following written contract was en- tered into : "Flint, September 23d, 1871. Lingham & Osborne bought from C. Eg- 282 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. gleston this day, all the pine lumber in his yard at Birch Run at the following prices: For all common, eleven dollars, and to include all better at the same price; and for all culls, five dollars and fifty cents per M., to be paid for as follows ; Five hundred dollars to-day, and live hun- dred dollars on the 10th of October next, the balance, one half on first day of Janu- ary, A. D. 1872, and the rest on the first day of February following; said lumber to be delivered by said Eggleston on board of cars when requested by said Lingham & Osborne, which shall not be later than 10th of November next. Also some shin- gles at two dollars per M. for No. 2 and four dollars for No. 1. (Signed) "LiNGii.vM & Osborne. " ClIAUKCEY EgGLESTON, Jr." The sum of five hundred dollars men- tioned in this contract to be paid at the time of its execution was paid. A few days later Lingham & Osborne went to the mill yard in Eggleston's absence and loaded two cars with the lumber. He re- turned before they had taken them away, and helped them count the pieces on the cars, but left them to measure them after- wards. At this time the lumber in the piles had not been assorted, inspected, or measured. There was disagreement be- tween the parties as to whether they had fixed upon a person to inspect the lumber, Lingham & Osborne claiming that they had. On the ninth day of October, 1871, Lingham met Egglestou on the cars at Flint and told him the fires were raging near Birch Run; that the lumber yard was safe yet, but that there were eight cars standing on the side tracl;, and he had better go up to Birth Run and load what were there, and get what lumber he could away ; Egglestou took the first train for the purpose, and wiiile on the train the train boy gave hiiu the following aote from Lingham : " Holly. Mr. Eggleston, you may loail, say ten thousand on each car, and we can have it inspected as it is unloaded. I will try and come up to-mor- row." When Eggleston reached Birch Run the fire was raging all about the mill, and that, with all the lumber in the yard, was soon totally destroyed by fire. Cooley J. said : " Where no question Language of arises under the statute of (Cooley J. frauds, and the rights of creditors do not intervene, the question whether a sale is completed or only executory must usually be determined upon the intent of the par- ties to be ascertained from their contract, the situation of the thing sold, and the circumstances surrounding the sale. The parties may settle this by the express words of their contract, but if they fail to do so, we must determine from their acts whether the sale is complete. If the goods sold are suSiciently designated so that no question can arise as to the thing in- tended, it is not absolutely essential that there should be a delivery, or that the goods should be in a deliverable condition, or that the quantity or quality, where the price depends upon either or both, should be determined. All these are circum- stances having an important bearing wlien "we are seeking to arrive kt the intention of the parties, hut no one of them, nor all combined, are conclusive.'' Having quoted the rule stated in Blackburn on Sales, p. 120, and the doctrine laid down in the text of this work, ante, §§ 310, 311, the learned judge added : " Upon this princi- ple there is no difficulty in reconciling most of the reported decisions. And even without express words to that effect, a contract has often been held to be a com- pleted sale, "where many circumstances were wanting, and many things to be done by one or both the parties to fix conclu- sively the sum to be paid or to determine some other fact material to their respec- tive rights. The most important fact in- dicative of an intent that the title shall pass is generally that of delivery. If the goods are completely delivered to the pur- chaser, it is usually very strong if not con- clusive evidence of intent that the prop- erty shall vest in him and be at his risk, notwithstanding weighing, measuring, in- spection, or some other act is to be done afterwards. So, if the goods are speci- fied, and all that was to be done by the BOOK II.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 283 vendor in respect thereto has been done, the title may pass, though the quantity and qnah'ty, and, consequently, the price to bo paid, are still to be determined by the vendee. Turley v. Bates, 2 H. & C. 200; Kohl v. Lindley, 39 111. 195. And even if something is to be done by the vendor, but only when directed by the vendee, and for his convenience, as, for in- stance, loading the goods upon a vessel for transportation, the property may pass by the contract of sale notwithstanding. Whitcorab v. Whitney, 24 Mich. 486; Terry v. Wheeler, 25 N. Y. 520. But the authorities are too numerous and too uni- form to justify citation, which hold that where anything is to be done by the ven- dor, or by the mutual concurrence of both parties, for the purpose of ascertaining the price of the goods, as by weighing, testing, or measuring them, where the price is to depend upon the quantity or quality of the goods ; the performance of those things is to be deemed presumptively a, condition precedent to the transfer of the property, although the individual goods be ascer- tained, and tliey are in a state in which they may and ought to be accepted." • In conclusion the learned judge said, with regard to the case before him : " Neither the quality nor the quantity was deter- mined ; and the evidence in the case shows that, as to these, there might very well be, and actually were, great differences of opinion. The price to be paid was con- sequently not ascertained, and could not be until the qualities were separated and measurement had. It was certainly not the right of either party to bind the other party by an inspection and measurement of his own ; it was the right of both to participate, and we must suppose such was the intent, unless something cleaily ap- pears in the case to show the contrary. It follows that something of high im- portance remained to be done by the ven- dor to ascertain the price to be paid ; and as this, under all the authorities, was pre- sumptively a condition precedent to the transferrence of the title, — nothing to the contrary appearing, — the court should so have instructed the jury." See Ortman v. Green, 26 Mich. 209 ; First National Bank of Marquette u. Crowley, 24 lb. 492 ; Hahu u. Fredericks, 30 lb. 223. And again, in Wilkinson v. Holiday, 33 Mich. 386, 387, 38S, Cooley C. J. said : " Where, under a contract for the purchase of per- sonal property something remains to be done to identify the property, or to put it in condition for delivery, or to determine the sura that shall be paid for it, the pre- sumption is always very strong that by the understanding of the parties the title was not to pass until such act had been fully done and accomplished. But the presumption is by no means conclusive. If one bargains with another for the pur- chase of property, and that is done in re- spect to it which the parties agree shall pass the title, nothing more is generally requisite. The question is only one of mutual assent; whether the minds of the parties have met, and by their understand- ing the purchaser has now become the owner. This Is the general rule where the case is not within the statute of frauds. If one purchases gold bullion by weight and receives delivery before it has become convenient to weigh It, and on the under- standing that the weighing shall be done afterwards, there can be no reasonable doubt, unless there are some qualifying circumstances in the case, that the bullion has now become his property and is at his risk. Lingham u, Hggleston, 27 Mich. 324." On the other hand, in the case of Adams Mining Co. v. Senter . , . ' Adams Mm- 26 Mich. 73, 79, 80, it ap- ingCo. d. peared that there was a sale °'"''™- of a lot of timber at a fixed price per foot, and the same person acting as agent for seller and purchaser. The agent and pur- chaser directed the person in charge of the timber to hold it for the purchaser, and that person engaged to do so. Campbell J. said : " The delivery was complete. The whole property being identified and sold, at a fixed price per foot, the process of ascertaining the amount was not essen- tial to passing the title, as it might have been if less than the whole amount de- livered was to be sold and separated by measurement. In that case the measure- 284 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ment might be necessary to fix the identity of the property sold. But when all is sold, no such process is needed to pass title. The ascertainment of the price was a mere mathematical computation, involv- ing no further action to bring the minds of the parties together." See Begole u. MeKenzie, 26 Mich. 470 ; Whitcomb v. Whitney, 24 lb. 486 ; Wilkinson v. Holi- day, 33 lb. 386 ; Southwestern Freight &c. Co. u. Stanard, 44 Mo. 71. New York. In Hyde v. Lathrop, New York. . , , ,,^ ,- , . t^ - 2 Abb. (N. Y.) App. Decis. 436, it was held that, under a contract for the sale" of thirty thousand barrel staves, at a specified rate per thousand, to be de- livered at a specified railroad depot, the delivery of seven thousand at the depot was sufficient to pass the title to the pur- chaser in the staves that were so delivered, although he had not seen them, and no count had been made to ascertain the amount to be paid. The cases of Crofoot V. Bennett, 2 Comst. 258, and Tyler u. Strang, 21 Barb. 198, were relied upon as authority for this decision. See Comfort V. Kiersted, 26 Barb. 472; Southwestern Freight &c. Co. u. Stanard, 44 Mo. 71 ; Dexter v. Norton, 55 Barb. 272; Bradley u. Wheeler, 44 N. Y. 495. A case very recently decided in Maine, Dyer v. Libby, Maine. 61 Maine, 45, was an action Dyer v. to recover for the price of a ^' lot of hay upon a count for goods sold and delivered. The plaintiff sold the defendant a quantity of hay to be taken from the plaintiff's mow. The de- fendant was to furnish the press, press the hay, and pay for it a certain price per ton. The plaintiff was to furnish withes and binders and haul the hay to the rail- road depot. The defendant afterwards sent his men and they took the hay from the plaintiff's mow, pressed it, put it in bands, weighed and branded it with the defendant's name. After some consider- able delay, the plaintiff hauled the hay, and stored it for the defendant at a place near the depot, informed the defendant that he had done so, and demanded p,■) 5B. &C. 857; aiKe § 32.3. for the sale of specific goods, atid ot (s) L. R. 2 C. P. 127 ; 37 L. J. C. P. goods identified and appro- Tact that (') [-!«'<-, § 311, note (c) ; Waldron v. priated to the purchaser with renminsto Chase, 37 Maine, 414. It has been held his consent, will, if such ap- \^^ll^ in many American cases that a contract pears to be the intent of the ooaolusira BOOK II.J SALE OF SPECIFIC CHATTELS CONDITIONALLY. 301 § 335. Another class of cases illustrative of the rules now un- der consideration are those in which the subject of the where the contract is an unfinished or incomplete thing, a chattel "''"""' '^ parties, express or implied, from the cir- cumstances, pass to tlie purchaser the ti- tle to the property without delivery, al- though something may remain to be done by the seller to put the property into the condition in which it is finally to be de- livered to the purchaser. See Marble v. Moore, 102 Mass. 443; Bemis v. Morrill, 38 Vt. 153; Bethel Steam Mill Co. u. Brown, 57 Maine, 9 ; Terry v. Wheeler, 25 N. Y. 520 ; Fuller v. , Bean, 34 N. H. 302; Riddle v. Varnum, 20 Pick. 280; Ford o. Chambers, 28 Ca). 13 ; Burr u. Williams, 23 Ark. 244. See § 315, note (/), ante. So although something remains to be done for the purpose of testing the property, or to fix the amount to be paid, by weighing, measuring, counting, or the like. Fitch v. Burk, 38 Vt. 683, 689; Riddle v. Varnum, 20 Pick, 283, 284; Chapman J. in Denny v. Williams, 5 Al- len, 3, 4 ; Wilde J. in Macomber v. Parker, 13 Pick. 182, 183 ; Cushman v. Holyoke, 34 Maine, 289 ; Farnum v. Perry, 4 Law Rep. (Boston) 276 ; Williams v. Adams, 3 Sneed (Tenn.), 359; Ford v. Chambers, 28 Cal. 13; Filkins v. Whyland, 24 N. Y. 341; Russell v. Carrington, 42 lb. 118; Terry v. Wlieeler, 25 lb. 525 ; Bellows J. in Ockington u. Richey, 41 N. H. 279 ; Hyde v. Lathrop, 3 Tr. App. (N. Y.) 320 ; Cummins v. Griggs, 2 Duvall, 87 ; Burr v. Williams, 23 Ark. 244 ; Kelsea u, Haines, 41 N. H. 246, 255; Boswell a. Green, 1 Butcher (N. J.), 390, 398; Sewell v. Eaton, 6 Wis. 490 ; Warren o. Milliken, 57 Maine, 97 ; Gushing v. Breed, 14 Allen, 376; Dennis u. Alexander, 3 Penn. St. 50 ; McCandlish v. Newman, 22 lb. 465 ; Stone u. Peacock, 35 Maine, 385; Butter- worth V. McKinly, 11 Humph. 206 ; Watts V. Hendry, 13 Florida, 523 ; Wilkinson u. Holiday, 33 Mich. 386 ; Sheltou v. Frank- lin, 68 111. 333; Woodruff v. tlnited States, 7 Ct. of CI. 605 ; Graff v. Fitch, 58 111. 373 ; Groat v. Gile, 51 N. Y. 431 ; Morrow v. Reed, 30 Wis. 81 ; Morrow v. Campbell, lb. 90; Straus v. Minzeshei- unliuished mer, 78 III. 492 ; The Bank of Montreal V. McWhirter, 17 U. C. C. P. 506. But, on the other hand, where by the intent of the parties anything remains to be done before the sale is to be considered by them as complete, whether to be done by the vendor or purchaser, or by a third person, the right of property does not pass; Prescott v. Locke, 51 N. H. 94; IToster v. Ropes, 111 Mass. 10; Walrath V. Ingles, 64 Barb. 265 ; Darden v. Love- lace, 52 Ala. 289 ; Pike v. Vaughan, 39 Wis. 499 ; Levey v. Lowndes, 2 Low. C. 257 ; Flanders u. Maynard, 58 Ga. 56 ; although the property itself may be placed in the hands of the purchaser. See Ward V. Shaw, 7 Wend. 404 ; Fuller v. Bean, 34 N. H. 290; Parker v. Mitchell, 5 lb. 165 ; Stone V. Peacock, 35 Maine, 385 ; Messer V. Woodman, 22 N. H. 181, 182; Ocking- ton V. Richey, 41 lb. 275, 281 ; Field v. Moore, Hill & Denio, 418, 421 ; Kein v. Tupper, 52 N. Y. 550. Delivery to the pur- chaser is, however, regarded Delivery to as very strong evidence of a ge^^an" completed sale, generally de- decisive, cisive, as against any presumption aris- ing from the mere fact that the goods sold have not been counted, weighed, measured, or the like. Kelsea v. Haines, 41 N. H. 246, 254, 255; Mticomber i,. Parker, 13 Pick. 175; Scudder v. Brad- bury, 106 Mass. 422; Odell o. Boston & Maine Railroad, 109 lb. 50; Wilkinson V. Holiday, 33 Midi. 386 ; Toledo &c. R. R. Co. V. Chew, 67 III. 378 ; Cooley J. in Lingham w. Eggleston, 27 Mich. 328 ; Ober u. Carson, 62 Mo. 209 ; Pike v. Vaughan, 39 Wis. 499 ; ante, § 331, note (A). In Halterline v. Rice, 62 Barb. 597, 598, Mullin J. said : " So long as courts permit intention to enter into the deter- mination of questions of this kind, so long will cases be left to be determined by their own peculiar facts and circum- stances ; and while that is the case the law of sales will be involved in doubt, and the parties to them in litigation."] 302 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. not in a deliverable state, as a partly built carriage or ship. Leaving out of view the cases (m) where no spe- cific chattel has been appropriated (to be considered post, ch. v.), 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 deliver- able state, (x) or incom- plete, prop- erty does not pass unless con- trary in- tention be shown. (u) Mucklow V. Mangles, 1 Taunt. 318 ; Bishop V. Crawshay, 3 B. & C. 418; At- kinson V. Bell, 8 B. & C. 277. (x) [Thorndike v. Bath, 114 Mass. 116. The rule that the title to property does not pass while anything remains to be done to ascertain either the quantity or price applies as well to property there- after to be manufactured as to that al- ready in esse. Halterine v. Rice, 62 Barb. In case of 593. The general rule of law manufect-" '^ that under a contract for ured, stroDg supplying labor and materials, presumption . that tide is and makmg a ship or other not to pass chattel, no property passes to until comple- ' r r j r ticn. the vendee till the chattel is completed and delivered, or ready to be delivered. This rule must prevail in all cases, unless a contrary intent is expressed or clearly implied from the terms of the contract. Bigelow C. J. in Williams u. Jackman, 16 Gray, 517; Elliott v. Ed- wards, 6 Vroom, 265 ; Wright v. O'Brien, 5 l^aly, 54. Where a party contracts to Title to ma- repair a house and furnish I'rrepai'J'of "^<= materials, the title to the building. materials does not pass until they are affixed to the house. Johnson v. Hunt, 11 Wend. 135; Abbott v. Blossom, 66 Barb. 353. It has been held that neither the manufacture of an article, pur- suant to the order of a customer, nor the tender of the article, when manufactured, is sufficient to transfer the title. Moody p. Brown, 34 Maine, 107. See Pettingill u. Merrill, 47 lb. 109. There must be an acceptance of the article, either express or implied, before the title will pass. Moody o. Brown, supra ; Andrews u. Durant, 1 Kernan (N. Y.), 35 ; Blaisdell v. Souther, 6 Gray, 149, 152; Mixer v. Howarth, 21 Pick. 205 ; Gamage u. Alexander, 14 Texas, 414; Johnson u. Hunt, 11 Wend. 139 ; Bennett u. Piatt, 9 Pick. 558 ; Vea- zie V. Holmes, 40 Maine, 69 ; Elliott u. Edwards, 6 Vroom (N. J.), 265; Merritt V. Johnson, 7 John. 473; Gregory v. Stry- ker, 2 Denio, 628 ; Sutton v. Campbell, 2 Thomp. & C. (N. Y.) 595; The West Jer- sey R. R. Co. V. The Trenton Car Works, 3 Vroom, 517 ; Middlesex Co. v. Osgood, 4 Gray, 447 ; Rider v. Kelley, 32 Vt. 268; Mclntyre v. Kline, 30 Miss. 361; Brown u. Foster, 113 Mass. 136 ; Zaleski v. Clark, 44 Conn. 218; Gowans v. Consolidated Bank of Can. 43 U. C. Q. B. 318; Pow- ers V. Barber, 7 Alb. L. J. 170; Higgiiis V. JIurray, 73 N. Y. 252; Hubbard v. O'Brien, 8 Hun, 244; § 351, note (m), post. But in Goddard u. Binney, 115 Mass. 450, the facts of which are stated ante, § 109, note (y), it was held that when the seller has done everything he was to do under an executory agreement for the manufacture and sale of a specific chat- tel, which was to be manufactured in con- formity with the terms of the agreement, and has given notice thereof to the pur- chaser, the general property in the chattel vests in the purchaser, and the chattel is at his risk. On this point Ames J. said : " In the present case, nothing remained to be done on the part of the plaintiff. The price had been agreed g^j actual upon ; the specific chattel had delivery by been finished according to or- ^^^^ u^t der, set apart and appropri- always nec- ated for the defendant, and marked with his initials. The plaintiff had not undertaken to deliver it else- BOOK II.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 303 § 336. In the case of Woods v. Russell, («/) decided in 1822, the ship-builder had contracted with defendant to build woods ». a ship for him and to complete her in April, 1819 ; the K"^^"^"- defendant 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 meas- ured with the' builder' s privity while 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 regis- tered 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 superin- tended the building, had advertised her for charter in May, and on the 16th of June had chartered her, with the shipbuilder'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 could be considered /rom that time as being in the defendant." It is thus clearly intimated that, in the ab- sence of some special evidence of intention, the property would have remained in the builder. § 337. In Clarke v. Spence (2) the defendants were the as- signees of a bankrupt ship-builder named Brunton. In ciarke«. February, 1832, Brunton had agreed to build a ship Spence. where than on his own premises. He fire, while the chattel remained in the gave notice that it was finished, and pre- plaintiiFs possession." See Higgins . '^^^^ Joyce, a ship-builder, for a steamer to be built by Bell- the latter for 16,000Z. The contract was in ilarch, 1854, and the price was payable, 4,000Z., in four equal parts, on days named in March, April, May, and June ; 3,000/. on the 10th August, 1854, " providing the vessel is plated and decks laid ; " 3,000Z. on the 10th October, "providing the vessel is ready for trial ; " 8,000/. on the 10th January, 1855, " providing the vessel is according to contract, and properly completed ; "and 3,000/. on the 10th March, 1855, or by bill of exchange, dated 10th January. The building was begun in March, and continued till December, 1854, when Joyce became bankrupt. The ship was then on the slip in frame, not decked, and about two thirds plated. The in- stalments contracted for were paid by the plaintiff, in advance. (/) 5 E. & B. 772, and 25 L. J. Q. B. 148, and S. C. in Cam. Scacc. 6 E. & B. 355, and 25 L. J. Q. B. 321. BOOK II.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 307 The plaintiff had a superintendent, who supervised the building, objected to materials, and ordered alterations, which were sub- mitted 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 suffi- ciently 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 ob- jected 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 ex- chequer 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, substantially the same as if the days had not been fixed, but the payments made to be due expressly when those stages had been reached." The case was determined mainly on the authority of Woods V. Russell (^) and Clarke v. Spence. (A) § 339 a. [In Anglo-Egyptian Navigation Co. v. Rennie, L. R. 10 C. P. 271, it appeared that the defendants entered into Angio; an engagement with the plaintiffs to make and supply Navl'co"^;. new boilers and certain new machinery for a steamship Jennie. of the plaintiffs, and to alter the engines of such steamship into compound surface condensing engines, according to a specification. The engines, boilers, and connections were, by the contract, to be completed in every way ready for sea, so far as specified, and tried under steam by the engineers (the defendants) previous to being handed over to the company ; the result of such trial to be to the satisfaction of the company's inspector. The price of the work was to be 5,800^., and was to be paid as the work pro- gressed, in the following manner, viz. 2,000Z. when the boilers were plated, and 2,000?. when the whole of the work was ready for fixing on board, and the balance, 1,800?., when the work was (<7) 5 B. & A. 942. (/') 4 Ad. & El. 468'; [The Bank of U. C. V. Killaly, 21 U. C. Q. B. 9.] 308 EFFECT OF CONTRACT IN PASSING PEOPERTY. [BOOK 11. fully completed and tried under steam. These payments were to be made only on the certificate of the plaintiff's inspector. The old materials removed from the ship were to become the property of the defendants. The specification contained elaborate provi- sions as to the fitting and fixing tlie new boilers and machinery on board the ship, and the adaptation of the old machinery to the new. The boilers and other new machinery contracted for were completed, and ready to be fixed on board, and one instalment of 2,000?. had been paid under the contract, when the ship was lost by perils of the sea. The value of the work actually done by the defendants under the contract amounted to 4,118?. The second instalment of 2,000?. was subsequently paid. At the time of this payment the plaintiffs knew of the loss of the ship, but the de- fendants did not. The plaintiffs claimed delivery of the boilers and other machinery completed under the contract, and this being refused, brought an action for the detention of the same, or to re- cover back the 4,000?. paid by them to the defendants ; but it was held that the contract was an entire and indivisible contract for work to be done upon the plaintiff's ship for a certain price, from further performance of which both parties were released by the loss of the ship ; that the property in the articles manufactured was not intended to pass until they were fixed on board the ship ; and that consequently the plaintiffs were not entitled to the boilers and machinery, nor could they recover the 4,000?. already paid as upon a failure of consideration.] (A^) § 340. It is necessary now to revert to this series of decisions on another point, namely, the effect of such contracts in When . '■ ■' property passing property in the matei-iaU provided and the parts material" prepared for executing them, but not yet affixed to the For ™m-^ ship or vessel. In Woods v. Russell (A^) the builder be- Se^d""' °^™® bankrupt on the 30th June, and on the 2d July chattel. the purchaser of the ship took from the builder's yard Woods V. 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 the 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 de- fendant was entitled to take the ship, he was also entitled to take (/ii) [See;jos<, § 570, and notes.] (/i^) 5 B. & A. 942. BOOK 11.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 309 the rudder and cordage as parts thereof." This point did not arise in Clarke v. Spence, but in 1839 Tripp v. Armitage (i) ^^.j was decided in the exchequer. In that case there was Armitage. a contract for building a hotel, and certain sash frames intended for the building were sent to it, examined, and approved by the superintendent, 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 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 property in the frames had not passed out of the builder. Lord Abinger put it on the ground " that there had been no con- tract for 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." (A) 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 bound to pay for anything till put 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." § 341. In Goss v. Quinton, (Z) in 1842, an unfinished ship, which the builder had contracted to deliver, was con- Q^^g ^ veyed to the purchaser and registered in his name, but Q^'nton. the rudder intended for the ship remained in the builder's yard, incomplete, 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 property would be governed by the same considerations as would apply to the body of the ship. But this decision is much questioned, as will pres- ently 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 incomplete 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. (i) 4 M. & W. 687. (0 3 M. & G. 825. [k] See ante, § 108. 310 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. § 342. In Wood v. Bell (m) the contest turned upon valuable ^ , materials as well as upon the frame of the ship, and the Bell. decision of the queen's bench on this part of the case was reversed in Cam. Scacc. 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, before 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 riveted to the ship, lying partly at her wharf and partly elsewhere, as well as other materials in like condition, intended, manufactured, and pre- pared 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, simply added, " and if this be so, it was scarcely con- tended but that the same decision ought to be come to with re- spect 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. Russell." But in the exchequer chamber (m) the decision was reversed, Jervis G. 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 jjassed by the contract. The chief justice said: "The question is. What is the contract? 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 ivhich have heen fitted to and formed part of the ship would pass, even though at the moment they were not attached to the ves- sel. But I do not think that those things which had merely been bought for the ship and intended for it would pass to the plain- tiff. Nothing that has not gone through the ordeal of being ap- proved as part of the ship passed in my opinion under the con- tract.'"'' The other judges concurred, and the case was sent back to the arbitrator for a new award on these principles, which must (m) 5 E. &B 772; 6E. &B.355; 25 L. (n) 6 E. & B. 355, and 25 L. J. Q. B. J. Q. B. 148, 321. 321. BOOK II.] SALE OF SPECIFIC CHATTELS CONDITIONALLY. 311 now be taken to be the settled law on the point under considera- tion, (o) In the opinion delivered by Jervis C. J., Woods v. Rus- sell was doubted on the question of the rudder and cord- woods ». age, and Goss v. Quinton was not only doubted by the fnTooss v learned chief justice, but was unfavorably mentioned bv Q"'"'™ ,,'.,-,., ■' •' doubted on other judges during the argument. Cresswell J. also this point. said : "■ I am not now better satisfied with the ruling respecting the rudder and cordage in Woods v. Russell than I was years ago." § 343. Upon the third proposition stated at the beginning of this chapter, the reported case most directly in point is . ,. .... Bishop V. Shillito. (») It was trover for iron that was for third riil6. to be delivered under a contract, which stipulated that Bishop v. certain bills of the plaintiff then outstanding were to be Shillito. taken out of circulation. 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 redelivery of the bills were to be contemporary, and the jury found in the affirmative. Scarlett contended that trover would not lie ; that the only rem- edy was case for breach of contract. Held, on the facts as found by the jury, that the delivery was conditional only, and the con- dition 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 refusal to deliver or pay, bring trover for his goods against the purchaser." (^) § 344. The principle of this decision is fully recognized by the judges in Brandt v. Bowlby, (r) when holding that the Brandt v. property in a cargo ordered by one Berkeley did not pass bowlby. to him because by the terms of the bargain he was to accept bills for the price as a condition concurrent with the delivery, and had refused to perform this condition, (s) So, in Swain v. g^^jn ^, Shepherd, (0 it was held by Parke B. that if goods are Shepherd. (o) See Baker ^. Gray, 17 C. B. 462; v. Harrison, L. K. 4 Q. B. 196, 493; 5 25 L. J. C. P. 161 ; Brown v. Bateman, Eng. & Ir. App. 116 ; more fully referred L. R. 2 C. P. 272 ; [Fairfield Bridge Co. to, post, ch. vi. V. Nye, 60 Maine, 372.] (s) See, also, 2 Williams's Saunders, ip) 2 B. & A. 329, note (a). 47 u, note ; [ante, § 320, note {d}.] ("' iew^^" J ' f^ i as to title (h) 34 Maine, 289. erty vests in the purchaser passing. (i) 1 Kernan (N. Y.), 35. during the progress of the work, nor until {k] [16 Gray, 514.] the vessel or other chattel is flnislied and (0 6 E. & B. 355 ; 25 L. J. Q. B. 321. ready for delivery. To this rule there are (m) [In Brings v. A Light Boat, 7 Al- exceptions, founded for the most part on len, 287, 292, Bigelow C. J. said: "The express stipulations in contracts, by which In contract general rule of law is well set- the property is held to vest in the pur- tomannfact- t]ed and familiar, that, under chaser from time to time as the work goes paymenUn' a contract for building a ship, on. It is doubtless true that a particular 316 EFFECT OF CONTEACT IN PASSING PROPERTY. [BOOK II. agreement in a contract concerning tlie mode or time of making payment of the purchase-money, or providing for the ap- pointment of a superintendent of the work, may have an important bearing in deter- mining the question whether the property passes to the purchaser before the comple- tion of the chattel. It is, however, erro- neous to say, as is sometimes stated by text writers, that an agreement to pay the pur- chase-money in instalments, as certain stages of the work are completed, or a stipulation for the employment of a super- intendent 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 stip- ulations may he very significant, as indi- cating the intention of the parties, but they are not in all cases decisive. Both of them may coexist in a particular case, and yet the property may remain in the huildcr or manufacturer. Even in Eng- land, 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 stipulations are not always deemed to be conclusive of title in him. It is a question of intent, arising on the interpretation of the entire contract in each case." And it was held in the case that, under a contract to build three light vessels for the United States, and to deliver them completed within a fixed time, the builder to be gov- erned during the progress of the building of them 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 completion, with a provi- sion that the United States may at any time declare the contract null, no title to the vessels passes to the United States until their completion and delivery. The opinion given by Mr. Chief Justice Bige- low in the above case is one of great value and importance. See Wright v. Tetlow, 99 Mass. 397 ; Holderness v. Rankin, 2 De G., F. & J. 258; Williams u. Jackman, 16 Gray, .514 ; Sanford v. Wiggins Ferry Co. 27 Ind. 522 ; Elliott v. Edwards, 6 Vroom, 265 ; M'Conihe u. N. York & Erie R. R. 20 N. Y. 495 ; The U. S. Revenue Cutter, Pac. Law Rep. January 23, 1877, 4 Am. Law Times Rep. N. S. 39 ; Derbyshire Estate, Lang's Appeal, 81 Penn. St. IS; Scull u. Shakespear, 75 Penn. St. 297 ; Coursin's Appeal, 79 lb. St. 220; §335, note (x), ante. In Mount Hope Iron Co. V. Buffington, 103 Mass. 62, ji„„„t jj^^,^ it was shown that an engine Iron Co. u. was built by A. for B. under a contract which provided that it should be paid for as the work in it progresi-ed, reserving a margin of twenty per cent, until it should " be started in a satisfac- tory manner ; " that it should be delivered at B.'s dock, and transported at B.'s ex- pense to his works; that B. should prepare a foundation for it, and add to it materials and work of his own ; and that A. should be required to furnish at B.'s works only the skilled labor required to set up and start it. The engine was delivered at the wharf, transported to the works, and the whole price paid except the twenty per cent., when it was attached as the prop- erty of A. It was held that the title in the property had passed to B. as against A. and his creditors. See Phelps v. Willard, 16 Pick. 29.] CHAPTER IV. SALE OF CHATTEL NOT SPECIFIC. Section This is an executory agreement . 355 Does giving of earnest alter property ? 355 Submitted that it does not Section . 357 § 352. When the agreement for sale is of a thing not specified, as of an article to be manufactured, or of a certain quan- This is an tity of goods in general, without a specific identification agreeVe^t. of them, or an "appropriation" of them to the contract, as it is technically termed, the contract is an executory agreement, and the property does not pass, (a) [Until the parties are agreed on the specific individual goods the contract can be no more than a contract to supply goods answering a particular description, and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained ■which are the very goods sold. It can make no difference, al- though the goods are so far ascertained that the parties have agreed that they shall be taken from some specified larger stock. In such a case the reason still applies ; the parties did not intend to transfer the property in one portion of the stock more than in another, and the law, vi^hich only gives effect to their intention, does not transfer the property in any individual portion.] (5) (a) [Browning v. Hamilton, 42 Ala. 484.] (6) [Blackburn Sales, 122, 128; War- ren V. Buckminster, 24 N. H. 336 ; O'Neil V. Mcllmoyle, 34 U. C. Q. B. 236 ; Rob- ertson o. Strickland, 28 lb. 221 ; Middle- brook V. Thompson, 19 lb. 307 ; McDou- gall V. Elliott, 20 lb. 299 ; Cox u. Jones, 24 lb. 81 ; Dunning v. Gordon, 4 lb. 399 ; Levey v. Lowndes, 2 Low. Can. 257; Pew V. Lawrence, 27 U. C. C. P. 402 ; Indianap- olis R. W. Co. V. Maguire, 62 Ind. 140 ; Smyth V. Execr's of Ward, 46 Iowa, 339. Thus in Scudder v. Worces- separation, ter, 11 Cush. 573, A. sold B jiassactiu- 250 barrels of pork, part of a *""'• larger lot, all of the same quality, hav- ing the same marks, and all stored iu 318 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. There is but little difEciilty in the application of this rule. In the same cellar of A., but no separation was made. B. sold and delivered to C. Scudderf. 100 barrels of the same pork, Worcester. hjkJ afterwards sold D. the re- maining 150 barrels, and gave him an order on A. therefor, which, being pre- sented to A., he assented to hold the same on storage for D., but nothing was done to distinguish or separate the 150 barrels from the other pork of similar brand still in A.'s cellar. While the pork remained so stored, B. became insolvent, and A. then refused to deliver the 150 barrels to D. on said order. D. thereupon brought an action of replevin against A. for the 150 barrels of pork, but the court held that the action could not be sus- tained. See Ropes v. Lane, 9 Allen, 502 ; Colder w. Ogden, 15 Penn. St. 528 ; Waldo «. Belcher, 11 Ired. 609 ; Field v. Moore, Hill & Denio, 418 ; Jlerrill v. Hunnewell, 13 Pick. 215, 218; Gardner ^. Dutch, 9 Mass. 427 ; Messertj. Woodman, 22 N. H. 172 ; Bailey v. Smith, 43 lb. 141 ; liutch- inson v. Hunter, 7 Penn. St. 140; Bell v. Farrar, 41 III. 400 ; Eodee a. Wade, 47 Barb. 63 ; Tompkins v. Tibbits, 1 Hdnnay (N. B.), 317; Pollock t. Fisher, 1 Allen (N. B.), 515 ; Rigney i;. Mitchell, 2 U. C. C. P. 266; Stephens u. Tucker, 55 Ga. 543 ; Morrison v. Woodley, 84 111. 1 92. The decisions upon this subject, however, are not harmonious. In Chapman u. Shepard, 39 Conn. 413, a decision was made entirely at variance with the above Connecticut, case of Scudder v. Worcester. Chapman v. There A. sold to B. a mass of Shepard. ^^^^ ^j mea.\, of uncertain numbers, on board a vessel, at a certain price per bag, to be paid in cash. B. with- out paying A., and before the bags had been counted, sold C. five hundred of them, C. giving his promissory note there- for, which he paid at maturity. C. in- formed A. of his purchase, who told him he could remove the bags when he pleased, but after he had removed a part he re- quested him to let the rest remain as a bulkhead for some corn, until the corn was discharged. In trover afterwards brought by C. against A. for the re- mainder of the five hundred bags, it was held that A. was estopped from claiming, either that the title had not passed to B. or that he had a Hen on the bags for the price which B. was to have paid. Sey- mour J. said: "The case depends upon the inquiry whether it be, as the defend- ant's counsel contend, an absolute rule of law that, upon the sale of a portion of a larger bulk, the contract remains in judgment of law executory until the por- tion sold is severed and separated for the purchaser from the mass. It must be con- ceded that this question is not free from difficulty, and that in regard to it respec- table authorities differ. In regard to a large class of cases the law is indisputably as the defendant claims. If I sell ten out of a drove of one hundred horses, to be selected, whether by myself or by the vendee, no title can pass until the selec- tion is made. This rule prevails wherever the nature of the article sold is such that a selection is required, whether expressly provided for or not by the terms of the contract. If the articles difl'er from each other in quantity or quality or value, the necessity of a selection is clearly implied. In all such cases the subject-matter of the contract cannot be identified until sev- erance, and the severance is necessary in order that the subject-matter of the con- tract may be made certain and definite. But where the subject-matter of the sale is part of an ascertained mass of uniform quality and value, no selection is required, and in this class of cases it is affirmed by authorities of the highest character, that severance is not, as matter of law, neces- sary in order to vest the legal title in the vendee, to the part sold. The title may and will pass if such is the clear iutention of the contracting parties, and if there is no other reason than want of separation to prevent the transfer of the title." Phil- lips «. Ocmulgee Mills, 55 Ga. 633. The English cases relied on by the learned court were Whitehouse v. Frost, and Busk u. Davis, stated in the text; and the de- BOOK II.] SALE OF CHATTEL NOT SPECIFIC. 819 Wallace v. Breeds, (c) the sale was of fifty tons of Green- Wallace .. land oil, " allowance for foot-dirt and water as custom- ^''^'"^''■ cision was " based upon the fact that the of about double that number of tons, bags of meal did not appear to have been The rest of the coal was sold to the de- iu any respect diiferent one from another." fendants. After the plaintiff's teamster In Pleasants w. Pendleton, 6 Rand. (Va.) had taken from the wharf, Morrisoat,. Virginia, 473, it appeared that the sale upon which the whole cargo Dinglsy- Pleasants v. was of a certain number of had been discharged in an undistinguish- barrels of flour, part of a able mass, one hundred and twenty-five larger parcel of such barrels, of the same tons net, the defendants interposed and brand and of equal value. The contract prevented the removal of any more of it, was complete in every respect except the claiming that they should first take there- separation of the barrels sold. The court from the same quantity that'ihe plainiiff held that the title passed, one of the judges had received, and that the balance, if any, saying, " These are not portions of a then remaining should be divided between larger mass to be separated by weighing the parties. It was held (Dickerson J. and measuring, but consist of divers sep- dissenting) that the plaintiff had acquired arate and individual things, all precisely no such title to any portion of the coal re- of the same kind and value, mixed with maining unweighed upon the wharf as to other separate and individual things of enable him to maintain trover against the the same kind and between which there is defendants. See Cumberland Bone Co.' no difference." The case of Kimberly v. <;. Andes Ins. Co. 64 Me. 466. In Hutch- Patchin, 19 N. Y. 330, stated ante, § 347, inson v. Hunter, 7 Penn. St. 140, it ap- points in the same direction ; so do Cush- peared that A. the vendor, being the owner ing V. Breed, 14 Allen, 380, stated post, § of one hundred and twenty- Penn-iyl- 354, note (o) : Warren ij. Milliken, 57 five barrels of molasses, vary- J,'"''";-. * ' ' ' ■' Hutchinson Maine, 97 ; and Hall v. Boston & Worees- ing somewhat in quantity, v. Hunter. ter E. R. Co. 14 Allen, 439. In Waldron sold one hundred barrels to B., but per- Maine. ^- Chase, 37 Maine, 414, it mitted them to remain in the cellar with WaJdrou was decided that where the the others at the purchaser's request. The V, uhase. owner of a large quantity barrels were not separated or marked, nor of corn in bulk sells a certain number of were any particular barrels agreed upon. bushels therefrom and receives his pay, B. sold one hundred barrels to C. and and the purchaser takes away a part, the offered to turn them out and gauge them, property in the part sold vests in the pur- but they were allowed to remain in the chaser, although it is not measured or cellar at C.'s request. The molasses hav- separated from the heap. But the cases ing been destroyed by fire before delivery in which the title to goods sold, a part of or specification of the particular barrels, a larger mass, has been held to pass be- it was held, upon full consideration, that fore severance, are confined to those in B. could not recover from C. the agreed which the mass itself is ascertained and Of price. See, also. Woods v. McGee, 7 a uniform quality and value. Appleton Ohio, 466. The case of Foot y. Marsh, 51 C. J. in Morrison v. Dingley, 63 Maine, N. Y. 288, stated ante, § 347, note (c), was 553, 556, 557. This was conceded in similar. In Warren v. Bnckminster, 24 N. Chapman v. Shepard, supra. In Morri- H. 336, the case showed that New Hamp- son V. Dingley, supra, it appeared that the plaintiff bargained with '^"'■ Wallace & Co. contracted with the plain- the defendant for fifteen of ju^ckmin- tifE to sell him one hundred and twenty- the best sheep of the defend- ster. five tons gross of coal, parcel of a cargo ant's flock, but they were not selected. It (c) 13 East, 522. 320 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ary." The vendors gave an order was held that the sale was incomplete until the sheep were selected and designated by marking, or separating from the flock; and that the property did not pass to the plaintiff. Smart v. Batchelder, 57 N. H. 140. See Kein v. Tupper, 52 N. Y. 550; Southwell V. BeezliT, 5 Oregon, 143. But see Phillips u. Ocmulgee Mills, 55 Ga. 633, in which it was held that, where, out of five or six hundred bales of cotton stored in a warehouse, 125,000 pounds were bargained and sold for the purpose of being used in u factory near thereto, and the purchaser, after the bar- gain and sale to him, sold one half to hi.s partner in the factory and a Phillips f. ^ . . , „ , ,. Ocmulgee portion ot that hrst bought Mills. ^^^ consumed in the factory by the firm, and the first purchaser re- ceived from his partner full payment for his half in another lot of cotton of the same quantity in another place, such use and acts and circumstances show the in- tention of the parties to treat the entire 125,000 pounds as delivered for consump- tion in the factory, to be weighed as needed from time to time, and altogether amount to a sufficient delivery thereof, though the whole quantity sold was not weighed and severed from the bulk. The question of delivery or non-delivery was considered as dependent on the intention of the parties. The leading case in New- Jersey on this point is Hurff v. Hires, 1 1 Vroom, 581. In this case Hurff, the plaintiff in error, in the fall of 1873, bought of Heritage two hundred bushels llurll V. of corn from a lot of four or Hires. fiyg hundred bushels which Heritage had in his crib-house. Hurff examined and approved of the grain be- fore he bought it, and paid cash for it at the time of the purchase. The agree- ment was that the corn should remain in the crib-house until it should become hard enough to keep well in bulk, at which time the vendor was to deliver it. Early in 1874 Hires, as sheriff, by virtue of an execution against Heritage, levied on the entire lot of grain as the property of Her- on the wharfingers for delivery to itage. Notwithstanding this fact Heritage subsequently delivered two hundred bush- els of the corn to Hurff, whereupon Hires brought trover against Hurff. At the trial it was ruled that as the corn was in bulk, and not separated at the time of the sale, no property passed to Hurff. Upon error Depue J. said : " If the property had re- mained in bulk — the quantity purchased never having been separated from the mass — the purchaser might not have been able to maintain replevin, for the reason that in replevin the plaintiff must be the owner of the specific chattels he sues for, and must describe them in his writ (citing Scudder u. Worcester, U Cush. 573.) But that does not solve the question involved in this case It is undoubtedly the doctrine of the English courts that, ' where there is a bargain for a certain quantity ex a greater quantity, and there is a power of selection in the vendor to deliver what he thinks fit, there the right to them does not pass to the ven- dee until the vendor has made his selection.' . , . This doctrine is founded on correct principles where the gross bulk is variable in kind or quality, and the se- New Jersey lection from it of that part ioctnne. which shall be delivered is of benefit to the vendor In my judgment this prin- ciple should not be applied where the bulk, from which the quantity purchased is to be separated, is uniform in kind and qual- ity, and has been approved by the pur- chaser and the full contract price has been paid. ... In this case, the sale, in all material respects, was complete. The corn had been inspected and approved, and the price agreed on and paid. All these things had been done before the levy of the execution The defence was a meritorious one, and no legal principle is in the way of permitting it to be made, if, in fact, the parties intended that the property should pass. That question should have been submitted to the jury." See Hires v. Hurff, 10 Vroom, 4. The Kentucky doctrine is well stated in Fer- guson V. Louisville City National Bank, BOOK 11.] SALE OF CHATTEL NOT SPECIFIC. 321 the purchasers of " fifty tons of our Greenland oil, ex ninety tons." 14 Bush, 555. The firm of Kiauth, Fer- guson & Co., being in embarrassed cir- cumstances, made an assign- Ferguson V. ' *=• Louisville men t of all the firm property CityBauk. j^ jj^^ appellant, John Fergu- son. By virtue of the assignment the assignee took possession of and sold a large quantity of bacon, which, at the time of the assignment, was in the ware- house of the firm at Louisville. After the sale the appellees filed a petition as- serting a claim to several thousand of the sugar-cured hams that had been sold by the appellant. The claim of the appellees as to title rested on warehouse receipts given to them by the firm prior to the as- signment to the appellant. The firm was indebted to the bank, and when the note matured it was renewed by another note, and the following warehouse receipt given to the bank as collateral security : " Re- ceived of the Louisville City National Bank thirty-six hundred sugar-cured can- vased hams, weighing fifty thousand four hundred pounds, on storage in our pork house, which wo will deliver on return of this receipt properly indorsed. These hams are to be packed on delivery with- out cost, and are marked ' Krauth, Fergu- son & Co. Eclipse.' " Krauth, FERonsON & Co." It appeared that there were many thou- sand hams in the building having upon them the same trade-mark, " Krauth, Fer- guson & Co. Eclipse,'' at the time the re- ceipts were given, of different weights and value, and that no hams had been sepa- rated, set apart, or marked, except as above stated. The statute of March 6, 1869, authorized a warehouseman to give re- ceipts for goods received, and provided that such receipts should be negotiable and transferable by indorsement, " with like liability as bills of exchange now are, and with like remedy thereon." The warehouseman was also authorized to ex- ecute a receipt on his own goods for money loaned, and in either case if the receipt is delivered or pledged by the owner 21 for a loan, it operates as a symbolical de- livery, and is equivalent to an actual de- livery, if there is an absolute sale, so as to protect the vendee against subsequent creditors and purchasers. The statute also requires that "the receipt shall set forth the quality, quantity, kind, and description thereof, and which shall be designated by some mark, and which receipt shall be evidence in any action against said ware- houseman." Pryor C. J. said : " The ele- mentary doctrine that there must be some means of designating the property sold or pledged, and to distinguish it from prop- erty of a like kind and de- Kentucliy scription, seems not to have doctriue. been lost sight of, and such a mark or de- scription is made indispensable, in order to give such paper its negotiable or commer- cial character. The indorsement of a warehouse receipt and its delivery oper- ated to vest the purchaser with the title and possession at common law ; but if not for a specific chattel, and the property it represented was a part of a large bulk or mass of articles that required separation, no title passed until separation was had. The doctrine of the common law as to the identification of the property is not changed by this statute ; on the contrary, it is maintained, and such particularity required in the descriptive part of the re- ceipt as makes the right of property cer- tain in the holder. The fact that the hams are branded 'Krauth, Ferguson & Co. Eclipse,' the usual and known trade- mark of the firm, and found on all the hams in the warehouse, is not the mark or distinguishing feature required. It must be such as will enable the party to iden- tify the property and to distinguish it from a similar kind and quality. .... While the sale of a specific chattel passes the property to the vendee, although no delivery is made, the doctrine established by all the elementary writers on the sub- ject .... is, that, where the subject-mat- ter of the sale is in bulk, and a certain quantity is sold, to be taken from a greater 322 EFFECT OF CONTRACT IN PASSING PEOPEETY. [BOOK II, 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 Davis. tiie defendant's wharf, and sold ten tons of it, giving an order to the purchaser on defendant for " ten tons Eiga PDR. flax, ex Vroiv Maria." In order to ascertain what portion of the flax was to be appropriated to this order, it was necessary to weigh the mats, and this had not been done, when the buyer became insolvent, and the vendor thereupon countermanded the order. Held that the property had not passed. § 353. In White v. Wilks (e) the sale was of twenty tons of White V. oil, out of the vendor's stock in his cisterns. In Austen V. Craven (/) the sale was by sugar refiners, of fifty Craven^' hogsheads of Sugar, double loaves, no particular hogs- , heads being specified. In Shepley v. Davis, (^) of ten Davis. ' tons of hemp out of thirty ; and the contracts were all held to be executory, no property passing. In Gillett v. Hill (Ji) Giiiett V. E^-ylsy J- stated the law very perspicuously in the fol- Hiii- lowing words : " The cases may be divided into two classes : one in which there has been a sale of goods, and some- thing 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 is where there is a bar- gain 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 ven- dor has made his selection, and trover is not maintainable till that is done. If I agree to deliver a certain quantity of oil, as ten out of eighteen tons, no one can say which part of the whole quan- quantity, no title passes until the sepa- in the American authorities on the point." ration is made The English cases Further Kentucky cases are : Moss v. Me- sustaiu the doctrine laid down in the text- shew, 8 Bush, 187 ; May v. Hoaglan, 9 lb. books with scarcely an exception. . . 171; Crawford o. Smith, 7 Dana, 59; The innovation on the rule of the com- Newcomb v. Cabell, 10 Bush, 460.] mon law has been made by the courts of ((?) 2 M. & S. 397. this country. The leading case of liim- (e) .5 Taunt. 176. berly v. Patchia, 19 N. Y. 303, averse to (/) 4 Taunt. 644. this doctrine, or rather Its reasoning, has {g) 5 Taunt. 617. been followed by subsequent decisions, (h) 2 C. & M. 530. until it may be said there is much conflict BOOK II.] SALE OF CHATTEL NOT SPECIFIC. 323 tity I have agreed to deliver until a selection is made. There is no individuality until it has been divided." (i) § 354. The only case to be found in the reports, in apparent contradiction to this principle of the law of sale, is wwte- Whitehouse v. Frost, (Jc) which, notwithstanding ex- F^ost."' planations 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. & L. Frost ten tons of Greenland oil, in Mr. Stainforth's cisterns, at your risJc, at 39Z. = 390L" There were then in the cistern forty tons of oil, which had belonged to Dutton & Bancroft, and they had sold ten tons of it to Frost & Co., and these were the Bailey u. Smith, 43 N. H. 141. Bellows J. in this case said : " If by the agreement of the parties nothing had remained to be done before the title passed, but the whole had actually been delivered, with proper stipulations for the return of the surplus beyond the two thousand, the case would have been different, as was held in Page V. Carpenter, 10 N. H. 77." That is, the title would have passed, as has since been expressly decided in Lamprey v. Sargent, 58 N. H. 241. See Crofoot v. Bennett, 2 Comst. 2.58, ante, § 346 ; Macomber v. Parker 13 Picls. 175; Weld v. Cutler, 2 Gray, 195, 198. That the purchaser has the right of selection, see Call v. Gray, 37 N. H. 428, 432. In Hutchinson v. Hunter, 7 Penn. St. 145, Mr. Justice Rogers said: " The rule, I take it, is now too well set- tled to be shaken, that the goods sold must be ascertained, designated, and sep- arated from the stock or quantity with which they are mixed, before the property had at the time and place of can pass to the purchaser; until this is ((■) See, also, Campbell v. Mersey Docks Company, 14 C. B. N. S. 412; [Hutchin- son V. Hunter, 7 Penn. St. 140; Young v. Austin, 6 Pick. 280 ; Merill v. Hunne- well, 13 lb. 213, 215; Rapelye v. Mac- kie, 6 Cowen, 250 ; Downer v. Thompson, 2 Hill, 137 ; Field v. Moore, Hill & Denio, 418 ; Warren v. Buckminster, 24 N. H. 336 ; Fuller v. Bean, 34 lb. 300 ; RopeS V. Lane, 9 Allen, 502 ; Gardner u. Lane, lb. 498, 499 ; Colt J. in Merchants' Na- tional Bank v. Bangs, 102 Mass. 295 ; Scudder v. Worster, 11 Cush. 573; Ma- son V. Thompson, 18 Pick. 305 ; Keeler v. Goodwin, 111 Mass. 490; Davis v. Hill, 3 N. H. 382; Messer v. Woodman, 22 lb. 172 ; Ockington v. Richey, 41 lb. 275 ; Bailey v. Smith, 43 lb. 143 ; Stone V. Peacock, 35 Maine, 385 ; Claflin v. Boston & Lowell R. R. Co. 7 Allen, 341. Where it appeared that there was a No title bargain for two thousand tel- fled. delivery two thousand one hundred and thirty poles, and he notified the purchaser that he was ready to deliver them and receive the price, to which the purchaser made a reply admitting that the vendor had the poles and promising to settle for them soon, bat before anything else was done, the poles were carried away by a freshet, it was held, upon the ground that the two thousand poles had not been sep- arated from the entire lot, that the title to them had not vested in the purchaser. done it remains the property of the ven- dor and not of the vendee." See, also, to the same effect, Haldeman v. Duncan, 51 Penn. St. 66, 70 ; First National Bank v. Crowley, 24 Mich. 492 ; but see Chapman K. Shepard, 39 Conn. 413 ; Pleasants v. Pendleton, 6 Rand. (Va.) 473; Waldron V. Chase, 37 Maine, 414 ; ante, § 352, note (b) ; note (o), belovr; Hahn v. Fredericks, 30 Mich. 223 ; Home Ins. Co. u. Heck, 65 III. 111.] (k) 12 East, 614. 324 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ten tons which the latter sold to Townsend, giving Townsend an order on Button & Bancroft for " the ten tons of oil we purchased from you, 8th Nov. last." The order was taken to Button & Bancroft by the purchaser, and accepted by them in writing, on the face of the order. Townsend left the oil in the custody of Button & 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 EUenborough pat it on the ground that all right in tlie seller was gone by the acceptance of his de- livery order, in favor of Tovs^nsend, the seller never having had himself possession, but only a riglit to demand possession from the bailees, which right he had assigned to Townsend, just as it had been asssigned to himself by his vendors. Grose J. was of opinion that as the risk was in the buyer, and the delivery com- plete so far as the vendor was concerned, the pi'operty had passed. It was the purchaser's business to act with Button & Bancroft 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 jDurchaser the only possession tliat the vendor ever had, and the purchaser had accepted this, and Button & Bancroft were bailees of the oil 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 ac- ceptance of an order on Button & Bancroft, his presentation of it to them, and obtaining their assent to be his bailees, as equiva- lent to a consent that the goods should be deemed to have been delivered to him. This case was much questioned in subsequent decisions. {I) In Wallace v. Bi'eeds (w) 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. Bavis, («) where three 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 Bay- ley saying, however, that the sale was of an '• undivided quan- tity," and that delivery had been made of that undivided quan- {l) See White v. Wilks, 5 Taunt. 176 ; (m) 13 East, 252. Auaten u. Craven, 4 Taunt. 644; Camp- (n) 2 M. & S. 397. bell V. Mersey Company, 14 C. B. N. S. 412; Blackburn on Sales, 125. BOOK II.] SALE OF CHATTEL NOT SPECIFIC. 325 tity so far as in the nature of things it was possible for the vendor to deliver it. (o) The cases in which these contracts are consid- (o) [In Gushing v. Breed, 14 Allen, 380, Cliapman J. said : " When several par- ties have stored various parcels of grain in the elevator, and it is put into one mass, according to a usage to which they mubt be deemed to have assented, they are tenants in common of the grain. Each is entitled to such a proportion as the quan- tity placed there by him bears to the whole Sale of inter, ^ass. When one of them est in prop- sells a certain number of ants in com- bushels, It is a sale of prop- '"""'■ erty owned by him in com- mon. It is not necessary to take it away in order to complete the purchase. If the vendor gives an order on the agents to de. liver it to the vendee, and the agents ac- cept the order, and agree with the vendee to store the property for him, and give Language of him a receipt therefor, the de- Chapman J. ]ivery is thereby complete, and the property belongs to the vendee This is not like the case of sales where the vendor retains the possession, because there is something further for him to do, such as measuring, or weighing, or mark- ing, as in Scudder u. Worster, 11 Gush. 753 ; nor like the case of Weld v. Cutler, 2 Gray, 195, where the whole of a pile of coal was delivered to the vendee, in order that he might make the separation. But the property is in the hands of an agent, and the same person who was the agent of the 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, 12 Gush. 27, and cases cited. The tenancy in com- mon results from the method of storage agreed upon, and supersedes the necessity of measuring, weighing, or separating the part sold." In Ferguson v. Louisville Gity Nat. Bank, 14 Bush, 555, Pryor C. J.: " One may acquire an interest in property owned by another by purchasing an inter- est in the whole, as the one fifth, or the one half of a given quantity of bacon or Language of grain- He then becomes a ten- Pryor C.J. ant in common with an inter- est that affects the title to the whole. This illustrates the distinction between tenants in common and the interest acquired by a sale of a chattel or a sale of a quantity of grain to be delivered by the owner. To support an action of detinue or replevin, if the interests in the property wrongfully taken are separate and distinct, the parties cannot join, but must institute separate actions, and if joint tenants or tenants in common they must join." Warren v. Mil- liken, 57 Maine, 97 ; Hatch v. Lincoln, 12 Gush. 31 ; Hall v. Boston & Woicester K. R. Gorporation, 14 Allen, 439 ; Waldron u. Chase, 37 Maine, 414 ; Applcton C. J. in Morrison u. Dingley, 63 Ih. 556, 557 ; Kimberly ./. Patchin, 19 N. Y. 330; Russell u. Carrington, 42 lb. 118; Chase u. Washburn, 1 Ohio St. 244; Wilson v. Cooper, 10 Iowa, 565; South Australian Ins. Go. 0. Randell, L. R. 3 P. G. 101 ; Morrison v. Woodley, 84 111. 192. Jn Chapman v. Shepard, 39 Coun. 413, the court expressed a doubt whether the title passing iu cases like the above is one in severalty or in common; but held that, if it be in common, it is only so in a quali- fied sense, and the purchaser could main- tain trover for his share of the merchan- dise upon demand made on the vendor and a refusal to deliver. See Gardner o. Dutch, 9 Mass. 427 ; Kimberly w. Patchin, 19 N. Y. 330, per Comstock J. ; Burton v. Curyea, 40 111. 320, 329 ; McPherson u. Gale, lb. 368 ; Spence v. Union Marine Ins. Go. L. R. 3 G. P. 427 ; Morgan u. Gregg, 46 Barb. 183; Channou v. Lusk, 2 Lansing, 211 ; Buckley v. Gross, 3 B. & S. 566, 575 ; Wood <■. Pales, 24 Penn. St. 246, 248 ; Phillips v. Ocmulgee Mills, 55 Ga. 633; 6 Am. Law Rev. 450 et seq. In some cases, it is assumed that persons who deposit their grain in these public elevators retain their title; tee Gushing v. Breed, 14 Allen, 376 ; Keeler v. Goodwin, 111 Mass. 490; Dole v. Olmstead, 36 111. 150; 41 lb. 344 ; Warren v. Milliken, 57 Maine, 97 ; Young v. Miles, 20 Wis. 615 ; 23 lb. 643 ; and, of course, if such be 326 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ered, by which the vendor agrees to make and deliver a chattel, are reviewed in the next chapter, on " Subsequent Appropria- tion." the intention, they may transfer their title and substitute their vendees in their own places ; and, in such cases, it would be a very ready and fair inference that the ven- dor, by a sale, intended to transfer his en- tire interest, unless the sale was subject to some condition. Usage has made the pos- session of the warehouse receipts for grain equivalent to the possession of the prop- erty itself. The law makes no distinction in regard to grain purchased by the holder of such receipts from others and those ac- quired from the warehouseman himself. Broadwell v. Howard, 77 III. 305. Tlie case of Kceler ;;. Goodwin, 111 Mass. 490, is important to be considered in this con- nection. It appeared that A. sold B. a thousand bushels of grain, part of a larger quantity lying in bulk on storage in a warehouse, and gave him an order on the warehouseman therefor. B. did not pay for the grain, but, for a valuable consider- Kepler v. ation, indorsed and delivered Qoodmn. (jje order to C, who did not know that B. had not paid for the grain. Before the order was presented to the warehouseman B. had become insolvent, and A. had countermanded the order, and afterwards A. removed the grain ; it was held that C. could not maintain an action against A. for conversion of the grain, al- though there was a usage in the grain trade to consider an order on a warehouse- man as a delivery. Wells J. said : " Here was a contract of sale of ] ,000 bushels of corn, 'parcel of a larger quantity lying in bulk.' Until separation in some form no title could pass. That it was on storage with a third piirty, as warehouseman, would make no difference in this respect. Delivery of the order upon the warehouse- man authorized him to make the sepa- ration or appropriation necessary to com- plete the sale, by giving to the contract its intended effect upon the specific property covered by it. If that had been accom- plished, either by actual separation, or by appropriation to the use or credit of the purchaser, in the usnal mode of transacting the business of the warehouse, he would have acquired title, right of possession, and constructive possession of the grain so purchased. Gushing t>. Breed, 14 Allen, 376 ; (see post, § 358 a.) But until some act takes place by which the relations of the warehouseman, in respect to the prop- erty in his custody, are modified in accord- ance with the contract of sale, so that he may be considered as bailee for the seller and purchaser respectively, according to their several interests, and thus released pro tanto from his original liability to the seller alone, there is no such appropriation of the grain sold as will ripen the interest of the purchaser into title and right to the possession of any specific portion of the bulk. Whether the assent of the ware- houseman is necessary to the imposition of this twofold lelation upon him, or whether pi'esentation of the order alone, or notice of. the sale, would be sufficient, we need not now determine, because there was neither in this case, until after the au- thority of the warehouseman to make the appropriation had been revoked. The purchaser, therefore, never acquired any title or right of possession, and could transfer none, and consequently no right of action to the plaintiff." It was pro- vided in Massachusetts in 1878 (St. of 1878, ch. 93, § 3) that "where grain or other property is stored in a, public ware- house in such a manner that different lots or parcels are mi.xed together, „^ ^ ' ^ Statute pro- so that the identity of the rissionin same cannot be accurately g^t'ts'I^'to" preserved, the warehouse- warehouse- , ■ r .. man's re- man s receipt for any portion (.^jpt for un- of such grain or property asecrtaincd " 1 r J property, shall be deemed a valid title to so much thereof as is designated in said receipt, without regard to any separation or identification." See R. S. 111. (1880) ch. 114, §§ 120 et seq; Bailey v. Bensley, 87 111. 556, §§ 560, 561.] BOOK II.] SALE OF CHATTEL NOT SPECIFIC. 327 § 355. This seems to be an appropriate occasion for considering the question whether earnest has any, and what, effect in altering the property in the goods which are the sub- in^lF"' ject-matter of the contract. In former times, when the ter prop-'" dealings between men were few and simple, and con- "'■^'^ sisted 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 : (p) " 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 alter the property thereof." And Noy says (^ante, § 314) : " 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 bargain ; jovl 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 pas- sages 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 pointing out that the mere agreement of A. to buy and B. to sell did not constitute a bargain and sale, but that something further must be done " to bind the bargain." As soon as the bargain for the sale of the specific chattel was completed, in whatever form, the property passed, and the giving of earnest is included among the modes of binding the bargain, 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, (5) g^j^ ^ the plaintiff claimed a mare under a bargain in which Owen. " the defendstnts, to make the agreement the more firm and bind- ing, paid to the plaintiff one halfpenny 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 declara- tion for want of an averment that the plaintiff was ready and will- ing, or offered to deliver the colt ; but Buller 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 (p) Ante, § 313. (?) 5 T. E. 409. 328 EFFECT OF CONTEACT IN PASSING PROPERTY. [BOOK II. altered the property as soon as the earnest given prevented either party from retracting. § 356. In Hinde v. Whitehouse (r) Lord Ellenboroiigh, in con- Hindej). sidering the mode of passing the property in the sugar house!" 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 earnest given, the vendor cannot sell the goods to another without a default in the vendee ; and, therefore, if tlie 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 paj^ 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 Langford v. Administratrix of Tyler, Salk. 113, and Noy's Maxims, as above, continued : " On this latter ground, therefore, / do not think that the sale is incom- plete." 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 sub- ject of earnest were invoked solely to show that the bargain had been closed. Blackstone, also, («) if his remarks be carefully con- sidered, as well as the authorities to which he refers, contemplates earnest as a mode of binding the bargain, and thus furnishing proof of such a complete contract of sale as suffices to pass prop- erty in a specific chattel. § 357. No case, however, has been found in the books in which the giving of earnest has been held to pass the property 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, (f) and Acraman v. Morrice,(M) it was held, as we have already seen (^ante, §§ 324, 326), 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 afterwards to be measured on dehvery ; and it is scarcely conceivable that a penny, delivered under the name (r) 7 Bast, 558, (() 6 Moore P. C. 116. (s) 2 Black. Com. 447^49. (u) 8 C. B. 449. BOOK II.] SALE OF CHATTEL NOT SPECIFIC. 329 of " earnest," could be more effective in altering the property than the payment of the entire price. It is therefore submit- Submitted ted that the true legal eifect of earnest is simply to af- not. ford 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. (2;) (x) [See Groat v. Gile, 51 N. Y. 431 ; v. Adams, 4 Selden, 291 ; Jennings v. Nesbit V. Burry, 25 Penn. St. 208 ; Joyce Flanagan, 5 Dana, 217.] CHAPTER V. OF SUBSEQUENT APPROPRIATION. Executory agreement converted into bargain and sale by subsequent ap- propriation .... When vendor is to appropriate goods Rule as to determination of elec- tion . . ... Point of time at which property passes Review of the authorities Remarks on Bryans v. Nix Conditional appropriation 358 358 359 360 361 368 369 Section Obsei'vations on dicta in Campbell V. Mersey Docks Great diversity of opinion in Cal- cutta Company v. De JIattos Vendor's election must conform to contract Cannot elect more than contract requires and leave purchaser to select .... Subsequent appropriation of chat- tels ordered to be manufactured . 371 374 376 376 377 § 358. After, an executory contract has been made, it may be converted into a complete bargain and sale bj' specifying the goods to which the contract is to attach, or in legal phrase, by the appropriation of specific goods to the con- tract. The sole element deficient in a perfect sale is thus sujDplied. 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, (a) " The selec- tion 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." (J) Executory agreement converted into bar- gain and sale b}' subsequent appropria- tion. (a) 6 B. & C. 388. (6) [In Clafiin v. Boston & Low. R. R. Claflin j>. 7 Allen, 341, the evidence LowdlK. showed that the plaintiffs K. Co. agreed to buy a quantity of oil, not precisely determined, but within certain limits at a fixed price, to be de- liv.red in Boston; and the owners of the oil agreed to sell it to them. The spe- cific quantity not being settled, nor the oil itself separated and distinguished, this did not constitute a complete sale, but only a contract to sell. But in pursuance of this contract the owners of the oil sent a quan- tity by railroad to Boston, consigned to themselves, a part of it being also directed to the care of A. Cushman. They notified the plaintiffs that they had sent it, and gave an order for its delivery to the order of one of them, and the plaintiffs paid for BOOK 11.] OF SUBSEQUENT APPROPRIATION. 331 The only difficulty that can arise on this question is, in cases where the vendor only has made the subsequent appropria- -^^^^^ tion. If it has been agreed that the purchaser shall se- vendor is lect out of the bulk belonging to the vendor, it is not easy priate the 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 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 quan- tity of merchandise, 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 consti- tutes the appropriation ; to find out at what precise point the vendor 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 laj' them aside in his warehouse, and change his mind afterwards ; or he may sell them to another purchaser without 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 intention, which may be changed at his pleas- ure, or a determination of his right conclusive on him, and no longer revocable. § 358 a. [A. and B. stored grain in C.'s warehouse, and by the warehouse receipts each was entitled to get a given quantity of wheat, but not the identical wheat delivered. The ■wajiieii v. grain of different owners was mixed in the warehouse. Macbnde. A. and B. agreed to load D.'s vessel with grain, and gave proper orders to that effect to C. C. told the captain that he was ship- ping all of A.'s wheat fii'st. It was held that this amounted to it. Hoar, J. said : " There was thus an property in the vendees." Hyde v. La- agreement of the parties that this oil throp, 2 Abb. N. Y. App. Decis. 436. should be the property of the plaintiffs ; See Thompson v. Conover, 3 Vroom (N. it was sent to the place at which, by the J.), 466; Crawford v. Smith, 7 Dana, contract, it was to be delivered, and the 55, 61 ; Gough v. Edelen, 5 Gill, 101 ; order upon the freight-bill entitled the Chapman v. Searle, 3 Pick, 38 ; Colt J. plaintiffs to the possession. Nothing more in Merchants' National Bank c^. Bangs, was to be done by the vendors. They had 102 Mass. 291, 295; Coleman v. Mc- made the delivery which the contract re- Dermot, 5 U. C. C. P. 303 ; Macpherson quired, and we can have no doubt that i>. Predericton Boom Co. 1 Hannay (N. it completed the sale, and vested the B.), 337.] 332 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. an appropriation by C. and that the property in the grain so first slijpped passed to A.(5i)] § 369. The rule on the subject of election is, that when, from Rule as to the nature of an agreement, an election is to be made, fion™'""" *^^^ party who is by the agreement to do the first act, election. which, froii:! 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 tlien he may change his mind, (c) 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 wliich determines the election, that is, until he has put them in his cart to be fetched awaj^ ; when that is done his elec- tion 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. § 360. It follows from this, says Blackburn J., that where from , the terms of an executory agreement to sell unspecified time at goods the vendor is to dispatch the goods, or do any- property thing to them that cannot be done till the goods are ap- propriated, he has the right to choose what the goods shall be ; and the jyroperty is transferred the Tuoment the dispatch or other act has commenced^ for then an appropriation is made finally and conclusively by the authority conferred in the agree- ment, and in Lord Coke's language, " the certainty, and thereby the property, begins by election." (Heyward's case, 2 Coke, 30.) Qd) But however clearly the vendor may have expressed an (6>) [Waddcll D. Macbrlde, 7 U. C. C.P. then, as soon as any act is done by him 382; Coffey u. Quebec Bank, 20 U. C. identifying the property, and it is set apart C. P. 110, 555.] with the intention unconditionally to ap- (c) Heyward's case, 2 Co. 36; Com. ply it in fulfilment of the contract, the title Dit;. Election ; Blackburn ou Sales, 128; vests, and the sale is complete. Thus the [Lynch y. O'Donnell, 127 Mass. 311.] delivery of goods to the buyer, or his agent, d) [la Merchants' National Bank v. or to a common carrier, consigned to him. Bangs, 102 Mass. 291, 295, Colt J. said : whether a bill of lading is taken or not, if When title "When, from the nature of there is nothing in the circumstances to TendoT'irto '''" agreement, the vendor is control the effect of the transaction, will appropriate, to make the appropriation, be sufficient. If the bill of lading, or BOOK II.] OK SUBSEQUENT APPROPRIATION. 333 intention to 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 author- ity of the other party nor binding on him. (e) § 361. A review of the authorities will show the subtle distinc- tion to which this subiect gives rise, and the infinite Review . J & 1 ^ . of the au- diversity of circumstances under which its application thoriOes. becomes necessary in commercial dealings. The considerations that govern it are rendered still more complex when the ven- dor, although appropriating the goods to the contract by dis- patching them, still retains control by taking the bills of lading or other documents of title in his own name, in order to secure him- self against loss in the event of the buyer's insolvency or refusal to pay. The decisions in cases where the vendor, although appropri- ating the goods, has reserved expressly or by implication a special property in them, will be separately examined, after disposing of those which are free from this element of controversy. § 362. In 1803, in the case of Button v. Solomonson, (/) it was treated as already settled law that where a vendor de- Dutton v. livers goods to a carrier by order of the purchaser, the so„°™""' appropriation is determined ; the delivery to the carrier delivery is a delivery to the vendee, and the property vests imme- '» earner. diately. And in the United States the law is established Law m the States. that the failure of Wilson to send oitt an agent to accept every part as it was made did not prevent the passage of the title as fast as the timber was made and marked. Dunning v. Gordon, 4 U. G. Q. B. 399.] (e) Blackburn on Sales, p. 128. The accuracy of this statement of the law was attested by Erie J. in Aldridge v. Johnson, 7 E. &. B. 885, 901 ; 26 L. J. Q. B. 296 ; [Coffey V. Quebec Bank, 20 U. C. C. P. 110, 55.5.] (/J 3 B. & P. 582, per Lord Alvanley C.J. (g) Krulder v. Ellison, 47 N. Y. 36 ; [Arnold v. Prout, 61 N. H. 587, 589 ; Gar- land V. Lane, 46 lb. 245, 248; Woolsey u. Bailey, 27 lb. 217; Smith u. Smith, lb. 244, 252 ; Putnam v. Tillotson, 13 Met. 517 ; Stanton v. Eager, 16 Pick. to the same effect. (^) other written evidence of the delivery to the carrier, be taken in the name of the consignee, or be transferred to him by in- dorsement, the strongest proof is afforded of the intention to transfer an absolute title to the vendee." See Hatch v. Lincoln, 12 Cush. 31, 33-35. It was agreed be- tween Ferguson and Wilson that Fergu- son should make certain timber for Wil- son and mark it as it was made, and that it should be delivered as fast as it was made to the agent of Wilson ; and that when so marked and de- livered it should become the property of Wilson. The timber was all made for Wilson and was marked for him ; part of it was delivered, and all brought out of the woods and taken possession of by Wilson, and sold to a third party. It was held Dunning v. Gordon. 334 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. § 363. In 1825 Fragano v. Long (Ji) was decided in the king's bench. The plaintiff sent an order from Naples to M. r. Long. &; Sons at Birmingham, for merchandise "to be dis- patched on insurance being effected. Terms to be three months' credit from the time of arrival." The goods were sent from Bir- mingham, marked with the plaintiff's name, to the agents of the vendors in Liverpool, with orders to ship them to the plaintiff. In- surance 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 be- cause 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 vendor's 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 "Where off." The words above printed in italics suggest that paysforthe '"'here the vendor pays the charges, it is presumed that carnage. Jjq retains the property in the goods. On this point the reader will find a very full exposition of the law in the elaborate opinion of Lord Cottenham, delivering the judgment of the House of Lords in Dunlop v. Lambert, (i) § 364. In Rohde v. Thwaites (/c) the appropriation by the Eohde V. vendor was assented to by the purchaser. The pur- chaser bought twenty hogsheads of sugar out of a lot of 467 ; Johnsou v. Stodilard, 100 Mass. 306, price. The terms were cash when deliv- 308; Torrey c. Corliss, 33 Maine, 336 ; ered, free of all charge. The Sneathen t. Barry v. Palmer, 19 lb. 303 ; Wing v. harges were furnished by the '^''"'''"• Clark, 24 lb. 366 ; Odell v. Boston & vendees and were loaded by the vendors, Maine Kailroad, 109 Mass. 50; Rodgers but could not be returned to the place c. Phillips, 40 N. Y. 519 ; Stafford v. Wal- of delivery of the coal by the vendors by ter, 67 111. 83; Strong v. Dodds, 47 Vt. reason of the low state of the Vendors to 348; Morton J. in Suit v. Woodhall, 113 water. While the barges were ^°';f™,''i°°'* IMass. 394 ; Kline v. Baker, 99 lb. 253, lying at the vendor's works -vendee's 254; Armen trout v. St. Louis Ry Co. 1 the coal was attached by cer- ^n^iiing"'' Mo. App. 158.] tain creditors of the vendors, "'o""- (A) 4 B. & C. 219. and it was held that the vendees could not (i) 6 CI. & Fin. 600. [The vendors maintain replevin for the coal, as the title agreed to load for their vendees and to de- was still in the vendors. Sneathen e. liver at the vendee's wharf two barges of Grubbs, 88 Penn. St. 147.] coal from the vendor's mines at a certain (k) 6 B. & C. 388. BOOK II.] OF SUBSEQUENT APPROPRIATION. 335 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 appropriation, that the con- tract was thereby converted into a bargain and sale, and that the property passed. § 865. In Alexander v. Gardner, (Z) decided in 1835, the property in a parcel of butter was held to have passed j^jj^ande from the plaintiff to the defendant by subsequent ap- «'• Gardner. propriation with mutual assent under the following circumstances. The original contract was for " 200 firkins Murphy & Co.'s Sligo butter, at 71s. Gd. 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 November the plaintiff received from Murphy an invoice and bill of lading for these butters, which had not been shipped till 6th November. Defendant waived the delay, and consented to take the invoice and bill of lading, which de- scribed the butter, the weights and marks of the casks, &c. The butter was afterwards lost by shipwreck. Held that the subse- quent appropriation 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. § 366. The same principle governed Sparkes v. Marshall, (to) decided by the same court in the following year (1836). gp„kes v. Bamford, a corn merchant, sold to plaintiff " 500 to 700 Marshall. barrels of prepared black oats, at lis. 9d. per barrel, to be shipped by Thomas John & Son of Youghall." The oats were to be de- livered at Portsmouth. Some days afterwards Bamford informed plaintiffs that Messrs. John & Son had engaged " room in the schooner Gibraltar Packet, of Dartmouth, to take about 600 bar- rels of black oats on your account." Plaintiff next day ordered insurance, " 400Z. 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 con- trary. Tindal C. J. said that Bamford's letter to the plaintiff (/) 1 Bing. N. C. 671. See, also, Wil- (m) 2 Bing. N. C. 761. kins V. Bromhead, 6 M. & G. 963 ; S. C. 7 Scott N.E. 921. 336 EFFECT OF CONTRACT IN PASSING PROPEETY. [BOOK 11. " was an unequivocal appropriation of the oats on board the Grihraltar Packet," and "this appropriation is assented to and adopted by the phiintiff, who, on the following day, gives instruc- tions to his agent in London to effect the policy on oats per Gibraltar Packet.'' § 367. In Bryans v. Nix, ()i) decided in the exchequer in 1839, the facts were, that one Tempany, in Longford, drew a V. xNix. bill of exchange on the plaintiff at Liverpool, against two cargoes of oats, per boats Nos. 604 and 54, represented by two boat receipts or bills of lading, whereby the masters of the boats acknowledged to have received the oats on board, deUverable in Dublin to the plaintiff's agents, for shipment thence to the plaintiff at Liverpool. The plaintiff received, on the 7th Febru- arjr, a letter from Tempany, dated the 2d, containing these two boat receipts, dated the 31st 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 Xo. 604 had received its cargo, but although the master's receipt for boat 54 was dated on 31st January, the loading of it was only begun on the 1st Feb- ruary, and on the 6th it had received only about 400 barrels out of the 530 barrels called for by the receipt. On that day, the 6th, Tempany, pressed by the importunity of tlie 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 accepted the order and agreed to forward the cargoes to tlie defendant in London. The defendant obtained possession 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. 64 was completed on the 9th February. On these facts, after elaborate argument and time for advisement, Parke B. delivered the judgment of the exchequer of pleas, holding thjit 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 valua- (n) 4 M & W. 775. [See Prince v. 26; First National Bank o£ Green Bay c. Boston & Lowell R. R. Corp. 101 Mass. Dearborn, 115 Mass. 219, 222, 223.] 542, 547 ; De Wolf u. Gardner, 12 Cush. BOOK II.J OF SUBSEQUENT APPROPRIATION. 837 ble consideration, operated as a change of property instanter when the goods were shipped ; and it is also governed by the same prin- ciple upon which I know that of Anderson v. Clark (o) was de- cided, where a bill of lading making 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 an- tecedent advances, held to give him a special property the instant the goods were delivered on board, so as to enable him to sue the master of the ship for their non-delivery." In relation to the cargo of No. 54, however, the ground was that there were no spe- cific chattels appropriated to it. The reasoning on this part of the case is submitted in full, because it does not seeni altogether rec- oncilable with the subsequent case of Aldridge v. Johnson, post, 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 the time of the agreement, proved by the bill of lading or boat receipt of the 31st 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 had nothing to operate upon, and though Miles Tempany had prepared a quan- tity of oats to be put on board, those oats still remained his prop- erty ; 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 January, these oats so prepared, or any other like quantity, had been put on board to the amount of 530 barrels, or less, for the purpose of fulfilling the contract, and received by the master as such, before any new title to these oats had been ac- quired 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 specific 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 ful- filled, then, but not otherwise, they would become their property. (o) 2 Bing. 20. [See Prince v. Boston & Lowell E. R. Corp. 101 Mass. 542, 547.] 22 338 EFFECT OF CONTKACT IN PASSING PROPERTY. [BOOK II. But before the complete quantity of 530 barrels was shipped, and when a small quantity of oats only were loaded, (p) and before any appropriation of oats to the plaintiffs had taken place, Tem- pany was induced to enter into a fresh engagement with the de- fendant, to put on board for him a full cargo for No. 54, by way of satisfaction for the debt due to him, for such is the effect of the delivery order of the 6th, and the agreement with Walker of the same date, to send the boat receipt for the cargo of that ves- sel. Until the oats were appropriated by some new act, both con- tracts were executory ; on the 9th this appropriation took place by the boat receipt for the 550 barrels then on board, which was signed by the master, at the request of Tempany, whereby the master was constituted the agent of the defendant to hold these goods ; and this was the first act by which these oats were specifi- cally 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." § 308. The difficulty felt in receiving this decision as satisfac- Eemarks tory arises chiefly from the difference between the facts on Bryans ■' t,, ipiii- V. Kix. 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 consider, as re gards the cargo of No. 54, " whether, although the loading was not complete, the oats to be put on board were designated and ayj- propriated to the pilaintiff, 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 re- ceipts 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 jDower 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 rul- ing 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 (p) The reporter's statement, p. 778, is harbor at Longford, partly loaded, the that on the 6th of February, when defend- loading having begun on the 1st Febru- ant's agent first [pressed Tempany for ary, and about 400 barrels being then on security, " boat 54 was still in the canal board." BOOK II.J OF SUBSEQUENT APPROPRIATION. 339 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 shipmaster, employed hy 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 de- positary assents, it is enough ; and it matters not by what docu- ments this is effected ; nor is it material whether 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, 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 appearance in Longford, were not received on account of the plaintiff, and had not been appropriated to the plaintiff in whole or in part. In the case of Aldridge v. John- son, (^) 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 warehouse, and then emptied them again into the bulk, his election 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 consignee's rights to the 400 barrels already loaded into the boat and the residue which had not been received by the master in fulfillment of the agreement that he was to de- hver them to the plaintiff's agent in Dublin ; nor was Bryans v. Nix quoted or referred to in Aldridge v. Johnson. § 369. In Godts v. Rose, (r) in 1854, there was a conditional appropriation, which was held not to pass the property, g^^^^ ^^ because the vendee had not complied with the condition. Eose. The sale was of five tons of oil, " to be free delivered and S^appro"' paid for in fourteen days." The plaintiff, who was the P^^ti""- vendor, sent to his wharfinger an order to transfer eleven specified pipes to the purchaser, and took the wharfinger's acknowledgment, addressed to the buyer, that these eleven pipes were transferred to the buyer's name. The plaintiff then sent this acknowledgment (?) 7 E. &. B. 885, and 26 L. J. Q. B. (r) 17 C. B. 229, and 25 L. J. C. P. 61. 296. 340 EFFECT OF CONTRACT IN PASSING PEOPEETY. [BOOK II. to the buyer, by a clerk, who also took an invoice of the oils, and asked for a check in payment. This was refused, on the ground that payment was only to be made in fourteen days. The clerk then demanded that the wharfinger's acknowledgment should be returned to him, and this was refused. The buyer then sent im- mediately 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 lattei-, however, thinking that the property 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 payment, 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 check, and that he said so at the time. § 370 Aldridge v. Johnson (s) was decided by the queen's Aidrid°-e v l^ench, in 1857. The plaintiffs agreed to take from one Johnson. Knight 100 quarters of barley, out of the bulk in Knight's granary, at 21. 8s. 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 200 sacks to be filled, some of them with his name marked on them. Knight filled 155 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 obtaining 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. (s^) The action was (s) 7 E. & B. 885, and 26 L. J. Q. B. chaser, who was to furnish sacks for them, 296- and if he did not furnish enough sacks the (si) [See Rappleye u. Adee, 1 Thomp. balance was to be stored by the seller, it & C. (N. Y.) 127. In a case where oats, was held that the title passed to the pur- then in stacks, were purchased and paid chaser when the oats were threshed and Groffi.. for, but were to be threshed measured, and the fact that the seller and measured by the seller, mixed the oats, for which no sacks were and then and there delivered to the pur- furnished, with his own oats, did not divest BOOK II.] OF SUBSEQUENT APPROPRIATION. 341 detinue and trover, against the assignees of Knight, for the barley and the sacks. Held that the property in the barley, in the 155 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 vras filled with barley, eo instanti 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 plaintiff 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 necessary, 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 ascertainment rests with the vendee, sometimes solely with the vendor. In the present case the election rested with Knight alone : he had to fill the sacks, which were to be sent to him for that purpose by the vendee, and as soon as he had done an outward act, indicating his election, viz, by fill- ing the sacks, and directing them to be sent to the railway, the property passed." (m) The decision in Aldridge v. Johnson was followed by the exchequer of pleas, in 1857, in Langton L^ngjo^ ^. V. Higgins (x) (ante, § 330). ™eg'°^ § 371. In 1863, Campbell v. The Mersey Docks (2/) was de- cided in the common pleas. A cargo of cotton, ex Bos- Campbell phorus, consisting of 500 bales, arrived in the defendants' ji^^g^y docks in September, 1862. The plaintiff was the broker Docks. for them, and had himself bought 250 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 September, a certificate or warehouse warrant was sent to the plaintiff for 250 bales, " numbered from 1 to 250, en- tered by J. P. Campbell, on the 10th September, 1862 ; rent pay- the title of the purchaser, but he might in the above case of Aldridge v. Johnson maintain replevin therefor. Groff y. Belche, evidence of a subsequent assent of the pur- 62 Mo. 400.] chaser, by sending for the barley after it (t) [See Ropes v. Lane, 9 Allen, 509, has been put into the sacks. See Butters 510; Mason v. Thompson, 18 Pick. 305 ; v. Stanley, 21 U C. C. P. 402.] Bond V. Greenwald, 4 Heisk. (Tenn.) 453.] {x) 4 H. & N. 402, and 28 L. J. Ex. (m) [See Rappleye v. Adee, 1 Thomp. 252. & C. (N. Y.) 127. There was, however, {y) 14 C. B. N. S. 412. 342 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK 11. able from the 15tli SeiDtember." The plaintiff thereupon paid for the 250 bales, getting the warrant indorsed to him with a delivery- order, " for the above mentioned goods," dated 15th September. On 7tb October, the plaintiff resold the cotton, and sent the war- rant, indorsed 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 plaintiff then demanded back the warrant, and was told by the defendants, for the first time, that 200 of the bales, numbered from 1 to 250, had been inadvertently delivered on the llth and 13th of September to other persons. They offered him a fresh warrant for other numbers. He declined, and brought suit for the value of the 250 bales. On the trial, the defendants insisted that the appropriation by the company, of the 250 bales, out of the larger number, was riot sufficient 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 resale) did not amount to such as- sent, and the learned judge said it was not conclusive, but that it was open to the company to show that the appropriation 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 evi- dence of that approjDriation did not arise from a mistake on the part of the company's clerk. The learned judge is not dissatisfied with the finding of the jury upon that question." Willes J. also Observa- said : " The real question was whether the appropriation dicin. 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 expressed an extra-judi- cial 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, Rngg v. Minett, 11 East, 210, and Rohde V. Thwaites, 6 B. & C. 688, that the purchaser of an un- ascertained portion of a larger hulk acquires no property in any part until there has been a separation and an appropriation as- sented to hoth hy vendor and vendee. Nothing passes until there has been an assent, express or implied, on the part of the vendee." BOOK II.] OF SUBSEQUENT APPROPRIATION. 343 Willes J. assented to this statement of the law, and said : " Per- haps the ease 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. (2) It may be either express or implied, and it may be given by an agent of the party, by the warehouseman or wharfinger, for in- stance." 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 vendor is necessary. 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. John- son, 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, (a) in which the unanimous decision" of the ex- chequer chamber was likewise delivered by Erie J. § 372. In this case the defendant, at Bristol, bought from the plaintiffs, merchants of Rotterdam, through their broker, grown v. residing at Bristol, " twenty tons of best oil, at 47s. H"^- The plaintiffs wrote to the broker on 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 de- fendant, 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' {z) [The sufficiency of a prior assent is in fulfilment of the contract, the title involved in the proposition stated by Colt vests, and the sale is complete." The J. in Merchants' National Bank v. Bangs, purchaser hereby makes the seller hi3 102 Mass. 291, where he says: "When, agent, to the extent of the appropriation from the nature of the agreement, the and assent.] vendor is to make the appropriation, then (a) 3 H. &. N. 484, and 27. L. J. Ex. as soon as the act is done by him identify- 372, afterwards in Cam. Scacc. 4 H. & N- ing the property, and it is set apart with 822, and 29 L. J. Ex. 6. the intention unconditionally to apply it 344 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. " order or assigns," and was indorsed by them on the 8th of Sep- tember " Deliver the goods to the order of Hare & Co." (the de- fendants). The invoices specified the casks by marks and num- bers ; 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 indorsed 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 immediately returned it to the broker. Bramwell B. dissented from the major- ity of the court, thinking that there had been no appropriation to pass the property, but Pollock C. B. delivered the judgment, hold- ing that the property had passed, and that the buyer must bear the loss ; on the ground, first, that the contract to deliver " free on board " meant that it was to be for account of the defendant as soon as delivered on board ; (a^) secondly, that taking the bill of lading to the shippers' own order, and then indorsing 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 having 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 with- out payment of the price. In error to exchequer chamber, this judgment was unanimously affirmed, the court consisting of Erie, Williams, Crompton, Crowder, and Willes, JJ. Erie J. in giving the opinion, said, that " The contract was for the purchase of un- fa'') [In Colemiin I'. McDermot, 5 U. C. sels which were to transport it from H. C. P. 303 u contract was made to sell The flour was delivered at H. in May ac- "Frpeon flour and deliver it free on cording to contract, but B. had no vessels board." board, cash on delivery, or on ready to take it. The flour was put into warehouse receipt.^. It was said that the C.'s warehouse subject to B.'s order and A. stipulation as to the delivery free on board paid all charges on the flour up to May did not constitute a condition precedent to 31st. It was held that B. was liable to C. the passing of the title, the goods not being for subsequent warehouse charges up to specified at the time of the contract, but the time of shipment. Wilmot v. "VVads- was a collateral and superadded undertak- worth, 10 U. C. Q. B. 594 ; Clark v. Rose, ing to be performed afterwards. In How- 29 lb. 168, 302; Marshall v. Janiieson, land V. Brown, 13 U. C. Q. B. 199, A. sold 42 lb. 11.5 ; George u. Glass, 14 lb. 514 ; B. flour to be delivered in May f. o. b. ves- Butters v. Stanley, 21 U. C. C. P. 402.] BOOK II.] OF SUBSEQUENT APPROPRIATION. 845 ascertained goods, and the question has been when the property- passed. For the answer the contract must be resorted to, and under that we think the property passed ivhen the goods were placed free on hoard in performance 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 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 con- signee, 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 continuing 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 ques- tion before the court below or before us being, whether the mode of taking the bill of lading necessarily prevented the property from passing. In our opinion, it did not, under the circum- stances." (a^) § 373. In Tregelles v. Sewell, (J) in 1863, both buyer and seller were residents of London, and the contract was made xregeiies there. The purchaser bought " 300 tons of Old Bridge "• Sewell. rails, at bl. 14s. %d. 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 Cam. Scacc, that by the true construction of this sale the seller was not bound to make de- livery of the 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. § 374. The difficulty that sometimes exists in construing con- (a2) [See Ogg v. Shuter, L.R. 10 C. P. (5) 7 H. & N. 571. 159, and 1 C. P. D. 47 ; Coleman v. Mc- Dermot, 5 U. C. C. P. 303.] 346 EFFECT OF CONTRACT IN PASSING PEOPEETY. [BOOK II. tracts involving the subject now under consideration could hardly be illustrated by a more striking example than the recent case of The Cai- The Calcutta Company v. De Mattos, (t') argued by very panr «'"'"" eminent counsel in the queen's bench in Michaelmas De Mattos. Term, 1862, and held under advisement till the 4th July, Diversity l''^63, when the judges were equally divided in opinion : of opinion. Cockburn C. J. and Wightman J. differing from Black- burn and Mellor JJ. When the cause was heard in error in the exchequer chamber, Qd) the diversity of opinion was still more marked ; for while three judges (Erie C. J., Willes J., and Chan- nell B.) concurred in opinion with Blackburn and Mellor J J., and one judge (Williams J.) agreed with Cockburn C. J. and Wight- man J., two other judges (^lartin and Pigott BB.) differed from both. The facts were these. On the 1st May, 1860, defendant wrote to the company, proposing to supply them with " 1,000 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 handing you bills of lading and policy of insur- ance to cover the amount, the balance by like payment on de- livery," &c. &c. The reply of the 4th 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 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 Rangoon." The contract was closed upon these conditions, and defendant in performance of it chartered the ship Wuhan for Rangoon, the company being no party to the charter, and loaded her with 1,166 tons of coal, tak- ing a bill of lading which expressed that the coal was shipped by him, and was to be delivered at Rangoon to the agent of the com- pany or to his assigns, freight to be paid by the charterer as per charter-party. The charter-party stipulated that the freight was (c) 32 L. J. Q. B. 322. [d) 33 L. J. Q. B. 214, in Cam. Scacc. BOOK II.] OF SUBSEQUENT APPROPRIATION. 347 " to be paid in London on unloading and right delivery of the cargo at 40?. per ton on the quantity delivered one quarter by freighter's acceptance at three months, and one quarter by like acceptance at six months from the final sailing of the vessel from her last port in the United Kingdom, the same to be returned if the cargo be not delivered at the port of destination ; and the re- mainder 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 de- liverjr of the cargo." The defendant also effected insurance for 1,400?. and handed the bill of lading and policy to the company, in pursuance of the contract, together veith this letter : " 5th July, 1860. Herewith I hand you Ocean Marine pohcy for 1,400?. for this ship, as collateral security against the amount payable by you on account of the invoice order, say 1,311?. 15s., receipt of which please own." The answer acknowledged the receipt of the pol- icy " to be held as collateral security for the payment to you of 1,311?. 15s. on account of the invoice of that shipment." The in- voice value of the coals was 2,623?. 10s., of which the company paid half to defendant on the 5th July, and the vessel sailed on the 8th, but never arrived at her destination, nor were the coals delivered in conformity with the contract. On these facts it be- came necessary to decide what was the effect of the contract on the property in the goods, and the right to the price from the time of the handing over the shipping documents and paying lialf the in- voice value. The opinion of Blacliburn 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 copious ex- tracts. The learned judge said : " There is no rule of law to pre- vent the parties in cases like the present from making whatever bargain they please. If they use 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 destination or not, this intention is effectual. Such is the common case where goods are ordered to be sent by a carrier to a port of destination. The vendor's duty is in such cases at an end when he has deliv- ered the goods to the carrier, and if the goods perisli in the car- rier's hands, the vendor is discharged, and the purchaser is bound to pay him the price. See Dunlop v. Lambert (6 CI. & Fin. 600). 348 EFFECT OF CONTRACT IN PASSING PEOPERTY. [BOOK II. 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 pur- chaser in consequence of the breach of the vendor's contract to de- liver 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 contract if the goods do not reach their destination, and yet they may in- tend that the whole or part of the price shall not be payable un- less 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 sold and delivered, and yet that the jDrice (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 fall, but without any contract on the vendor's part in the one case to procure the goods to arrive, or in the other to cause the tree to fall." 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 De Mattos, to be insured, and the policy of insurance and the bill of lading and invoice to be handed over to the company. As soon as De Mattos, in pursuance of these stipulations, gave the company the policy and bill of lading, he irrevordhlij uppropriated 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 ^rMn(^/a«'« construction is that the parties intended the propertu in the coals vested in the company, and the right to the price in De JMattos, as soon as it came to relate to specific ascertained goods, that is, on BOOK II.] OF SUBSEQUENT APPROPRIATION. 349 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 be paid only ' on completion of the delivery at Rangoon,' seems to me as clearly declared as words could possibly declare it ; and consequently I think as to that half of the price no right vested in De Mattos unless and until there was a complete delivery at Rangoon. But consistently with this there might be an inten- tion that there should be a complete vesting of the property 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 half the price was at the risk of De Mattos ; so that the goods were sold and deliv- ered, though the payment of half the price was contingent on the delivery at Rangoon, and this I think is the true legal con- struction of the contract." Wightman J. was of opinion that on the true construction of the contract the whole cargo re- mained 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 bill of lading to the company was a security to pro- 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 pay- ment 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 dis- posed of it at their pleasure. But that De Mattos remained bound to make delivery in Rangoon, 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 concurrence with the opinion of Blackburn J. as to the true meaning and effect of the contract, and Willes J. and Channell B. did the same. WiUiams J. merely expressed his as- sent to the views of Cockburn C. J. Martin B. gave his view of the true intention of the parties, 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 Pigott B. expressed his concurrence vrith the interpretation of the con- tract by Martin B. 350 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. S 375. In Jenner v. Smith, (e) where the sale was made by sample, and was of two pockets of hops out of three .Tenner v. J^ ' ^ ^ ^ Smith that were lying at a specified warehouse, the vendor in- structed the warehouseman to set apart two out of the three pock- ets 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 property 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 bulk with the sample, or of verifying the weight. There was neither previous authoritj^ nor subsequent assent to the apf)ropria- tion. (/) In Ex parte Pearson, re Wiltshire Iron Companj'-, (^) Ex parte the jjurchaser had ordered and paid for the goods, and Pearson. ^j^^ company loaded the goods on a railway to his ad- dress, and sent him the invoice after the presentation of a peti- tion for winding up the companj^, but before order made, and it was held that the property had passed to the purchaser and could not be taken hj thie oflficial liquidator as assets of the compan3^ Vendor's S 376. Before leaving this branch of the subiect, it election . ,, ■ , f i must be in IS Well to notice that the property does not pass even witii°tiie' ^ when the vendor has the power to elect, unless he exer- contract. (,jgg ^j. jj^ conformity with the contract. He cannot send elect more a larger quantity of goods than those ordered and throw trac°t re-"" ^^^ selection on the purchaser, (f/^) Thus, in Cunliffe leayr'bu"- '"' H^rrison, (A) it was held that where an order was er to se- given for ten hogsheads of claret, and the vendor sent lect. ° ° ' (e) L. R, 4 C. P. 270. Lathrop, 2 Abb. N. Y. App. Decis. 436; (/) [It i-etnis to be a clear inference Burnett v. McBean, 16 U. C. Q. B. 466; from this case, that, on a sale of unascer- Coffey v. The Quebec Bank, 20 U. C. C. P. tained fjoods, the purchaser may authorize 110, 555 ; Lynch d. O'DonncU, 127 Mass. the seller to make a selection and appro- 311.] priation, which shall pass the title and (cj) L. R. 3 Ch. App. 443. bind the purchaser, without any further (g^) [See Croninger ./. Crocker, 62 N. assent on his part. The remarks of Y. 151.] Willes J. in Bos Lead Mining Co. v. (A) 6 Ex. 903. See, also, Hart f. Mills, Montague, 10 C. B. N. S. 488, 490, quoted 15 M. & W. 85, and Dixon v. Fletcher, 3 ante, § 155, note (o), are worthy of atten- M. & W. 145. tion in this connection. See Hyde v. BOOK II.] OF SUBSEQUENT APPROPRIATION. 351 fifteen, the action for goods sold and delivered would cuniiffe » not lie against the purchaser (who refused to keep any Harrison. of the hogsheads), on the ground that no specific hogsheads had been appropriated to the contract, and thus no property had passed. And in Levy v. Green, (i) the goods sent in Levy v. excess of those ordered were articles entirely different, ^''^^°" but packed in the same crate : the order being for certain earth- enware teapots, dishes, and jugs, to which the plaintiff had added other earthenware articles of various patterns not ordered. In the court below (Jc) there was an equal division of the judges : Lord Campbell and Wightman J. holding that the defendant had a right to reject the whole on account of the articles sent in jexcess, and Coleridge 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 had not passed, and that the purchaser had the right to reject the whole. (Z) § 377. 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, (tu) quentap- -I OAO -r> 1 D ' \ ^ propriation m laUd. rocock ordered a barge from one Royland, a of chattel barge builder, and advanced him some money on ac- ufactured. count, and paid more as the work proceeded, to the Mucklow whole value of the barge. When nearly finished, Po- "' ^°^ ^^' cock's name was painted on the stern, but by whom and under (i) 1 E. & E. 969, and 28 L. J. Q. B. ceive a cargo of 375 tons, to be loaded at 319- once. It did not bind them to take a {Ic) 27 L. J. Q.B. 111. larger cargo, or one which could not be (I) [Tarling v. O'Riordan, 2 L. R. Jr. shipped substantially as speedily as pro- 82 ; Shannon v. Barlow, 9 Ir. Jur. N. S. posed by the plaintiff in his letter. If, by 229. In Eommel v. Wingate, 103 Mass. a change of circumstances, the plaintiff Election by 327, the plaintiff in New York was unable to comply with this order of confomTto*' wrote to the defendants in the defendants, he should have so in- coDtraet. Boston, offering to sell them formed them. He had no right to substi- coal, and stating that he had a vessel of tute a larger cargo, deliverable at a more 375 tons which he could load " on Mon- remote time, in place of the cargo ordered day." The defendants telegraphed in re- by the defendants, and the defendants ply, on the Monday next after the date of were not obliged to receive the substituted the letter, " Ship that cargo, 375 tons, im- cargo upon its arrival in Boston." See mediately." The plaintiff did not begin Barrowman u. Eree, L. E. 4 Q. B. D. to load till nine days afterwards, and then 500.] shipped a cargo of 392 tons. Morton J. (m) 1 Taunt. 318; [Dempsey w. Carson, said : " This bound the defendants to re- 11 U, C. C. P. 462.] 352 EFFECT OF CONTKACT IN PASSING PROPERTY. [BOOK II. -what circumstances is not stated in the report. The barge was finished and seized on execution against Royland two days after- wards, but before he had delivered it up to Pocock, and the sher- iff's officer delivered it to Pocock under an indemnity. Royland had committed an act of bankruptcy before the barge was finished, and the action was trover by his assignees against the sheriff's officer. Held that the property had not jDassed, Heath J. saying: " A tradesman often finishes goods which he is making in pursu- ance 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." § 378. In Bishop v. Crawshay, (w) it was held by the queen's Bishops, bench, in 1824, that no property passed to the de- Crawshay. fgj;,(Ja^j)^ jj-^ goods wliicl) he had ordered from a manufact- urer in the country, and on account of which he had accepted a bill of exchange for 400Z. The manufacturer had received the order on the 26th January, had committed an act of bankruptcy not known to the defendant on the 5th 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 commission issued against the bankrupt, by whose assignees the action of trover was brought. Holroyd 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." (w^) § 37 D. In Atkinson v. Bell, (o) already fully explained {ante, Atkinson § 99), the purchaser had ordered the machines ; they had been made and packed under his agent's superin- tendence, and the boxes made ready to be sent, and the vendor had written to ask the purchaser by what conveyance they were (n) 3 B. c& C. 415. of the above facts, sell the goods to a third («!) [Wiiere a bill of exchange attached person to satisfy an antecedent debt of to bills of lading is discounted by a party his. Holmes v. German Security Bank, 87 DiscouDtiDg on t'le faith of the bills of Penn. St. 5J5 ; First Nat. Bank d. Pettit, ed'to b'iUsot '^'^'"»' "'''' '=o'^stitutes an ap- 9 Heiskell (Tenn.), 447.] lading con- propriation of the goods men- (o) 8 B. & C. 277. [Note to Shawhan appropria" "'""^'^ '"^ "^<' '^''^^ °f l^'ding, ^. Van Nest, 15 Am. Law Reg. (N. S.) tionofthe and the consignee therein 153 160.1 goods. , , . . ' named cannot, having notice BOOK 11.] OF SUBSEQUENT APPROPRIATION. 868 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 bargained and sold, this form of action not being maintainable where the property has not passed, (p) Held that the form of action was misconceived ; it should have been for not accepting the goods ; the property had not passed, for although the vendor intended them for the pur- chaser, his right to revoke that intention still existed, and he might have sold the goods to another at any time before Eemarks the buyer assented to the appropriation, (p^) This is per- case. haps the strongest case in the books on this subject, for the con- duct of the vendor was as near an approximation to a determina- tion of election, without actually becoming so, as one can well con- ceive. It is distinguishable from Fragano v. Long (g) only on the ground that in this latter case the order was to dispatch the goods for the buyer's account, and when the goods were dispatched 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 appro- priation made by the seller, which then became no longer revoca- ble. In Atkinson v. Bell this element was deficient. But there was another circumstance in that case, adverted to in the judg- ment of the court, which renders it almost impossible to distin- guish it from Rohde v. Thwaites. (r) The defendant had made Kay his agent to procure the machines ; and the report states that they were altered so as to suit Kay, and then packed up bj'^ 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 and directs them to be packed up for him, this constitutes as strong an assent to the ap- propriation 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 ip) [Sargent J. in Gordon v. Norris, 49 McDermot, 5 lb. 303 ; ante, § 335, note N. H. 376, 382; Bailey v. Smith, 43 lb. (x) ; Kobertson u. . Strickland, 28 U. C. 143, 144 ; Thompson v. Alger, 12 Met. Q. B. 221 ; O'Neil v. Mcllmoyle, 34 lb. 428,443,444; Jenness w. Wendell, 51 N. 236; Bank of Up. Can. c/. Killaly, 21 H. 63 ; Spieers v. Harvey, 9 R. I. 582.] lb. 9.] (pi) [Gowans v. Consolidated Bank of (?) 4 B. & C. 219. Canada, 43 tJ. C. Q. B. 318; Gooderham (r) 6 B. & C. 388. V. Dash, 9 U. C. C. P. 413 ; Coleman i/. 23 orA EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. 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 conclusion that a conflict really exists, and that if correctly reported, the case would not 07i this particular point be now de- cided as it was in 1828. § 379 a. [The plaintiffs were dealers in glass ware. They made a contract with the G. glass company by which the company was to manufacture a quantity of glass chimneys. Some of the chim- neys were to be of special shapes made only for the plaintiffs and according to shapes furnished by them. Others were of ordinary shapes. Such goods as were not immediately needed Gowans v. '■ " , , , i , • n -,. Gonsoii- were to be stored by the company and shipped as di- Bank cf rccted. They were to be stored subject to the plaintiffs' Canada. orders, the company to pay the storage. The plaintiffs ordered various packages, and the company from time to time in- voiced the packages as made, and drew for the price. The goods were stored by the company, and the company told the plaintiffs that the goods were stored for them and at their risk ; but such was not the fact. The goods were received by the warehouseman as the goods of the company, and he had no knowledge that such was not the fact. Receipts were given each week for goods then in store and not covered by previous receipts. The greater part of these receipts were transferred to the defendant as collateral security for negotiable paper discounted by it for the company. The company having failed, the plaintiffs made a demand on the warehouseman for the property covered by the above mentioned receipts. On an interpleader to try title a verdict was found for the defendant, and a rule for the defendant to show cause why the verdict should not be set aside was discharged. Harrison C. J. said : " The reading of these cases satisfies us, that in order to the passing of property, either manufactured to order or bought from a larger quantity of the same class of goods, there must, must as- as a general rule, not only be an appropriation on the •sent to ap- r i n i rr r _ _ propriaiion part 01 the Seller, but an assent to the appropriation on ly ven oi. ^-^^ ^^^^ ^^ ^j^^ purchaser If the manufacturers in this case had delivered the goods to the warehouseman as and being the goods of the plaintiffs, and the warehouseman so ac- cepted them, there would, we apprehend, be a sufficient delivery to pass the property in the goods to the plaintiffs, but the fact is, BOOK II.] OF SUBSEQUENT APPROPRIATION. 355 that the delivery of the goods to the warehouseman was as and being the goods of the manufacturers." (r^)] § 380. In Elliott v. Pybus, (s) in 1834, a machine was ordered by defendant, and he deposited with plaintiff 4il. on ac- jjniott ^ count of the price. When completed, he saw it, paid Pybus. 2Z. more on account, but made no final settlement. In reply to a demand for 10?. 19s. %d., the balance of the account, defendant 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 ^^^ p,.^ ;_ goods bargained and sold was maintained. The cases in »''»" °} o a ^ ^ ^ chattel relation to the appropriation of an unfinished chattel, during paid for by instalments during the progress of the work, of manu- have already been examined in chapter iii. of this book, § 335 et seq. (ri) [Gowans v. Consolidated Bank of (s) 10 Bing. 512 ; [Shawhan v. Van Canada, 43 U. C. Q. B. 318.] Nest, 15 Am. Law Reg. (N. S.) 153, 162.] CHAPTER VI. RESERVATION OF THE JUS DISPONENDI. Section Preliminary observations on the sub- ject . . • • 381 Review of authorities . . 383 Remarks on Coxe v. Harden . . 384 Section Observations on Joyce v. Swan 395 Principles deduced from the authori- ties reviewed . . . 399 §381. Prelimi- nary ob- servations on this sub ject. It has already been shown that the rules for determin- ing whether the property in goods has passed from vendor to purchaser are general rules of construction adopted for the purpose of ascertaining the real inten- tion of the parties, when they liave failed to express it. Such rules from their very nature cannot be applied to cases where exceptional circumstances repel the presumptions or inferences on which the rules are founded. However definite and complete, therefore, may be the determination of election on the part of the vendor, when the contract has left him the choice of appropria- tion, the property will not pass if his acts show clearly his pur- pose to retain the ownership, notwithstanding such appropriation. § 382. 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 vendor 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 thein, 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 to ad- vance 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 banker the bill of lading for the goods, BOOK II.] RESERVATION OF THE JUS DISPONENDI. 357 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, (a) So that although he may wi'ite to A., and specify the packages and marks by which the goods may be identified, and although he may ac- company 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 indorsed and de- livered 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 purpose or intention was really to reserve a, jus disponendi. (a^) § 383. In Walley v. Montgomery (6) the plaintiff had ordered a cargo of timber from S. & Co., and they informed him Waiieys. by letter that they had chartered a vessel for him, and er™ '^*"° afterwards sent him in another letter the bill of lading and in- voice, 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. S. & Co. sent at the same time (a) [Mason v. The Great Western Rail- or equivocal, wliat the real intention of way Co. 31 U. C. Q. B. 73.] the parties was at the time. It is properly (a^) [The vendor may retain his hold a question of fact for the jury, under upon the goods to secure payment of the proper instructions, and must be submitted price, although he puts them in course of to them, unless it is plain, as matter of transportation to the place of destination, law, that the evidence will justify o find- Vendor may by delivery to a carrier. The ingbutone way. Colt J. in Merchants' on^'ooSs'* appropriation which he then National Bank v. Bangs, 102 Mass. 295, though they makes is said to be provisional 296; Allen v. "Williams, 12 Pick. 297; toamporta- or conditional. He may take Stanton d. Eager, 16 lb. 473 ; Stevens u. tion. the bill of lading, or carrier's Boston & Worcester R. R. Co. 8 Gray, receipt, in his own or some agent's name, 262 ; Coggill v. Hartford & New Haven to be transferred on payment of the price, R. R. Co. 3 lb. 545 ; Farmers' & Me- by his own or his agent's indorsement, to chanics' Bank o. Logan, 74 N. Y. 568 ; the purchaser, and in all oases where he Emery's Sons v. Irving Nat. Bank, 25 0. manifests an intention to retain this jus St. 360 ; Sprague u. King, 1 Pugsley & disponendi the property will not pass to Burbridge (N. B.), 241 ; The New Bruns- the vendee. Practically, the difficulty is wick Ry. Co. v. McLeod, lb. 257.] to ascertain, where the evidence is meagre (6) 3 East, 585. 858 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. 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 defend-, ant for the cargo, offering to accept the bills of exchange, but the latter insisted on immediate payment ; and on the plaintiff's re- fusal, sold the cargo, under direction of S. & 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 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. v.). § 383 a. [One Fisler bought of Spaulding, of Elmira, certain goods, which were to be paid for by the paper of Wire- phia & man indorsed by Fisler. The goods were to be deliv- K*^ C'('"«. ered at Elmira, the consignee to pay the freight. Spaul- Wireman. ^j^^^ delivered the goods to the Lehigh Valley R. R. Co. at Elmira, his order being to forward them to Wireman at Phila- delphia. At the same time Spaulding wrote to Fisler sending him a bill for the goods, the receipt of the railroad, and a draft for Wireman's acceptance and Fisler's indorsement. On the day the goods were sent, Spaulding received information which led him to believe that neither Wireman nor Fisler was good for the amount of the bill for the goods. Spaulding then had another receipt made out by the railroad company, by which the goods were made deliverable to his order. The next morning additional security was demanded from Wireman and Fisler, which they refused to give. Spaulding then ordered the railroad company to deliver the goods to certain third parties. The Lehigh Valley road sub- sequently delivered the goods to the plaintiff', at the junction of the two roads. The way bill contained this language : " J. Wire- man, .... Philadelphia. Deliver only on the order of H. C. Spaulding." The car containing the goods was forwarded to Phil- adelphia with this restriction contained in the way bill. Fisler, after having heard of the arrival of the goods, sold them to Wire- man, receiving !|500 on account, and gave Wireman the memoran- dum of shipment, the invoice of Spaulding, and the Lehigh Valley R. R.'s receipt. Wireman upon presenting these and paying the freight received the goods. Spaulding having returned the note of Wireman brought suit against the present plaintiff for the BOOK II.] RESERVATION OF THE JUS DISPONENDI. 359 value of the goods and recovered judgment, which' the company- paid. The company then instituted this suit to recover the vaUie of the goods. There was no evidence tending to establish the in- solvency of Fisler at the time of the purchase. Sterrett J. said : " The testimony fairly justified the inference that after Spaulding had taken the receipt of the Lehigh Valley Railroad Company, and mailed it to Fisler, he doubted the solvency of Wireman and Fisler, and induced the company to restrict the delivery to the consignee, by adding to the bill of lading the words above quoted, and when the goods were transferred to the plaintiff company .... the same direction was inserted in its way bill. But neither Fisler nor Wireman was a party to tliis change in the terms of shipment, and were not bound by it. If the goods were purchased and delivered at Elmira, as contended by the defendant, the title had passed from Spaulding and vested in the purchaser. After an unqualified delivery to the carrier at Elmira, they were no longer at the risk or under the control of Spaulding, and he had no right to say that, on reaching their destination, they should not be de- livered to the consignee without his order."(6i)] § 384. In Coxe v. Harden (c) the property was held to have passed under somewhat singular circumstances. Oddy ^^^^ ^ & Co. of London ordered a purchase of flax, from Harden. Browne & Co. of Rotterdam, who executed the order, and sent an invoice to Oddy & Co., and a bill of lading, unindorsed, by which the goods were made deliverable to Browne & Co., and a letter, stating, " We have drawn on you at two usances in favor of Lucas, Fisher & Co., &c. We close this account in course." Browne & Co. then sent another bill of lading of the same set to the plaintiff, indorsed, for the purpose of securing the amount of their hill upon Oddy ^ Co. Oddy & Co. transferred their un- indorsed bill to the defendant, in payment of an antecedent debt, and the defendant got delivery of the fla5i; on that bill, and sold it, notwithstanding plaintiff's warning and demand for the goods under his indorsed 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 transitu. No notice was taken of the vendor's purpose to retain a jus dispo- (fti; [Philadelphia R. R. Co. u. "Wire- (c) 4 East, 211. man, 88 Penn. St. 264.] 360 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. neiidi, Lord Ellenborough saying, that the only thing which stood between Oddy & 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 under their bill of lading. But that diiEculty has been removed, for the Remarks captain has actually delivered the goods to their as- case'."^ signs." It is to be remarked of this case, that the date at which the bill of lading was indorsed by Browne & Co. to the plaintiff was not shown ; that it was perhaps not so indorsed till after 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 de- cision, although printed in italics in the report, that the indorsed bill of lading was sent to the plaintiff by Browne & Co. ex- pressly " for the purpose of securing the amount of their bill upon Oddy & Co." See Moakes v. Nicholson, (c^) and Brandt v. Bowl- by, (e) infra. § 385. In Ogle v. Atkinson (/) it was again held that the Ogle V. At- property had passed, notwithstanding the vendor's at- kinsoii. tempted reservation of ■& jus disjjonendi, but the attempt was fraudulent. The plaintiff ordered goods from Smidt & Co., at Riga, in return for wine consigned to them for sale the previous 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 & Co. themselves. They afterwards obtained from the captain, by fraud- ulent 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 exchange which Smidt & Co. drew in favor of that third per- son. Held that the property had passed by the delivery to the plaintiff's agent, and was not divested or affected by the subse- quent acts of Smidt & Co. (/i) § 3sG. In Craven v. Ryder (ropertij in tlie wlieat passed to the plaintiffs, .... but the question is as to the intention of the parties, as evidenced by the contract, with reference to the delivery of po: session. 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 [Ic) 2 M. & G. 792. (;) 5 Bing. N. C. 541. BOOK II.] RESERVATION OF THE JUS DISPONENDI. 363 the consignee failed in remitting the banker's draft, not upon the delivery of the wheat, but 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 ex- chequer chamber this decision was unanimously reversed, (m) the court, composed of Lord Abinger C. B., Parke, Alderson, and Rolfe BB., and Patteson, Coleridge, and Wightman JJ., saying that they acceded to the general principle of the judgment of the common pleas, but could not agree 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 plain- tiffs. " The delivery of the bill of lading and remitting the bank- er's draft could not be simultaneous acts : the plaintiffs must have received the bill of lading and invoice before they could send the draft." § 388 a. [In Wise v. M'Mahon (m^) one Chambers went to the office of the plaintiffs in Cork, and as the agent of the de- fendant, who resided in Tralee, contracted to sell to the plaintiffs a certain amount of barley. The sold note was as fol- yr.^^^ ^ lows : " I have sold to Messrs. Wise, for account of M'Mahon. Charles M'Mahon, of Tralee, about 1,200 barrels of barley, equal to sample, free on board the Darling, now in the port of Tralee, at 18s. 8(i. per barrel of 16 stone, payment cash, on receipt of bill of lading and invoice. James Chambers for C. M'Mahon." Wise met Chambers soon after and got him to write on the note : " The freight agreed on is 15s. per ton." On the 9th November, 1839, the barley was shipped on the Darling, at Tralee ; on the night of the 12th the vessel was lost with all her cargo. On the 16th of November, before Messrs. Wise knew of the loss. Chambers went to Cork, having with him the following bill of lading, dated November 9th : " Shipped in good order and well conditioned by Charles M'Mahon .... a full cargo of screened and kiln dried barley, 131 tons ; being marked and numbered as in the margin ; and to be delivered in the like good order and well conditioned at the aforesaid port of Cork .... unto shippers' orders, he or they paying freight, after due delivery of said goods, 15s. per ton." Chambers indorsed this bill in the office of the Messrs. Wise, told T. Wise that he might insure the cargo, and demanded payment (m) Wilmshiirst u. Bowker, 7 M. & G. (mi) [Longf. & Towns. (Ir.) 192.] 882. :j64 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. of the amount, or something on account. This was refused. Chambers left the bill of lading in the office, and on the following Monday F. Wise, who was not present when the first demand was made, gave Chambers a check for £800, to recover which amount this action was commenced. It was held that the plain- tiffs could not recover, as the property in the grain vested in the plaintiffs when it was delivered on board the vessel. Brady C. B. said : " The first question then is, whether the goods were put on board the I/arlhiff in pursuance of the contract. I will assume the fact to be so ; and that when the barley was put into the As to ship, it was shipped by M'JMahon pursuant to his con- whether tract, SO that if the ship had taken fire the loss would vendor is ^ bound to have fallen on Wise. No authority has been produced to forward . . , , j. -, i j bill of lad- show that it IS the duty or the vendor of goods not paid gtrods'not for to have a bill of lading made out and delivered to paid for. ^i^g vendee. The vendor is entitled, in my opinion, to retain his authority over the goods, and may countermand the de- livery of them, before their arrival at their place of destination, in case of the bankruptcy or insolvency of the consignee On these grounds I assume that the goods were put on board in pur- suance of the contract, and I think the keeping of the bill of lad- ing was not adverse to tlie right of Wise to receive them." J § 889. In Wait v. Baker, («) which is a leading case, decided ^^if ^ in 18-18, the facts were that the defendant at Bristol Baker. bought from one Li'thbridge 500 quarters of barley free on board at Kingsbridge, and in answer to an inquiry 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 wlien you have taken up a vessel, with particulars of the port she loads in, so that I may get insurance done correctly." By further correspondence, Lethbrldge forwarded copy of the charter-party which he had taken in his own name ; advised the commencement of the loading ; and on the 1st January, 1817, 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-morrow. I expect to be in Exeter on Friday, when it is very likely I shall run down and see yon." The bills of lading for the cargo were to the " order of Lethbridge or assigns, paying ()i) 2 Ex. 1. BOOK II.J RESERVATION OF THE JUS DISPONENDI. 365 the freight as per charter." Lethbridge took them to Bristol, called on the defendant, and left at his counting-house, early in the morning, an unindorsed bill of lading. At an interview with defendant at a later hour on the same day, 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 dif- ference. Lethbridge refused to accept the money or to indorse the bill of lading, but took it up from the counter and went to the plaintiffs, from whom he obtained an advance on indorsing 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 plaintiff 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 was not for a specific chattel. That contract would be satisfied by the delivery of any 500 quar- ters of corn, provided the corn answered the character of that which was agreed to be delivered. By the original contract, therefore, no property passed, and that matter admits of no doubt whatever. In order, therefore, to deprive the original owner of the property, it must be shown in this form of action — the action being for the recovery of the property — that at some subsequent time the prop- erty passed. It may be admitted that if goods are ordered by a person, although they are to be selected by the vendor and to be delivered to a common carrier to be sent to the person by whom they have been ordered, the moment the goods which have been selected in pursuance of the contract are delivered to the carrier, the car- rier becomes the agent of the vendee, and such a delivery amounts to a delivery to the vendee ; and if there is a binding contract between the vendor and vendee, either by note in writing or by part payment, or 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 con- tract. In this case it is said that the delivery of the goods on ship- board is equivalent to the delivery I have mentioned, because the 366 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ship was engaged on the part of Lethbridge as agent for the de- fendant. But assuming that it was so, the delivery of the goods on board the ship was not a delivery of them to the defendant, hut a delivery to the captain of the vessel to he carried under a bill of ladinij, and that bill of lading indicated the person for whom they ivrre to he carried. By that bill of lading the goods were to be carried by the master of the vessel for and on account of Lethbridge, to be delivered to him in case the bill of lading should not be assigned, and if it should, then to the assignee. The goods therefore still continued in possession of the master of the vessel, not as in the case of a common carrier, but as a person car- rying them on behalf of Lethbridge It is admitted by the learned counsel for defendant that the property does not pass unless there is a subsequent appropriation of the goods Appropriation may be used in another sense, viz. where both par- ties agreed upon the specific article in which the property is to pass, and nothing remains to be done in order to pass it. It is con- tended in this case that something of that sort subsequently took place. I must own that I think the delivery on board the vessel could not be an appropriation in that sense of the word The vendor has made his election to deliver those 500 quarters of corn. The next question is, whether the circumstances which oc- curred 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 saying that Lethbridge agreed that 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 defendant wished to obtain the cargo, and also to have the power of bringing an action if the corn did not agree with the sample. It seems evident to me that at the time when the unindorsed bill of lading was left there was no agreement 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 assign- ment of that cargo by indorsing the bill of lading to the defend- ant ; but there was nothing which amounted to an appropriation, in the sense of that term which alone ^vould pass the property.^' This conclusion of the learned judge is substantially a statement that, though the determination of election by the vendor was com- BOOK II.] RESERVATION OF THE JUS DISPONENDI. 367 plete, and the appropriation therefore perfect in one sense, yet the reservation of the yws 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 all the later decisions on the subject. § 390. Van Casteel v. Booker (o) was decided by the same court in the same year. The goods in that case had been Van Gas- placed by the vendor on board of a vessel sent for them Booker, by 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 indorsed 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 (jo) and Wait v. Baker (g) had been cor- rect in holding that the fact of making the bill of lading deliverable to the order of the consignor was decisive to show that no property passed to the consignee, it being clearly intended by the consignor to preserve his title to the goods till he did a further act. Second, that notwithstanding the form of the bill 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, (g^) 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 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. § 391. In 1850 the case of Jenkyns v. Brown (r) was decided in the queen's bench. Klingender, a merchant in New jenWnss. Orleans, had bought a cargo of corn on the order of Biown. 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 plain- tiffs, and sold the bills of exchange to a New Orleans banker, to whom he also indorsed 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 (o) 2 Ex. 691. (ryi) [See Ogg v. Shuter, L. R. 10 C. P. (p) 6 Ex. 570. The case was not re- 159, 163, 165, and 1 C. P. D. 47.] ported till some years after it had been de- (r) 14 Q. B. 496, and 19 L. J. Q. B. cided. 286. (?) 2 Ex. 1. 368 El'FECT OF CONTRACT IN PASSING PROPERTY. [bOOK II. pass to plaintiffs, as the taking of a bill of lading by Klingender in his own name was "nearly conclusive evidence" that he did not intend to pass the property to plaintiffs ; that by delivering the indorsed bill of lading to the buyer of the bills of exchange, he had conveyed to them " a special property " in the cargo ; and by the invoice 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, (r^) § 392. The case of Turner v. Trustees of Liverpool Docks (s) Turner «. ^'^^ decided in the exchequer chamber in 1851, the L'wr'"'*l°^ court being composed of Patteson, Coleridge, Wightman, Docks. Erie, Williams, and Talfourd JJ. A cargo of cotton had been purchased in Charleston, on the order of Higginson & Dean of Liverpool, and put on board their own vessel, which had been sent for it. Bills of exchange for the price were drawn by Menlove & Co. on the buyers, and sold to Charleston bankers, to wliom were transferred, as security, the bills of ladtng, which had been signed by the master. The bills of lading made the goods deliverable " to order, or to our (Menlove & Co.'s) assigns, he or they paying freight, notlihifi, heiiiff owiii'/s property." The ques- tion was, whether by delivery on board the purchaser'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 the Charleston bankers. The court took time to consider, and the decision was given by Patte- son 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 delivery. 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 ownem, although there was a de- livery on board their ship. The vendors still reserved to them- selves, at the time of delivery to the captain, the jus disponendi of the goods, which he by signing the bill of lading acknowledged, {?•') [Farmers' Bankof Buffalo !■. Brown, Lancashire & Yorkshire Railway Com- 10 J. & Sp. 522; Farmers' Bank of Buf- pany, L. R. 2 Ch. App. 332, and other falo V. Atkinson, 74 N. Y. 587 ; Farmers' cases cited post, book V. ch. v. on " Step- Bank of Buff.ilo V. Logan, lb. 568.] page in Transitu." (s) 6 Ex. 543. See, also, Schotsmaii o. BOOK II.] RESERVATION OF THE JUS DISPONENDI. 3G9 and without which it may be assumed that the vendors would not have deUvered them at all The plaintiffs in error rely upon tlie 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 & Co. of the 23d October, show too clearly for doubt, that notwithstanding the other terms of the bill of lading and the invoice, Menlove & Co. had no intention, when they de- livered the cotton on board, of parting with the dominion over it, or vesting the absolute property in the bankrupts." § 392 a. [In Mirabita v. Imperial Ottoman Bank, 3 Ex. D. 164, Colton L. J. said, p. 172 : " Under a contract for sale of Observa- chattels not specific the property does not pass to the [J,""l°j.°" purchaser unless there is afterwards an appropriation of fn^i^aJeT'^ the specific chattels to pass under the contract, that is, '•eservation ■•■ ^ ^ _ 01 JUS dis~ unless both parties agree as to the specific chattels in pomndi. which the property is to pass, and nothing remains to be done in order to pass it. In the case of such a contract the delivery by the vendor to a common carrier or (unless the effect of the shipment is restricted by the terms of the bill of lading) shipment on board a ship of, or chartered for, the purchaser, is an appropriation suf- ficient to pass the property. If, however, the vendor, when ship- ping the articles which he intends to deliver under the contract, takes the bill of lading to his own order, and does so not as agent or on behalf of the purchaser but on his own behalf, it is held that he thereby reserves to himself a power of disposing of the property, and that consequently there is no final appropriation, and the property does not on shipment pass to the purchasers. When the vendor on shipment takes the bill of lading to his own order, he has the power of absolutely disposing of the cargo, and may prevent the purchaser from ever asserting any right of prop- erty therein So, if the vendor deals with or claims to re- tain the bill of lading in order to secure the contract price, as when he sends forward the bill of lading with a bill of exchange attached, with directions that the bill of lading is not to be de- ■ livered to the purchaser till acceptance or payment of the bill of exchange, the appropriation is not absolute, but, until acceptance of the draft, or payment or tender of the price, is conditional 24 370 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. only, and until such acceptance or payment or tender, the prop- erty in the goods does not pass to the purchaser ; and so it was decided in Turner v. Trustees of Liverpool Docks But if the bill of lading has been dealt with only to secure the contract price, there is neither principle nor authority for holding that in such a case the goods shipped for the purpose of completing the contract do not on payment or tender by the purchaser of the con- tract price Test in him. When this occurs there is a performance of the condition subject to which the appropriation was made, and everything which, according to the intention of the parties, is necessary to transfer the property is done ; and in my opinion, under such circumstances, the property does on payment or tender of the price pass to the purchaser."'] S 393. EUershaw v. Magniac (t) was decided prior to Van Cas- ^,, , teel V. Booker, (w) and is referred to in that case, but 1'. Magaiac. -^^as not reported till 1851. There the plaintiff had con- tracted with C. & Co. of London and Odessa for the purchase of 1,700 quarters of Odessa linseed, had paid half the price, and had sent the WoodJwuse, a vessel chartered by himself, " to take on board, from agents of the said freighter, about 1,700 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 Woodhimse ;" and again, "by Friday's post you shall have the bill of lading of the linseed, by the Woodhousf." The Odessa partner afterwards took a bill of lading for the cargo, and made it deliverable "to order or assigns," and, being in diffi- culties, got advances by transferring the bills of lading to the de- fendant. Held, by the court (Lord Abinger C. B. and Parke and Alderson BB.), that the shippers, by making the linseed de- liverable to order by the bill of lading, clearly showed the inten- tion to preserve the right of property and possession in themsches, 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. § 394. In Joyce v. Swan, (a;) a decision was rendered in 1864, Joyce V. by the common pleas, on the following facts : McCarter, ®™°- of Londonderry, on the 14th February, 1863, ordered (0 6 Ex. 570. (x) 17 C. B. N. S. 84. (m) 2 Ex. 691, 702. BOOK II.] RESERVATION OF THE JUS DISPONENDI. 371 one hundred tons of guano from Seagrave & Co. of Liverpool, with whom he had been in the habit of dealing, and was on very inti- mate terms. On the 26th he was informed that the 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 shipment at 101. per ton Please say if you purpose effecting insurance at your end." On the 2d March, Mc- Carter ordered Joyce, the plaintiff, an insurance broker, to insure for him " 1,200L on guano, valued at 1,200?., per Anne and Isa- bella, from Liverpool to Derry." Then on the 3d March, McCar- ter wrote to Seagrave & Co., in relation to the price of 101. : " I really cannot understand this, when I know that Mr. Lawson sup- plies your guano, in Scotland, at 91. 15s. net, there to dealers ; be- sides, 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 unreasonable 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 & Co. received this letter on the 4th March, and 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 & Co., or their assigns." They also on the same day made out an invoice of " the particulars of guano delivered to ac- count of McCarter, by Seagrave & Co., per Anne and Isabella. The invoice and bill of lading were forv?arded in a letter to the senior partner of Seagrave & 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 indorsed the bill of lading to McCarter and obtained from him an acceptance for the price, which he at once inclosed 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 Mc- Carter, and was defended by the underwriters on the ground that 372 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. 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 condition of the passing of the property that the price should be agreed on ; that there might be a contract of sale leavino- the price to be afterwards settled ; that if the guano ■was appropriated to McCarter when put on board by Seagrave & Co. with the intention of passing the property, they must find for plaintiff ; but if they intended to keep it in their oiun 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 ver- dict was for plaintiff, and was sustained by the court. The letter of McCarter was construed by the judges as a "grumbling'' as- sent to the price. S 395. It is to be remarked that this case is not at all in conflict Observa- with Turner v. Liverpool Docks, or Wait v. Baker, in this case, 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 jolain 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 goods for his own se- curity ; but in Joyce v. Swan the shippers 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 leav- ing the property uninsured and uncared for if his letter meant that he refused the purchase ; but they were acting as his agents and intended to reserve nothinr/, 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 101., and that being so, the vendors were his agents in taking the bills of lading ; and the case is exactly in ac- cord 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 circumstances of the case ; and with Browne V. Hare, (s) 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. (y) 2 Ex. 691. (2) In Cam. Scacc. 4 H. & N. 822; 29 L. J. Ex. 6. BOOK II.] EESEKVATION OF THE JUS DISPONENDI. 373 § 396. In Moakes v. Nicolson, (a) the facts were, that a sale was made by one Josse to Pope for cash, of a quantity of jioakes v. 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 let- ter of advice, was sent to Pope on the 19th 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 mean time, on the 13th December, Pope had sold the coal on the London Exchange', but before it had been separated from the heap in Josse's yard, to the plaintiff, who paid for the coal before action brought. The defendant induced the captain of the vessel to refuse delivery to the plaintiff, and took possession of the coal himself. The plaintiff 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^ws disponendi; thirdly, that the intention of Josse was a fact to be determined by the jury. (5) 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 bond fide purchaser, the result might have been different. The ratio deci- dendi of the case was clearly that Pope's sale was of a thing not yet his, of property not yet acquired, and therefore inoperative to pass the property. Ante, § 78. § 397. In Falk v. Fletcher, (c) the plaintiff, a merchant of Liverpool, acting in behalf of De Mattos of London, had Falk v. chartered from the defendant a vessel to load a complete cargo of salt, for Calcutta. The plaintiff had put on board about 1,000 tons of salt, for which he took receipts in his own name, when De Mattos failed, and the plaintiff declined to continue (a) 19 C. B. N. S. 290; 34 L. J. C. P. (b) [Merchants' National Bank «. Bangs, 273. 102 Mass. 1-9 1.] (c) 18 C. B. N. S. 403 I 34 L. .J. C.P. 146. 374 EFFECT OF CONTRACT IN PASSING PKOPEETY. [BOOK II. loadino-, whereupon the defendant filled up the vessel for his own account, and refused to deliver to the plaintiff bills of lading for the 1,000 tons, on the ground that they belonged to De Mattos. It was proven that the plaintiff was in the habit of buying such cargoes 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 completed sent in- voices to De Mattos and received the acceptances of the latter for the cost. Held, under these circumstances, a question of intention for the jury, whether the plaintiff intended to part with the prop- erty 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. § 398. In Sliepherd v. Harrison (c?) the facts were that Pa- Shepherds, ton, Nash & Co., merchants of Pernambuco, bought for Harnson. ^^g plaintiff, a merchant of Manchester, certain cotton, shipped it on the defenda.nt's steamship Olinda, taking a bill of lading. They then wrote to the plaintiff, saying, " Inclosed please find invoice and hill of ladinr/ of 200 bales cotton shipped per Olinda, costing 851Z. 2.s. TcZ." The letter also announced that a draft had been drawn for the price in favor of George Paton & Co., the agents in Liverpool of Paton, Nash & Co., " to which we beg your protection." The invoice was headed, "Invoice, &c. on account and risk of Messrs. John Shepherd & Co. (the pur- chaser)." The bill of lading, however, was not inclosed in the letter to the plaintiff, but was, together with the bill of exchange, inclosed to George Paton & Co. of Liverpool, who at once sent a letter to the plaintiff' inclosing the bill of lading and the bill of exchange drawn on him, and stating, " We beg to inclose bill of lading for 200 bales cotton shipped by Paton, Nash & 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 & Co., on a duplicate bill of lading held by them, and on receiving an indemnity against the plaintiff's claim. The plain- tiff's action was trover against the master, but all the courts were [d) L. R. 4 Q. B. 197, 493 ; L. R. 5 H. L. 116. BOOK II.] RESERVATION OF THE JUS DISPONENDI. 375 unanimous in favor of the defendant, and it was held in the House of Lords : first, that the jus disponendi had been reserved by the vendors ; secondly, that where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with the bill of lading which is the symbol of the property in the goods, the buyer cannot lawfully retain the bill of lading without accepting the bill of exchange ; that if he does so re- tain it, he thereby acquires no right to the bill of lading or the goods, (c^i) § 399. The followi'ng seem to be the principles established by the foregoing authorities : First. Where goods are de- livered by the vendor in pursuance of an order to a com- duced from mon carrier for delivery to the buyer, the delivery to the \it^^'l^. carrier passes the property, he being the agent of the "i°'''''«3- vendee to receive it, and the delivery to him being equivalent to a delivery to the vendee, (e) Secondly. Where goods are de- livered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading, as the one for whom they are to be car- ried, (e^) This principle runs through all the cases, and is clearly {d') [First National Bank of Cairo «. 519 ; Magruder v. Gage, 33 Md. 344 ; ante, Crocker, \l\ Mass. 166, 167 ; De Wolf v. § 362; Fir.st National Bank of Cairo a. Gardner, 12 Cush. 19, 23; Allen v. Wil- Crocker, 111 iWass. 166. To produce the liams, 12 Pick. 297.] effect stated in the text it is not necessary (e) Wait, ('. Bakei', 2 Ex. 1. See, also, that any particular carrier should be des- Dawes u. Peck, 8 T. R. 330; Dutton v. ignated by the buyer; Garland v. Lane, Solomonson, 3 B. & P. 582 ; London & 46 N. H. 245, 248 ; Arnold v. Prout, 51 North Western Railway Company v. Bart- lb. 587, 589 ; Watkins v. Paine, 57 Ga. lett, 7 H. & N. 400, and 31 L. J. Ex. 92; 50; nor does it make any difference which Dunlop V. Lambert, 6 CI. & Fin. 600 ; party is to pay the freight for the goods. [Putnam u. Tillotson, 13 Met. 517; Stan- Button v. Solomonson, 3 B. & P. 584; ton V. Eager, 16 Pick. 467 ; Ludlow v. Vale i;. Baj'le, 1 Cowp. 294; Eanny u. Bowne, 1 John. 15; Johnson v. Stoddard, Higby, 5 Wis. 62. A delivery of an ar- 100 Mass. 306 ; Orcutt v. Nelson, 1 Gray, tide sold to a person appointed by the 536 ; Merchant v. Chapman, 4 Allen, 362 ; vendee to receive it is a delivery to the Hunter v. Wright, 12 lb. 548; Wool- vendee. Wing u. Clark, 24 Maine, 366, sey V. Bailey, 27 N. H, 217; Arnold v. 373; Hunter w. Wright, 12 Allen, 548. So Prout, 51 lb. 587, 589 ; Garland v. Lane, a delivery at the place agreed, nothing re- 46 lb. 245 ; Goodwyn v. Douglas, Chevea maining to be done by the vendor. Nich- L. & Eq. (S. Car.) 174 ; Waldron v. Ro- ols v. Morse, 100 Mass. 523.] maine, 22 N. Y. 368 ; Summeril v. Elder, 1 (e^) [Gabarron v. Kreeft, L. R. 10 Ex. Binney, 106 ; Griffith v. Ingledew, 6 Serg. 274, 281.] & R. 429 ; Rodgers v. Phillips, 40 N. Y. 376 EFFECT OF CONTRACT IN PASSING PEOPERTY. [BOOK II. enunciated by Parke B. in Wait v. Baker, (/) and by Byles J. in Moakes v. Nicolson. (^) And the above two points were ap- proved as an accurate statement of the law by Lord Chelmsford in Shepherd v. Harrison, supra. Thix'dl}'. The fact of making the bill of lading deliverable to the order of the vendor is, when not rebutted by evidence to the contrary, almost decisive to show his intention to reserve th&juH dispoiiendi, a,ud to prevent the prop- erty from passing to the vendee. (/^) Fourthlj'. The primd facie conclusion that the vendor reserves the jus dispo7iendi, when the bill of lading is to his order, may be rebutted by proof that in so doing he acted as agent for the vendee, and did not intend to retain control of the property ; and it is for the jury to determine, as a question of fact, what the real intention was. (i) Fifthly. That although as a general rule the delivery of goods by the ven- dor on board the purchaser's own ship is a delivery to the pur- chaser, and passes the property, yet the vendor may by special terms restrain the effect of such delivery, and reserve the ^((.5 dis- ponendi, even in cases where the bills of lading show that the goods are free of freight, because owner's property, (/c) Sixthly. That where a bill of exchange for the price of goods is inclosed to the buyer for acceptance, together with the bill of lading, the buyer cannot retain the bill of lading unless he accepts the {/) 2 Ex. 1. lien only, in case of the purchaser's mak- ig) 19 C. B. N. S. 290; 34 L, J. C. P. ing default in the payment of tlie price, 273. but reserves a right of disposing of the (A) Wilmshurst v. Bowker, 2 M. & G. goods so long at least as the purchaser 792 ; Ellershaw v. Majjuiac, 6 Ex. 570 ; continues in default. Ogg v. Shuter, 1 C. Wait Tyrie, L. J. 33 Q. B. 97; in protection, he does not reserve the vendor's error, 34 Q. B. 124. BOOK II.] RESERVATION OF THE JUS DISPONENDI. 377 bill of exchange : and if he refuse acceptance he acquires no right to the bill of lading or the goods of which it is the symbol. (Z) (1) Shepherd v. Harrison, supra, § 398 ; [Bank of Rochester o. Jones, 4 Comst. 497, 502; Winter v. Coit, 3 Selden, 288; Marine Bank of Chicago u. Wright, 48 N. Y. 1 ; Fifth National Bank of Chicago V. BaUey, 115 Mass. 228, 230; Aldermau u. Eastern R. R. Co. lb. 233 ; Ames J. ill First National Bank of Green Bay V. Dearborn, lb. 222 ; Millar i'. Say. Ass'n, 3 W. N. Cas. 480 ; Cobb v. The Ill- Cent. R. R. Co.- 88 HI. 394; Taylor v. First Nat. Turner, 87 lb. 296. In First Bank t>. National Bank of Cairo v. Crocker. Crocker, 111 Mass. 163, A., in Illinois, being indebted to the defend- ants, who were commission merchants in Boston, for advances, promised that he would " make it right " at the next ship- ment. He afterwards shipped goods to Boston, taking a bill of lading stating that the goods were " consigned to ship- per's order," but containing under the heading " consignees " the name of the the defendants. He drew on the defend- ants, attached the bill of lading to the draft, and had the draft discounted ; the defendants refused to accept the draft, and it was taken up by A. The goods after- wards arrived and were delivered to the defendants. Subsequently A. drew a draft against the goods on B. in Boston, and delivered it, with the bill of lading at- tached, to the plaintiff, who discounted it and presented it to B., who accepted and paid it. Between the time when this sec- ond draft was discounted and the time when it was accepted, the defendants sold the goods ; it was held that the act of the defendants in taking possession of the goods was wholly unauthorized, and gave them neither valid title nor lawful posses- sion; and in proceeding afterwards to sell them as if they were their own, and ap- propriating the proceeds, they were guilty of a wrongful conversion ; and it was also held that it was immaterial whether the bill of lading, when delivered to the plain- tiff, was indorsed by A. in blank or to the order of B. See De Wolf v. Gardner, 12 Cush. 19 ; Bank of Rochester v Jones, 4 Comst. 497. " When hills of lading to ship- per's order, or to or order, indorsed, or by which goods are made „ . -^ ° Transmis- dehverable to a consignee by sion of bills name, are transmitted to him *„°^! f"/"" as security for antecedent ad- antecedent , . advances, vances, .... they are evi- dence of such a destination and appro- priation to him of the specific goods as will vest in him a property, absolute or special, in them, at the time of their deliv- ery on board." Abbott on Shipping (5th Am. ed.) p. 410. The American cases seem to support this statement. Schu- macher V. Eby, 24 Penn. St. 521 ; Gros- venor v. Phillips, 2 Hill, 147 ; Straus v. Wessel, 30 0. St. 211 ; Bailey v. The Hudson R. R. Co. 49 N. Y. 70 ; Nelson V. Chicago &c. R. R. Co. 2 Bradwell (111.), 180. But if the consignor be sim- ply generally indebted to the consignee, there is a recognized distinction. Bank of Rochester v. Jones, 4 N. Y. 497 ; Gros- venor v. Phillips, 2 Hill, 147; Elliot v. Bradley, 23 Vt. 217 ; Hodges v. Kimball, 49 Iowa, 577 ; Redd v. Burrus, 58 Ga. 574 ; Nelson v. Chicago &c. R R. Co. 2 Brad- well (111.), 1^0; Saunders j;. Bartlett, 12 Heiskell (Tenn.), 316; Oliver v. Moore, lb. 482. In Frechette v. Corbet, 5 Low. Can. 211, Meredith J., after quoting the above passage from Abbott, said, " Ce passage ne prouve pas qu'en aucun temps, suivant les lois anglaises, le droit de pro- pri^te' dans des marchandises mentionnees dans un connaissement, doit passer au con- signataire au pri5judice des autres crean- ciers du consignateur ; et quelle que soit k cet ^gard la loi en Angleterre, suivant notre droit, un debiteur ne peut pas trans- porter, de la manifere mentionne'e dans le passage cite d'Abbott, tous les biens k Fun de ses crc'anciers au prejudice des autres." See Marine Bank of Chicago u. Wright, 48 N. Y. 1 ; Grosven'or o. Phillips, 2 Hill, 147. CHAPTER VII. EFFECT OF A SALE BY THE CIVIL, FRENCH, AND SCOTCH LAW. Section Discovery o£ the Institutes of Gaius 401 Sale the offspring of exchange Dare, fan re, prccstare Civil, priEtorian, and natural obliga- tions ...... Four stages in mode of making sales in Kome . ... Nexum, stipnialio, literarum oUigatio seu expensilatio, and mutual con- sent Four contracts jun's jicnh'wm . Bilateral or synallagmatic contracts Distinctions between sales in Rome and at common law In Rome, price certain required 402 403 403 404 404 404 404 405 405 Section In Rome sale was not a transfer of ownership . . . 405 Vendor bound only to deliver posses- sion ... . 405 When vendor knew he was not owner 405 What was meant by eviction . . 406 Remedies of evicted purchaser 407 Actio ex evipto 407 Actio de stipulatione diiplcB . , 408 Vendor bound as auctor to make good his warranty . . . 409 Things sold at risk of buyer before delivery 410 Yendor hound prcestare custodiam . 411 French law 412 Scotch law . ... 413 § 400. An attempt must now be made to give a summary, necessarily -vevy imperfect, of tlie principles of the Civil Law, in regard to the nature of the contract of sale and its effect in pass- ing the property in the thing sold. The subject is the more dif- ficult, because there is a marked distinction between the modern Civil Law and the Roman Law, and because the doctrines are sub- tle and technical, requiring for elucidation at least some general idea of the mode in which the Romans entered into contracts at different periods in their history. § 401. The civilians of the present generation have enjoyed Discovery an immense advantage over their eminent predecessors, tutes^of' Pothier and D'Aguesseau, Cujas and Vinnius, Doraat *^^^"^' and Dumoulins. The Digest, Code, and Institutes of Justinian, compiled in the sixth century, during the reign of that emperor (A. D. 527-565), formed, prior to the year 1816, the almost exclusive source from which was derived a knowledge of Roman jurisprudence ; and in that famous corpus juris civilis, the BOOK II.] EFFECT OF SALE BY CIVIL, FRENCH, AND SCOTCH LAW. 379 nanie of Gains was confounded with those of the other eminent jurists whose responses (or, as we should call them, opinions on cases submitted) were adopted by the imperial law-giver as a part of the statutory law of the empire. It was, however, known that the Institutes of Justinian were modelled on those of Gains, who lived nearly four centuries earlier, during the reigns of An- toninus Pius and Marcus Aurelius. But the works of Gains were believed to be irretrievably lost till the year 1816, when Niebuhr discovered in a convent at Verona a parchment manuscript of Roman law, of which the original text had been partially obliter- ated to give place to a theological work of one of the fathers of the fifth century, (a) Savigny recognized the old writing to be the text of Gains, and, after several months of patient labor, the original manuscript was restored almost in its integrity, thus giv- ing to the civilians a succinct and methodical treatise on the whole body of the Roman law as it existed in the second century of our era. By means of this invaluable addition to former sources of information, the modern German and French commentators have been able to pour a flood of light on many questions formerly ob- scure, and it is from their works that the following summary is chiefly extracted. § 402. Sale was considered as the offspring of exchange, and for many centuries it was disputed whether there was any Sale the T (V • 1 CI /-v • offspring of diiierence in the nature or these contracts. " Ungo exchange. emendi, vendendique a permutationibus caepit, olim enim non ita erat nummus ; neque aliud merx, aliud pretium vocabatur." (6) And in the earliest period of the republic, when the laws of the Twelve Tables sufficed for the simple dealings of a rude peasantry, or of the poor city clients of the Roman patricians, the contracts were formed solely by means of actual exchange made on the spot, as the very names evince ; for the things were either exchanged by the permutatio, or given for a price by the Yemim-datio. § 403. Afterwards, when the idea of binding one party to an- other by consent, and thus forming an obligation Q'uris Dnre,fa- vinculum), was entertained, the whole body of possible staA. engagements between man and man was included in the three expressions, dare, facer e, prcestare : dare, to give, that is to trans- (a) See a very interesting account of (6) Dig. 18, 1. De Contrah. Emptione. this discovery in the preface to the first edition of Gains. , 380 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. fer oiV7iers7i{p ; facere, to do, or even abstain from doing, an act ; prcestare, to furnish or warrant an enjoyment or advantage or benefit to anotlier. And these three classes of engagements might arise out of three classes of obligations, only two of which gave a right of action, the third being available only for defence Civil, pi-fc- in some special cases. The three classes of obligation Mt'urai M)'- ^^^''^ '• '^''"'^ obligations, which gave a right of action at ligations, j.^^y . j^rictorian or lionorary obligations, which gave the right to sue in equity, that is, to invoke the equitable jurisdiction of the prastor ; (c) and natural obligations, for which there was no action at law in or equity, but which might be used in defence, as in compensatio or set-off. " Etiam quod natura debetur, venit in compensationem." Qd) The vendee then, like all other contracting parties, had certain actions (►;) which alone he was permitted to institute against the vendor. The Institutes of Gaius give us the form of declaration in an action in personam. " In personam actio est, quotiens cum aliquo agimns, qui nobis ex contractu, vel ex delicto obligatus est : id est, cum intendimus, dare., facere, prmstare oportere." § 404. Now, the mode of forming contracts of sale in Rome FourstaRes passed through four successive stages after the primitive in mode of ^ ° ■ , i i i ^ mi making one of actual exchange from hand to hand. 1st. The Rome. nf'xum, which was effected per ces et lihram, and con- Nexum. sisted in weighing out a certain weight of brass, and using certain solemn words, nuncupntio, which operated together as a symbol to form a perfect sale (at a period when man had not learned to write), termed ne.vuin, maneipiinn, mnncipatio, aliena- tio per rt'.s et lihram, all of which had fallen into disuse and de- rision long before the time of Gaius, (/) who says, " in odium venerunt." 2d. The sale by certain sacramental words alone, and dispensing with the ce» et lihram : this was the stipuhdion, (^) which bound only ojie side, from its very nature, (c) For these two classes giving rights niimmum signatum, testimonio est et id, of action, see Inst. 3, 13, 1. quod datur stipendium militi, et qnum (c?) Dig. 16, 2, 6, Ulp. spondetur pccunia, qnod stipulari dici- (e) Cora. 4, § 2. tur ; " and Isidor of Seville (lib. i, Grig. (/) Gai. 4, 30. c. 24) says: "Dicta stipulatio a stipula. (<;) The etymology of this word is Veteres enim quando sibi aliquid promit- doubtful: Paiilus derives it from Stipu- tebant, stijiulam tenentes frangebant, lum, an old word, meaning firm. Sent, quara iterum jungentos, sponsiones suas 5, 7, § 1. Festus, in his abridgment of agnoscebant." This last etymology seems Valerius Flaccus, says: "Stipcm esse to be merely an invention, as the Frencli BOOK II.J EFFECT OF SALE BY CIVIL, FRENCH, AND SCOTCH LAW. 381 because it consisted in a promise made in response to the stipu- lator. A stipulation, therefore, might bind the vendor or the ven- dee ; it required two stipulations to bind both. The rigorous so- lemnities and sacramental formulse of the old law of the Quirites were upheld with strictness by the patricians and priests, so that, by an exaggerated technicality, the words " spondes f spondeo" forming a stipulation, were not allowed to be used by any but Ro- man citizens, (A) foreigners and barbarians being compelled to adopt other words, as " promittis" " dahis," '■'■fades," for the same purpose, these latter expressions being deemed Juris gentium. But Justinian tells us that this form of contract was ob- uurarum solete in his day. (i) 3d. The third step in the progress "^hyatw, of the law naturally occurred when men had learned silatio. generally to write, and every Roman citizen kept a book called a register or account-book (tabulce, codex accepti et depe.nsi). The law declared that an entry made in this book in certain terms, admitting the price to be considered as weighed out and given, should be equivalent to the actual ceremony ^er ces et libram, and should constitute, not simply a proof of the sale, but the written contract itself, literarum olligatio. This book was care- fully written out once a month from a diary or blotter (^adver- saria), and was treated as a proof of the highest character, Cicero saying of the tabulce, that they are " ceternce, sanctce, quce perpetuce existimationis fidem et religionem ample ctuntur. " (k') This con- tract was said also to be an expensilatio, from the entries in these books, the party who paid money entering it under this head as pecunia expensa lata, and the one who received it as jiyjuj^i pecunia accepta relata. 4th. The fourth and last stage consent. was the contract by mutual consent alone ; and it is again a re- markable instance of the strict technicality of the Ro- Fom-con- ,.,,,,» tracts j«7TS man law, (V) that it allowed but four contracts to be gentium. made in this manner, on the ground that they were contracts Juris gentium, while all others were still required to be made with the formalities of the Roman municipal statutes. These four contracts are sale (emptio-venditio'), letting for hire (locatio-con- say, apres coup. Such a mode of contract- {k) Pro. Roscio, 3, § 2. ing, and such a derivation, if true, could {1} Gains thus complains: "Namque scarcely have been unlsnown to Paulus ex nimia subtilitate veterum qui tunc jura and Pestus. condiderunt, eo res perducta est ut vel {h] Gai. Com. 3, 93. qui minimum errasset, litem perderet." (i) Inst. 3, 15, 1. L. 4, § 30. 882 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. ductio'), partnership (societass), and agency or mandate (manda- Biiateraior tutn). They are also the only contracts of the Roman matic. law that were termed bilateral, or synallagmatic, or re- ciprocal: that is, binding the parties mutually (ultro-citi-oque), every other form of contract being unilateral, i. e. binding one party only, and requiring to be repeated in the reverse form in order to bind the other, as in the stipulatio. § 405. The sale being at last permitted by mutual consent, its Distinction elements were the same as at the common law, with the between exceptions now to be considered. 1st. The price was Eome and iq \yQ certain, either absolutely or in a manner that could at common ^ ^ law. be determined, as for centiun aureos ; or for what it cost Price must y°'-') quantum tu id emisti ; or for what money 1 have be certain, j^-^ j^y Qoffej.^ quantum pretii in area liah&o. (jii) The common law rule, that in the absence of express agreement a reasonable price is implied, did not exist in the Roman law. Sale was ^"^^1 • I* ^^^ ^ received maxim in the Roman law that not a trans- ^^jjg vendor did not bind himself to transfer to the buver ler of own- ... ership. the property in the thing sold ; his contract was not rem dare, but prcest.are emjjtori rem habere licere. The texts abound in support of this statement. " Qui vendidit, necesse non habet fundum emptoris facere," unless he made a special and unusual stipulation to that effect, h't the text goes on to say, " ut cogitur qui fundum stipulanti spopondit." (n) If the vendor was owner, the property passed by virtue of his promise to guar- anty possession and enjoyment, but if not, the sale was still a good one, and its effect was simply to bind the vendor to indem- nify the buyer, if the latter was " evicted," that is, dispossessed judicially at the suit of the true owner. Ulpian's explanation is entirely lucid. " Et in primis ipsam rem prsestare venditorem oportet, id est, tradere. Qute res, si quidem dominus fuit venditor, facit et emptorem dominum ; si non fuit, tantum evictionis nom- ine venditorem obligat, si modo pretium est numeratum, aut eo Vendor nomine satisfactum." (o) It resulted, therefore, that on was bound , ^ ^ only to de- the completion of a contract of sale, the vendor was session!" bound Simply to deliver possession, and the buyer had no right to object that the vendor was not owner. But the possession thus to be transferred was something more than the (m) Dig. 18, 1, De Contrah. Empt. 7, (n) Dig. 18, 1, 25, § l,Ulp. §§1&2- (o) Dig. 19, 1, 11, § l.Ulp. BOOK II.] EFFECT OF SALE BY CIVIL, FKENCH, AND SCOTCH LAW. 383 mere manual delivery, and the Romans had a special term for it : it must be vacua possessio, a free and undisturbed possession, not in contest when delivered ; " vacua possessio emptori tradita non intelhgitur, si alius in ea, legatorum fideive commissorum servandorum causa in possessione sit : aut creditores possideant. Idem dicendum est si venter in possessione sit. Nam et ad hoc pertinet vacui appellatio." (p) And if the vendor knew that he was not the owner and made a sale to a buyer vendor • 1 !• 1 1 11 knew he Ignorant or that fact, so as wiJiuily to expose the lat- was not ter to the danger of eviction, the vendor's conduct was deemed fraudulent, and the buyer was authorized to bring an equitable suit, ex empto, without waiting for the eviction. " Si sciens alienam rem ignoranti mihi vendideris, etiam priusquam evincatur, utiliter (^q) me ex empto acturum putavit [Africanus] in id, quanti me& intersit, meam esse factam. Quamvis enim alioquin verum sit, venditorem hactenus teneri ut rem emptori habere liceat, non etiam ut ejus faciat ; quia tamen dolum malum abesse prsestare debeat, teneri eum, qui sciens alienam, non suam, ignoranti vendidit." (r) § 406. The eviction against which the vendor was bound to warrant the buyer was the actual dispossession effected What was 1 I! ■ I • • 1 1-1 meant by by means or a judgment m an action by a third person, eviction. and it was not enough that judgment was rendered if not exe- cuted, (r^) In Pothier's edition of the Pandects, he thus states the rule and cites a response of Gains : " Cum ea res evicta dicatur, quEe per judicem ablata est, hinc non videbitur evicta, si condem- natio exitum non habuit, et adhuc rem habere liceat. Exemplum affert Gains. Habere licere rem videtur emptor, et si is qui emp- torem in evictione rei vicerit, ante ablatam vel abductum rem sine suecessore decesserit, ita ut neque ad fiscum bona pervenire {p) Dig. 19, 1, 2, § 1, Paulus. ms much interest as I had, that the thing (q) CiiVi'ter, that is, in equity, before the should become mine). For, although it prsetor. would otherwise be true that the vendor (r) Dig. 19, 1, 30, § 1. Tlie text may is only bound to guaranty possession to be thus translated for the benefit of those the buyer, not also that the thing should not familiar with the technical terms of become the buyer's, yet because he ought the Roman law : " If you, knowing a also to warrant the absence of fraud, a thing to be another's, sell it to me, who man is held responsible, who, knowing the am ignorant of the fact, Africanus was thing to be another's, not his own, has of opinion that, even before eviction, an sold it to one ignorant of that fact." equitable suit ex empto might be main- (j-l) [As to the common law rule see § tained by me for damages {literally, for 627, note {i}, and § 628, post.] 384 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. possint, neque privatim a creditoribus distrahi, tunc enim nulla competit, emptori ex stipulatu actio : quia rem habere ei licet. L. 57, Gains, lib. '2, ad Ed. Jildil.-Curul." (.s) § 407. The evicted purchaser had two actions, one ex empto, Remedies wliicli was the actio directa, resulting from the very nat- purd'as-'^ ure of the contract, and in which the recovery was for ^'^'~ damages consisting of the value of the thing at the date 1st Actio of eviction, and any expenses incurred in relation to it ; ex ciiijitu. ^j^g |-j.^Q principle in this action being to restore the buyer to the condition in which he would have been, not i£ he had never bought, but if he had not been dispossessed. (Q § 408. The second action was de stipulatione duplce, and arose 2d. Actio owt of a custom of Stipulating that the buyer, in case of ttone^du^' eviction, should receive, as an indemnity, doable the plie. price given. This stipulation became so general that, under an Edictum ^dilium-Curulium, it was considered to be im- plied in all sales, unless expressly excluded : " Quia assidua est duplje stipuiatio, idcirco placuit ex empto agi posse si duplam ven- ditor mancipii non caveat. Ea ENIM QU^E SUNT MOEIS ET CON- SUETUDINIS, IN BONiE FIDEI JUDICIIS DEBENT VENIRE." (it) The whole of the second title of the 21st book of the Digest is devoted to this subject, " De Evictionibus et Dupl» Stipulatione." § 409. In consequence of the peculiar obligations of the vendor Vendor as warrantor against eviction, he was called the auctor, I^uuctor^ who was boimd, auctor itatem prcestare, to make good to make j-^jg warranty ; and the form of procedure was, that when- wan-anty. ever the buyer was sued by a person claiming superior title to the thing sold, it was his duty to cite his vendor, and make him party to the action, so as to give him an opportunity of urging any available defence. This proceeding was termed litem denuntiarc ; or auctorem laudare ; auctorem inter p ellar e : and the buyer who failed to cite in warranty his vendor, without a legal excuse for his default, lost his remedy. " Emptor fundi, nisi auctori aut heredi ejus denuntiaverit, evicto praedio, neque (s) Pothier, Pandectai .Jnsiinianic, lib. Pand. Just. lib. 19, tit. 1, ch. 1, Sos. 43 21, tit. 2. De Evict. Pars 2, No. XII. to 47, under tlie head " Quanti teneatur So strict was the rule, that the buyer had venditor emptori, evictionis nomine, hac no remedy if evicted under the sentence actione ex empto." of an arbitrator, or by compromise. lb. (») Dig. lib. 21, tit. 2. 1. 31, § 20, Ulp. No. XVI. De ^dil. Edict. {t) The texts are collected in Pothier, BOOK II.] EFFECT OF SALE BY CIVIL, FRENCH, AND SCOTCH LAW. 385 ex stipulatu, neqne ex dupla, neque ex empto actionem contra venditorem vel fidejussorem ejus habet." (a;) § 410. It would seem the natural consequence of these princi- ples, that a vendor who did not even profess to transfer ^^^-^^ ^^^^ title must necessarily suffer the loss, if the thine sold was at . ° buj'er's perished before delivery, on the maxim that res perit risk before domino. But, on the contrary, the rule was explicitly aitbough laid down in conformity with that of the common law as e^L'^had exemplified in Rugg v. Minett, («/) where the buyer of the ""' passed. turpentine was held bound to suffer the loss of the goods destroyed before delivery, on the ground that the ownership had vested in him. The reasoning by which this result was reached in the Ro- man law is thus explained by an eminent French jurist. After citing the text of the Institutes, (3) which is in these words : " Cum autem emptio et venditio contracta sit, quod effici diximus simul atque de pretio convenerit, cum sine soriptura res agitur, periculum rei venditse statim ad emptorem pertinet tametsi adhuc ea res emptori tradita nonsit;" the commentator says: "Quels sont les effets de la vente ? C'est de produire des obligations : le vendeur est oblig^ de livrer et de faire avoir la chose a I'acheteur. Eh bien ! si depuis la vente il y a eu des fruits, des accroisse- ments, il sera oblig^ de m§me de livrer et de faire avoir, ces fruits, ces accroissements. (Dig. 19, 1, de Action. Empt. 13 ; §§ 10, 13, et 18, Ulp.) Si la chose a diminu^e, s'est d^t^rior^e sans sa faute, il ne sera oblig^ de la livrer, de la faire avoir, qu'ainsi diminu^e, ainsi ddt^rior^e ; et si la chose a p(^ri sans sa faute, son obligation aura cess^ d'exister. Voila tout ce que signifie cette maxime, que la chose, du moment de la vente, est aux risques de I'acheteur. C'est a dire que I'obligation du vendeur de livrer et de faire avoir, s'appliquera a la chose telle qu'elle se trouvera par suite des changements qu'elle aura pu ^proaver. II ne s'agit dans tout ceci que de I'obligation du vendeur. Et s'il y a perte totale nous ne ferons qu'appliquer cette rdgle commune de I'extinction des obligations, que le d^biteur d'un corps certain (species') est libdrd lorsque ce corps a p^ri sans son fait ou sans sa faute. (Dig- 45, 1, de Verb. Oblig. 93, Pomp.) Mais que deviendra I'obligation de I'acheteur relativement au prix ? Le prix convenu devra t-il etre augment^ ou diminu^ selon que la chose aura requ des ac- (x) Code, tit. De Evie. et Dup. Stip. (y) 11 East, 210, ante,% 322. L 8. {z) Inst. 3, 23, 3. 25 886 EFFECT OF CONTRACT IN PASSING PROPERTY. [BOOK II. croissements ou subi des deteriorations ? En aucune maniere : le prix restera toujours le me me. Et si la chose vendue a pdri totale- ment, de sorte que le vendeur se trouve lib^r^ de I'obligation de la livrer, I'acheteur le sera-t-il aussi de celle de payer le prix ? Pas davantage. Les deux obligations une fois contract^es ont une ex- istence ind^pendante : la premiere peut se modifier ou s'^teindre dans son objet par les variations de la chose vendue — la seconde n'en continue pas moins de subsister, toujours la meme. (Dig. 18, 5, de Rescind. Vend. 5, § 2.) Tel ^tait le sj'st^me Romain — et c'est pour cela qu'il est vrai de dire que du moment de la vente, I'acheteur court les risques de la chose vendue, bien que le vendeur en soit encore propri(jtaire." (a) § 411. But although the risk of loss before delivery was thus Vendor imposed on the buyer, it was on condition that the ven- pmstare^ dor should be guilty of no default in taking care of the custodiam. (;ijjj,g till he transferred it into the buyer's possession, for an accessory obligation of the vendor was prcestare custodiam. " Et sane periculum rei ad emptorem pertinet, dummodo custo- diam venditor ante traditionem prsestet." (6) § 412. Such were the leading principles of the Roman law as to F h law ^^^ effect of sale in passing title, and such was the law of the continent of Europe, wherever based on the civil law, till the adoption and spread of the Code Napoleon, first among the Latin races, and more recently among the nations of Central and Northern Europe. The French code says in a few emphatic words, "La vente de la chose d'autrui est nulle" (Art. 1599); and would thus seem to have swept away at once the entire doc- trine dependent upon the Roman system, which was based on a principle exactly the reverse. But unfortunately the definitions of the nature and form of the contract in the Arts. 1682 and 1583 gave some countenance to the idea that such was not the intention of the authors. Instead of defining a sale to be a transfer of the property or ownership, the language is, in Art. 1582 : " La vente est une convention par laquelle I'un s'oblige a livrer une chose, et I'autre h, la payer;" and in 1583: " Elle est parfaite entre les parties, et la propriety est acquise de droit h I'acheteur, a Vigard du vendeur, d^s qu'on est convenu de la chose et du prix, quoique la chose n'ait pas encore ^t^ livr^e ni le prix pay^." The conse- (a) Ortolan, Explic. Hist, des Inst, tome (b) Dig. 47, 2, de Furtis, 14, Ulp. 3, p. 282. BOOK II.J EFFECT OF SALE BY CIVIL, FRENCH, AND SCOTCH LAW. 387 quence of this almost literal adoption of the texts of the Roman law was, that not only an eminent jurist, but the court of cassa- tion itself, will be found to furnish authority for the position that a sale transfers only a right of possession, not a title of owner- ship. TouUier, one of the most accredited commentators, is of this opinion ; (c) and there is a decision of the highest court in France in conformity with it. (^d) But this view seems to be now exploded, and all the recent writers, including such great authori- ties as Duranton, Zachariee, and Troplong, insist that the modern idea of the transfer of ownership is what was really intended by the authors of the civil code, (e) M. Fr^m^ry gives the following clear exposition of the origin of the difEculty, and adds his au- thority to that of the great body of French jurists in support of the position that the modern civil law is on this point opposite to that of the corpus juris civilis : " The fragments preserved in the Digest conclusively prove that custom had consecrated at Rome an habitual formula for contracts of sale, subject to special clauses, which were to be added to suit the circumstances. According to this formula, it was the vendor who spoke, legem dioehat. It was customary according to this formula for the vendor, in expressing the engagements which he agreed to assume, to use these words : prcestare emptori rem habere licere ; terms which, strictly con- strued, are not as wide in their import as the words rem dare. The jurists decided, on this state of facts, that every ambiguous clause was to be interpreted against the vendor, whose fault it was not to have expressed himself more clearly. They further decided that he was not bound to transfer ownership. Justinian inserted these decisions in his Digest, and made them the law ; so that, deriving their authority from legislation, and not from the special circumstance of fact, on which the jurisconsults had reasoned, they became applicable to every contract of sale by its nature, as rec- ognized by the law. If, then, the old formula is abandoned, and the vendor uses the words rem dare, and no longer rem habere licere, how can one explain a law which declares that the vendor does not bind himself to transfer the ownership ? And if using neither locution, he simply says, ' I sell,' and leaves it to usage to (c) Tome 14, Nos. 240 et seq. et seq. ; tit. 2, add. au meme No. ; Duver- (d) Sirey, 32, 1, 623. gier, tit. 1, Nos. 10 etseq.; Championnifere (e) Favart, Vo. Vente ; Duranton, t. 16, et Rigaud, Dr. d'Eureg, t. 3, No. 1745; No. 18; Troplong, Vente, tit. 1, Nos. 4 Zacliariffi, t. 2, § 349. 388 EFFECT OF CONTEACT IN PASSING PROPERTY. [BOOK II. determine the meaning which it has attached to these words, what is to be done if it be manifest that all who use these words attach to them the idea that the vendor binds himself to transfer the ownership ? This is precisely what has happened. For many centuries it has been taught in our schools that it is of the nature of the contract of sale that the vendor is not bound to make the purchaser the owner of the thing sold : ipse dixit! And yet for many centuries, also, the words ' I sell ' are no longer para- phrased by the Roman formula which determined their meaning ; the man who utters them, or hears thera, understands unhesi- tatingly that he who sells is to make the purchaser owner of the thing sold ; and every one is asking how it is that by the nature of the contract of sale the vendor is not bound to transfer the own- ership to the purchaser. Since the civil code has appeared, how- ever, and has declared in the Art. 1599, ' the sale of another's thing is null,' many persons have inferred that this must be be- cause the two parties have the intention, one of transferring, the other of acquiring, the property in the thing sold : so that the nature of the contract of sale, which, according to the Roman law, did not impose on the vendor the obligation of transferring the ownership to the purchaser, does, on the contrary, according to the French law, comprehend this obligation." (/) § 413. In Scotland the property in goods never passes until de- In Scot- livery, and the law was stated by Lord President Inglis land. jj^ December, 1867, in the case of Black v. Bakers of Glasgow (40 Jurist, 77), as follows: "There could be no stop- page in transitu in this case, simply because the goods never were in a state of transitus. No law, either in England or Scot- land, gives any real countenance to the idea that the state of transitu to which the equitable remedy of stoppage applies, is anything but an actual state of transit from the seller to the buyer. Unless the seller has parted with the possession his rem- edy is not stoppage in transitu, but in Scotland retention, and in England an exercise of the seller's right of lien. I should think it almost unnecessary at this time of day to point out the impor- tant distinctions which exist between the laws of Scotland and England, as regards the seller's rights in goods sold and not de- livered. The seller of goods in Scotland (notwithstanding the personal contract of sale) remains the undivested owner of the (/) Frdme'ry, Etudes du Droit Commercial, p. 5. BOOK II.J EFFECT OF SALE BY CIVIL, FRENCH, AND SCOTCH LAW. 389 goods, whether the price be paid or not, provided the goods he not delivered, and the property/ of the goods cannot pass without de- livery actual or constructive ; the necessary consequence is, that the seller can never be asked to part with the goods until the price be paid. Nay, he is entitled to retain them against the buyer and his assignees till every debt due and payable to Mm by the buyer is paid or satisfied. The seller's right of retention being thus grounded on an undivested right of property, cannot possibly be of the nature of a lien, for one can have a lien only on the prop- erty of another. In England, on the other hand, the property of the goods passes to the buyer by the personal contract of sale, and the seller's rights thereafter in relation to the undelivered sub- ject of sale, whatever else they may be, cannot be rights of an undivested owner. English jurists are not agreed as to the true foundation in principle of the seller's lien. I shall only say, that if it be not an equitable remedy like stoppage in transitu, it is certainly not the assertion of a legal right of ownership like the right of retention in Scotland." In Couston v. Chapman Qg') will be found an exposition of the difference between the law of Eng land and that of Scotland in a sale by sample. (g) L. R. 2 Sc. App. 250. BOOK III. AVOIDANCE OF THE CONTRACT. CHAPTER I. MISTAKE, AND FAILURE OF CONSIDERATION. Section . 415 Common mistake No avoidance when restitutio in inte- grum impossible . . . 415 Even where mistake was caused by fraud . .... 415 Observations on Boulton v. Jones . 416 Mistake of one party not communi- cated to the other . . . 417 Party estopped from disputing the intention manifested by him . 417 Mistake of one party known to the other 418 Mistake must be of fact, not law . 419 Innocent misrepresentation of fact . 420 Innocent misrepresentation of law . 422 Failure of consideration where ven- dor fails to complete contract . 423 Section Failure where title warranted by vendor fails Failure even without warranty of title Failure in sale of forged securities or shares in a projected com- pany Or invalid or unstamped bill . Consideration does not fail where buyer gets [what he intended to buy, though worthless Partial failure of consideration Where contract entire, buyer may reject the whole .... But not if he has accepted part When thing sold is not severable 423 423 424 424 425 426 426 426 427 § 414. It has already been shown that a party who has given an apparent assent to a contract of sale may refuse to execute it if the assent was founded on a mistake of a material fact, such as the subject-matter of the sale, the price, and, in some instances, the identity of the other contracting party, (a) The contract in such case has never come into existence for want of a valid assent. We enter now on the consideration of cases where the contract has been carried into effect under a continuance of mistake, and when the party who contracted through error is no longer passive, declining to execute, but active, seeking to set it aside. (5) The (a) [Ante, §§ 50 et seg.; Byers v. Chapin, (6) [In Gardner v. Lane, 9 Allen, 492, 28 Oil. St. 300.] 499, Bigelow C. J. said : " Where parties BOOK III.] MISTAKE, AND FAILURE OF CONSIDERATION. 391 mistake alleged as a reason for avoiding a contract may be that of both parties, or of one alone ; it may be a mistake of law or of fact ; and when the mistake is that of one party alone, that fact may be known or unknown to the other contracting party. § 415. When there has been a common mistake as to some essential fact, forming an inducement to the sale, that common is, when the circumstances justify the inference that no ""'^take. contract would have been made if the whole truth had been known to the parties, the sale is voidable. If either party has „ performed his part during the continuance of the mis- cannot be •Til T • rescinded take, he may set aside the sale on discovering the truth, where res- unless he has done something . to render impossible a integrum restitutio in integrum of the other side, a restoration to "°P<"^''>'*' the condition in which he was before the contract was made. If that be not possible, the deceived party must be content Even when with a compensation in damages, (e) And this rule is ^as'caused applicable to cases even where the mistake of the com- ^y fraud. to a contract of sale agree to sell and purchase a certain kind or description of property not yet ascertained, distinguished, or set apart, and subsequently a delivery is made by mistake of articles differing in their nature or quality from those agreed to be sold, no title passes by such delivery. „. ^ They are not included within Mistake as •' to subject- the contract of sale ; the ven. matter. ^^j. j^^^g ^^j agreed to sell nor the vendee to purchase them, the subject- matter of the contract has been mistaken, and neither party can be held to an exe- cution of the contract to which he has not given his assent. It is a case where, through mutual misapprehension, the con- tract of sale is incomplete. Deliverj', of itself, can pass no title ; it can be effective and operate only when made as incidental to and in pursuance of a previous contract of sale. Such a case seems clearly to fall within that class in which, through mis- take, a contract which the parties intended to make fails of effect ; as where, in a ne- gotiation for a sale of property, the seller has reference to one article and the buyer to another, or where the parties suppose the property to be in existence, when in fact it had been destroyed. In such cases the contract is ineffectual, because the parties did not in fact agree as to the subject-matter, or because it had no exists ence." See the reference to this case, and other decisions upon this point, ante, §50, note ((); Chapman v. Cole, 12 Gray, 141 ; Wheat V. Cross, 31 Md. 99, 104; Gar- diner V. Tate, Ir. R. 10 C. L. 460 ; Megaw V. Molloy, L. R. '2 Ir. 530.] (c) Holtz V. Schmidt, 59 N. Y. 253 ; Wooster v. Sage, 67 lb. 67 ; Hunt v. Silk, 5 East, 449 ; Blackburn v. Smith, 2 Ex. 783 ; Sully v. Erean, 10 Ex. 535 ; Clarke V. Dickson, E., B. & E. 148; 27 L. J. Q. B. 223 ; Savage v. Canning, 16 W. R. 133 ; Irish R. 1 C. L. 434 ; [2 Chitty Contr. (nth Am. ed.) 1092, and note (a) ; Foster J. in Morse v. Brackett, 98 Mass. 209; Lyon «. Bertram, 20 How. (U.S.) 149, 154, 155; Bartlett v. Drake, 100 Mass. 176; Coolidge v. Brigham, 1 Met. 547; Stevens u. Austin, lb. 557 ; Kimball v. Cunningham, 4 Mass. 502 ; Conner v. Hen- derson, 15 lb. 319; Thayer v. Turner, 8 Met. 550; Martin v. Roberts, 5 Gush. 126 ; Shepherd v. Temple, 3 N. H. 455 ; Wig- gin V. Foss, 4 lb. 294; Luey v. Bundy, 9 lb. 298; Cook v. Gilman, 34 lb. 556, 560; Webb V. Stone, 24 lb. 282 ; Manahan u. 392 AVOIDANCE OF THE CONTRACT. [book III. plaining party was caused by the fraud of the other. In Strickland Strickland '"• Turner (d) the sale was of an annuity, dependent ou V. Turner. ^ jjjfg |;j^^f; jjg^^j ceased without the knowledge of either party, and the purchaser paid his money. Held that he could Cox V. recover it back as money had and received. In Cox v. Prentice. Prentice (e) the plaintiff bought a bar of silver, and by agreement it was sent to an expert to be assayed, and on his re- port 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 Ellenborough saying it was just as if an article is sold by weight, and there is an accidental misreckoning of the weight. Noyes, 52 lb. 232 ; Burton v. Stewart, 3 Wend. 236 ; Johnson v. Titus, 2 Hill, 606 ; Hammond v. Buckmaster, 22 Vt. 375 ; Fay o. Oliver, 20 lb. 118; Allen v. Edgarton,3 lb. 442; Howard v. Cadwalader, 5 Blackf. 225 ; Peters v. Gooch, 4 lb. 51 6 ; Newell v. Turner, 9 Porter, 420; Bacon v. Brown, 4 Bibb, 91 ; Reed u. McGrew, 5 Ham. 386; Potter c^. Titcomb, 22 Maine, 300; The Armstrong Furniture Co. 11. Kosure, 66 Ind. 545 ; Montgomery Co. u. American Emi- grant Co. 47 Iowa, 91 ; Royce v. Watrous, If contract ^ Daly, 87. The purchaser rescinded, of a chattel cannot rescind the considera- tion must be sale without returning it to returned. j^g vendor, unless it be en- tirely worthless to both parties. If it be of any value to the vendor, or if its loss would be any injury to him, it must be returned. Perley v. Balch, 23 Pick. 283 ; Shepherd v. Temple, 3 N. H. 455 ; Cook V. Oilman, 34 lb. 561 ; Sandford c. Dodd, 2 Day, 437 ; Tisdale v. Buckmore, 33 Maine, 461 ; Dorr a. Fisher, 1 Cush. 271, 274; Moyer v. Shoemaker, 5 Barb. 319; Getchell v. Chase, 37 N. H. 110; Babcock u. Case, 61 Penn. St. 427 ; Mahone v. Reeves, 11 Ala. 345 ; Smith v. Smith, 30 Vt. 139 ; Dill v. O'Ferrell, 45 Ind. 268; Wells J. in Bassett v. Brown, 105 Mass. 551, 558, 559 ; Morse v. Brack- et!, 98 lb. 205 ; S. C. 104 lb. 494 ; Con- ner V. Henderson, 15 lb. 319. In Brew- ster V. Burnett, 125 Mass. 68, it was held that the purchaser of counterfeit bonds of the United States, in whose possession they are, need not return them before bringing suit to recover the money he paid for them. Hess v. Young, 59 Ind. 379 ; Haase v. Mitchell, 58 lb. 213. This general rule as to restoring the considera- tion applies as well to a rescission on the ground of misrepresentation and fraud as to other cases. Kimball v. Cunningham, 4 Mass. 502; Thurston v. Blanchard, 22 Pick. 1 8 ; Thayer v. Turner, 8 Met. 550 ; Cook 11. Oilman, 34 N. H. 556 ; Bartlett r. Drake, 100 Mass. 176 ; Masson v. Bovet, 1 Denio, 74 ; Hoopes v. Strasburger, 37 Md. 390. There are exceptions to the general rule which grow out of and are founded upon the deficient capacity of the party who seeks to be relieved from the contract. Bartlett v. Drake, 100 Mass. 176; Chandler v. Simmons, 97 lb. 508, 514; Bartlett v. Cowles, 15 Gray, 445; Gibson v. Soper, 6 lb. 279; Boody v. Me- Kenney, 23 Me. 517 ; ante, § 27, in note c-)-] {d} 7 Ex. 208. See a similar case in equity, Cochrane u. Willis, L. R. 1 Ch. Ap. 58. (c) 3 M. & S. 344. BOOK III.] MISTAKE, AND FAILURE OF CONSIDERATION. 393 § 416. The case of Boulton v. Jones (/) was a very singular case of mutual mistake, and is well worth consideration. Boulton «. The facts have already been stated at length {ante, § '^°°^^' 59), 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 Boulton supplied them. Jones consumed the goods, still ignorant that they were supplied by Boulton, and when payment was asked for, declined, on the ground that he had a set-off against Brocklehurst, with whom alo7ie he had assented to deal. The action was for goods sold, and the court held that there was no contract by Jones with the plain- tiff, 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, (g') So far the case was in accordance with the rule laid down by Gibbs C. J. in Mitchell v. Lapage (A) (not cited in Boulton V. JonesJ), and the plaintiff could not be per- observa- mitted to recover. But on the principles governing con- B™iton p. tracts in general, it is submitted that the plaintiff was Jo^^s- not wholly without remedy. For aught that appears in the re- port, 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 sup- plying goods on a written order sent by a customer to a shop, ad- dressed to the man whose business he had just bought, and in ig- norance 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 de- fendant wished to buy qua 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 de- fendant 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 (/) 2 H. &N. 564; 27 L. J. Ex. 117. (A) Holt N. P. 253. (y) [See Mudge v. Oliver, 1 Allen, 74.] 394 AVOIDANCE OF THE CONTRACT. [BOOK III. 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 payment. 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 prop- erty in the goods should pass, at tlie price fixed in the invoice. Now, in determining this, which was the real dispute, a control- ling circumstance is that the buyer was wholly blameless, whereas the seller had been guilty of some slight negligence. If the seller had sent an invoice or bill of parcels with the goods, showing 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 ma- chinery for reforming contracts nor rendering conditional judg- ments), but in equity, either to make an equitable assignment to the vendor of his claim against Brocklehurst for an amount equiva- lent 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, (i) 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 intention, and B., honestly believ- ing 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. § 417. Where the mistake is that of one party only to the con- Mistake of tract, and is not made known to the other, the party not TOm-^ laboring under the mistake must bear the consequences, tothe'^other. ^" *'^^® absence of any fraud or warranty. If A. and B. (i) See, for illustration of equitable principles in such cases, Harris v. Pepperell, L. R. 5 Eq. 1. BOOK III.] MISTAKE, AND FAILURE OF CONSIDERATION. 395 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 other ship, there is no contract, (h') 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 intended to con- tract for a cargo by this last-named ship. Men can only bargain by mutual communication, and if A.'s proposal were unmistakable, as if it were 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 thinking of a dif- ferent vessel. For the rule of law is gieneral, that what- General ever a man's reaZ intention may be, if he manifests an in- ^here a*'^ tention to another party, so as to induce that other party JJ^f J^f^jf* to act upon it, he will be estopped from denying that the fest his . . . . real inten- mtention as manifested was his real intention. (Z) tion. § 418. When the mistake of one party is known to the other, then the question resolves itself generally into one of Mistake of fraud, which is the subject of the next chapter. In the °^^amu> case just supposed of a ship Peerless and a ship Peeress, ^^^ ""'*"■• there can be little doubt that if the vendor knew that the pur- chaser 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 different 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 purchasing, for instance, cotton goods submitted to his inspection in the mis- (k) Raffles u. Wichelhaus, 2 H. & C. 28 L. J. Ex. 262 ; Alexander w. Worman, 906 ; 33 L. J. Ex. 160. 6 H. & N. 100; 30 L. J. Ex. 198 ; Van (I) Per Lord Wensleydale in Freeman Toll v. South Eastern Kailway Company, 0. Cooke, 2 Ex. 654; Doe v. Oliver, and 12 C. B. N. S. 75; 31 L. J. C. P. 241 ; eases collected in notes to it, 2 Sm. L. C. In re Bahia & San Erancisco Railway 671 ; Cornish v. Abington, 4 H. & N. 549 ; Company^ L. R. 3 Q. B. 585. 396 AVOIDANCE OF THE CONTRACT, [bOOK III. taken belief that they were made of linen, or if the purchaser should know that the vendor was selling a valuable estate under the mistaken belief that a search for mines under it had proved unsuccessful, neither party could avoid the contract made under the supposed error or mistake. The exception to this rule exists only in eases where, from the relations between the parties, some special duty is incumbent on the one to make full and candid dis- closure of all he knows on the subject to the other. This topic is more fully considered in the next chapter on fraud. § 419. The mistake which will justify a party ■ in seeking to Mistake avoid his contract must be one of fact, not of law. The fact^ not" universal rule is Ignorantia juris neminem exousat. The '^'^' cases illustrating this maxim are very numerous, and only a small number of them will be found in the note, (m) But Wake V ^" Wake V. Harrop Qni) it was held, both in the ex- Harrop. chequer 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 con- tract, 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 Cooper V. being raised, was not decided. In Cooper v, Phibbs (n) Phibbs. Lord Westbury gave the following very lucid statement of the true meaning of the maxim just quoted : " It is said igno- rantia juris haud excusat^hwt in that maxim the word^MS is used in the sense of denoting general law, tbe ordinary law of the country. But when the word jus is used in the sense of denot- ing a private right, that maxim has no application. Private right of ownership is a matter of fact ; it may also be the result of mat- ter of law ; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the re- sult is that the agreement is liable to be set aside as having pro- (m) Bilbie u. Lumley, 2 East, 471; 24, L. J. Ex. 63; Wake u. Harrop, 6 H. & Stevens u. Lynch, 12 East, 38; East N. 768 ; 1 H. & C. 202 ; 30 L. J. Ex. 273 ; India Company u. Tritton, 3 B. & C. 31 L. J. Ex. 451 ; [2 Cliitty Contr. (11th 280; Milnes v. Duncan, 6 B. & C. 671; Am. ed.) 934, and note {n) and cases Stewart v. Stewart, 6 CI. & F. 966 ; Teed cited.] II. Johnson, 11 Ex. 840 ; Piatt v. Bromage, (n) L. R. 2 Eng. & Ir. App. 148-170. BOOK Ill.l MISTAKE, AND FAILURE OF CONSIDERATION. 397 ceeded upon a common mistake. Now that was the case with these parties : the respondents believed themselves to be entitled to the property; 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, 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. § 420. An innocent misrepresentation of fact" or law may give rise to a contract, and thus involve the question, innocent whether the party deceived by such innocent misrepre- ""s^Pfe- sentation is entitled on that ground to avoid the con- causing . mistake. tract. The law as to misrepresentation of fact was thus stated by Blackburn J. in delivering the judgment of fact, the court in Kennedy v. Panama Mail Co. (o) " There Kennedys. Psmdma is a very important difference between cases where a Mail Co. 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 substance between the thing bargained for and that obtained. It is enough to show that there was a fraudulent representation as to ani/ part of that which induced the party to enter into the con- tract which he seeks to rescind ; but where there has been an innocent misrepresentation or misapprehension, it does not au- thorize a rescission unless it is such as to show that there is a com- plete 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 rep- resentation as to the horse's soundness, the contract may be re- scinded. If it was induced by an honest misrepresentation as to its soundness, though it may be clear that both vendor and pur- chaser thought that they were 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 can- not return the horse and claim back the whole price, unless there was a condition to that effect in the contract. Street v. Blay." (p) The learned judge then quotes the authorities from (o) L. R. 2 Q. B. 580-587. may be treated as a condition subsequent, (p) 2B. &Ad. 456. [In some American and upon breach thereof the purchaser may states it has been held that the warranty return the goods bought and recover back 398 AVOIDANCE OF THE CONTRACT. [BOOK III. 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 material point, an error as to which does not affect the substance of the whole consideration." (js^) § 421. In Torrance v. Bolton (§') it was held, that where a bid- Torranceu. '^^'^ ^* auction was misled by the particulars advertised, Bolton. 2is 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 particu- lars, which had induced him to believe that he was buying the absolute reversion of the freehold, and not an equity of redemp- tion. No fraud was shown, but the court said that the descrip- tion in the particulars was " improper, insufficient, and not very fair." (Per James L. J. 123.) (r) This subject is further treated in the chapter on Warranty, book IV. part II. ch. i. § 422. As to mistake or failure of consideration in a contract 2d. Of law. which was induced by an innocent misrepresentation of the price. See/)os(, Remedies of the Buyer, 138; Smith v. Richards, 13 Peters, 26; book V. part II. § 888, note (a) ; 1 Chitty, Pearson v. Morgan, 2 Bro. C. C. 388 ; Contr. (Uth Am. ed.), 648, note (gi).] Roosevelt u. Dale, 2 Cowen, 134; S. C. ip^) [See Bird v. Forceman, 62 III. 212.] 5 Johns. Ch. 174; Champlin v. Laytin, 6 [q) L. R. 14 Eq. 124; 8 Ch. 118. Paige, 189; S. C. 13 Wend. 407; Lewis (?•) [A bargain founded on material u. M'Lemore, 10 Yerger, 206; Parham i.. misrepresentations of matters of fact, even Randolph, 4 Hovr. (Miss.) 435; Brooks Innocent though they are inadvertently i,. StoUey, 3 McLean, 523; Sherwood i). material mis- niade through a mutual mis- Salmon, 5 Day, 439; Coe v. Turner, 5 tion, ground take of the parties, or by mis- Conn. 86; Spurr t. Benedict, 99 Mass. SlaTin"^ take of one of them alone, 463 ; Jennings ... Boughton, 5 De G., M. equity. will be annulled in equity. & G. (Am. ed.) 126, note (2); Clapham Mistake, as well as fraud, in any represen- v. Shillito, 7 Beav. 149; Kyle v. Kava- tationof a fact material to the contract, fur- nagh, 103 Mass. 356 ; Walker v. Denison, nishes a sufficient ground, in equity, to set 86 111. 142 ; Bigelow on Torts, p. 23, note it aside, and declare it a nullity. Daniel 1. " The whole doctrine turns upon this, V. Mitchell, 1 Story, 172; Doggett v. that he who misleads the confidence of an- Emerson, 3 lb. 700; Hough v. Richard- other by false statements in the substance son, lb. 659 ; Warren v. Daniels, 1 Wood, of a purchase shall be the sufferer, and & M. 90; Smith u. Babcock, 2 lb. 246; not his victim." Story J. in Doggett v. Tuthill u. Babcock, lb. 299 ; Mason v. Emerson, 3 Story, 733.] Crosby, 1 lb. 342 ; Person a. Sanger, lb. BOOK III.] MISTAKE, AND FAILURE OF CONSIDERATION. 399 law, it was carefully considered by the common pleas in the two cases of Southall v. Rigg and Forman v. Wright, (s) Southaiiu. and held to form a valid ground for avoiding a con- ^'®^' . ° Forman v. tract. It is to be observed, however, that in both those Wright. cases the mistake went, in the above quoted language of Mr. Jus- tice Blackburn, " to the substance of the whole consideration," and it is apprehended that the right of rescinding a contract, on the ground of mistake of law induced by innocent misrepresenta- tions, 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. In Stevens v. Lynch, (t) the drawer of a bill of exchange, knowing g^^^ that time had been given to the acceptor without his, Lynch, the drawer's, assent, but ignorant that in law he was thereby dis- charged, promised to pay the bill, and he was held bound, (u) This case was cited in Forman v. Wright, but Williams J. sim- ply said, " That is a very different case " (20 L. J. at p. 149) ; the difference being apparently this, that in the case of Forman v. Wright the defendant 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 discharges 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 consideration of his promise to pay was not the mistake of law, inasmuch as the promise was manifestly based in part on the original consideration received when the bill was drawn. In the recent case of Beattie Beattie V. Lord Ebury, (a;) there is an elaborate discussion of Ebury. the law on this subject in its application to the case of an agent honestly representing himself to have an authority which he does not possess, and Lord J. MelHsh, in delivering the judgment of the court, expressed a very strong opinion, that if in such a case (s) Both reported in 11 C. B. 481 ; 20 note («), and cases cited to this point; 3 L. J. C. P. 145. See, also, Rushdall v. Kent, 113; Loose v. Loose, 36 Penn. St. Ford, L. E. 2 Eq. 750. 538, 545.] (<) 12 East, 38. (x) L. R. 7 Ch. 777. (u) [1 Chitty Contr. (11th Am. ed.) 54, 400 AVOIDANCE OF THE CONTRACT. [BOOK III. the written power 'was shown by the agent, he would not be re- sponsible for the innocent misrepresentation of its legal effect. Faiinie of § 423. As early as 1797, it was held by the king's don. 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 this Where contract for failure of consideration, and recover in an vendor fails action for money had and received, if the vendor failed to complete .... contract. to comply With his entire contract, (t/) A buyer may Where title recover, on the same ground, the price paid to the seller warranty wlio has warranted title, when the goods for which the y ven or. jj^Qj^gy ^g^g p^j^(j ^^j.jj q^^ I;q have been stolen goods, and without the buyer has been compelled to deliver them up to the in^sahTot ^^^^'^ owuer. (s) And, even without such warranty, it chattel. jjag been said to be the undoubted right of a buyer to recover back his money paid on the ordinary purchase of a chat- tel, where the purchaser does not get that for which he paid (a) but this subject of failure of title is more elaborately treated post, book IV. part II. ch. i. sec. 2, on Implied Warranty of Title. ,„, And the same right exists in favor of the buyer where Where ° ..." forged se- he has paid money for forged scrip in a railway ; (6) or have been for forged bills or notes ; (c) or for an article different from that which was described in the sale, as is shown post, in book IV. part I. on Conditions. ((Z) § 424. Where money was paid for shares in a projected joint- Purchase stock company, and the undertaking was abandoned, and of shares ^j^g projected company not formed, the buyer was held jected entitled to recover back his money as paid on a consid- company. . . . o eration which had failed, (e) So, also, where a buyer has paid for a bill of exchange which proves to be invalid, having Invalid been avoided by a material alteration ; (/) or for an un- stamped"' stamped bill of exchange which purports to be a foreign security. ^ill, and turns out to be worthless because really a do- (y) Giles V. Edwards, 7 T. R. 181; J. Q. B. 46; Woodland v. Fear, 7 E. &B. [Pliippen t,. Hyland, 19 D. C. C. P. 416 ; 519 . 26 L. J. Q. B. 202 ; [2 Chitty Contr. The Home Machine Co. ^. Willie, 85 111. (nth Am. ed.) 931, and note (() and cases 333.] cited.] (c) Eichholtz i: Banister, 17 C. B. N. S. (d) See notes to Chandelor v. Lopus, 2 708; 34 L. .J. C. P. 105. gn,. l. c. 176; [2 Chitty Contr. (Uth [a] Per Cur. in Chapman v. Speller, 14 Am. ed.) 920 et seq. and notes.] Q. B. 621, and 19 L. J. Q. B. 241. (g) Kempson v. Saiindcr.s 4 Bing. 5. (6) Westroppw. Solomon, 8 C. B. 345. (f) Burchfield i'.Moore,3 E. & B. 683; (c) Jones V. Kyder, 5 Taunt. 488 ; Gur- 23 L. J. Q. B. 261. ney v. Womcrslcy, 4 E. & B. 133 ; 24 L. BOOK III.] MISTAKE, AND FAILURE OF CONSIDERATION. 401 No failure of con- sideration wiiere buyer gets what he really in- tended to mestic bill, invalid without a stamp, ((/) lie may rescind the con- tract for failure of consideration. § 425. 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 worth- less. (A) Thus, where a buyer bought railway scrip, and the directors of the company subsequently repudi- ated it as issued without their authority ; upon proof offered that the scrip was the only known scrip of the buy, even railway, and had been for several months the subject of out worth- 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. (^) § 426. Where the failure of consideration is only partial, the buyer's right to rescind will depend on the question ^^''p'*' whether the contract is entire or not. Where the con- considera- tract is entire, as in Giles v. Edwards, (/c) and the ,,^ , Where con- buyer is not willing to accept a partial performance, he tract is en- may reject the contract in toto, and recover back the may reject price. But if he has accepted a partial performance, he j^'ut^ot if cannot afterwards rescind the contract, but must seek tehasac- ' cepted part. (y) Gompertz u. Bartlett, 2 E. & B. 849 ; 23 L. J. Q. B. 65. (A) [Gray v. Billington, 21 U. C. C. P. 288. It is held iu Massachusetts that the grant of an interest in a void patent is not a valid consideration for a promise by the grantee. Harlow ;;. Putnam, 124 Mass. 553 ; Bliss v. Negus, 8 lb. 46 ; Dickinson V. Hall, 14 Pick. 217 ; Lester v. Palmer, 4 Allen, 145 ; Harrington u. Reynolds, 2 Russell & Chesley (N. S.) 283. See Green V. Stuart, 7 Baxter (Tenn.), 418. If an article purchased is rendered worthless by reason of a defect as to which the pur- chaser takes the risk, there is no want or failure of consideration resulting there- from in the ISgal sense of the rule ; because the buyer, iu such ease, gets and retains what he bought, that is, the property at his own risk as to such defect. Bryant v. Pember, 45 Vt. 487, 491, Peck J.] li) Lamert v. Heath, 15 M. & W. 487. 26 See, also, Lawes v. Purser, 6 E. & B. 930; 26 L. J. Q. B. 25. {k) 7 T. R. 181; ante, § 443. See Whincup V. Hughes, L. R. 6 C. P. 78 ; [Miner v. Bradley, 22 Pick. 457 ; 1 Chitty Contr. ( 1 1 th Am. ed.) 533, and note (/' ) ; Jenness «. Wendell, 51 N. H. 63, 66-70; Gault o. Brown, 48 lb. 183. A., a re- tail dealer, agreed with B., a, gmith v. wholesale dealer, to purchase L^wis. of him a lot of Clothing, to be shipped to A. A portion of the goods consisted of suits of clothing of a particular kind, quality, and price. A part of those sent by B. were not of the kind, quality, and price contracted for. A. refused to accept any portion of the goods, and immedi- ately returned them to B. It was held that the contract of A. was an entire con- tract for the whole of the goods, and he was not obliged to accept a part without the whole. Smith v. Lewis, 40 Ind. 98 ; Bruce v. Pearson, 3 John. 534.] 402 AVOIDANCE OF THE CONTRACT. [book III. his remedy in some other form of action. Thus, in Harnor v. Harnort). Groves, (Z) a purchaser of fifteen sacks of flour liaving, Groves. j^fj-g^. jf^g 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 consideration, 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 sack, (-m) 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 portion only of the goods sold. This is in its nature a total failure of consideration [l] 1 5 C. B. 667 ; 24 L. J. C. P. 53. (m) [In Morse v. Brackett, 98 Mass. „■, ... 205 ; S. C. 104 Mass. 494, it Tericicii can appeared that several bags of otToodTor w°°'' »" "rearing the same dis- must rescind tinctive mark, were shown as in Loto. 1 .. p . , 1 . J, r one lot of a particular kmd of wool to a person who proposed to pur- Morse V. chase them. After opening Brackett. some of the bags and making such other examination as he saw fit, he said he would take the whole lot, and It was sold to him, all at one time, and for one price per pound, and was delivered to him together under a single bill of par- cels, it was held that the contract of sale was an entire contract, which the pur- chaser could rot rescind in part on dis- covering that the wool in one of the bags was of a different kind. See Carpenter v. Minturn, 65 Barb. 297. So in Mansfield Mansfield '"• Trigg, 1 1 .3 Mass. 350, it was V. Trigg. ),g]^ that a s„lg of ^ specific number of packages of an article, at a. given price a package, is an entire con- tract; a purchaser cannot rescind it as to some packages, and affirm it as to others. Wells J. said : " The rejection and return of articles of a different kind or descrip- tion, not answering to the terms of the contract, do not stand upon the ground of rescission ; nor does the right to return them depend upon the existence of a war- ranty.'' See Miner v. Bradley, 22 Pick. 457 ; Clark ;;. Baker, 5 Jlet. 452 ; Mingaye V. White, 34 U. C. Q. B. 82. But when many different articles are bought at the same time for distinct prices, even if they are articles of the same general descrip- tion, so that a warranty that they are all of a particular quality would apply to cadi, the contract is not entire, but is in effect a separate contract for each article sold ; and as to each article there is a right to rescind, if the warranty in regard to it is broken. The Young & Conant Manuf. Co. u. Wakefield, 121 Mass. 91. In this case the articles sold Yn„„„ differed each from the other, M'nlK. Co. 11 1 11 I ■ ,■ 1. ". "'iliefleld. although all were of iiidia rub- ber goods manufactured by the plaintiff. To each article a separate price was af- fixed, and the sale of it in no way de- pended upon that of the others, so that they wore not united in a single sale as one lot. A number of separate contracts were shown by the same order and bill of parcels, but these were held not to make of them a single transaction only. See Johnson v. Johnson, SB. & P. 162.] BOOK III.J MISTAKE, AND FAILURE OF CONSIDERATION. 403 for part of the price paid ; (n) not, as in the case of the flour, a partial failure of the whole. This was held in Devaux oevaux v. V. Connolly, (o) where the plaintiff had paid for two c;°"'io'iy- 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, (o^) § 427. On the other hand, if the thing sold is such in its nat- ure as not to be severable, and the buyer has enjoyed Where any part of the consideration for which the price was isnot^sev- paid, he is no longer at liberty to rescind the con- "Jyi^'ha"'^ tract, (p) Thus, in Taylor v. Hare, (q^ where the enjoyed . . "^ ^^^ part of the plaintiff purchased from the defendant the use of a pat- considera- ent right, and had made use of it for some years, and r['i„ „ then discovered the defendant not to be the inventor, it Hare, was held that he could not maintain an action for rescission of the contract and return of the price, on the ground of failure of con- sideration ; and this case was followed by the king's Lawes «. bench half a century later, in Lawes v. Purser, (r) ^™^"- where the facts as pleaded were almost identical with those in Taylor v. Hare. In Chanter v. Leese, (s) the exchequer chanter chamber, in a case of sale of six patents for one con- "' ^*e^<'- sideration, five of which were valid and one void, held that there had been an entire failure of consideration, on the ground that the money payable had not been apportioned by the contract to the different 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 consider- ation, which being entire, by failing partialis/, 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 en- joyed, they were of opinion that no action could be maintained on the agreement, though possibly a remedy might exist in some form of action. (n) [See2 Chitty Contr. (llth Am. ed.) (p) [See 2 Chitty Contr. (11th Am. ed.) 922, 923 ; Wright v. Cook, 9 U. C. Q. B. 923 ; Morse v. Brackett, 98 Mass. 205, 605.] 270.] (o) 8 C. B. 640. (q) 1 B. & P. N. R. 260. (oi) [Snarr v. Small, 13 U. C. Q. B. 125 ; (r) 6 E. & B. 930 ; 26 L. J. Q. B. 25. Clarke v. "White, 28 TJ. C. C. P. 293.] (s) 5 M. & W. 698. CHAPTER II. FRAtTD. Section SECTION 1. — IN GENERAL. Fraud renders contract voidable . 428 Definitions of fraud .... 428 No fraud unless party deceived . . 429 Nor without dishonest intention . 429 Fraud without damage gives no right of action 429 Mistaken belief as to facts caused ac- tively or passively . . . 430 Caveat emptor is the general rule . 430 Buyer can exact warranty, if unwill- ing to deal on these terms 430 Action of deceit, being founded on tort, may exist in favor of third per- sons, not parties to the sale . 431 But third persons cannot sue ex con- tractu . ... 432 Any one of the public may bring action in tort for deceit where fraud- ulent representations are published 432 An American case on this point . 432 SECTION II. — ON THE VENDOR. Effect of fraud on vendor in passing title 433 Depends on vendor's intention to transfer possession and ownership, or possession only .... 433 Sale obtained by fraud on vendor not void but voidable . . . 433 Bona fide third persons protected in rights acquired before avoidance of sale . . . 433 Not protected where vendor trans- ferred possession only . . . 433 Exception to protection of innocent third person, where fraudulent ven- dee is prosecuted to conviction . 434 Section Earlier cases as to passing property reviewed 434 Doubt suggested as to Duff v. Budd and Stephenson v. Hart . . . 437 Remarks on Parker v. Patrick . . 440 Rules which govern the vendor's right of election . . . . 442 No judgment necessary to give effect to election 443 General principles laid down in Pease V. Gloahec .... 443 Preventing other persons bidding at auction sale .... 444 Inducing sale by false representations of solvency 445 False representations by third persons must be proven by writing . . 446 Representation by partner of credit of his firm 446 False representation by buyer to get goods cheaper .... 447 In equity, purchaser not bound to in- form vendor of latent advantages of thing sold 448 But purchaser must not mislead ven- dor 448 At common law — Vernon v. Keys 449 Jones u. Franklin — questioned, not reconcilable with Vernon v. Keys . 450 American decisions, that neither prop- erty nor possession pass to buyer who has defrauded vendor . . 451 SECTION III. — FRAUD ON THE BUYER. Buyer defrauded may avoid sale be- fore or after delivery . . .452 Rules as to buyer's election . . 452 BOOK III.j FRAUD. 405 Section What elements of fraud required to enable buyer to avoid sale . . 454 Innocent false representation insuf- ficient 454 Concurrence of fraudulent intention necessary 454 Review of the cases .... 454 Conflict of opinion between the queen's bench and exchequer . 456 Queen's bench finally overruled in ex- chequer chamber in Evans v. Col- lins and Ormrod v. Huth . 459, 460 Subsequent cases .... 461 Second point in Cornfoot v. Fowkes questioned 462 Liability of principal for false state- ment innocently made by agent, when principal knew the true state of facts 462 Fraud of agents .... 463 Conflicting decisions of House of Lords and exchequer chamber . 464 Barwick v. Eng. Joint Stock Bank in exchequer chamber . . . 465 Western Bank of Scotland c^. Addie in House of Lords .... 466 Distinction between action against the principal in tort for deceit, and action on the contract . . . 466 Principles deduced from the cases, as to the effect on principal of fraud in agent 467 Rights of buyer in such cases at law . 467 Further remedy in equity . . . 467 False representation when equivalent to warranty gives right to buyer against innocent vendor . . 467 Feret v. Hill, converse of Cornfoot v. Fowkes — lessor defrauded by les- see 468 Shareholders defrauded by prospec- tus 469 Devices held frauds on buyers . . 470 PufBng at auction .... 470 Auctioneer personally responsible . 471 Auctioneer, when he sells "without reserve," binds himself to the high- est 6ona ^rfe bidder . . . 472 Distinction between law and equity as to pufiing 474 Act 30 & 31 Victoria . . .474 Section Other frauds on buyer . . . 476 Vessel sold " with all faults " . .477 Concealing a defect where buyer fails to inspect 478 Pictures sold as if by great artists . 479 Damage to goods not declared where usage requires it ... . 480 Fraud by collusion between vendor and buyer against third person ; vendor cannot recover against buyer 481 Cases decided in America of knowl- edge by vendor of concealed defect 482 SECTION IT. — FRAUD ON 0KEDITOK8 — BILLS OP SALE. Statute of Elizabeth . . .483 Semble, protects future creditors . 484 Twyne's case ..... 484 Conveyance fraudulent or not, ques- tion of fact for jury . . . 485 Cases reviewed 485 Notoriety of sale rebuts presumption of fraud 487 No general rule — each case decided on its own circumstances . . 487 Mere intention to defeat creditor's execution no fraud . . . 488 Confession of judgment not a fraud- ulent preference .... 488 Bills of sale act 489 Not voidable between the parties . 490 Contract voidable, not void as to cred- itors 490 Title of bond fide third persons pro- tected 490 Sheriff's liability as trespasser . . 490 Second section applies only to trusts between vendor and vendee . . 491 Effect of vendor's discharge in bank- ruptcy 491 Objects of the statute . . . 492 Description of vendor and wit- nesses 492 Description of vendor's occupation . 492 Description must be repeated in affi- davit 492 Description of residence . . . 493 Affidavit to " best of belief " . . 493 Trading company may give bill of sale 493 406 AVOIDANCE OF THE CONTRACT. [book III. Section Directors attesting seal, not witnesses under the act . . . ■ 493 Registry not necessary, if goods seized by creditors within twenty- one days . • 494 Effect of reixistiy of second bill when first unregistered .... 495 Effect of second purchaser's taking possession after rcRistry by first . 495 Act not applicable to ships, &c. . 496 Machinery . . • . 496 Husband's possession of wife's furni- ture, &c. . ... 496 Sale which disturbs equality among creditors ..... 497 Return of goods to unpaid vendor 498 Early decisions overruled . . . 499 Now only permissible to rescind where property has not passed . . 499 Or possession not taken . . . 499 American decisions ^ Edwards v. Harben followed .... 502 SECTION I. ■ IN GENERAL. § 428. Featjd renders all contracts voidable (<() ab initio both Fraud ren- at law and ill equity. No man is bound bj^ a bargain into ders con- ^i-jidj j^g has been deceived by a fraud, because assent tracts vulQ- •J able. ig necessary to a valid contract, and there is no real as- sent where fraud and deception have been used as instruments to control the will and influence the assent. Although fraud has Definitions been Said to be " every kind of artifice employed by one of fraud. person for the purpose of deceiving another," courts and law-givers have alike wisely refrained from any attempt to de- fine 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, (a-') The Roman jurisconsults attein})ted definitions, two of which are here given : " Dolum malum Servius 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 dissimu- lationem deserviant, et tuentur vel sua vel aliena : Itaque, ipse sic definit, dolum malum esse omnem calliditatem, fallaciam, machi- nationem ad circumveniendum, fallendum, decipiendum alteram adhibitam. Labeonis definitio vera est." Dig. 1. iv. t. 3, 1. 1, § 2. The Civil Code of France, without giving a definition, pro- vides, in Art. 1116 : " Fraud is a ground for avoiding a contract when tlie devices (les manoeuvres) practised by one of the par- ties are such as to make it evident tliat without these devices the other party would not have contracted." (a) [Adams v. Nelson, 22 U. C. Q. B. Mr. Justice Doe upon this subject in 199.] Stewart v. Emerson, 52 N. H. 313, 314.] (ai) [See the valuable suggestions of BOOK III.] FRAUD. 407 § 429. 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 no fraud the means used should be successful in deceiving. (6) pa'f^fjg ^^. However false and dishonest the artifices or contriv- <=^'^^'J- ances 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 or devices, (c) Haud enim decipitur qui scit se decipi. (c?) If a contract is made under such circumstances, the inducement or motive for making it is ex con- cessis, not the false or fraudulent representations, which are not believed, but some other independent motive, (e) Next, it is now (6) [Doggett V. Emerson, 3 Story, 732, 733; Bowtnan v. Carithers, 40 Ind. 90 ; Ha- gee u. Grossman, 31 lb. 223 ; Mason u. Crosby, 1 Wood. & M. 342 Clark v. Ever- hart, 63 Penn. St. 347 ; Attwood v. Small, 6 01. & Fin. (Am. ed.) 233, and note (2) and cases cited, 444; Vigers v. Pike, 8 lb. (Am. ed.) 562, 650; Vandewalker v. Osmer, 65 Barb. 556 ; Taylor v. Fleet, 1 lb. 471 ; Phipps v. Buckman, 30 Penn. St. 402 ; Morris Canal Co. «. Everett, 9 Paige, 168; Stebbins u. Eddy, 4 Mason, 414; 2 Chitty Contr. (11th Am. ed.) 1036, 1039, and note (z) ; Smith v. Newton, 59 Ga. 113; Gunby v. Sluter, 44 Md. 237; Need not Bruce u. Burr, 67 N. Y. 237. thesole"^- But it is not necessary that the ducemeat. fraudulent means used should have been the sole inducement to the con- tract. Shaw V. Stine, 8 Bosw. 157 ; Clarke V. Dixon, 6 C. B. N. S.453; Smithf. Kay, 7 H. L. Cas. 750, 775 ; Rawlins v. Wick- ham, 3 De G. & J. 304 ; Traill v. Baring, 33 L. J. Ch. 521, 527; Reynell k. Sprye, 1 De G., M. & G. 660 ; Kerr F. & M. (1st Am. ed.) 74, 75 ; Hersey v. Benedict, 15 Hun, 282 ; Morgan v. Skiddy, 62 N. Y. 319. The presumption, in the absence of evidence to the contrary, would be that false representations made by one party were relied upon by the other. Holljrook V. Burt, 22 Pick. 546. But see Taylor v. Guest, 58 N. Y. 262; Sims v. Eiland, 57 Miss. 607 ; Merriara u. Pine-City Lumber Co. 23 Minn. 314; Jackson v. Collins, 39 Mich. 557.] (c) [Where a man has received the pos- itive representation or assur- Rjgbttorely ance of another as to a mate- "P°° P»si- riiil fact, he has a right to sentationof rely upon it, so far as that ''''""ler. other is concerned, and is not bound to make any further inquiry. Vigers v. Pike, 8 CI. & Fin. 562, 650; Kisch v. Central Venezuela Railway Co. 3 De G., J. & S. 122; S. C. L. R. 2 Ch. Ap. 114; S. C. L. R. 2 H. L. 99, 120, 121 ; Kerr F. & M. (1st Am. ed.) 79, 255 ; Kerr Inj. 39 ; Wilson V. Short, 6 Hare, 366, 375; Reynell u. Sprye, 1 De G., M. & G. 710; Rawlins v. Wickham, 3 De G. & J. 319; Smith's case, L. R. 2 Ch. Ap. 614; Perfect f. Lane, 3 De G., F. & ,J. 369 ; Conyb^are v. The New Brunswick & Canada Railway Co. 1 lb. 578, and notes; S. C. 9 H.L. Cas.,711 ; Boyce v. Grundy, 3 Peters, 210 ; Young v. Harris, 2 Ala. 108; Clopton v. Cozart, 13 Sm. & M. 363 ; Bean v. Herrick, 12 Maine, 262; Vandewalker o. Osmer, 65 Barb. 556 ; Rose v. Hurley, 39 Ind. 82, 83 ; Mead V. Bunn, 32 N. Y. 275 ; Deveber v. Roop, 3 Pugsley (N. B.), 295; Thome v. Pren- tiss, 83 111. 99 ; Merchants' Bank v. Sells, 3 Mo. App. 85.] id) [See Morse v. Rathbun, 48 Mo. 91 ; Howell V. Biddlecomb, 62 Barb. 131.] (e) [In order that a misrepresentation may support an action at law, or be a 408 AVOIDANCE OF THE CONTRACT. [book III. well settled that there can be no fraud without dishonest inten- Nn fraud tinn, no such fraud as was formerly termed a legal fraud. without dishonest intention : no h(jal fraud in sales. 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 believed it to be true, (/) although other remedies are sometimes available ground for relief in equity, it is essential that it should be material in its nature, and should be a determining ground of the transaction. Lapp u. Firstbrook, 24 U. C. C. P. 239 ; Winter v. Bandel, 30 Ark. 362; Cooper v. Merritt, lb. 686; Bond y. Ramsey, 89 111. 29 ; Race v. Wes- ton, 86 lb. 91 ; Hanna v. Rayburn, 84 lb. 533 ; Noel v. Honon, 50 Iowa, 687 ; Daw- son u. Graham, 48 lb. 378 ; jNIason v. Raplee, 66 Barb. 180; Miller v. Barber, 66 N. Y. 558; Rice v. Manley, lb. 82; Duffany v. Ferguson, lb. 482 ; Brown u. Tuttle, 66 Barb. 169; Swikchard u. Rus- sell, lb. 560 ; Sanders v. Lyon, 2 McAr- thur (D. C), 452; Rawson o. Harger, 48 Iowa, 269 ; Teague v. Irwin, 127 JMass. 217; Blair v, Laflin, lb. 518; Stevens v. R,ainwater, i Mo. App. 292 ; Jennings v. Broughton, 5 De G., M. & G. 126 ; Smith V. Richards, 13 Peters, 26. A misrepre- sentation to be material must Representa- . ,, . ^ . tion must be be one materially influencing material. ^^^ inducing the transaction ; In re Reese River Silver Mining Co., Smith's case, L. R. 2 Ch. Ap. 611 ; and affecting and going to its very essence and substance ; Hallows v. Fernic, L. R. 3 Eq. 536. Misrepresentations which, if true, would add substantially to the value of property ; Smith v. Countryman, 30 N. Y. 655 ; or are calculated to increase substan- tially its apparent value, are material ; Kerr F. & JM. (1st Am. ed.) 73, 74 ; Nolan V. Cain, 3 Allen, 263 ; Miller ;.'. Young, 33 111. 355; Mokndy .•. Keen, 89 lb. 395; Higgins V. Bickncll, 82 lb. 502; Welsh- billig V. Dienhart, 65 Ind. 94 ; Mather v. Robinson, 47 Iowa, 403.] (/) [See Cooper v. Levering, 106 Mass. 78, 79; Brown u. Castles, 11 Cush. 348- 351; McDonald u. Trafton, 15 Maine, 225; Beach v. Bemis, 107 Mass. 498; King V. Eagle Mills, 10 Allen, 548 ; Stone V. Denny, 4 Met. 151, 155, and cases cited ; Salem India Rubber Co. v. Adams, 23 Pick. 256 ; Hanson c. Edgerly, 29 N. H. 343 ; Page v. Bent, 2 Met. 371 ; Tryon v. Whitmarsh, \ lb. 1 ; Page v. Parker, 40 N. H. 47, 69 ; Pettigrew v. Chellis, 41 lb. 95; Fisher v. Mellen, 103 i\Iass. 503; 2 Chitty Contr. (11th Am. ed.) 1044,1045, and notes ; Russell v. Clark, 7 Cranch, 69 ; Young V. Covell, 8 John. 25 ; Boyd i. Browne, 6 Barr, 310; Lord v. Goddard, 13 How. (U. S.) 198; Weeks v. Burton, 7 Vt. 67 ; French v. Vining, 102 Mass. 132; Barrett v. Western, 66 Barb. 205; Marshall r. Fowler, 7 Hun, 237 ; Wcst- cott V. Ainsworth, 9 lb. 53 ; Frisbie v. Fitzsimmons, 3 lb. 674 ; Babcock v. Lib- bey, 53 How. Pr. 255 ; Stilt u. Little, 63 N. Y. 427 ; Moorehorse v. Yeager, 9 J. & Sp. 135 ; Dilworth v. Bradner, 85 Penn. St. 238; Duff V. Williams, lb. 490; Righter t/. Roller, 31 Ark. 170 ; Sellar r. Clelland, 2 Col. 532 ; Kimball <■. Moreland, 55 Ga. 164; Wliarf v. Roberts, 88 111. 426; St. Louis & Southeastern Railroad Co. v. Rice, 85 lb. 406 ; Tone v. Wilson, 81 lb. 529; Mer- win V. Arbuckle, lb. 501 ; Mitchell v. Mc- Dougall, 62 lb. 498, explained in Merwia (. Arbuckle, supra; Josselyn v. Edwards, 57 Ind. 212. "If, to iuduce „ , ,, . ' Fact that the plaintiff to make the pur- defendaiit chase, the defendant stated, fojn,ed'„ot as of his own knowledge, mate- always justi- . n /. .. , ■• 1 1 flcatlOD. rial facts susceptible ol knowl- edge, which were false, and the plaintiff, relying upon his statements so made, was thereby induced to purchase the goods, the defendant is liable, notwithstanding proof that he was himself misinformed as to the facts. Such evidence would not BOOK III.] FRAUD. 409 to the deceived party, ante, §§ 420 et seq. ; post, Warranty. Lastly, there must be damage to the party deceived, Fraud even when there is a knowingly false representation, damage before a right of action can arise. " Fraud without si™ no damage, or damage without fraud, gives no cause of action. action,'" was the maxim laid down by Croke J. in 3 Bulst. 95, and quoted with approval by BuUer J. in the great leading case of Pasley v. Freeman, ((/) to which more particular attention will presently be drawn. The whole doctrine on the subject was very much discussed in the House of Lords, in the celebrated Attwood case of Attwood v. Small ; (Ji) and in Lord Brougham's "' ^™^''' opinion, the principles unanimously conceded to be true by their lordships are carefully laid down, (i) § 4-30. The mistaken belief as to facts may be created by active means, as by fraudulent concealment or knowingly false Mistaken 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 decep- tion. (¥) In general, where an article is offered for sale. belief may be caused actively" or passively. Caveat emptor is general rule. disprove the fraud, which consists in rep- resenting the statements to be true as of his own knowledge.'' Wells J. in Fisher V. Mellen, 103 Mass. 506 ; Hazard u. Irwin, 18 Pick. 95 ; Page u. Bent, 2 Met. 371, 374; Stone u. Denny, 4 lb. 151; Haramatt u. Emerson, 27 Maine, 308; Doggett V. Emerson, 3 Story, 733 ; Hough V. Richardson, lb. 691 ; Mitchell v. Zim- merman, 4 Texas, 75 ; Grim u. Byrd, Reporter (Boston), vol. ix. p. 662; Sav- age V. Stevens, 126 Mass. 207 ; Graham v. Nowlin, 54 Ind. 389 ; Rawson v. Harger, 48 Iowa, 269 ; Foard v. McComb, 12 Bush, 723; Gumbya. Sluter, 44 Md. 237; The jEtna Ins. Co. u. Reed, 33 Ohio St. 283 ; Parmlee ■;. Adolph, 28 Ih. 10; Doyle u. Hart, 4 L. R. Ir. 661 . The design to deceive must be proved by other evidence than the mere fact that the representations were not true. McDonald v. Traf ton, 15 Maine, 225 ; McKown V. Furgason, 47 Iowa, 636. But see McBean v. Fox, 1 Bradwell (111.), 177.] (g) 3 T. R. 51 ; 2 Sm. L. C. 71. [" The gravamen of the charge is, that the plain tiff has been deceived to his hurt ; not that the defendant has gained an advan- tage." Wells J. in Fisher v. Mellen, 103 Mass. 505; Medbury v. Watson, 6 Met. 246; Stiles v. White, 11 lb. 356; Page u. Bent, 2 lb. 371, 374; Hanson v. Edg- erly, 29 N. H. 357 ; Adams v. Paige, 7 Pick. 542; Milliken v. Thorndike, 103 Mass. 385 ; Newell v. Horn, 45 N. H. 422 ; Randall v. Hazelton, 12 Allen, 414 ; White V. Wheaton, 3 Selden, S.'ia; Hart v. Tall- madge, 2 Day, 382 ; Young u. Hall, 4 Ga. 95 ; Weatherford v. F'ishback, 3 Scam. 1 70 ; Hughes v. Sloan, 3 Eng. 146 ; Phipps u. Buckman, 30 Penn. St. 402 ; Castle- man u. Griftin, 13 Wis. 535; Hagee v. Grossman, 31 Ind. 223 ; McMaster v. Ged- des, 19 U. C. Q. B. 216 ; Bartlett v. Blaine, 83 111. 25.] (h) 6 CI. &Fin. 232. (i) 6 CI. & Fin. 443-447. See, also, per Lord Wensleydale, in Smith v. Kay, 7 H L. Cas. 774. (k) Smith V. Hughes, L. R. 6 Q. B. 597. [Whenever a peison conceals a ma- 410 AVOIDANCE OF THE CONTRACT. [book III. and is open to tlie 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. (Q The rules are Caveat terial fact which it wns liis duty to com- municate; Ii'vine V. Kirkpn,trick, 7 Bell S. C. Ap. 186; Otis u. Raymoud, 3 Conn. 413; Van Avsdale v. Howard, 5 Ala. 596; Matthews o. Blis.=i, 22 Pick. 48 ; Paddock V. Sti-obi-idt;c, 29 Vt. 470 ; Brown r. Mont- gomery, 20 N. Y. 287 ; Sides r. Hilleary, 6 Harr. & J. 86 ; Xicklcy c. Thomas 22 Barb. 6.52 ; Hanson v. Kdgerly, 29 N. H. 343; Emmons v. Moore, 85 111. 304; March t. First Xat. Bank of Jlohile, 4 Hun, 466 ; Aiwood v. Chajiman, 68 Maine, 38 ; Maynard v. Maynard, 49 Vt. 297 ; or uses any device which is calculated to in- Conoeiilment duco the Other party to forego may'coSti- i"1"i'T i"'" '^ material fact tute fraud. upon which the former has information, although such information be not eNcIusively within hi.s reach; and it is shown that the concealment or other deception was practised with respect to the particular transaction ; such transaction will be voidable on the ground of fraud. Tindal C. J. in Green v. Gosden, 3 M. & G. 446, 450; 2 Chilty Contr. (llth Am. ed.) 1042,1043; Prentiss u. Rnss, 16 Maine, 30; Sruiih i. Eichiinls. 13 Pitrr^ 26; Howell r.Biddlecom, 62 V,:wh. 131 ; Cod- dington w. Goddard, 10 (Jray, 4.i6 ; Rose- man u. Canovan, 43 C'al. 110; Ca^'-el y. Hcrron, 5 Pa. Law J. Kcp 250; Roper u. The Trs. of Sangamon Lodge, 91 III. 518. In French v. Vining, 102 jNIass. 135, Ames J. said: "It is sometimes rather loosely said that mere silence on the part of the vendor as to a known defect does not amount to a fraud. But this is far from being universally true. Deceit may sometimes take a negati\e form, and there may be circumstances in which si- lence would have all the legal characteris- tics of actual misrepresentation." In this case it was held that if a person sells, for the purpose of being fed to a cow, part of a lot of hay on whicli he knows white lead to have been s]]ilt, and does not inform the purchaser of that fact, and the cow dies from the effect of the lead in the hay, the vendor of the hay is liable for the loss of the cow, although he carefully 'endeav- ored to separate and remove the damaged hay, and thought he had succeeded. §§ 478 et seq., post. The pwner of a horse which had the heaves, and was worth nothing, in the course of a negotiation for an exchange, concealed the defect, and affirmed that the horse was worth SIOO; and the other party, having no knowledge of the defect, was thereby in- duced to make the exchange. This was held to constitute good ground for an ,nc- tion for deceit. Stevens v. Puller, 8 N. H. 463.] (/) [See Vigers o. Pike, 8 CI. & Fin. 650; Attwood y. Small, 6 lb. (Am. ed.) 233, and note (2) and cases cited ; Hoitt u. Holcomb, 32 N. H. 185, 202-205 ; Dick- inson u. Lee, 106 Mass. 657, 558, 559; Veasey u. Doton, 3 Allen, 380; Brown ii. Castles, 11 Cush. 350; Aberaman Iron "Works V. Wickens, L. R. 4 Ch. Ap. 101 ; S. C. L. R. 5 Eq. 485 ; Stephens v. Orman, 10 Florida, 9 ; Kerr P. & M. {1st Am. ed.) 78 ; Lytic o. Bird, 3 Jones, 222 ; Hough v. Richardson, 3 Story, 659 ; Warner r. Dan- iels, 1 Wood. & :\I. 90, 101, 102; Smith v. Bahcock, 2 lb. 246; Tuthill -- Bnbcock, lb. 298 ; Port v. Williams, 6 Ind. 219. In Mooney c. jMiller, 102 Mass. 220, Chap- man J. said, if the false representations " relate to material facts, not within the observation of the opposite Reasonable party, and they are made with diligenco muhtbeused intent to deceive, they are ac- by party to tionable ; but if the truth can ^bom.^pre- seutatiou 18 be ascertained with ordinary made, vigilance, they are not actionable." See Brown v. Castles, U Cush. 348; Prescott u. Wright, 4 (iray, 461 ; Cooper v. Lever- ing, 106 JMass. 77, 79; Dickinson u, Lee, lb. 557 ; Attwood v. Small, 6 CI. & Fin. 233 ; James v. Lichfield, L. R 9 Eq. 51 ; 1 SuLidcn V. & P. (8th Am. ed.) .331, mid cases in note (^i) ; Newell v. Horn, 45 N. BOOK III.] FRAUD. 411 emptor and Simplex commendatio non ohligat. The buyer is al- ways anxious to buy as cheaply as he can, and is sufficiently prone to find imaginary fault in order to get a good bargain, and the vendor is equally at liberty to praise his merchandise in order to enhance its value if he abstain from a fraudulent representation of facts, provided the buyer have a full and fair opportunity of in- specting it, and no means are used for hiding the defects, (m) If H. 422; Hess u. Young, 59 Ind. 379; Long V. Wan-en, 68 N. Y. 426; Purman V. Tufts, 8 J. & Sp. 284 ; Sparmann v. Keim, 12 lb. 163; Chamberlain v. Ran- kin, 49 Vt. 133. But it has been held Application ^^^^ ^ contract for the sale of in sales of land may be rescinded in land. "^ favor of the purchaser for fraud in the sale, although he had an op- portunity to examine the land before the purchase, and did examine it, but did not go into details, and confided for these in the false statements of the person negoti- ating with him, and of his agents. Tuthill I). Babcocli, 2 Wood. & M. 299 ; Mason v. Crosby, 1 lb. 342 ; 1 Story Eq. Jur. § 203/, in note; Estell u. Myers, 54 Miss. 174; Thompson u. Guy, 7 Ir. L. E. 6 ; Bacon u. Frisbie, 15 Hun, 26; High v. Kistner, 44 Iowa, 79 ; Savage u. Stevens, 126 Mass. 207 ; Campbell v. Frankem, 65 Ind. 591 ; Norris v. Tharp, lb. 47 ; Carmichael u. Vandebur, 50 Iowa, 651; Nowlin . ShejAerd, 9 C. B. 297 ; 19 L. Railway Company v. Conybeare, 9 H. L, J. C. P. 249; Playford u. United King- Cas. 712; Western Bank of Scotland v. dom Telegraph Company, L. R. 4 Q B. Addie, L. R. 1 Scotch Ap. 145 ; Hender- 706. {x) Gerhard v. Bates, 2 E. & B. 476 ; 22 L. J. Q. B. 364. son V. Lacon, L. R. 5 Eq. 249 (V. C. W.). BOOK III.] FRAUD. 41o tion was held to be maintainable in the State of New tions are York. A. had agreed to bring certain animals for sale ^" and delivery to B., at a specified place. A third person, cided in desirous of making a sale to B., falsely represented to i„''actio°a him that A. had abandoned all intention of fulfilling his ^"'•d'^ceit 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 dispos- ing 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. (2) We will now revert to the subject of fraud as specially applied in cases of sale. SECTION II. — FRAUD ON THE VENDOE. § 433. It is not until quite recently that it was finally settled whether the property in goods passes by a sale which j^jj^^.^ ^j the vendor has been fraudulently induced to make, f^audon •J the vendor The recent cases of Stevenson v. Newnham, (a) in Cam. >" passing . , . property. Scacc, and of Pease v. Gloahec, (6) m the privy council, confirming the principles asserted by the exchequer in Kingsford V. Merry, (c) taken in connection with the decision of the House of Lords in Oakes v. Turquand, (^d) leave no room for further ques- tion. By the rules established in these cases, whenever goods are obtained from their owner by fraud, we must distinguish Depends whether the facts show a sale to the party guilty of the ^or^s^'in- fraud, or a mere delivery of the goods into his possession t™"™ '» induced by fraudulent devices on his part, (e) In other possession . and owner- words, we must ask whether the owner mtended to trans- siiip, or fer both the property in and the possession of the goods onry?^^'"" to the person guilty of the fraud, or to deliver nothing more than the bare possession. In the former case, there is a contract of (z) Benton D. Pratt, 2 Wend. 385.' [See notice of this case by Colt J. in Eandall v. Hazelton, 12 Allen, 417.] (a) 13 C. B. 285, and 22 L. J. C. P. 10. (6) L. R. 1 Priv. C. 220 ; 3 Moore P. C. N. S. 556. (c) 11 Ex. 577, and 25 L. J. Ex. 166. (d) L. R. 2 Eng. Ap. 325. See, also, In re Reese Silver Mining Company, Smith's case, L. R. 2 Ch. App. 604, and 4 Eng. & Ir. App. 64 ; and Clough v. The Lond. & N. W. Ry. Co. post, § 441. (e) [See Barker v. Dinsmore, .72 Penn. St. 427.] 416 AVOIDANCE OF THE CONTKACT. [book III. not -void ab initio^ but voidable. sale, however fraudulent the device, and the property passes ; (/) Contract but not in the latter case. This contract is voidable at the election of the vendor, not void ah initio. ((/) It follows, therefore, that the vendor may affirm and en- force 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. (/i^) But in the Rights of mean time, and until he elects, if his vendee transfer the goods in whole or in pa7-t, whether the transfer he of the general or of a special property in them., to an innocent third person for a valuable consideration, the rights of the oriijinal vendor will be sidiordinate to those of such innocent third person, (i) If, on the contrary, the intention of bo7id fide third pL-r- sons pro- tected, if acquired before avoidance. (/) [Rowley v Bigelow, 12 Pick. 312.] ((/) [Titcomb v. Wood, 38 Maine, 561- 563; Rowley v. Bigelow, 12 Pick. 307, 312; Hewitt t>. Clark, 91 111. 605.] (A) [Butler !■. Hildrcth, 5 Met. 49; Stewart v. Emerson, 52 N. H. 301. But „ , ^ the plaintiff, in a suit for the Bankruptcy ' of party price of goods fraudulently ™s™?f- '"'^' purchased by the defendant, tions ; effect may reply to the defendant's plea of a discharge under the bankrupt act, " that the debt sought to be recovered in the suit was created by the fraud of the defendant," and thereby ob- tain the benefit of the provision of that act, that no debt created by the fraud of the bankrupt shall be di^charged under that act, but the debt may be proved, and the dividend therein shall be a payment on account of said debt. Stewart v. Emer- son, 52 N. H. 301, 310,311. In McBcan v. Fox, I Bradwell (III), 177, the appellant took from the appellees their note, the ap- pellees making fraudulent representations at the time of the contract. The appel- lees suiisc'iuently became bankrupt, and the appellant jiruved his claim against them and received a dividend. It was held that this did not defeat his right to maintain an action for the fraud.] (/;') |If credit has been given the vendor Vendor must must sue on the express con- sue on the ti-act, or in tort. He cannot maintain an action on the express con- common counts until the term '™'^'i °' '" tort, of credit has expired. In Kel- logg f. Turpie, 2 Bradwell (111 ), 55, Pills- bury J. said : " The action of assumpsit is based upon a contract between the parties and a breach thereof by the defendant. In the bringing of the action, therefore, the plaintiffs admit that at that time there was a contract of some kind for the sale of the goods existing between the parties, and they seek to recover the value of the goods upon an implied contract to pay upon request, when they show upon the face of their special count that the only contract between them was one to pay n certain price at a future day. If they rescinded the contract there was no sale, and the goods are still theirs ; if they did not rescind, the contract is still in force, and they are therefore bound by its terras. By bringing the action of assumpsit ve are of the ojiinion that they have thereby created a conclusive presumption of af- firmance of the contract of sale on their part." See the cases cited in Kellogg v. Turpie, supra ; Magrath v. Tinning, 6 U. C. Q. B. (II. S.); 484; Moriarty v. Stof- feran, 89 111. 528 ; § 765 post, and § 320, note (d), ante.] (i) [This doctrine is well established in the American courts. Titcomb v. Wood, 38 Maine, 561 ; Hall i;. Hinks, 21 Md. 406; Malcom v. Loveridge, 13 Barb. 372; BOOK III.] FRAUD. 417 the vendor was not to pass the property, but merely to Not pro- tected part with the possession of the goods, there is no sale, wher and he who obtains such possession by fraud can con- f°anSed vey no property in them to any third person, however possession. Dows V. Greene, 32 lb. 490; Sinclair!). Healy, 40 Penn. St. 417; Chicago Dock Co. V. Foster, 48 111. 507 ; Keyser v. Har- beck, 3 Duer, 373; Paddon v. Taylor, 44 N. Y. 371; Devoe v. Brandt, 53 lb. 462 ; Barnard v. Campbell, 65 Barb. 286 ; S. C. 58 N. Y. 73 ; Williamson v. Russell, 39 Conn. 406 ; Mears v. Waples, 3 Houst. (Del.) 581 ; Wilson v. Fuller, 9 Kansas, 176; Rowley;;. Bigelow, 12 Pick. 307,312, 313; Moody u. Blake, 117 Mass. 23, 26; Cochran v. Stewart, 21 Minn. 435; Dean V. Yates, 22 Ohio St. 388 ; Williams v. Given, 6 Grattan, 268 ; Ohio & M. R R. V. Kerr, 49 111. 458; Kern v. Thurber, 57 Ga. 172; Nichol v. Crittenden, 55 lb. 497 ; Cockburn C. J. in Moyce v, New- ington, L. R. 4 Q. B. D. 32; Babcock ... Lawson, lb. 394 ; Dickerson v. Evans, 84 lU. 451 ; Hensou (y. Westcott, 82 lb. 224; McNab V. Young, 81 lb. 11 ; Gregory v. Schoenell, 55 Ind. 101 ; Williamson v. Mason, 12 Hun, 97 ; Meacham v. CoUig- non, 7 Daly, 402; Old Dom. Steamship Co. V. Burckhardt, 31 Gratt. 664 ; Haw- kins V. Davis, 5 Baxter (Tenn.); 698. See Jennings v. Gage, 13 111. 610; Caldwell v. Bartlett, 3 Duer, 341 ; Crocker v. Crocker, 31 N..Y. 507; Shufeldt v. Pease, 16 Wis. 659 ; Hutchinson u. Watkins, 17 Iowa, 475; Craig v. Marsh, 2 Daly (N. Y.), 61 ; Western Transportation Co. u, Marshall, 4 Abb. (N. r.) App. Dec. 575. In Bar- nard V. Campbell, 65 Barb. 286, 292, it was said that "the principle of law in such eases is this, that when the owner of personal property makes an unconditional de- livery to his vendee, with the intent to transfer the title, a subsequent bond fide purchaser from such vendee acquires a valid title, although the owner was induced to sell by the fraud of his vendee ; and it is only after actual de- livery to the fraudulent vendee that a bona fide purchaser could rely upon the appar- 27 Eights of botULjide purchasers from fraud- ulent Ten- dee. ent ownership which the possession of the fraudulent vendee indicates, and thereby get ii good title from him. Smith v. Lynes, 1 Selden (5 N. Y.), 46; Beaver w. Lane, 6 Duer, 232. It is only upon the principle that the rightful owner is es- topped from asserting his right when his act of conferring upon his vendee the pos- session has led to the payment by an inno- cent purchaser, that a bona fide purchaser can be protected. The doctrine has never been so far extended as to protect a pur- chaser when advancing the consideration to some one who did not at the time hold the property, or the indicia of its title." Holbrook v. Vose, 6 Bosw. 104, 1 1 1. The principle, or process, by which the de- frauded vendor is divested of his title, and it becomes established in the bond fide pur- chaser from the fraudulent vendee, is not fully agreed. See Morton J. in George v. Kimball, 24 Pick. 241. In some eases, it is assumed that when a sale of goods is procured by fraud of the vendee, no title passes to him, but the vendor still retains the legal right in the goods, and hence it is concluded that a person who has no title to property can convey none. But, at the same time, it is agreed that a. third person may acquire a good title from a fraudulent vendee, by giving him value for the property, or incurring some re- sponsibility upon the credit of it, without notice of the fraud. In such a case, it is said, the superior equity of the honest pur- chaser is allowed to overcome the legal rights of the owner; " and it is said to be the single instance in which our law divests the title to property without the owner's consent or default." Fancher J. in Bar- nard V. Campbell, 65 Barb. 288, 289 1 S. C. 58 N. Y. 73 ; Root vi French, 13 Wend. 570 ; .Mowrey v. Walsh, 8 Cowen, 238 ; Hoffman v. Carow, 22 Wend. 318; Ash v. Putnam, 1 Hill (N. Y.), 307; Hunter v. Hudson River Iron & Machine Co. 20 418 AVOIDANCE OF THE CONTRACT. [book ni. innocent, for no property has passed to himself from the true owner. § 434. To these common law rules there is one statutory excep- Exception tion. Where the fraud by which the goods are obtained from the vendor is such as to enable him to succeed in where true owner Barb. 493; Williams u. Birch, 6 Bosw. 299. The difficulty consists in tracing the title and reconciUng the right of the de- frauded vendor to reclaim his property in the hands of his fraudulent vendee, with the vesting of the title in such purchaser. This difficulty is obviated, however, by Rights of the adopting the doctrine of the Igait'the text, -that the contract is vcndeo as not void ab initio, but is void- regtLrUs the , , , , . ^ ^, goods them- able at the oi)tion oi the ven- selves. (]o|.^ as between him and the vendee, and those claiming under him, without consideration, or with notice of the fraud. The rule is well stated by Shaw C.J. in Kowlcy v. Bigelow, 12 Pick. 312, 313. See, also, Titcomb u. Wood, 38 Maine, 562, 563. In Hoffman v. No- ble, B JNIet. 73, Shaw C. J. said : " It is a well-established rule, that goods obtained by fraud in the sale, as by false represen- tations, may be reclaimed by the vendor. This does not proceed on the ground that the property in the goods does not pass by the sale, but that the dishonest pur- chaser shall not hold it against the de- ceived vendor." In cases of sales of goods in fraud of creditors, an innocent pur- chaser from the fraudulent vendee in pos- session thereof obtains a good title against the creditors of the fraudulent vendor. Neal o. Williams, 18 Maine, 391; Hoff- man V. Kolilr, 6 Met. 68; Bradley u. Obear, 10 N. H. 477 ; Ash v. Patnam, 1 Hill (N. Y.), 302, 306, 307; Eowley v. Bigelow, 12 Pick. 307 ; Somes v. Brewer, 2 III. 184; Anderson u. lioberts, 18 John. 515; Mowrey u. Walsh, 8 Cowen, 238; George u. Kimball, 24 Pick. 241 ; Ditson V. Randall, 33 Maine, 202 ; 1 Chitty Contr. (11th Amer. ed.) 567. But a person who Who is a ''^^ obtained goods by a f raud- bonaJiiJe ulent purchase cannot secure purchaser. , . . , . his title by selling them to a bond fide purchaser, and then repurchas- ing them. Schutt v. Large, 6 Barb. 373. T*he burden of proof is upon one claiming to be a bond fide purchaser to show that he is so. Devoe v. Brandt, 53 N. Y. 462. As to the circumstances necessary to be proved by one claiming to be a bond fide purchaser, see Barnard ;;. Campbell, 65 Barb. 286 ; Devoe v. Brandt, 53 N. Y. 462; Lynch v. Beecher, 38 Conn. 490; Lloyd V. Brewster, 4 Paige, 537 ; Hyde v. Ellery, 18 Md. 496; McLeod u. National Bank, 42 Miss. 99 ; Joslin u. Cowee, 60 Barb. 48; S. C. 52 N. Y. 90; Kinsey d. Leggett, 71 N. Y. 387 ; Weiss v. Brennan, 9 J. & Sp. 177. An execution creditor of the fraudulent vendee docs not become a bond fide purchaser by purchasing the goods at a sale upon his execution, which were fraudulently purchased by the judg- ment debtor. Devoe v. Brandt, 53 N. Y. 462. An attaching creditor of the fraud- ulent vendee cannot hold the property as a bond fide purchaser against the de- frauded vendor. Wiggin v. Day, 9 Gray, 97; Kield v. Stearns, 42 Vt. 106; Fitz- simmons v. Joslin, 21 lb. 129; Poor v. Woodburn, 25 lb. 234 ; Hackett v. Cal- lender, 32 lb. 97 ; Buffington u. Gerrish, 15 Mass. 156 ; Jordan v. Parker, 56 Maine, 557 ; AVhitman v. Merrill, 125 Mass. 127; Am. Merchants' Union Express Co. v. WiUsie, 79 111. 92. It has been held that one, to whom the property has been deliv- ered by the fraudulent vendee in payment of a precedent debt, or in performance of an executory contract of sale made prior to the acquiring possession thereof, or of some evidence of title thereto by the lat- ter, although a consideration was paid at the time of the contract, is not a bond fide purchaser for value, and cannot hold the property against the defrauded vendor. Barnard v. Campbell, 58 N. Y. 73.1 BOOK III.] FRAUD. 419 prosecuting to conviction the fraudulent buyer, as hav- prosecutea ing been guilty of obtaining the goods by false and fraud- tion°a n'er- ulent pretences, he will be entitled, after such conviction, son guilty •^ , . 'of false to recover his goods even from a third person, who is pretences. a hond fide purchaser from the party committing the fraud. The statute and cases under it have already been reviewed, ante, book I. part I. ch. ii. §§ 11-13. (Jc) The early cases are not Earlier universally in accord with the principles above stated, viewed. and in more than one of them the property was held not 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. In Martin v. Pewtress, (^^) decided in 1769 ; Read v. Hutchinson, (Jf) in 1813 ; Gladstone v. Hadwen, (m) in the same year ; Noble v. Adams, (w) in 1816 ; and The Earl of Bristol v. Wilsmore, (o) in 1823, dicta are to be found as to the effect of fraud in pre- venting the property from passing to the purchaser, which are quite in opposition to the later authorities, though in most if not all of these cases the decisions were quite correct. The last- mentioned case was one in which a check 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, (p) in which a conviction for obtaining goods under false pretences (under the 30 Geo. 2, ch. 24) was upheld, on proof that the accused bad obtained the goods by giving in pay- ment a check on a banker with whom he had no cash, and which he knew would not be paid. § 435. Duff V. Budd (§') was an action by a vendor against a common carrier to whom he had delivered goods, to be Duffi;. forwarded 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 [k) [The case of Horwood v. Smith, 2 a case. See Babcoclc v. Lawson, L. R. 4 T. R. 750, referred to in § 11, ante, has Q.B. D. 394 ; Candy v. Lindsay, L. R. 3 been followed in Lindsay v. Cundy, 1 Q. App. Cas. 459.] B. Div. 348, and in Moyce v. Newington, (jfci) 4 Burr. 2478. 4 lb. 32. The latter case holds that where (I) 3 Camp. 352. goods have been purchased by means of (m) 1 M. & S. 517. false pretences, and have been ~sold by the (n) 7 Taunt. 59. vendee, before his convictiqn, to an inno- (0) 1 B. & C. 514. cent party, the innocent party cannot be (p) 3 Camp. 370. deprived of the same by the original own- (q) 3 B. & B. 177. er, as the statute does not extend to such 420 AVOIDANCE OF THE CONTEACT. [BOOK III. Parker, a solvent tradesman, who refused the parcel. Soon after a person came to the defendant's ofSce 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 ofEce, di- rected to Mr. Parker, Oxford, to be left till called for. One of the grounds of defence taken by Pell Serjt. was that the property in the goods had passed out of the plaintiff to the consignee. Dal- las 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 property in the plaintiffs entitling them to sue, as they had been imposed on by a gross fraud." § 436. A few years later, la case almost identical in its features Stephenson Came before the same court. Stephenson v. Hart (r) V. Hart. ^^^Q^ again, an action by a vendor against a common carrier. A purchaser bought goods from the plaintiff, and or- dered them to be sent to J. West, 27 Great Winchester Street, London, 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 Win- chester 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 had sent for it said it was for him, and stated its contents before opening it, thus showing that tJie box had reached the person to ivhom it was addressed. One ground of defence, again, was, that upon the delivery to the car- riers the property ceased to be in the vendor, and was vested in the consignee. 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 he mean to buy ? " Burrough J. said that the property had never passed out of the consignor, giv- ing 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. (r) 4 Bing. 476. BOOK III.] FRAUD. 421 § 437. It is submitted that both these cases against the car- riers are very doubtful authorities under the modern doc- Doubt sub- trine, which clearly holds that the property does pass, S' these"' when the vendor intends it to pass, however fraudulent '"'<"^f^^- ^ Heutrii V. the device of the buyer to induce that intention, (s) The Lon- don & N. In Heugh v. The London & North Western Railway w. Ry. Co. Company, (t) where the same question was involved under very similar circumstances, it was held that it was a question 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 ver- dict for the defendant on that issue. In McKean v. Mc- McKean v. Ivor (m) the decision was also in favor of the carriers, '^<=l^'"'- and Bramwell B. expressed concurrence in the opinion of Gase- lee J. who dissented in Stephenson v. Hart, (a;) supra. § 438. In Irving v. Motley («/) the facts were, that one Dunn and a firm of Wallington & Co. had been engaged in a ining ». series of transactions, in which Dunn, as agent, pur- '*^°"'^y- chased for them goods, on credit, and immediately resold them at a loss, the purpose being to raise money for the business of Walling- ton & Co. Dunn was also an agent for the defendant Motley, who was entirely innocent of any knowledge of, or participation in, the transactions of Wallington & Co. Under these circumstances, Dunn, in behalf of Wallington & Co., applied to the defendant for an advance, which the latter agreed to make if secured by a con- signment of goods. Thereupon Dunn, as agent of Wallington & 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 & Co. became bankrupt a few days after this transaction, and the plaintiffs brought trover against Motley for the wool. A verdict was given for the plaintiff, the jury finding that the trans- action was fraudulent, and that Motley knew nothing of the fraud, but that Dunn was his agent as well as that of Wallington & Co. The court refused to set aside the verdict, but the judges were (s) This expression of doubt isi not taken into consideration was Clough v. withdrawn in the second edition of this The London & North Western Railway treatise. It seems to be further justified Company, L. R. 7 Ex. 26 ; post, § 442. by the three cases since decided in the ex- (() L. R. 5 Ex. 51. chequer, in all of which the defence of the (u) L. R. 6 Ex. 36. carriers was successful, though the only (x) 4 Bing. 676. one in which the point here suggested was [y] 7 Bing. 543. 422 AVOIDANCE OF THE CONTRACT. [BOOK III. not in accord as to the grounds. Tindal C. J. said : " The ground set up here is, that there was an acting and a,n appearance of pur- chase given to the transfer of these goods, which in truth and jus- tice it did not really possess. Whether Dann, as the agent of Wal- Hngton lSt. Co., went into tlie 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 posses- sion of the goods At all events, it w"as left to a jury of merchants, and though they have acquitted the defendants of fraud, yet they involve them in the legal consequences, as it was a fraud committed iy their agent ivith 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 con- stituted Dunn their agent, for the purpose of securing themselves, by getting a consignment of wool made to them from Wallington & Co. ; and their agent having thought fit to procure that con- signment 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." (a) Alder- son J., however, thought that the case was confused by treating it as one of principal and agent ; that Dunn and Wallington were principals in a conspiracy to get the goods from the plaintiff, and therefore 7io property passed out of 3Iessrs. Irving. § 4y0. In Ferguson v. Carrington, (5) goods were sold to de- FergusoQD. fendant on credit, whereupon he immediately resold ton. them at lower prices, and the vendor brought, assumpsit for the price before the maturity of the credit, on the ground that the defendant had manifestly purchased with the preconceived design of not paying for them. Lord Tenterden C. J. nonsuited the plaintiff, on the ground that, by bringing an action on the (z) 7 Tannt. 59. [Loughnan k. Biirry, (a) [See Barnes u. Bartlett, 15 Pick. 71 ; Ir. R. 5 C. L. 538 ; S. C. Ir. R. 6 C. L. Murch v. Wright, 46 111. 487.] 457.] (6) 9 B. & C. 59. BOOK III.] FRAUD. 423 contract, he aiRrmed it, (6') 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 paying for them, no property passed to him by the contract of sale, and it was com- petent for 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." Observa- ... tiona on Parke J . concurred in this view, (c) It should not be this case, 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 to the case before them, and was not therefore so guarded in relation to the effect of the contract in transferring the property, as it would doubtless have been if the rights of innocent third parties had been in question. § 440. In Load v. Green (tZ) the buyer purchased the goods on the 1st July, they were delivered on the 4th, and a j^^^^ ^_ fiat in bankruptcy issued on the 8th. It was uncertain Green, whether the act of bankruptcy had been committed prior to 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." (e) In the early case of Parker packer v. V. Patrick, (/) the king's bench held, in 1793, that ^'"™^- (61) [Dibblee v. Sheldon, 10 Blatchf. 286; King u. Phillips, 8 Bosw. 603 ; Wig- 178.] gin V. Day, 9 Gray, 97 ; Dow v. Sanborn, (c) [See cases in note (e) below.] S Allen, 181, 182; Thompson u. Rose, 16 {d) 15 M. & W. 216; [Buckley v. Conn. 71, 81 ; Powell u. Bradlee, 9 Gill & James, 1 Cr. & Dix Circ. E. 138, Greene, J. 220, 248, 278 ; Peters v. Hilles, 48 Md. Serjt. p. 139.] 506; Dellone v. Hull, 47 lb. 112; Foot v. (e) [It is settled in the American courts, Jones, 1 Alb. L. J. 123 ; Meacham v. Col- p by a vast weight of authority, lignon, 7 Daly, 402 ; Talcott v. Hender- goods with that a purchase of goods by son, 31 Oh. St. 162; BIdault v. Wales, 19 notto'pay one who, at the time, intends Mo. 36; S. C. 20 lb. 546; Ecdington v. for them, not to pay for them, is such a Roberts, 25 Vt. 694, 695 ; Kline v. Balder, rau uen . f^^^g^ ^^ ^jjj gntj^g jhe Ten- 99 Mass. 253, 255; Nichols v. Michael, 23 dor to avoid the sale, although there were W. Y. 264 ; Hennequin v. Naylor, 24 lb. no fraudulent misrepresentations or false 139 ; Ash v. Putnam, 1 Hill (N. Y.), 302 ; pretences. Barnard u. Campbell, 65 Barb. Gary u. Hotailing, lb. 311; Bigelow v. (/) 5 T. E. 175. 424 AVOIDANCE OF THE CONTRACT. [book III. where goods had been obtained' on false pretences, and the guilty party had been convicted, the title of the original owner could not Heaton, 6 lb. 43 ; Stewart v. Emerson, 52 N. H. 301 ; Rowley v. Bigelow, 12 Pick. 307, 311, 312; Nichols v. Pinner, 18 N. Y. 295; Hall o. Naylor, 18 lb. 588, 589; Mitchell V. Worden, 20 Barb. 253 ; Buck- ley V. Artcher, 21 lb. 585; Parker v. Byrnes, 1 Lowell, 539, 542; Biggs v. Barry, 2 Curtis, 262 ; Fox v. Wcliitcr, 46 Mo. 181 ; Davis v. McWhirter, 40 U. C. Q. B. 598. To show that these authorities are founded upon correct principle, noth- ing need be added to the logical and ex- haustive judicial argument of Mr. Justice Doe, in Stewart v. Emerson, 52 N. H. 301. Opposed to the above doctrine are the Pennsylva- eases of Smith v. Smith, 21 ria doctrine Penn. St. 367, and Backen- toss V. Speicher, 31 lb. 324, by which, in the opinion of the supreme court of Pennsylvania, there must be " ariifice intended and fitted to deceive, practised by the buyer upon the seller," in order to constitute such a fraud as will make the sale void ; and that the buyer's intention not to pay for the goods, and concealment of his own insolvency, are not such -A fraud. But to avoid a sale Not enough upon the ground that the that vendee vendee did not intend to pay knew bim- f^ ■' self to be in- for the goods, it is not enough solvent. ^Q gi^Q,^ ji^j^j ^g ^^^^^^ himself to be insolvent, and had no reasonable ex- pectation of being able to pay for them when purchased. Biggs v. Barry, 2 Cur- tis, 259 ; Rowley v. Bigelow, 1:2 Pick. 307 ; Hodgcdeu v. Hubbard, IS ^'t. 504; \A'iy\ V. Brewster, 4 Paige, 537 ; Andrew v. Die- terich, 14 Wend. 31 ; C'ni.-s u. Peter.s, 1 Greenl. 378; Powell u. Braillec, 9 (Jill & J. 220 ; Rediiigtcm v. Roberts, 25 \'t. 694, 695; Garbutt u. Bank of Prairie &c. 22 Wis. 384; Hcnncquin v. Naylor, 24 N. Y. 139; Conyer.s u. Ennis, 2 Jlason, 236; Johnson u. Monell, 2 Abb. (N. Y.) App. Dec. 470 ; Rodman u. Thalhcimer, 75 Penn. St. 232, and cases cited; Bvrd i'. Hall, 2 Keyes, 646 ; Morrill v. Black- man, 42 Conn. 324 ; Piih v. Payne, 7 Hun, 586 ; Talcott v. Henderson, 31 Oh. St. 162 ; Shipman v. Seymour, 40 Mich. 274 ; Klein u. Rector, 57 Miss. 538. In Ex parte Whittaker, In re Shackleton, L. R. 10 Ch. Ap. 446, it appeared that on December 1st S. committed an act of bankruptcy ; and, on December 3d, u, pe- tition for adjudication was filed and served. On December 5th, S. purchased wool at auction, and was allowed to take the wool without paying for it, as the seller sup- posed S. to be solvent. December 14th S. was adjudicated a bankrupt; and on December 21st the seller, who had first heard of the bankruptcy proceedings on December 19th, gave notice that he re- scinded the contract on the ground of fraud, and demanded to have the wool returned ; but it was held that, as it did not appear that S. purchased the wool without any intention of paying for it, the trustee in bankruptcy was entitled to the wool. In Morse v. Shaw, 124 Mass. 59, A. went to B. to buy wool, and after some conversation as to his business con- dition and credit, agreed to go home and prepare a statement of his afl'airs. Soon after he called upon B. again, took out a memorandum book, apparently read it, and said : "I want to tell you how I stand. I could pay every dollar of indebtedness of mine, including the mortgages on my real estate, and not owe on that real estate more than $15,000 or $20,000." Mor- ton J. said : " Such a repre- yg^d,.,.., sentation may be susceptible stateoient , . , „ . of his finan- 01 cither of two mterpreta- cial condi- tions. It may be intended as ''°" ^«-'i}^ ■^ statement oi a wilfully false statement of a fact or of fact, and may be understood "P'"'™- as a statement of a fact. Or it maybe intended as the expression of the opinion or estimate which the owner has of the value of his propert}^ and may be so un- derstood. ... In such cases, it is for the jury to determine whether the repre- sentations were intended and understood as statements of facts, or mere expressions BOOK III.] FRAUD. 425 prevail against the rights of a pawnbroker, who had made hond fide advances on them to the fraudulent possessor. This Remarks case has been much questioned, 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 suc- cessful 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. Newn- ham. Qi) § 441. In Powell v. Hoyland, (i) decided in 1851, Parke B. expressed a strong impression that trespass would not pg^^,]] ^ lie for goods obtained by fraud, " because fraud does Hoyland. transfer the property, though liable to be divested by the person deceived, if he chooses to consider the property as not -^yi^jtg „ having vested." (¥) In White v. Garden (I) the inno- Garden. cent purchaser from a fraudulent 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. Stevenson Newnham, (m) in 1853, Parke B. again gave the unan- bam. imous 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 gives a right to rescind. In the first InsidMce,, the property passes in the subject-matter. An innocent purchaser from the fraudulent possessor may acquire an indisputable title to it though it is voidable between the original parties." (n) This decision was not impugned, when the excheq- uer chamber, in Kingsford v. Merry, (o) in 1856, held uinesford that the defendant, an innocent third person, who had "■ Merry. made advances 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 himself by of opinion or judgment." Gregory k. (i) 6 Ex. 67-72. Schoenell, 55 Ind. 101 ; Stubbs u. John- (k) [Ante, § 433, note (s).] son, 127 Mass. 219; Morse i/. Dearborn, (/) 10 C. B. 919, and 20 L. J. C. P. 167. 109 lb. 593.] (m) [Anie, § 433, note (i].] ig) 10 C. B. 919, and 20 L. J. C. P. 167. {n) 13 C. B. 301, and 22 L. J. C. P. 110. (h) 13 C. B. 285, and 22 L. J. C. P. (o) 1 H. & N. 503 ; 26 L. J. Ex. 83. 110. 426 AVOIDANCE OF THE CONTRACT. [BOOK III. falsely representing that a sale bad been made to him by the own- er'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 between them which the plaintiffs might either afErm or disaffirm." (j») This decision reversed the judg- ment of the exchequer of pleas, (g) but it was explained by Bram- well B. in Iliggins v. Burton, i'/ifra, and by Lord Chelmsford in Pease v. Gloahec, infra, that this w^as only by teason of a changed state of facts, and that the principles on which both courts pro- ceeded were really the same. § 442. In Clough v. The London & North Western Railway Ciouf'hi) Company, (r) the exchequer chamber gave an impor- T'^^T^';?/'' tant decision upon several questions involved in the sub- & N, w. -'■ _ _ ^ Ky. Co. ject now under examination. The decision was prepared by Blackburn J., though delivered by Mellor J. («) TJie facts were, that the London Pianoforte Company sold certain goods to one Adams, on the 18th jMay, 1866, for which he paid 68Z. in cash, and gave his acceptance at four months for 13.^. 8s., the whole residue of the price. He directed the vendors to forward the goods by the defendants' railwaj' to the address of the plaintiff at Liverpool, whom he represented to be his shipping agent. On the arrival of the goods in Liverpool the defendants could not find Clongli 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 time the vendors learned that Adams was a bankrupt, and at 9.30 A. M. on the 22d 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 warehonsemen for him, thus putting an end to the transitus. The vendors nevertheless gave an in- demnity to the defendants, and obtained delivery of the goods to themselves, so that they were the real defendants in the case. The plaintitf demanded the goods of the defendants, and on hear- ing that they had been returned to the vendors, brought his action on the 2d June, in three counts : 1. trover ; 2. against them as (p) [Barker ;;. Dinsmore, 72 Penn. St. (s) So stated to the author recently by 427.] Mellor J. in the presenee of BUickburn (?) 11 Ex. 577 ; 2") L. J. Ex. 166. J. on the argument of a cause in the e.v (r) L. R. 7 Ex. 26. chequer chamber. BOOK III.] FRAUD. 427 ■warehousemen ; 3. as carriers. Up to the date of the trial, the vendors were treating the contract as subsisting, and relying on the right to stop in transitu; 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 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-ex- amination, and had up to that time treated the contract as sub- sisting ; and further, on the ground that the rescission came too late after the plaintiff had acquired a vested cause of action against the defendants. On these facts it was held : 1st. That the property in the goods passed by the contract of sale ; that the contract was not void, but only voidable, 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. 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 in- duced to part with them by fraud, and there was no necessity 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 ver- dict. (0 § 443. It is not necessary that there should be a judgment of («) These principles have been reaf- L. R. 8 Ex. 197, reversing the judgment firmed by the exchequer chamber in Mor- reported in L. R. 8 Ex. 40. [See Webb rison v. The Universal Marine Ins. Co. ti. Odell, 49 N. Y. 583.] 428 AVOIDANCE OF THE CONTRACT. [BOOK III. court in order to effect the avoidance of a contract, when the de- ceived party repudiates it. The rescission is the lesral No ]udg- . , . , . . . . ° ment nee- consequence 01 his election to reject it, and takes date eflec'ui re- from the time at wliich he announces this election to the scission. opposite party. Thus, in Reese River Silver Mining Co. V. Smith, ((() the House of Lords held the defendant entitled to Silver Min- have his name removed from the list of contributory Smith. 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 pro- ceedings to have his name removed. On this ground the case XT- was distinguished from Oakes v. Turquand. (x') In Hig- Hi^p;ons V. o i \ y io Buiton. gons V. Burton, (y) a discharged clerk of one of plain- tiffs' customers fraudulently obtained from plaintiffs goods in the name and as being for the 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 projDerty passed, and that defendant was liable in trover. Plainly in this case the plaintiffs, although de- livering the possession, had no intention of transferring the prop- erty to the clerk, and the latter, therefore, could transfer none Harrtman *° ^^® auctioneer. In Hardman v. Booth (2) the plain- V. Bootii. t{ff went to the premises of Gandell & Co., a firm not previously known to him, but of high credit, to make a 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 & Todd, in which he was a partner. The plaintiff knew nothing of this last-named firm, and thought he t^s selling to " Gandell & Co." The goods were pledged by Gandell & Todd with the defendant, an auctioneer, who made bond fide advances on them. Tlie plaintiff's action was trover, and was maintained, all the judges holding that there had been no contract, that the property had not passed out of the plaintiff, and that the defendant was therefore liable for the conversion, (z^) In 1866, (11) L. E. 4 Eng. Ap. 64; 2 Ch. Ap. (;') [The case of Hardman u. Booth 604. was followed in Lindsay c. Cundy, 2 Q. {x) L. R. 2 Eng. Ap. 325. B. Div. 96, in which it appeared that one (y) 26 L. J. Ex. .342. Alfred Blenkarn, in 1873, hired a third [z] I H. & C. 803; 32 L. J. Ex. 105. floor at No. 37 Wood Street and 5 Little BOOK III.J FRAUD. 429 Pease v. Gloahec, (a) on appeal from the admiralty court, was twice argued by very able counsel. After advisement, p^^^^ ^ the privy council, composed of Lord Chelmsford, Knight G'oahec. Bruce, and Turner, Lords JJ., Sir J. T. Coleridge, and Sir E. V. Williams, delivered a unanimous decision. The principle laid down in Kingsford v. Merry, as stated by the court of ex- chequer (and not aifected by the reversal of their judgment in the exchequer chamber), was affirmed to be the true rule of law, viz. : " Where a vendee obtains possession of a chattel with the intention by the vendor to transfer both the property and posses- sion, although the vendee has committed a false and fraudulent misrepresentation in order to effect the contract or obtain the pos- session, the property vests in the vendee until the vendor has done some act to disaffirm the transaction ; and the legal consequence is, that if before the disaffirmance the fraudulent vendee has transferred either the whole or a partial interest in the chattel to an innocent transferee, the title of such transferee is good against the vendor." (5) § 444. It is a fraud on the vendor to prevent other persons Love Lane, Cheapside. There was a well- Lindsay V. known firm of William Blen- Cundy. kiron 4, go^g^ ^j,ich had for many years carried on business at No. 123 Wood Street. Blenkarn wrote letters at the end of 1873 to the plaintiffs, by the first proposing to order, and by the others ordering, a large quantity of handker- chiefs from the plaintifls. Those letters had a printed heading, "37 Wood Street, Cheapside, London, entrance, second door in Little Love Lane," and were signed "A. Blenkarn & Co.," written in such a way that it was evidently intended to be read, "A. Blenkiron & Co." One of the plaintiffs had known the firm of Blenkiron & Sons several years before, and knew they were respectable. The plaintiffs wrote several letters addressed to " Messrs. Blen- kiron & Co., 37 Wood Street," and they forwarded several lots of handkerchiefs to the same address, heading the invoices, "Messrs. Blenkiron & Co., London." The fraud was afterwards discovered, and Blankarn was indicted and convicted of obtaining the goods by false pretence of being Blenkiron & Sons. In the mean time the defendants had bought of Blen- karn 250 dozen cambric handkerchiefs, and had resold them all to different per- sons before the fraud of Blenkarn was dis- covered. The jury found that the defend ants were bona fide purchasers of the hand- kerchiefs, and that they were part of the handkerchiefs sold by the plaintiffs to Blenkarn. The plaintiffs having brought an action for the conversion of the goods, it was held in the court of appeals, revers- ing the decision of the queen's bench di- vision, that the plaintiffs intended to deal with Blenkiron & Sons, and therefore there was no contract with Blenkarn ; that the property of the goods never passed from the plaintiffs ; and that they were accordingly entitled to recover in the action. Affirmed in the House of Lords, L. R. 3 App. Caa. 4.59.] (a) L. R. 1 P. C. 220 ; 3 Moore P. C. N. S. 566. And see Oakes v. Turquand, L. R. 2 H.L. Eng. App. 325. (h) [Ante, § 433, note (i) ; Shaw C. J. in Rowley v. Bigelow, 12 Pick. 307, 312; Titcomb v. Wood, 38 Maine, 561-563.J 430 AVOIDANCE OF THE CONTRACT. [book III. from bidding at an auction of the goods sold, and where the buyer had, by an address to the company assembled at the auction, persviaded them that he had been wronged by tlie vendor, and that they ought not to bid against the buyer, the purchase by him was held to be fraudu- lent and void, (c) It is a fraud on vendor to prevent others from bidding at auction (c) Fuller v. Abrahams, 3 B. & B. 116 ; [Raynes v. Crowder, 14 U. C. C. P. HI ; People V. Lord, C Ilun, 390; Jackson v. Morter, S2 Penn. St. 291. As, on the Purchaser one hand, u. seller cannot ap- oannot deter qj^j puffers to delude the others from ^ ^ , . „ bidding. purchaser, so, on the other, if a purchaser, iij his conduct, deter other persons from bidding, the sale will not be binding. But one person may legally bind himself not to bid against another. Gal- ton V. Emus, 1 Collyer, 243. And such an agreement has been held valid where the sale was made by order of the court. Re Carew's Estate, 4 Jur. N. S. 1290; 26 Beav. 187. The law, however, generally discountenances combinations or agree- ments on the part of purchasers, the ob- jects and effects of which are to chill a sale at auction, and stifle competition, by de- nying to any ]iarty to such agreement or combination any benefit from the sale. Hamilton v, Hamilton, 2 Rich. Eq. 35.5 ; Woods V. Hudson, 5 Munf. 423 ; Troiip v. Wood, 4 John. Ch. 228, 254 ; Meech v. Ben- nett, Hill & Uenio, 192 ; Phippen r. Stick- ney, 3 Met. 3S7, 388 ; Jones v. Caswell, 3 John. Cas. 29 ; Doolin v. Ward, 6 John. 194; Wilbur 0. How, 8 lb. 444; Thomp- son u. Davies, 13 lb. 112; Gardiner u. Morse, 25 Maine, 140; Pike u. Balch, 38 lb. 302 ; Hayncs v. Crutchfield, 7 Ala. 189 ; Slinglutr v. Eckel, 24 Penn. St. 472 ; Newman u. ileek, 1 Freem. Ch. 441 ; Johnston u. La Motte, 6 Rich. Eq. 347 ; Hook V. Turner, 22 Mo. (1 JonesJ) 333; Wooton u. Hinkle, 20 lb. 290 ; Loyd v. Malone, 23 III. 43 ; Trust v. Delaplaine, 3 E. D. Smith, 219 ; Dudley v. Little, 2 Plam. (Ohio) 505 ; Piatt v. Oliver, 1 Mc- Lean, 295 ; Gulick v. Ward, 5 Halst. 87 ; Dick V. Lind,say, 2 Grant, 431 ; Fenner v. Tucker, 6 R. I. 551 ; Martin v. Ranlett, 5 Rich. 541 ; Cocks v. Izard, 7 Wall. 559. The court of North Carolina, in Smith v. Greenlee, 2 Dev. 126, while Bm honest sustaining thegeneral doctrine agreement . among sev- that a sale may be avoided eral that one when made to one in behalf bid'ni'ay be of an association of bidders valid, designed to stifle competition, at the same time concede that this rule would not ap- ply to an association shown to be formed for honest and just purposes, as in the case of a union of several persons, formed on account of the magnitude of the sale, or where the quantity offered to a single bid- der exceeded the amount which any one individdal might wi-h to purchase on his own account. In Phippen v. Stickney, 3 Jlet. 387, 3SS, which was decided on sim- ilar principles, it was held that an agree- ment by two or more persons that one of them only will bid at an auction of prop- erty, and will become the purchaser for the benefit of ihcm all, is illegal, if it be made for the purpose of preventing com- petition at the biddings, and depressing the price of the property below the fair market value ; but that such an agree- ment is not illegal, if the purpose of it be to enable each of the parties to become a purchaser, when he desires a part of the property offered for sale, and not the whole lot, or if the agreement be for any other honest and reasonable purpose. See Small V. Jones, 1 Watts & S. 128; Wolfe v. Luyster, 1 Hall, 146 ; Jenkins v. Hogg, 2 Const. Ct. (S. Car.) 821; Gardiner i). Morse, 25 Maine, 140; Switzer v. Skiles, 3 Oilman, 529; McMinn u. Phipps, 3 Sneed (Tenn.), 196; Jenkins v. Frink, 30 Cal. 586; Allen u. Stcphanes, 18 Texas, 658; Dick u. Cooper, 24 Penn. St. 217 ; Kearney v. Taylor, 15 How. (U. S.) 519-521 ; Slater v. Maxwell, 6 Wall. 268.1 BOOK III.] FRAUD. 431 to an insolvent third person, and then obtaining the ^^" "'^ goods from that third person, the price may be recovered ^'''""' '° ^''" person. § 445. Where the fraud on the vendor consists in the defend ant's inducing him by false representations to sell goods wh vein induced by fraud to sel' to an insol- from the defendant as though he had bought directly in ^«"' """^ *-" ^ ^ ^ person- his own name, for his possession of the vendor's goods „-,. unaccounted for implies a contract to pay for them, and Perrott. he cannot account for his possession, save through his own fraud, which he is not permitted to set up in defence. (cZ) In Blddle v. Levy (e) the defendant told plaintiff that he was about -g^^^]^ ^. to retire from business in favor of his son, who was a ^'•'y- youth of seventeen years of age, but would watch over him. He then introduced his son to the plaintiffs, who sold to the son goods to the value of 8001. The representations were false and fraudu- lent, and Gibbs C. J. held an action for goods sold and delivered to be maintainable against the father. These two cases probably rest on the principle that the nominal purchasers were secret agents buying for the parties committing the fraud, who were really the undisclosed principals. (Thompson v. Davenport, 2 Smith's L. C. 347.) § 446. Where, however, the fraud on the vendor is effected by means of assurances given by a third person of the buv- , n I M- 1 f 1 " Fraud by er s solvency and ability, the proof that such assurances means of were made must be in writing, as required by the 6th seimiUoM* section of Lord Tenterden's act (9 Geo. 4, c. 14), which solvency" provides " that no action shall be brought whereby to ^^' ,"''"''* charge any person upon or by reason of any representa- ™"^' *"= tion or assurance made or given concerning or relating written eV- to the character, conduct, credit, ability, trade, or deal- ings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, (/) unles^such representation or assurance be made in writing, signed by the party to be charged therewith." (^) The construction of this section was much debated in the case of Lyde v. (d) Hill V. Perrott, 3 Taunt. 274. [See Phelan v. Crosby, 2 Gill, 462.] (e) 1 Stark. 20. (/) This word " upon " is, perhaps, a mistake for "thereupon;" perhaps the words ought to be " money or goods upon Lyde v. Barnard. credit." See remarks of the judges in Lyde v. Barnard, 1 M. & W. 101. ig) [Statutes similar to this have been enacted in several of the American states. See 1 Chitty Contr. (11th Amer. ed.) 581, and note (6) ; Browne St. of Frauds, §§ 181 et seq.; 2 Kent, 488 et seq.] 432 AVOIDANCE OF tHE CONTRACT. [BOOK III. Barnard, (Ji) in which the judges of the exchequer were equally „ , , divided, but the case had no reference to a sale of goods. Haslock V. ' _ ° Ferguson. Jn Haslock V. FergusoH, (h}') the action was against the defendant for an alleged fraudulent declaration to the plaintiff that one Barnes was of fair character, by which representation the plain- tiff was induced to sell goods to Barnes, the proceeds of which were partly applied to the benefit of the defendant. The court held that parol evidence of the alleged representation was inad- missible, overruling a distinction which Sir John Campbell, for the plaintiff, attempted to support, " that the gist of the action was not the misrepresentation of character, but the wrongful aequisi- Devauxi). tion of property by the defendant." In Devaux v. Stein- k'li'er keller (i) it was held that a representation made by a Eepresen- partner of the credit of his firm was a representation of partner ''of ^^^ Credit of "another person" within the meaning of credit of ^^j^i^^ statute ; and in Wade v. Tatton, (/<;) in the excheq- Wade V. '^^''^ chamber, that where there were both verbal and writ- Tatton. ^gj, representations, an action will lie if the written representations were a material part of the inducement to give credit. § 4'i7. The effect of concealment or false representations made False rep- by ^he buver, with a view to induce the owner to take resenta- j j ■> tions by less for his goods than he would otherwise have done, buyer in • i i i i order to does not appear to have been often considered by the cheffpTr/ courts. Chancellor Kent carries the doctrine on the sub- ject of fraud much farther than could be shown to be maintain- able by decided cases, and states it in broader terms than are deemed tenable by the later editors of his Commentaries. (I) Under the head of " IMutual Disclosures," he lays down, in re- lation to sales, the proposition that, " as a general rule, each party is bound to communicate to the other his knowledge of the mate- rial 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." (m) (h) M. & W. 101. McGregor, 6 M. & G. 46 ; Pasley v. Free- (/ii) 7 Ad. & E. 86. man, 3 T. E. 51. (i) 6 Bing. N. C. 84. (/) 2 Kent, 482. {h) 25 L. J. C. P. 240. See, also. Swan (m) [See Brown v. Montgomery, 20 N, V. Phillips, 8 Ad. & E. 457; Turnley v. Y. 287; Fisher v. Budlong, 10 K. I. 527, 528.1 BOOK III.] FRAUD. 433 purchaser not bound to acquaint vendor with latent advantages of thing sold. Fox V. must not mislead vendor in such a case. § 448. The courts of equity even fall far short of this principle, and both Lord Thurlow and Lord Eldon held that a in equity purchaser was not bound to acquaint the vendor with any latent advantage in the estate. In Fox v. Mack- reth, (n) Lord Thurlow was of opinion that the pur- chaser was not bound to disclose to the seller the exist- ence of a mine on the land, of which he knew the seller was ignorant, and that a- court of equity could not set Mackreth- aside the sale, though the estate was purchased for a price of which the mine formed no ingredient, (o) Lord Eldon approved this ruling in Turner v. Harvey, (p) But in the latter case Lord Eldon also held, that if the least word be Harvey. dropped by the purchaser to mislead the vendor in such '^"' ?■"■- irr J r ^ ^ ^ chaser a case, the latter will be relieved ; and his lordship ac- cordingly 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. § 449. At common law, the only case decided in banco, that has been found on this point, is Vernon v. Keys, (g') in Atcom- which the declaration was in case, and a verdict was vemon^i;. given for the plaintiff on the third count, which alleged ^^i^f<.*ie that the plaintiff, being desirous of selling his interest '" banc. in the business, stock-in-trade, &c. in which he was 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 refused to disclose, and that these persons would not consent to give plaintiff a larger price than 4,500L for his share, while the truth was that these persons were willing that the defendant should give as much as 5,291Z. 8s. &d. The judgment in favor of plaintiff was arrested, Lord Ellen- (n) 2 Bro. Ch. 420. (o) [The same was held in Harris v. Tyson, 24 Penn. St. 347 ; 2 Kent, 484, 490; Kintzing v. McElrath, 5 Penn. St^ 467; Butler's Appeal, 26 lb. 63; Liv- ingston V. Peru Iron Co. 2 Paige, 390; Smith o. Beatty, 2 Ired. Eq. 456. See Laidlaw w. Organ, 2 Wheat. 178; Stevens 28 0. Fuller, 8 N. H. 463 ; Howard v. Gould, 28 Vt. 523 ; Paddock v. Strobridge, 29 lb. 470; Fisher v. Budlong, 10 E. I. 525, 527.] (p) Jacob, 178. (q) 12 East, 632, and in Cam. Scacc. 4 Taunt. 488. 434 AVOIDANCE OF THE CONTRACT. [BOOK III. boroiio-h giving the opinion of the court after advisement. His lordship said that the cause of action as alleged amounted to noth- ing more than -a false, reason given by the defendant for his limited offer and that this could not maintain the verdict, unless it was sliown " that in respect of some consideration or other, existing between the parties to the treaty, or upon some general rule or principle of law, the party treating for a purchase is bound to al- lege 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 mis- represent the quality of the thing sold to be other than it is, in some particulars which tlie huyer has not equal means ivith himself of knoiving, or if he do so in such manner as to induce the buyer to forbear making the inquiries which, for his own security and advantage, he would otherwise have made. But is a buyer 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 com- modity 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 bargain- ing for a purchase. It appears to be a false representation in a matter merely gratis dictum, by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy and correctness 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." (r) When the case came before the exchequer cham- ber, («) Puller, 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 action would not lie under such circumstances ; but the court would hear no reply, and at once confirmed the judgment. Sir James Mans- field C. J. simply saying : " The question is, whether the defend- ant is bound to disclose the highest price he chooses to give, or whether he be not at liberty to do that as a purchaser which every seller in this town does every day, who tells every falsehood he can to induce a buyer to purchase." § 450. In Jones v. Franklin, (jf) coram Rolfe B. at nisi prius, (r) [See Prescott u. Wright, 4 Gray, (s) 4 Taunt. 488. 461.] (() 2 Mood. & R. 348. ^OOK III.] FRAUD. 435 the action was trover, and the circumstances were that the phiin- tiffs, assignees of a bankrupt, were owners of a policy j for 999Z., on the life of one George Laing, and early in Franklin. 1840 had endeavored, through their attorney, to sell it for 40^., but could find no purchaser. Defendant knew this fact. On the 15th August, Laing became suddenly very ill, and he died on the 20th. On the 18th defendant employed 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 good health. Rolfe B. said " there could be no doubt such conduct was grossly dishonorable. But he had no difficulty in going farther 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." It does not seem possible to reconcile this case with Ver- (3^,^^^^^ non V. Keys. In both cases the purchasers made a false reconciia- ble witli representation. But in Vernon v. Keys the falsehood Vernon v. W3.B volunteered, 2mA misrepresented a /act y whereas in Jones V. Franklin the buyer's statement, through his agent, that the policy was worth about sixty guineas, was only made in answer to a question of the vendor as to his opinion, and, according to Lord EUenborough, the buyer was " under no legal duty or obli- gation 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." There was, perhaps, enough in the case to bring it within the equity principle laid down by Lord Eldon in Turner v. Harvey ; (u) but dishonorable and un- fair as was the conduct of the buyer, it would be difficult to show, on authority, that it was in law such a fraud as vitiated the sale. § 451. In America it has been held, that if a pur- Decisions chaser make false and fraudulent representations as to his !" ^'^T ^ ica, that own solvency and means of payment, and thereby in- neither property duces the vendor to sell to him on credit, no right either nor posses- j. , . . -IT,, 1 sion pass to of property or possession is acquired by the purchaser, buyer who {«) Jac. 169. 436 AVOIDANCE OF THE CONTRACT. [book hi. has de- frauded vendor. and the vendor would be justifiable in retaking the prop- erty, provided he could do so without violence, (a;) SECTION III. — FRAUD ON THE BUYER. 5 452. In every case where a buyer has been imposed on by the fraud of the vendor, he has a right to repudiate the con- fraiided by tract, a right correlative with that of the vendor to dis- may avoid affirm the sale when he has been defrauded. The buyer the sa e. ^j-,(jer such circQinstances may refuse to accept the goods, if he discover the fraud before delivery, or return them, if the dis- Before or covery be not made till after delivery ; and if he has paid HveJy'!'^ the price, he may recover it back on offering to return the goods in the same state in which he received them. («) Aud {x) Hodgeden v. Hubbaid, 18 Vt. .504; Johnson v. Peck, 1 Wood. & M. 334; Mason v. Crosby, 1 Wood. & M. 342. [See ante, § 444, note (e), and cases cited.] (a) Clarke v. Dickson, E., B. & E. 148, and 27 L. J. Q. B. 223 ; iMiirray v. Mann, 2 Ex. 538; Street v. Blay, 2 B. & Ad. 456; [ante, § 415, and note (c) ; Kerr E. & M. (1st Am. ed.) 328, 329; (.Jueen o. Saddlers' Co. 10 H. L. Cas. 420, 421, per Blackburn J. ; Downer n. Smith, 32 Vt. 1 ; Poor V. Woodburn,25 lb. 234; Mana- han u. Noyes, 52 N. H. 232 ; Kinney v. Kiernan, 2 Lansing, 492; Pierce v. Wil- son, 34 Ala. 596 ; Jemisou v. Woodruff, lb. 143 ; Buchanan v. Homey, 12 111. 336; Shaw (■. Barnhart, 17 Ind. 183; Blen V. Biar River &c. Co. 20 Cal. 602; GctchoU V. Chase, 37 N. H. 110 ; Gates v. Blibs, 43 Vt. 299; Wheaton i/. Baker, 14 Barb. 594 ; Gatling v. Newell, 9 Ind. 572, 577 et seq. per Perkins J.; Hoopes c^. Strasburger, 37 Md. 390, 391 ; Earris v. Ware, 60 Maine, 482; Butler v. North- umberland, 50 N. H. 39, 49 ; Perkins v. Bailey, 99 Mass. 61, 62; King v. Eagle Mills, 10 AUen, 551 ; Farrell v. Corbett, 4 Hun, 128; Van Liew u. Johnson, lb. 415 ; Dows v. Griswold, lb. 550 ; Anthony V. Day, 52 How. Pr. R. 35. A party hav- Contract ing an election to rescind an "dnded''.n" ^""'■^ contract must rescind ""o. it wholly or in no part. Miner V. Bradley, 22 Pick. 457 ; Voorhees v. Earl, 2 Hill (N. Y.), 292, 293. He cannot avoid it to retain his property, and at the same time enforce it to recover damages. Junkins v. Simpson, 14 Maine, 364; Weeks v. Robie, 42 N. H. 316. The con- tract cannot be rescinded as to one party, and be kept in force as to the other. Cool- idge V. Biigham, 1 Met. 550; EuUager "- ReviUe, 3 Hun, 600. A party cannot re- scind a contract and at the same time re- tain the consideration, in whole or in part, which he has received under it. Jennings u. Gage, 13 111. 610; Coolidge u. Brigham, 1 Met. 550 ; jMiner v. Bradley, 22 Pick. 457; Perley v. Balch, 23 lb. 286; Nor- ton u. Young, 3 Greenl. 30; Cushman V. Marshall, 21 iSIaiuc, 122; Sumner v. Parker, 36 N. H. 449; Weeks i;. Robie, 42 lb. 316; Willoughby v. Moulton, 47 lb. 205. Where the vendor would re- scind a contract of sale on account of the fraud of the purchaser, it is his duty to restore what he has received in pay- ment, before he can sustain an action to recover the goods sold. Norton w. Young 3 Greenl. 30; Cushing u. Wyman, 38 Maine, '589 ; Cook u. Oilman, 34 N. H. 556; Evans v. Gale, 21 lb. 240; 2 Cliitty Contr. (Uth Am. ed.) 1092, note (a); Pope V. Pictou Steamboat Co. 2 Old- right (N. S.), 18 ; Warren v. Tyler, 81 111. 15; Haase v. Mitchell, 58 Ind. 213; Heaton v. Knowlton, 53 lb. 357 ; Wood BOOK in.] FRAUD. 437 this ability to restore the thing purchased unchanged in condition is indispensable to the exercise of the right to rescind, so that if the purchaser has innocently changed that condition while ignorant of the fraud he cannot rescind. (6) But the contract is only void- able, not void, and if after discovery of the fraud he acqui- j,, ^■ esces in the sale by express words or by any unequivocal V buyer, act, such as treating the property as his own, his election will be determined, and he cannot afterwards reject the property, (c) Mere delay also may have the same effect, if, while deliberating, the position of the vendor has been altered ; (c^) and the result will not be affected by the buyer's subsequent discovery of a new incident in the fraud, for this would not confer a new right to V. Garland, 58 N. H. 154; Spencer v. St. Clair, 57 lb. 9. But although it may be Though con- "° longer open to the party tract not re- defrauded, from the change ficinded, ac- , ° tion for de- of circumstances which has ceit may lie. j^^g^ ^-^^^^ j„ ^^^ ^^^^ j^j^^^ to avoid the contract upon the discovery of the fraud, he has a remedy by actior of deceit for the damages against the party by whose misrepresentations he has been misled to his injury. Clarke v. Diclcson, E., B. & E. 148; The Queen v. Saddlers' Co. 10 H. L. Cas. 421 . per Blackburn J. ; West- ern Bank of Scotland u. Addie, L. R. I Sc. Ap. Cas. 167. So the party defrauded may, instead of rescinding the contract, stand to the bargain, even after he has discovered the fraud, and recover damages for the fraud, or he may recoup in dam- ages, if sued by the vendor for the price. The affirmance of a contract by the ven- dee after discovery of the fraud merely extinguishes his right to rescind. His other remedies remain unimpaired. Whit- ney V. Allaire, 4 Denio, 554 ; Kice J. in Herrin v. Libbcy, 36 Maine, 357 ; Peck v. Brewer, 48 111. 55; Weimer v. Clement, 37 Penn. St. 147; Van Epps v. Harrison, 5 Hill, 68; Foulk v. Eckart, 61 111. 318; Lilley v. Randall, 3 Col. 298; Miller u. Bal-ber, 66 N. Y. 558 ; Johnson u. Lux- ton, 9 J. & Sp. 481 ; Lexow v. Julian, 14 Hun, 152; Ranney v. Warren, 17 lb. 111. But in Honldsworth u. City of Glasgow Bank, L. R. 5 App. Cas. 3,17, it was laid down that this principle does not apply to a purchase of shares in a joint-stock com- pany. The vendee's only remedy is by re- scission.] (6) West Bank of Scotland o. Addie, L. R. 1 Sc. App. 145; cases ante, at § 415. [See cases in next preceding note ; Mix- er's case, 4 De G. & J. (Am. ed.) 586, and note (1) ; Rawlins v. Wickham, 3 lb. 322; 2 Chitty Contr. (11th Am. ed.) 1092, and cases in note (a) ; Manahan v. Noyes, 52 N. H. 232; Sanborn V. Batcheldor, 51 lb. 426 ; Butler v. Northumberland, 50 lb. 39, 40; Weeks v. Robie, 42 lb. 316.] (c) [2 Chitty Contr. (11th Am. ed.) 1037; Ormes v. Beadel, 2 De G., F. & J. 336 ; Evans v. Montgomery, 50 Iowa, 325.] (d\ Clough V. The London & K W. Ry. Co. L. R. 7 Ex. 26 ; [Baker v. Lever, 67 N. Y. 304. A right to rescind must be exercised at the earliest practicable mo- ment after the discovery of the ground therefor. Matteson v. Holt, 45 Vt. 336 ; Perkins J. in Gatling v. Newell, 9 Ind. 572, 578 et seq. ; Central Railway Co. v. Kisch, L. R. 2 H. L. 99 ; Smith's case, L. R. 2 Ch. Ap. 604 ; Heymann v. European Central Railway Co. L. R. 7 Eq. 154 ; Wil- loughbyr. Moulton, 47 N. H. 205; Weeks tf. Robie, 42 lb. 316; Hammond v. Pen- nock, 61 N. Y. 145; Ross v. Titterton, 6 Hun, 280; Parmlee v. Adolph, 28 Oh. St. 10 ; Pence v. Langdon, 99 U. S. 578.] 438 AVOIDANCE OF THE CONTRACT. [BOOK III. rescind, but would merely confirm the previous knowledge of the fraud, (e) § 453. These principles are well illustrated in the case of Camp- Cam bell ^^^^ '"■ Fleming. (/) The plaintiff, deceived by false «. Fleming, representations of the defendant, purchased shares in a mining company. After the purchase he discovered the fraud, and that the whole scheme of the company was a deception. The action was brought to recover the purchase-money that he had paid. But it appeared that subsequently to the discovery of the fraud the plaintiff had treated the shares as his own, by consoli- dating them with other property in the formation of a new com- pany, in which he sold shares, and realized a considerable sum. The plaintiff then endeavored to get rid of the effect of the con- firmation of the contract, 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 5,000Z. had been paid for the purchase of property by the mining company, although it was falsely represented to the plaintiff when he took the shares that the outlay had been 35,000?. The plaintiff was nonsuited by Lord Denman, and on the motion for new trial all the judges held (e) [In MiUteson u. Holt, 45 Vt. 336, after the sale, they were returned to the Delay after the action was for the price plaintiff, with notice that they were not frauT'bIra" °^ ^ yoVe of oxen. In nego- as represented. On the second day after rescission. tiatiug for the purchase, it the purchase, the defendant became aware appeared that the defendant told the plain- of the fact that the feet of the oxen would tiff that he wanted " to purchase a yoke of not hold shoes, and at the same time the oxen not under five nor over seven years defendant was informed by his blacksmith of at;e ; what work he wished them to per- that, in his (the blacksmith's) judgment, form ; where they were to work, and that the o.Ken were nine years old. The de- they must have good feet to hold shoes." fendant continued to u^e the oxen for five The plaintiff replied that "his oxen were days after that. It was found that the only seven that spring ; that they could plaintiff knowingly misrepresented the a^re do as much work as any other yoke of of the oxen. Judgment wag rendered for oxen, and that the foot with the broken the defendant. See Galling v. Newell, 9 claw was all right, and only required a Ind. 572, 578 ; Central Railway Co. v. peculiar shaped shoe." On these repre- Kisch, L. K. 2 H. L. Cas. 99; Smith's sentations the defendant purchased and case, L. R. 2 Ch. Ap. 60+; Heymann i'. took the oxen. It was proved that the European Central Railway Co. L. R. " Mattesonn. broken claw was spongy, and Ei|. 15+; Boughton v. Standish, 48 Vt. Uolt. would not hold a shoe; that 594; Hall i,. Fullerton, 69 111. 448. The the oxen were incapable of performing the same representation cannot be both a war- work for which they were purchased ; that ranty and a fraud. Rose v. Hurley, 39 they were over seven years old — at least Ind. 77.] eight — and that known to the plaintiff at (/) 1 Ad. & E. 40 ; [Patterson v. Ir- tho time of the sale. On the seventh day win, 21 U. C. C. P. 132.] BOOK III.] FRAUD. 439 the nonsuit right. Littledale J. said : " After the plaintiff learned that an imposition had 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 hy dealing with the property after he had once discovered that he had been imposed upon.''' Park J. said : " After the plaintiff, know- ing 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 afterwards 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 which 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." (^) § 454. The rules of law defining the elements which are essen- tial to constitute such fraud as will enable a purchaser -^i^rhateie- to avoid a sale were long in doubt, and there was spe- """"'^ ^™ , , ^ necessary cially a marked conflict of opinion between the court of to entitle queen's bench and the exchequer, until the decisions of rescind sale the exchequer chamber, in Collins v. Evans, (A) in 1844, of" fraud" and Ormrod v. Huth, (j) in 1845, established the true False rep- .,,, . J, -, . ^ . resentation principle to be that a representation, false m fact, gives notsuiH- no right of action if innocently made by a party who be- nocentiy lieves 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 representa- tion. (¥) And a false representation is knowingly made, when a (.17) See ante, § 442, as to election, and Bigelow C. J. said : " There can be no the case of Clough v. The London & doubt that a vendee may rescind a con- North Western Railway Company (L. R. tract for the sale of chattels, and refuse to 7 Ex. 26), there cited. [And see Matte- receive or accept them, if the vendor has son 0. Holt, 45 Vt. 336, cited and stated been guilty of deceit in inducing the for- ante, § 452, note (e).] mer to enter into the bargain. But to (A) 5 Q. B. 8,20. maintain a defence to an action for the (i) 14 M. & W. 651. price of goods on this ground, the same (h) [See Weimer v. Clement, 37 Penn. facts must be proved which would be nec- St. 147 ; M'Farland v. Newman, 9 Watts, essary to maintain an action for damages 55 ; Da Lee v. Blackburn, 11 Kansas, 190. for deceit in the sale of goods."] In King v. Eagle Mills, 10 Alien, 551, 440 AVOIDANCE OF THE CONTRACT. [BOOK III. party for a fravidulent purpose states what he does not believe to be true, even though he may have no knowledge on the sub- ject. (F) 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 (I) and Haycraft v. Creasy, (w) decided in 1789 and 1801. The effect of innocent misrepresenta- tion as causing mistake or failure of consideration has been treated Pasley v ^nte, §§ 420 et seq. In the former of these cases it was Freeman, jjeld that a false affirmation made by the defendant, with intent to defraud the plaintiff, whereby the plaintiff receives dam- age, is the ground of an action upon the case in the nature of de- ceit ; and that such action will lie, though the defendant may not benefit by the deceit, nor collude with the person who is to ben- efit 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 safely trust, the defendant well know- Havcraft *''^^ *'^^* ^^^^^ ^^^ '^°* true. In the latter case, Haycraft V. Creasy. y_ Creasy, it was held that an action of deceit would not lie upon similar false representations, 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 in- Foster V. tervenina; cases, that of Foster v. Charles (n^ came twice Charles. o ' ^ \ y -, ,, .,, ' before the common pleas in 1830 and 1881, and was de- Walter. liberately approved and followed by the queen's bench in Polhill V. Walter, (o) in 1832. It was held in these cases un- necessary 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 knoivs to be un- ite'-) [In Slcd'^'c V. Scott, .56 Ala. 202, material whether the vendor knew or had Alabama Brickell J. said : " The law means of knowing it to be untrue, or that "■"'"■ as settled in this state is, that he made it in ignorance of the facts. The a misrejircsentation by a vendor of chat- affirmation of that which he does not know tels, of a material fact made at the time of to be true produces the same injury, and or pending the negotiation for the sale, on is as indefensible .... as the assertion which the purchaser has the right to rely, of what he knows to be false."] and in fact relies, is a fraud, furnishing (/) 3 T. K. 51 ; 2 Sm. L. C. 71, 6tb a cause of action to the purchaser, or a ed. ground of defence to an action for the pur- (m) 2 East, 92. Venaor chase-nioney. If the repre- [n) 6 Bing. 396, and 7 Bing. 105. bound to sentation is not a mere ex- (ol 3 B. & Ad. 1'2. Know trntiL ' ' ofnpriisen- pression of opinion, but the (p) [Ante, § 429, note [g], and cases tation. affirmation of a fact, it is not cited.] BOOK III. J FRAUD. 441 true, and which is intended by him, or which, from the mode in which it is made, is calculated 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. (5) A wilful falsehood of such a nature is, in the legal sense of the word, ?i fraud." § 455. While the authorities stood in this condition, the cases of Cornfoot v. Fowke (r) and Fuller v. Wilson (s) were decided, 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, and adopting in preference the dissenting opinion of Lord Abinger. Cornfoot v. Q^^.„fgg^^ Fowke (r) was a case in which the defendant refused to Fowke. 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 being entirely unobjectionable, whereas the adjoining house was a brothel and a nuisance, which was compel- ling 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, (f) were cited in argument, and the majority of the court, Rolfe, Alderson, and Parke BB., held the defence unavailing ; while Lord Abinger C. B. said that the oppo- site 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 inno- cently gave no directions whatever on the subject, supposing that the intended tenant would make the necessary inquiries for himself.'' (q) [Statements, known by the vendor 308; Doggett .^.Emerson, 3 Stoi-y, 700; to be false, which induce the vendee to Lewis w. M'Lemore, 10 Yerger, 206; Ste- make a purchase to his injury, maj' fairly vens v. Giddings, 45 Conn. S07,] be presumed to have been made to induce (r) 6 M. & W. 358. [See Fitzsimmons the purchase. Collins u. Dennison, 12 ti. Joslin, 21 Vt. 129-141 ; Story Agency Met. 549; ante, § 429, note (b). See § 139, note (2); Coddington v. Goddard, Boyd V. Browne, 6 Barr, 310; Taylor v. 16 Gray, 431, 432, 436.] Fleet, 1 Barb. 471 ; Hunt v. Moore, 2 (s) 3 Q. B. 58. Barr, 105 ; Hammatt v. Emerson, 27 Me. (() 3 T. B. 51. 442 AVOIDANCE OF THE CONTRACT. [BOOK III. 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 knowl- edge on the part of the principal is sufficient to establish the fraud. If, indeed, tliR 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, tliough he knew the fact, he was not cognizant of the misrepresentation being made, nor even directed the agent to make it ; and the agent, because, though lie 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 con- tract, wliich was in writing, and therefore it could not affect the rights of the parties, except on the ground that it was fraudu- lent. On the simple facts, each person was innocent, because the plaintiff made no false representation 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 fraudu- lent 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 plaintifE would unquestionably be guilty of a 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 conti'aet unless fraudiile7it. 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 turpi- tude ; . . . . 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 fraudulent, although the party making them suppose them to be correct ; " that there was not a total absence of moral turpitude in the agent, even upon the BOOK III.] FRAUD. 443 presumption that he was wholly ignorant of the matter: that " nothing can be more plain than that the principal, though not bound by the representation of his agent, cannot take advantage of a 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 with- out authority, that " he is therefore entitled to bind another man to a contract obtained by the false representation of that agent. It is one thiy^g to say that he may avoid a contract if his agent, without his authority, has inserted a warranty in the contract; and another to say that he may enforce a contract obtained hy means of a false representation made hy his agents because the agent had no authority." (m) See observations on this case, fost^ § 462. (h) [See 2 Kent, 621, note (c) ; Fitz- simmons v. Joslin, 21 Vt. 129 ; Story Agency, § 139; 1 Sugden V. & P. (8th Am. ed.) 250 ; Bartlett v. Salmon, 6 I)e G., M. & G. 33, 39, 40, and note (a) ; 2 Chitty Contr. (11th Am. ed.) 1036; Att- wood V. Small, 6 CI. & Fin. 414, note (1). Where an agent makes a false representa- Liability of tion, or in any other manner for'fraud of comniits a fraud in a purchase agent. or sale, with or without the privity, or knowledge, or assent, of his principal, and the principal adopts the bargain and attempts to reap an advan- tage from it, he will be held bound by the fraud of the agent, and relief will be given to the other party to the transaction. The principle is, that fraud by an agent is fraud by the principal ; that the principal should be bound by the fraud or miscon- duct of his own agent, rather than that another should suiFer ; that the principal cannot take the benefits of a trade by his agent without taking its burdens; and, finally, that the principal cannot adopt part and repudiate the rest, where the transaction is a unit, and he claims the benefit of the whole. Woodbury J. in Ferson k. Sanger, 1 Wood. & M. 147; Warner v. Daniels, lb. 90; Bowers v. Johnson, 10 Sm. & M. 169; Lawrence v. Hand, 23 Miss. 103; Craig v. Ward, 3 Keyes, 393 ; Griswold o. Haven, 25 N. Y. 595 ; Sharp o. New York, 40 Barb. 257 ; Graves v. Spier, 58 lb. 349 ; Fitzsimmons t). Joslin, 21 Vt. 129; Mundorf y. Wick- ersham, 63 Penn. St. 87 ; Bennett o. Jud- son, 21 N. Y. 238 ; Abell v. Howe, 43 Vt. 403 ; 11 Am. Law Reg. N. S. 144, 149, 150; Concord Bank v. Gregg, 14 N. H. 331 ; Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 14 N. Y. 623, 631 ; 16 lb. 125, 143; North River Bank V. Aymar, 3 Hill (N. Y.), 262 ; Westfleld Bank v. Cornen, 37 N. Y. 320, 322 ; Madi- son & Ind. R. R. u. Norwich Saving So. 24 Ind. 457; De Voss v. Richmond, 18 Graltan, 338; Kibhe v. Hamilton Ins. Co. 11 Gray, 163 ; Veazie v. Williams, 8 How. (U. S.) 134; Elwell v. Chamberlin, 31 N. Y. 611 ; AUerton v. Allerton, 50 lb. 670; Chester v. Dickerson, 52 Barb. 349 ; Durant v. Rogers, 87 III. 508 ; Reed v. Peterson, 91 lb. 288; Indianapolis &c. Ry. Co. V. Tyng, 63 N. Y. 653 ; Brett v. Clowser, 5 C. P. D. 376 ; Lamm v. The Port Deposit Homestead Ass. 49 Md. 233; Am. Ins. Co. u. Kublnjan, 6 Mo. App. 522; Tagg u. Tenn. Nat. Bank, 9 Heisk. (Tenn.) 479. When the principal ratifies a sale made by an agent, he is bound by the representations made by the agent at the time of the sale. Doggett t!.-Emerson, 3 Story, 700 ; Kibbe v. Ham- ilton Ins. Co. 11 Gray, 163.] 444 AVOIDANCE OF THE CONTRACT. [BOOK III. § 456. In Fuller v. Wilson, (x) which was an action on the case „ ,, for a false representation, the queen's bench, through Wilson. Lord Denman C. J., declined to take any ground other than the broad proposition of Lord Abiiiger, which they adopted, " that whether there was a moral fraud or not, if the purchaser wan (irttiiiU// dcci'i.vud in his iKiujain, the law will relieve him from it. We think the principal and his agent are for this purpose completely identified, and that the question is not what was pass- ing in the mind of either, but whether the purchaser tvas in fact Cunflict of deceived by them or either of them." (?/) The conflict of "wee'n"the" Opinion cannot be more plainly stated. The queen's bench -ind tienoh thought the sole test was whether the purchaser exchequer ^j.,,,s deceived liij an Untrue statement into maJcintj the bar- gain. The court of exchequer thought it further necessary that the party making the untrue statement should Icnoiv it to be un- true. Fuller V. Wilson was reversed in error, (2) solely on the ground tliat the facts of the case did not show any misrepresenta- tion on the part of the vendor, but only the purchaser's own mis- apprehension ; and Tindal C. J., in delivering the opinion, stated that the court did " not enter into the question discussed in Corn- foot V. Fowke." § 457. In Moens v. Hey worth, ((?) in 1842, the question again Moensi) came before the exchequer of pleas (the case of Fuller v. Heyworth. Wilson not being yet reported), and Lord Abinger re- newed the expression of his dissent from Parke B. and Alderson B.. 7-epeating that " the fraud which vitiates a contract .... does not in all cases necessarily imply moral turpitude." His lord- ship 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 dis- honest intent, 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 was 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." Tayh)r«. § ^'^S- In the next year, 1843, Taylor v. Ashtou (h) Ashton. came before the same court, and the judgment of the (x) 3 Q. B. 58. [z) Wilson v. Fuller, 3 Q. B. 1009. iy) LSee White u. Sawyer, 16 Gray, (a) 10 M. & W. 147. 586.] (6) 11 M. & W. 401. BOOK III.] FRAUD. 445 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 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 bond fide believes the representation he made to be true, though he does not know it, it is not actionable." The learned baron after- wards delivered the judgment of the court, holding that "it was not necessary, in order to constitute fraud, to show that the de- fendants knew the fact to be untrue ; it was enough that the fact was untrue if they communicated that fact for a deceitful pur- pose ; .... if they stated a fact which was untrue for a fraud- ulent 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." (c) § 459. In 1843 the queen's bench had before ,them the case of Evans v. Collins, (c?) which was an action by a sheriff to recover damages against an attorney for falsely representing a jj^jj^g ^ certain person to be the person against whom a ca. sa. Collins. had been sued out by the 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 defendant had prob- able 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, how- ever, been previously held, in Humphrys v. Pratt, (e) in the House of Lords, that an execution creditor was bound to indem- nify a sheriff who had seized goods pointed out by the creditor, and upon his requisition and false representation that they be- longed to his debtor, although the counts in the declaration did not aver aiiy 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 maintainable, 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 (c) [See 2 Chitty Contr. (11th Am. ed.) cuse to the party making it, if made with 1044 ; Maule J. in Evans v. Edmonds, 13 the intention to deceive another, and he C. B. 777, 786 ; Lord Cairns in Eeese is thereby deceived to his injury. Denny River Silver Mining Co. v. Smith, L. R. u. Gilman, 26 Me. 149.] 4 H. L. Cas. 64, 79 ; Howard v. Gould, 28 (d) 5 Q. B. 804. Vt. 523, 526. The mere fact that a rep- (e) 5 Bligh N. S. 154. resentation is literally true affoyds no ex- 446 AVOIDANCE OF THE CONTRACT. [BOOK III. loss, thoiigli charged neither with fraud nor with negligence, must have been guilty of some fault when he made a false representa- tion. He w;is 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 conse- quence of his misconduct. The allegation that the defendant knew his representntiun to be false is therefore imviaterial : without it, the declaration discloses enough to maintain the action." This case Reversed was reversed in the exchequer chamber, (/) after time che^q'uer taken for consideration, by the unanimous judgment of chamber. 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, but not known, to be so by the party making it, but, on the contrary, made honestly and in the full belief that it is true, affords a ground of action." The court held that, on the whole current of authority, ^^ fraud mast conQar ivith the false statement in order to give a ground of action." The court ex- plained the decision in Huaiphrys v. Pratt, (^) in which no rea- sons were assigned for the judgment, as having proceeded on the ground that the execution creditor in that case had made the sheriff his agent, and was bound to indemnify him for the conse- quences of acts done under the principal's instructions. § 400. The next case was Ormrod v. Huth, (A) in the exchequer Ormrod V. chamber, in 1845, on error from the exchequer of pleas, H""'- so that the judges of the queen's bench must have taken part in the judgment. Tindal C. J. laid down the rule, which be 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 con- sideration), he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bottomed in fraud. If, indeed, the representation was false to the knowledge of the party making it, this would in general be conclusive evidetice of fraud ; but if the representation was hon- estly made and believed at the time to be true by the party mak- ing it, though not true in point of fact, we think this does not (/) 5 Q. B. 820. (A) U M. & W. 650. (t N. 172 ; 30 L. J. Ex. 337. son, 21 N. Y. 238.] (a) [See Jeffrey v. Bigelow, 13 Wend. BOOK III.] FRAUD. 451 in business as tlie manager of a bank is." As to the distinction here pointed out between the responsibility of the principal for the fraud of an agent employed to effect one sale, and that of an agent to do business generally, it is not easy to appreciate how the principle can differ in the two cases, if in each the agent is acting in the business for which he was employed by the princi- pal; but the observation of the learned judge on this point is of course no part of the decision in the cause. § 466. On the other hand, in The Western Bank of Scotland V. Addie, (5) at the close of the argument on the 12th ^he West- March, the lords intimated that, "as the decisions con- '^fo'^'!!''^ . ' ' 01 Scotland flicted, they would take time to consider the case, ivith a "• Addio. view to the laying down of some general rules" and it was not till the 20th May that the decision was given. The plaintiff's action was based on the allegation that he had been induced to hny from the company a number of its shares, by the fraudulent representa- tions 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 Alartin B. in Udell v. Atherton. Lord Chelmsford said : " The distinc- tion 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 com- pany to rescind the contract on the ground of fraud, the misrepre- sentations are imputable to the company, and the purchaser cannot be held to his contract, because a company cannot retain any ben- efit which they have obtained through the fraud of their agent. 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 deceit, such an ac- tion cannot be maintained against the company, but 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 (6) L. R. 1 Sc. App. 146. 452 AVOIDANCE OF THE CONTRACT. [BOOK 111. an event occurred which changed their nature, and prevented his returnino- the very thing which he received. But he is not with- out remedy. If lie is fixed with the shares, he may still have his action for damages against the directors, supposing he is able to establish that he was induced to enter into the contract by mis- representations for which they were responsible." Lord Cran- worth first concurred in deciding that the plaintiff had lost his right to rescind the contract, because 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 appellants are not the persons who loere 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 maj^ be made responsible to the extent to which its funds have profited by those frauds. If it is supposed from what I said when the case of Ranger v. Great Western Railroad Com- pany (c) was decided in this house I meant to give as my opiaion 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 established. By what particular proceeding re- lief could have been obtained is a matter on which I did not in- tend to express, and indeed had not formed, any opinion. An at- tentive 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 country is now carried on, may be made responsible for the frauds of those agents to the ex- tent to which the companies have profited from these frauds ; hut that they cannot he used as wrong-doers, hy imputing to them the misconduct of those ivhom they have employed, (t^) A person de- (c) 5 H. L. Cas. 72. 58 lb. 387 ; Sandford v. Handy, 23 Wend. (d) [Sue Craig v. Ward, 3 Keyes, 393; 260; Durst u. Burton, 2 Lansing, 137; Elwell V. Cliamberlin, 31 N. Y. 619; Al- S. C. 47 N. Y. 167; Swift v. Winter- lerton ... Allerton, 50 lb. 670 ; Davis v. botham, L. R. 8 Q. B. 244 ; L. K. 9 Q. B. Bemis, 40 lb. 453, note ; Hunter v. Hud- 301, nom. Swift u. Jewsbury; Mackay d. son River Iron Co. 20 Barb. 493 ; Sharp Commercial Bank, L. K. 5 P. C. 394. ^. New York, 40 lb. 257 ; Chester v. See Weir v. Barnett, 3 Ex. D. 32, 238, as Dickcrson, 52 lb. 349; Graves u. Spier, to the personal liability of directors for BOOK in.J FRAUD. 453 established in cases franded by directors, if the subsequent acts and dealings of the parties have been such as to leave him no remedy but an action for the fraud, must seek his remedy against the directors person- ally.'" The plaintiff was therefore held not entitled to recover on either ground. § 467. It is submitted that this being the tribunal of the last resort, this case must be considered as settling conclu- principii sively, that vrhere a purchaser has been induced to buy through the fraud of an agent of the vendor, the latter where a o " ' buyer has being innocent, the purchaser may, 1st, rescind the con- be^" de- .,, , ,. ,,. , 1.. frauded by tract, if he can return the thing bought in the condition agent of in which he received it, but not otherwise ; or he may, p- ut c 2dly, maintain an action for deceit against the agent buyer, personally ; but 3dly, cannot maintain that, or any action in tort, against the innocent principal. Further, that though he Further , , , , . . , . . , . . remedv in would have a claim against the principal tor a return ot equity". 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, (e) It Abuver must not be concluded from this review of the authori- "rernedy ties that the purchaser, who has been induced by false ^°'' "^^'^^ *■ , ^ represen- representations to make the contract, is always without tation by remedy because the vendor believed the statements to vendor be true, and was innocent of any fraudulent intent, "esenta-'' These eases only establish that the vendor has com- a,n"untsto mitted no wrong, and is therefore not liable in an action warranty. of deceit, or any other action founded on tort. But, in very many instances a representation made by the vendor amounts in law to a warranty, 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- fraudulent statements made in a prospec- tus issued by brokers employed by the di- rectors to place debentures of the company, the directors deriving no pecuniary advan- tage from the representations. Sullivan V. Mitcalfe, 5 C. P. D. 455.] (e) In a case decided in the queen's bench (by Cockburn C.J. and Quain J.) the court followed Barvvick v. English Joint Stock Bank, and held a banking company liable for a false representation by the manager as to the credit and sol- vency of a customer of the bank. Swift V. Winterbotham, L. R. 8 Q. B. 244. 454 • AVOIDANCE OF THE CONTRACT. [BOOK HI. ranty, and what are the rights of a buyer for a breach of this warranty when the representation is false, are treated post, book IV. part II. ch. i. on Warranty. The law as to the effect of in- nocent misrepresentation of law or of fact has been discussed ante, § 420. § 468. The case of Feret v. Hill (f) has been omitted in the Feret v. foregoing review, in order not to interrupt the exposition *^'"' of the point directly under discussion, but the case well ofCurnfoot deserves consideration. It was in its facts the converse .-.Fowke. q{ 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 premises 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 discovered the fraud practised on him, ejected the plaintiff forcibly from the apartments, after having given him a notice to quit, which he disregarded. The plain- tiff 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 bt/ fraudulent mis7-epresentatmi as to his character and as to the purpose 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 entitled to enforce the agreement, on the ground that the misrepresentation 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) executed, nor 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 replace premises in the possession of (/) 15 C. B. 207 ; 23 L. J. C. P. 183. BOOK III. J FRAUD. 455 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 misrepresentation. The effect of this decision seems to be, that a defrauded pefrau^ed 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. § 469. In further illustration of the effect of fraudulent repre- sentations to the prejudice of the purchaser, the reader sharehold- is referred to the series of decisions rendered in cases fraucfej by where sliareholders in companies have attempted to re- prospectus, lieve themselves from responsibility by showing that they had been induced to take the shares through fraudulent representa- tions of the directors. These cases are all reviewed in Oakes v. Turquand, (^) decided in the Hoase 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 them- selves from responsibility to creditors by disaffirming the contract after the company has failed, and has been ordered to be liqui- dated in chancery. § 470. It would be an onerous and scarcely a useful task to enumerate the various devices which, in adjudicated Devices cases, have been held by the courts to be frauds on pur- {J'gg'" i,efj® chasers. The principles stated in this chapter have been fraiiduient illustrated in numerous decisions. (^) Some of those buyer. which have most frequently occurred in practice will be presented as examples. In Bexwell v. Christie (i) it was held to Puffers at be fraudulent in the vendor to bid by himself or agents !,"° ' ,', •' ^ Be.Kwell V. at an auction sale of his own goods, where the published Christie, 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 public, and therefore on the buyer, for the vendor falsely ig) L. R. 2 Eng. & Ir. App. 325. Mood. & R. 62 ; Tapp v. Lee, 3 B. & P. (A) Early v. Garret, 9 B. & C. 928; 367; Corliett y. Brown, 8 Bing. 33; Hill Duke of Norfolk y. Worthy, I Camp. 340; u. Perrott,3Tiiunt. 274 ; Abbotts w. Barry, Hill V. Gray, 1 Stark. 434 ; Jones v. Bow- 2 B. & B. 369. -den, 4 Taunt. 847 ; Barber v. Morris, 1 (t) I Cowp. 395. 456 AVOIDANCE OF THE CONTRACT. [book III. to describe his goods offered at auction as " the goods of a gentle- man deceased, and sold by order of his executor." The foregoing case was highly eulogized, and followed by Lord Kenyon and the Howard!) king's bench in Howard v. Castle : (Z;) and the employ- CastLe. ment 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, (/c) § 471. In the case of Warlow v. Harrison, decided in queen's Wariow-ii. bench, (l) and afterwards in the exchequer chamber, (m) the law on the subject of the auctioneer's responsibility in Harrison. (k) 6 T. R. 642. See, also, Wheeler V. Collier, M. & M. 123 ; Crowder v. Austin, 3 Bing. 368; Rex o. Marsh, 3 Y. & J. 331 ; Thornett v. Haines, 15 M. & W. 367; Green v. Baverstock, 14 C. B. N. S. 204, and 32 L. J. C. P. 180; [Towle V. Leavitt, 23 N. H. 360 ; 2 Kent, 537-539; 1 Story Eq. Jur. § 293; Veazie V. Williams, 3 Story, 611 ; S. C. 8 How. (U.S.) 134; Moncrieff u. Goldsborough, 4 Har. & M'lL 282; Donaldson u. Mc- Roy, 1 Browne, 346 ; Baham u. Bach, 13 La. 287 ; Latham v. Morrow, 6 B. Mon. 630; National Fire Ins. Co. v. Looniis, 11 Paige, 431 ; Staines v. Shore, 16 Penn. St. 200; Pennock's Appeal, 14 lb. 446; Trust v. Delaplainc, 3 E. T>. Smith, 219; McDowell v. Simms, 6 Ircd. Eq. 278 ; Gilliat v. Gilliat, L. R. 9 Eq. 60 ; Woods v. Hall, 1 Dev. Eq. 411 ; Wolfe I). Luyster, 1 Hall, 146 ; Darst v. Thomas, 87 111. 222; Eisher u. Hersey, 17 Hun, _ _ ^ 370. Exceptions have been Puffers : not ^ alway.i made in cases where it did fraudulent. j,^. appe^,. ^]^^^ j|,g purchaser w.as induced by the puffing to bid more than the value of the prnjierty, or more than he had previously determined to bid ; see Jennings o. Hart, 1 Russell & C'hl■^- ley (N. S.), 15; Tomlinson (■. Sava^-e, 6 Ired. Eq. 430; and so, where it appeared that there were real as well as sham bid- ders, and the last bid before the purchas- er's was a real one, and the judgment of the real bidders and the purchaser had not been misled by the sham bidders. Veazie u. Williams, 3 Story, 611. The rules against puffing ajiply as well to sales under an order of court as to ordifiary sales; Dimmock v. Hallett, L. R. 2 Ch. Ap. 21, 29; but see Shimmin w. Bellew, Ir. R. 1 Eq. 289 ; and to sheriffs' sales ; Donaldson v. McRoy, 1 Browne, 346 ; Lee o. Lee, 19 Mo. 420. The vendor should be cautious not to make any secret arrangement by which any . , . , , , Secret ar- one wishing to purchase shall rangement have an advantage over an- ^'"i ''■■''l^'^. other, such as concerting with a purchaser to make his bid by a, private signal, not understood by other purchasers. Cono- ver V. Walling, 2 McCarter (N. J.), 173. Where a sale is vitiated by the employ- ment of a puffer, it is said to be the duty of the purchaser wishing to avoid the sale to restore the property purchased as soon as the fraud is discovered ; Staines v. Shore, 16 Penn. St. 200; McDowell «. Simms, 6 Ircd. Eq. 27S ; Tomlinson u. Savage, lb. 430; otherwise he confirnns the sale ; Backentoss u. Stabler, 33 Penn. St. 231 ; Veazie u. Williams, 3 Story, 611, 631 . It has been made a question whether, if a private warranty, with a view to a sale by auction, be given to an individual by the owner of goods, which are after- ward put up at auction without a war- ranty, and the person to whom the war- ranty is given buys them, such a warranty could be enforced ; or if he should bid for them, and a third person buy, the third person would be bound. Maule J. in Hop- kins K. Tanqueray, 15 C. B. 130, 136.] (/) 28 L. J. Q. B. 18. (m) 1 E. &E. 295; 29 L. J. Q. B. 14; [1 Sugden V. & P. (8th Am. ed.) 11, 12.] BOOK III.] FRAUD. 457 sucli cases was examined on the following state of facts : The de- fendant was an auctioneer, having a horse repository, and Auctioneer he advertised for sale a mare, " the property of a gen- for'ft-aud ° tleman, without reserve." The plaintiff attended the sale "" '^"y"'- and bid sixty guineas, and another person bid sixty-one 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 sixty-one guineas. The plaintiff at once in- formed the defendant and the owner that he claimed the mare as the highest bond fide bidder, the sale having been advertised " with- out reserve." The owner refused to let him have the mare, and he thereupon tendered to the defendant, the auctioneer, sixty 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 be- tween 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 de- clared, 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 ' without reserve,' and bought by the owner, to be liable to the usual commission of 21. per cent." As the judg- ment of the exchequer chamber turned much upon the pleadings, it is necessary to state that the plaintiff's declaration, after alleg- ing 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 'plaintiffs agent in failing to complete the contract in behalf of the plain- tiff. The defendant pleaded: First, not guilty. Secondly, that the plaintiff was not the highest bidder. Thirdly, that the de- fendant did not become the plaintiff's agent as alleged. In the plaintiff's argument the following civil law authorities were cited : Cicero de Oificiis, lib. 3, s. 15 : " Tollendum est igitur ex rebus contrahendis omne mendacium, non licitatorem venditor, nee qui contra se liceatur, emptor apponet ; " and Huberus, lib. 18, tit. 2, s. 7, Praelectiones : " Sed hoc facile constabit, si venditor falsum 458 AVOIDANCE OF THE CONTRACT. [BOOK III. emptorem inde ab initio subornet, qui plus aliis offerat, iifc veris emptoribns prajmium raaximse licitationis, vulgo Struyckgelt, quo nil usitatius, intercipiat, dolo detecto, venditorem teneri ad prse- mium vero licitatovi maximo prfEstandum, quia hoc est contra fidem conventionis perfectas qua statutum est ut maximo licitatori prasminm daretur." Lord Campbell C. J. delivered the unani- mous judgment of the queen's bench, holding : First, tliat it was not true in point of law that the auctioneer is the agent of the purchaser until tlie acceptance of his bid as being the highest, which acceptance is shown by knocking down the hammer; and tliat till tlien the auctioneer is exclusively the agent of the ven- dor. («) Secondly, that both parties may retract till the ham- mer is knocked down ; that no contract takes place between them till that is done ; (o) and that the auctioneer cannot be bound when both the vendor and bidder remain free. The learned cliief justice tlien 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." § 472. Although this judgment of the queen's bencli was not reversed in the exchequer chamber, because approved 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 jMartin, Bramwell, and Watson BB., and Willes and liyles J J., 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 ma- jority, as delivered by Martin B., preferred putting their judgment on a different ground, on wdiich they felt themselves more clearly justified in their conclusions. jMartin B. first declared that the judgment of the queen's bench was right upon the pleadings, but that 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 re- cover. The learned baron then proceeded as follows : " In a sale by auction there are three parties, namely, the owner of the prop- erty to be sold, the auctioneer, and the portion of the public who (k) [See ante, §§ 268-270.] (o) [Ante, § 270.] BOOK III.] FRAUD. 459 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 auc- tioneers, of whom the defendant was one, alone were published, and the sale was announced bj^ them to be ' without reserve.' This, according to all the cases, both at law and in equity, means that neither the vendor nor any person on his behalf may bid at the auction, and that the property shall be sold to the highest bidder, whether the sura bid be equivalent to the real value or not. (/>) For this position see the case of Thornett v. Haines, 15 M. & W. 367. We cannot distinguish 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 per- son 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 without reserve. We think that the auctioiieer who puts property up for sale upun such a condition pledges him- self that the sale shall be without reserve ; or, in other words, con- tracts 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 against the auctioneer, (p-*) reserve " .... We entertain no doubt that the owner may, at any with the time before the contract is legally complete, interfere and im&fide revoke the auctioneer's authority, but he does so at his \^^^^^ peril; and if the auctioneer has contracted any liability in si"^" ^^- ■^ ^ ./ ./ come pur- consequence of his employment and the subsequent rev- chaser. ocation or conduct of the owner, he is entitled to be indemnified." (p) [See Towle v. Leavitt, 23 N. H. 360, clines to receive the bid, acting with due re- an important and well considered case, in gard to the circumstances, the party thus which it was held that the highest bidder affected has no remedy. Holder v. Jack- at an auction sale is entitled to the prop- son, U TJ. C. C. P. 543. Thus he may erty.] decline to receive the bid of a minor. Kin (p^) [An auctioneer has a right to exer- ney v. Showdy, 1 Hill (N. Y.), 544. And Auctioneer cese a discretion as to whether see Den v. Zellers, 2 Halst, 153, that the ^receine" he will receive a bid from a bid of an irresponsible party may be prop- •'■'l' certain person, and if he de- erly declined by the auctioneer. Auctioneer in ."^ale without 460 AVOIDANCE OF THE CONTRACT. [BOOK III. § 473. In reference to the conditions of the sale, the learned baron farther said, as to the first condition, that the owner could not be the bu3'er, and tlie auctioneer ought to have refused his bid, giving for a reason, that the sale was 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 auc- tioneer's authority. Tiie eiglith condition was construed as pro- viding simply that if the owner acted contrarj^ to the conditions of the sale, he must pay the usual commissions. The court was therefore 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 ground that the facts furnished strong evidence to show that the auctioneer had re- ceived 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 authoritj^, and a breach of that undertaking. § 474. It was said at one time that the rule in equity differs Distinction from that at common law on the subject of puffers to lifwTnd ^his extent : that in equity it is allowable to employ one puffinVat" piiffer, but no more, for the purpose only of pi-eve)iting auction. the property from being sold below a limit fixed by the vendor. Willes J., in Green v. Baverstock, (g-) however, ex- pressed 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 Crauworth in jN'Iortimer v. Bell. (?•) By the new (q) 14 C. B. X. S. 204; 32 L. J. C. P. 282; Latliam u. Morrow, 6 B. Mon. 630; 180. Reynolds u. Dechaums, 24 Tex. 174; (?•) L. R. 1 Ch. Ap. 10. [It seems to Lee u. Lee, 19 Mo. 420; Pennock's Ap- 0.i=i« decide ^^ setl;Ied by many cases in pea], 14 Penn. St, 446; Walsh v. Barton, that owner the American states that the 24 Ohio .St. 28. Ou this point Chancellor may hnnct i ^r/f employ owner may employ :i bidder, Kent ^ays : " It would seem to be the con- prevraTsM- '''"-' ''"'^^ "■ '"""' ■fi'^'^i '° 1"<=" '^■li'sio", f™™ the later cases, that the em- rifice of vent a sacrifice of the prop- ployment of a bidder by the owner would proper y. erty under a "iven price. See or would not be a fraud, according to the Morehead v. Hunt, 1 Dev. Eq. 35 ; Woods circumstances tending to show innocence !'. Hall, lb. 411; Wolfe u. Lnysler, 1 of intention or a fraudulent design. If he Hall, 146 ; Steele v. Ellniaker, 11 Serg, & was employed bona fide to prevent a sac- R, 86 ; Piiippen u. Stickiicy, 3 Met. 387 ; rifice of the property under a given price, Veazie v. Williams, 3 Story, 622, 023; it would be a lawful transaction, and Moncrieff !'. Goldsborough, 4 H. & M'Hen. would not vitiate the sale. But if a BOOK III.] FRAUD. 461 act, however, 30 & 31 Vict. c. 48, passed at the instance of Lord St. Leonards (but applicable only to sale of land), it is Act. 30 & 31 provided in the fourth section, that '' whereas there is at "^''^t- <=• ■'S- present a conflict between her 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 abso- lutely illegal, and the courts of equity under some circvim.stances giving effect to them, but even in courts of equity the rule is un- settled ; and whereas it is expedient that an end should, be put to such conflicting and unsettled opinions : Be it therefore enacted, that from and after the passing of this act, whenever a sale by number of bidders were employed by the The language of the supreme court of owner to enhance the price by a pretended Louisiana is strongly in favor of the doc- competition, and the bidding by them was trine of Lord Mansfield. Baham v. Bach, not real and sincere, but a mere artifice in combination with the owner to mislead the judgment and inflame the zeal of others, it would be a, fraudulent and void sale." 2 Kent, 538, 539. And Mr. Justice Story, in Veazie v. Williams, 3 Story, 623, ap- proves of the above remarks, and suggests that they furnish " the true and just and satisfactory result." This case furnishes many valuable suggestions, both as re- ported in 3 Story, 611, and in 8 How. (U. S.) 134. See, also. National Tire Ins. Co. v. Loomis, 11 Paige, 431; Baham w. Bach, 13 La. 287 ; Troughton v. Johnson, 2 Hayw. 28 ; Jenkins v. Hogg, 2 Const. Eep. 821 ; Tomlinson v. Savage, 6 Ired. Eq. 430. Chancellor Kent (2 Kent, 539), not- withstanding the conclusion above stated Chancellor by him as the result of the Kent de- cases, declares that " the orig- clares orig- _ _ ° inal doctrine iual doctrine of the king's beno'h^he bench is the most just and true one. salutary doctrine. In sound policy no person ought, in any case, to be employed secretly to bid for the owner, against a bona fide bidder, at a public auc- tion. It is a fraud in law, on the very face of the transaction, and the owner's interference and right to bid, in order to 13 La. 287. Mr. Justice Ware, in his dis- senting and very learned opinion in the ' above ease of Veazie u. Williams,3 Story, 632, 637, 638, approves of the original doctrine of the king's bench.'' In this case of Veazie u, Williams it appeared that false bids had been made, but by the auctioneer, who had no authority to make them from the seller. Upon this Mr. Jus- tice Story said : " Be the gen- Effects of eral doctrine upon this subject *'''*^ ^}^^^ ^ '' made by the as it may, no case has fallen auctioneer under my notice in which it Thorityftom has been held that the act of seller, the auctioneer in receiving or making false bids, unknown and unauthorized by the seller, would avoid the sale. And, upon principle, it is very difficult to see why it should avoid the sale, since there is no fraud, connivance, or aid given by the seller to the false bids. If the purchaser is misled by the false bids of the auctioneer to suppose them to be real, he may have an action against the auctioneer for the injury sustained thereby." The decision of Judge Story in this case was, how- ever, reversed in the supreme court of the United States, 8 How. 134. The seller having adopted the transaction, and taken be admissible, ought to be intimated in the benefit gained by the false bids, was the conditions of sale, and such a doctrine held chargeable with the fi-audulent acts has been recently declared at Westminster of the auctioneer. Taney C. J., McLean Hall. Crowder v. Austin, 3 Bing. 368. and Grier JJ., dissented.] 40 AVOIDANCE OF THE CONTRACT. [book III. auction of land would be invalid at law by reason of the employ- ment of a puffer, the same shall be deemed invalid in equity as ■well as at law." (s) § 47.3. The statute further directs that where land is stated to be sold without reserve it shall not be 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 owe person in his behalf to bid. (s^) The act also forbids the courts of equity from contin- uing 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 improper conduct T,. „,, in the management of the sale. In a case (0 iust be- V. Haiieit. j-Qj.g (;]jQ passing of this act, it was announced that the sale was " without reserve," and 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 19,000Z., the only bids higher than 14,O0OZ. having been made by the pur- chaser and a mortgagee in possession of the estate. § 470. In The Queen v. Kenrick, (jt) 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 deceased, 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 pur- chase. In Dobell v. Stevens (.r) the fraud consisted in falsely telling the buyer that the receipts of a public house were li'M. per month, and the quantity of porter sold seven butts per month, and that the tap was let for 82Z. per annum, and two rooms for 111. per annum, whereby the plaintiff was induced to buy ; and similar deceits were employed in Lysney v. Selby («/) and Fuller v. Wil- son. (2) Telling falsehoods to buyer about own- er:-lil[) of hordes and their qual- ities, and the reasons for selling them. The Queen V. Keiii'iek. False state- ment, ex- aggeraling receipts of a public house. Dobell V. Stevens. (s) Jones V. Quinn, 2 L. R. Ir. 516. (si) See Gilliat v. Gilliat, L. R. 9 Eq. 60, as to the construction of this clause. (t) Dimmock v. Hallett, L. R. 2 Ch. Ap. 21. (") 5 Q. B. 49. (x) 3 B. & C. 623. [See Brown v. Castles, U Cush. 348, 350; Boynton v. Hazleboom, 14 Allen, 107 ; Newell v. Horn, 45 N. H. 421.] (y) 2 Lord Raymond, 1118. (2) 3 Q. B. 58. BOOK lU.J FKAUD. 463 § 477. In Schneider v. Heath (a) a vessel was sold, "hull, masts, yards, standing and running rigging, with all Vesseisoid faults, as they now lie." There was, however, a false faults' — statement, that " the hull was nearly as good as when to conceal launched," and means were taken to conceal the defects '^''*^''''- that the vendor knew to exist. This was held by Sir «. Heath. James Mansfield to be a fraud on the purchaser ; but in Bagle- hole V. Walters (5) Lord Ellenborough was decided in g, , j ^ i his rejection of the purchaser's attempt to repudiate the "• Walters, 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 purchaser. In this decision Lord Ellenborough expressly overruled Mellish pj^j^grin V. Motteux ; (c) and in Pickering v. Dowson (c?) the "• Uowson. common pleas followed Lord EUenborough's decision, as one " never questioned at the bar ; " and concurred in overruling Mel- lish V. Motteux. Baglehole v. Walters was also followed by the king's bench in deciding Bay water v. Richardson, (e) in 1831. (/) § 477 a. [A. sent pigs to a public market for sale by auction, and they were purchased by B. The pigs were part of a herd which had had the typhoid fever, and there was evidence that A. ktiew that the pigs sent to market were infected with ^j, d « the disease. At the time of sale the pigs showed no out- Hobbs. ward symptoms of disease. The sale was subject to this condi- tion : " No warranty will be given by the auctioneer with any lot, and as all lots are open for inspection previous to the commence- ment of the sale, no compensation shall be made in respect of any fault or error of description of any lot in the catalogue." The pigs were in fact infected. It was held, that A. impliedly repre- sented that so far as he knew the pigs were not infected with any dangerous disease, and the fact that the sale was with all faults did not qualify the representatipn. (Ward v. Hobbs, L. R. 2 Q. B. D. 331.) But on appeal the decision was reversed (3 Q. B. D. 150), and it was said that before a man can complain of a fraud he must show something done intentionally to deceive him.] (a) 3 Camp. 506. [See Whitney u. (/) [See Pearce v. Blackwell, 12 Ired. Boardman, 118 Mass. 247, 248.] 49; Hanson o. Edgerly, 29 N. H. 343; 1 (6) 3 Camp, 154. Sugden V. & P. (8th Am. ed.) 333 et seq.; (c) Peake, 156. Taylor v. Fleet, 4 Barb. 102; 1 Chitty (d) 4 Taunt. 779. Contr. (11th Am. ed.) 645, 646.] (e) 1 Ad. & E. 508. See, also. Free- man V. Baker, 5 B. & Ad. 797. 464 AVOIDANCE OF THE CONTRACT. [BOOK III. § 478. In Horsfall v. Thomas, (^) the defence to an action on a bill of exchange was that the buyer had been defrauded Concealing o •' . detect, in the purchase of a steel gun, for which the bill was er iieg- given. The gun was made by defendant's order, and he inspect. was informed when it was ready, but made no examina- Horsfaii tion of it, and sent the bill of exchange in part pay- V. homas. ^-^^^-^^^ There was a defect in the gun, and a metal plug was inserted which would have concealed the defect from any per- son inspecting the gun. It was received by the defendant, fired several times, answered the purpose as long as it was entire, but afterwards burst in consequence of the defect. Held, that the de- fendant had not been influenced in his acceptance of the gun by 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 him of it, was not a fraud. The learned judge, Bramwell B., who delivered the judg- ment of the court, said, that " fraud must be committed by the affirmance of something not true within the knowledge of the af- firmant, or by the suppression of something which is true and which it is the duty of the party to make knovvn." In the case before the court there was no affirmance ; and there is 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. (A) This decision is questioned and disapproved by Cock- burn C. J. in Smith v. Hughes (L. R. 6 Q. B. 697), and it cer- tainly seems that the artifice used to conceal the defect comes within the definition usually given of fraud. § 478 a. [The appellants bought a second hand engine from Cogei V. *^'® appellee. At the time of the sale the engine was Kniseiy. get upon a stone foundation. The day was cloudjs and the engine-room indifferently lighted by a window and door. The engine had been in the great Chicago fire, and had three cracks in its bottom. The appellee knew of the existence of the cracks, and supposed that the appellants were ignorant of tlie same. At the time of the sale the appellee made the following instrument: "Chicago, January 10, 1874. The Elms engine at (g) 1 II. & C. 90, and 31 L. J. Ex. 322. B. 591, and 20" L. J. C. P. 76 ; also, Hill [See Howell v. Biddlecom, 62 Barb. 131.] v. Gi'ay, 1 Stark. 434 ; [Howell v. BWdle- (h) See Keates v. Earl Cadogan, 10 C. com, 02 Barb. 131 ; § 430, note (k), ante.] BOOK III.J FRAUD. 465 Austin is all complete as shown ; it is made in a workmanlike man- ner, and will perform well, with proper care and attention on the part of the users of the same, if erected in a workmanlike manner on good foundations." It was held that the appellee was guilty of no fraud in failing to make known the existence of the cracks. "Walker J. said : " It is only concealed defects, known to the seller, that the seller is bound to disclose to the buyer. If the seller has no knowledge of defects that are latent, he can not be held to have committed a fraud because he did not make them known to the buyer. Here, there is nothing to show that the engine was injured by the fire, or that it would not last as long or perform as much labor as if it had never been sub- Nature of jected to the fire. ... If the engine was not, in fact, in- ^vliSi'Vcn- iured by the heat, then there was no latent defect to ^"'^ H ■> •' ' bound to disclose. Appellee supposed there were none. . . . Nor disclose. does the fact that the appellants would not have purchased had they known of the cracks prove fraud. The appellee was not bound to know their choice in such matters." (A^) ] § 479. The case of Hill v. Gray, (i) decided by Lord Ellen- borough at nisi prius in 1816, would seem to conflict Ji"! "• with the general rule in relation to concealment. The „ , , ° . . Sale of a facts were that the agent employed by plaintiff to sell a picture, picture was pressed by the defendant to tell him whose property it was ; the agent refused. The same agent was at the time sell- ing also pictures for Sir Felix Agar, and the defendant, " misled by circumstances, erroneously supposed " that the picture in ques- tion also belonged to Sir Felix Agar, and under this misappre- hension bought it. The agent " knew that the defendant labored under this delusion, but did not remove it." The price was 1,000Z., the picture being said to be a Claude, and proof was offered that it was genuine, and that after the defendant knew that it was 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 EUenborough said : " Although it was the finest picture that Claude ever painted, it must not be sold under a deception. The agent ought to have cautiously ad- hered to his original stipulation, that he should not communicate the name of the proprietor, and not to have let in a suspicion on (Ai) [Cogel V. Kniseley, 89 111. 598; (i) 1 Stark. 434. Morris v. Thompson, 85 lb. 16.] 30 466 AVOIDANCE OF THE CONTRACT. [BOOK III. the part of the purchaser which he knew enhanced the price. He saw that the defendant had fallen into a delusion 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 influence his judgment." This judgment, on a first perusal, seems certainly not reconcilable with the received principles on the sub- ject, but in Keates v. Earl Cadogan (k') the case was explained by the common pleas by construing the language of Lord EUenbor- ough in the italicized passages as intimating that there " had been a positive aggressive deceit." It is, indeed, quite possible that it was the act of the agent in putting the picture with those of Sir Felix Agar that created the belief, which the agent perceived and did not remove. § 480. In the earlier case of Jones v. Bowden (Z) an action Jones ». upon the case for deceit in a sale was maintained under Bowden. ^ the followinsr circumstances : The defendant bought pi- Where o _ . usajje re- mento at an auction sale, as sea damaged. It is usual damage to in such Sales of this article to declare it to be sea dam- ciared. aged, and when nothing is said, it is supposed to be sound. Defendant then repacked it, and it was included in a cat- alogue of the auction sale, as " 187 bags pimento, bonded," and at the foot was stated, " the goods to be seen as specified in the cata- logue, 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 quality ; but no one could tell from the samples that the goods had been sea dam- aged 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 cat- alogue, and the plaintiff became the purchaser at thirteen pence per pound, which was not more than a reasonable price, after tak- ing 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 defendant 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. (k) 10 C. B. 591 ; 20 L. J. C. P. 76. (I) 4 Taunt. 847. BOOK III.] FRAUD. 467 The grounds are not very intelligibly given, but it may be fairly inferred from the language of Mansfield C. J. that he considered the verdict 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 Hors- fall V. Thomas, (m) § 481. In Smith v. Hughes (w) the action was by the plaintiff, a farmer, to recover the price of certain oats sold to the ^^^^^ ^ defendant, an owner and trainer of race-horses. The Hughes. plaintiff'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, 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 plaintiff 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 discovered 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 high price for new oats, more than a prudent business man would have given, and that old oats were then very scarce. The judge told the jury that the question was whether the word " old " had been used in the bargain as stated by the defend- ant, 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 separately, 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 (m) [1 H. & C. 90 ; 31 L. J. Ex. 322. (n) L. E. 6 Q. B. 597. See, also, Parkinson v. Lee, 2 East, 314.] 468 AVOIDANCE OF THE CONTRACT. [BOOK III. that the word " old " had not been used, and on that assumption the court ordered a new triah Cockburn C. J. said, tliat 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. 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 bargain, and there would therefore be no contract, (o) Hannen J. also thought that the second question was probably misunderstood by the jury, , , and concurred with Blackburn J. in the distinction above Fraud by collusion pointed out. He said that to justify a verdict for the between '^ , e ^ ■ vendor defendant it was not enough for the jury to fand that against " the plaintiff believed the defendant to believe that he son- ven"- 'was buying old oats," but that what was necessary was, ^o^'v^^- to find that " the plaintiff believed that the defendant vented a from re- believed that the plaintiff was contracting to sell old covering , . . against 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 ven- dor was not permitted to recover against the buyer. § 482. In Jackson v. Duchaire (o^) the facts were that the plain- Jackson v *^^ ®°^*^ *'^^® goods ill a liouse to the defendant for 100^., Duchaire. ^ut 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 70Z., 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 SOL to hira, in two notes of lol. each, and this was concealed from Walsh. On action brought by plaintiff on one of the two notes. Lord Ken- yon at nisi prius, and the court in banc afterwards, held the (o) [Riley v. Spotswood, 23 U. C. C. P. 318.1 '"') 3 T. R. 5S1. BOOK III.] FRAUD. 469 transaction to be fraud on Walsh, 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 in- ducement to sign a composition in insolvency are held fraudulent and void. (») In the supreme court of the state of Ver- Casede- mont ,it was held to be fraudulent in a vendor to sell a the su- horse having an internal malady of a secret and fatal court of character, not apparent by any external indications, but frauTo'n" known to the seller, and known by him to be unknown '"■y^'^- to tlie buyer, if the malady was such as to render the horse of no value. (c[) SECTION IV. — FRAUD ON CKBDITORS ; BILLS OF SALE. § 483. Sales made by debtors in fraud of creditors are usually considered as being governed by the statute 13 Eliz. c. a,^^^^^i^ ^f 5, and the^ decisions made under it; but other statutes Elizabeth. had been previously passed on the same subject, and in Cadogan V. Kennett (r) Lord Mansfield said that " the principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proprosed by the statutes 13 Eliz. c. 5 and 27 Eliz. c. 4. The former of these statutes relates to creditors only ; the latter to purchasers. These statutes cannot receive too liberal a construction, or be too much extended in sup- pression of fraud." The 13 Eliz. c. 5 was intended " for the avoiding and abolishing of feigned, covinous, and fraudulent feoff- ments, gifts, grants, alienations, &c. &c. as well of lands and tene- ments as of goods and chattels .... devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and in- tent to delay, hinder, or defraud creditors (r^) .... to the over- fp) Daugllsh' u. Tennent, L. R. 2 Q. ment must be accompanied with an inten- B. 49. tion to deceive, in order to be the proper (q) Paddock v. Strobridge, 29 Vt. 470. foundation for an action for deceit. Han- [A mere unintentional concealment or son «. Edgerly, 29 N. 11.343; Stevens w. Uninten- omission, on the part of the Fuller, 8 lb. 463 ; Howard u. Gould, 28 tional con- vendor, to disclose material Vt. 523 ; Harris v. Tyson, 24 Penn. St. cealment * not fraud- facts which are known to 347; Kintzing v. McElrath, 5 lb. 467; "''"'• himself but not to the pur- Laidlaw v. Organ, 2 Wheat. 178 ; 2 Kent, chaser, and to the knowledge of which 484, 490. See the remarks of Potter J. in he has not equal means of access, is not Fisher v. Budlong, U) R. I. 527, 528.] sufficient to sustain an action for deceit {r) Cowp. 432. against the vendor for the damage suf- [r^) [Westmoreland v. Powell, 59 Qa, fered by the purchaser. Such conceal- 256.] 470 AVOIDANCE OF THE CONTRACT. [BOOK III. throw of all true and plain dealing, bargaining, and clievisance be- tween man and man, without the which no commonwealth or civil society can be maintained or continued." The statute, therefore, provides that all alienations, bargains, and conveyances of lands and tenements, or goods and chattels, made for any such intent and purpose as is above expressed, shall be " deemed and taken (only against that person or persons, his or their heirs, successors, ex- ecutors, administrators, and assigns, and every of them whose ac- tions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, by such guileful, covinous, or fraudulent devices and practices as is aforesaid, are, shall, or might be in any wise disturbed, hindered, delayed, or defrauded), to be clearly and utterly void, frustrate, and of none effect." This statute was confirmed by 14 Eliz. c. 11, s. 1, and made perpetual by 29 Eliz. SemUe, c. 5, s. 2. And it seems that it protects, against fraudu- Futare'^ lent sales, subsequent creditors, as well as those having creditors, claims at the date of the fraudulent conveyance, (s) § 484. In Twyne's case, (f) the celebrated leading case on this Twyne'3 Subject, the debtor had made a secret conveyance to case. 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 200?. The debtor con- tinued in possession of the goods, and sold some of them ; and sheared 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 re- solved : 1. That this gift had the signs and marks of fraud, be- cause the gift is general without exception of his apparel, or of anything of necessity, for it is commonly said quod dolosus versa- tur in genercdihus. 2. The donor continued in possession, and used them as his own ; and by reason thereof he traded and (s) Graham u. Furber, .14 C. B. 410, can edition, contain a full citation of the and 23 L. J. C. B. 51 ; [McLane v. John- most important later American authori- son, 43 Vt. 48 ; Carter v. Grimshaw, 49 ties. The subject will be found treated at N. H. 100. The English doctrine upon considerable length in 2 Sugden V. & P. this suliject will be found clearly stated by (8th Am. ed.) 714, note ((). Bonacina i). Lord Westbury, in Spirett v. Willows, 3 Seed, 3 Low. Can. 446.1 De G., J. & S. 293. The notes to thi.s (() 3 Coke, 80 ; 1 Smith's L. C. 1. case of Spirett v. Willows, in the Ameri- BOOK III.] FRAUD. 471 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, and trust is the cover of fraud, (u) 6. The deed contains that the gift was made honestly, truly, and hond fide ; et clausuloe inconsuetce semper induount suspioionem. Secondly, it was resolved that not> withstanding here was a true debt due to Twyne, and a good con- sideration 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, when any gift shall be made to you in satisfaction of debt, by one who is in- debted 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 chattels be appraised by good people to the very value, and take a gift in particular in satisfaction of your debt. 3. Immediately after the gifts, take the possession of them, for continuance 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 be liberally and beneficially expounded to suppress the fraud : ' Quseritur, ut crescunt tot magna volumina legig In promptu causa est, crescit in orbe dolus.' " § 485. In the application of the statute, a question of fact for the jury is constantly presented ; namely, whether the Convey- transfer of the goods was bond fide, or fraudulent, that ^^^^ ™" ' is, " with the end, purpose, and intent to delay, hinder, "j^'^^^'f^jt or defraud creditors," as the act expresses it. (m^) It for jury. (m) [Young V. Heermans, 66 N. Y. 374 ; v. Coolbaugh, 91 lb. 148 ; Nimmo u. Kuy- Edwards v. Stinson, 59 Ga. 443 ; Jones v. kendall, 85 lb. 476 ; Bushnell u. "Wood, King, 86 111. 225; Franklin u. Claflin, 49 lb. 88; HoUacher v. O'Brien, 5 Hun, 277 ; Md. 24.] Brooks v. "Weaver, 3 Alb. L. J. 283 ; Mc- («!) ["Wight t: Moody, 6 tJ. C. C. P. Donalds v. Titus, 6 lb. 127; Stacy v. 502 ; Fowler v. Hendry, 7 lb. 350 ; Cook Deshaw, 7 Hun, 449 ; Johnson v. Carley, V. Hendry, lb. 354 ; Harris v. Burnes, 50 53 How. Pr. 326 ; Powell v. Powell, 71 N. Cal. 140 ; O'Brien «. Chamberlain, lb. Y. 71 ; Holden v. Burnham, 63 lb. 74 ; 285; Nichol v. Crittenden, 55 Ga. 497; Ferris v. Irons, 83 Penn. St. 179. The Mattingley v. "Wulke, 2 Bradwell (111.), burden of proving the fraud in such case 169; Sibley w. Tie, 88 111.287; Bradley is upon the party alleging it. Elliott )■] (i) 2 Bos. & P. 59. {k) 1 Ld. Raym. 724. (l) 28 L. J. Ch. 777. (P) [Jones V. Nevers, 2 Pugsley & Bur- bridge (N. B.) 627 ; Solomon v. Moral, 53 How. Pr. 342. It was decided in Cutting V. Jackson, 56 N. H. 253, that where the possession of chattels is retained by the seller after an absolute sale, it is not a sufficient explanation to show that the sale was made in the presence of a wit- ness, where it was not attended with such publicity as would naturally give notoriety to the transaction, and when there was no change in the possession or use of the chattels to indicate that any change in the ownership had taken place. In Lang v. Stockwell, 55 N. H. 561, it appeared that upon the sale of a chattel it was agreed as part of the bargain that the seller should still have the right to use the thing sold in and about his business ; and it was held that such reservation, being inconsistent with an absolute sale, constituted a secret trust, from which fraud as to the creditors of the seller was an inference of law ; and that the actual intention of the parties would not be inquired into.] (m) Wood V. Dixie, 7 Q. B.892; Eiches V. Evans, 9 C. & P. 640 ; Hale v. Metro- politan Omnibus Company, 28 L. J. Ch. 777; [Hauselt v. Vilmar, 2 Abb. N. C. 222; Ford v. Johnston, 7 Hun, 563 i Sta- cey V. Deshaw, lb. 449 ; Archer v. O'Brien, lb. 591 ; Bostwick v. Burnett, 74 N. Y. 317; Dudley v. Danforth, 61 lb. 626; Kinnear v. "White, 2 Kerr (N. E.), 235; Hayward v. White, lb. 304; Doak v. Johnson, lb. 319; Connell o. Miller, 1 lb. 302; Clark v. Morrell, 21 U. C. Q. B. 596; Parish v. McKay, 5 lb. 461; Hooker BOOK III.] FRAUD. 475 money actually lent to the mortgagor, even though the mort- gagor's intention may be thus to defeat the expected execution of a judgment creditor ; (n) nor to confess a judgment in Confession favor of one creditor for the purpose of giving him a meiit ^with preference over another vrho is on the eve of issuing ex- in'ent to ^ ^ ^ ^ o give prei- ecution on a judgment previously obtained, (o) erence. § 489. The statute of 17 & 18 Vict. c. 36, called the " Bills of Sale Act, 1854 " (as amended by 29 & 30 Vict. c. 96), ^,, , , ' ^ •' -^ Bills of sale [amended and consolidated by 41 & 42 Vict. c. 31 (o^) ] , act 17 & has rendered obsolete a part of the law under the stat- 36 ; 29 & 30 ute of 18 Eliz. c. 5, so far as relates to the transfer of chattels, (o^) The first of these acts is entitled " An Act for Pre- venting Frauds upon Creditors, by Secret Bills of Sale of Personal Chattels ; " and it provides that " every bill of sale of personal chattels (o^) made after the passing of this act, either absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either immediately after the making of such a bill of sale or at any future time, to seize and take possession of any property and effects comprised in or made subject to such bill of sale ; and every schedule or inventory which shall be therein annexed or therein referred to, or a true copy thereof, and of every attestation of the due execution thereof, shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same, or in case the same shall be made or given by any person under or in execution of any process, then a u. Jarvls, 6 XJ. C. Q. B. (0. S.) 439; [Evans w. Hamilton, 56 Ind. 34 ; Beards o. Armstrong i>. Moodie, lb. 538; Ingraham Wheeler, M Hun, 539 ; Frazer v. Thatcher, c/. Wheeler, 6 Conn. 277 ; Nimmo v. Kuy- 49 Texas, 26.] kendall, 85 111. 476 ; Francis v. Rankin, (oi) [Davis v. Goodman, 5 C. P. D. 20, 84 lb. 169; Morris u. Tilson, 81 lb. 607; 128; Hill v. Kirkwood, 28 Weekly Rep. Storey f. Agnew, 2 Bradwell (111.), 353; 358; In re Haynes, lb. 399; Hamlyn i^. Matthews v. Jordan, 88 111. 602; Gray v. Betteley, 5 C. P. D. 327.] McCallister, 50 Iowa, 497 ; Alton v. Har- (o^) [See " An Act for the Registration rison, L. R. 4 Ch. App. 622 ; Spencer v. of Bills of Sale in Ireland," 17 & 18 Vict. Slater, L. R. 4 Q. B. D. 13 ; Boldero ,,. c. 55.] London Loan & Discount Co. 5 Ex. Div. (o^) [Brantom v. Griffits, 1 C. P. D. 349 ; 47.] Brantom u. Griffits, 2 lb. 212 ; Ex parte (n) Darvill u. Terry, 6 H. & N. 807, Cooper, 10 Ch. Div. 313, commented on in and 30 L. J. Ex. 355. Woodgate v. Godfrey, 5 Ex. Div. 24 ; Sher- (o) Holbird t,. Anderson, 5 T. R. 235 ; idau v. McCartney, U Ir. C. L. 506.] 476 AVOIDANCE OF THE CONTRACT. [book III. description of tlie residence and occupation of the pei-son against ■whom such process shall have issued, and of every attesting wit- ness to such bill of sale, be filed with the officer acting as clerk of the dockets and judgments in tlie court of queen's bench within twenty-one days after the making or giving such bill of sale (in like manner as a warrant of attorney in any personal action given by the trader is now hj law required to be filed)." The section then goes on to declare that in defanlt of such registry the hill of sale shall be null and void to all intents and purposes whatsoever, so far as regards the property in or right of possession of the goods sold which remained in the apparent possession Q}') of the vendor, against: 1st, his assignees in bankruptcy or insolvency; (q) 2d, his assignees in any assignment for the benefit of creditors ; 3d, sheriff's officers and others seizing under execution ; and 4th, all persons in whose behalf process of execution has issued. The act makes further provisions for the registry of such bills of sale, and for the delivery of copies and extracts. The bills of sale act, 1866 (29 & 30 Vict. c. 96), requires a renewal of the registration every five years, in default of which the registration ceases to be of any effect. (^1) § 490. Neither the statute of Elizabeth nor the bills of sale act renders the contract void hetiveen the parties, (r) and the latter act carefully enumerates those third persons who shall remain unaffected hj the contract, where the forms and requisites rendered necessary by the act have (p) As to apparent possession, see Eob- 147 ; Grand Trunk "Ry. Co. r. Lees, lb. Contract not void- able be- tween the parties. inson v. Bripus, L. P>. 6 Ex. 1 ; Ex parte Lewis, re Henderson, L. R. 6 Ch. 626 ; [Ex parte Cooper, L. IJ. 10 C'li. Div. 313 ; Sheridan v. McCartney, 11 Ir. C. L. 506; Ancona v. lloner^, 1 Ex. D. 28.5.] (q) The liquidator of a company is not comprehended in these provisions as being au assi{;nce in bankruptcy or insolvency. Ee Marine Mansions Co. L. I!. 4 Eq. 601. (7I) [The following are some of the cases under the Canadian act on this sub- ject of registration of bills of sale : Taylor V. Commercial Bank, 4 U. C. C. P. 447 • Wakefield v. Lynn, 5 lb. 410; Porter v. riintoff, 6 lb. 335 ; Kissock v. Jarvis, lb. 393 ; Boyuton v. Boyd, 12 lb. 33-1 ; Fcelian I'. Bank of Toronto, 10 lb. 32 ; Turner v. Mills, 11 lb, 366; Perrin „. Davis, 9 lb. 249 ; Patton v. Eoy, lb. 512 ; Burnham !). Waddell, 28 lb. 263 ; Kissock v. Jarvis, 9 lb. 156; Shawi). Ganlt, 10 lb. 236 ; Bank of Toronto i^^. Eccles, lb. 282; Eraser ». Gladstone, 11 lb. 125 ; Ross v. Elliott, lb. 221; HaiKbt!-. Jlclnnis.lb. 518; Heward I'. Jlitcbcll, 11 U. C. Q. B. 625 ; Howell u. McFarlane, 16 lb. 469.] (r) [A conveyance to defeat creditors is good as between the parties and their representatives. 2 Sugden V. & P. (8th Am.ed.) 713, and note (A) and cases cited; Reichart v. Castator, 5 Binney, 109 ; Dyer C-. Homer, 22 Pick. 253 ; Nichols 0. Patten, IS Maine, 231 ; Thompson v. Moore, 36 lb. 47 ; Randall u. Phillips; 3 Mason, 378, 388; Dearman u. Radcliffe, 5 Ala. 192; Den u. Monjoy, 2 Halst. 173; Gil- BOOK III.] FRAUD. 477 not been complied with. Without these provisions, however, it would not be competent to either partj^ to impeach the provisions of such a contract on the ground that it was intended as a fraud on creditors, (s) for the general principle 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, (i) But even as to creditors such conveyances are not void, but voidable, and the credit- Vuidabie, ors must, as in all analogous cases, elect whether they ""10 cled- will treat their debtor's conveyance as valid or defeasi- '/""■ ble. If the transferee makes a conveyance to a bond fide bundjide third person for a valuable consideration, before the bill son ac'-'^'^' of sale is impeached by creditors as being in fraud of jronffran their rights, the title of such bond fide third person will f'^ree good , against not be disturbed, (u) Under the statute of Elizabeth creditors. lespie u. Gillespifi, 2 Bibb, 89, 91 ; Sherk t. Endress, 3 Watts & S. 255 ; "Worth ■/. Northam, 4 Ired. (Law) 102; Harvey u. Varney, 98 Mass. 118; Byrd . Dil- uous liquors belonging to the lingl"'™- vendor, but which he had no license to sell, it was held that the contract could not be enforced by the vendor against the purchaser ; although, upon invoicing the goods, a separate schedule of the liquors was made by direction of both parties, if such separate schedule was designed as an evasion of the statute " restricting the sale of intoxicating liquors." The con- tract could not thus be made effectual as to the other goods. Ladd u. Dillingham, 34 Maine, 316; Murray u. Walsh, 1 Cr. & Dix, 93 ; M'Neece v. Gibson, 2 lb. 388.] (m) See the cases of Mallan v. May, Green v. Price, and others e.itei post, "Re- straint of Trade," § 527. 492 AVOIDANCE OF THE CONTRACT. [BOOK HI. tide of commerce is void when the vendor sells it, knowing that Sale of it is intended to be used for an immoral or illegal pur- "'nt^'n"it-''" P"se. In several of the earlier cases something more self, when than this mere knowledge was held necessary, and evi- knows it is dence was required of an intention on the vendor s part for illegal to aid ill the illegal purpose, or profit by the immoral purpose. ^^j.^ rpj^g later decisions overrule this doctrine, as will appear by the authorities now to be reviewed. (?)) In Faikneyw. Faikne ' v Reyiious, (o) wliicli Came before the king's bench in Reynous. 1767, a party had paid, at the request of another, money on a contract which was illegal, and sued for its recovery. Judg- ment was given for the plaintiff. Lord Mansfield saying : " One of these two persons has paid money for the other, and on his ac- count, and he gives him his bond to secure the repayment of it. Tliis is not prohibited. He is not concerned in the use u'hich the other makes of the money." (j9) This case was followed, in 1789, Petrie v ^J ^^^ j^i^^g'^s in Petrie v. Hanna3% (^) but with evident Hannay. reluctance, and many expressions of hesitation, especially by Lord Kenyon. Much stress was laid in both decisions upon a supposed distinction between the law applicable to the case of a contract which was median in se, and one which was malum pro- hibitum. These two cases were repeatedly questioned and disap- proved, as will be seen by reference to Booth v. Hodgson, (r) Au- bert V. Maze, (s) Mitchell v. Cockburne, (i) Webb v. Brooke, (u) Malum and Langton v. Hughes ; (.r) and in these, as well as in J/rtiiim ™any subsequent cases, the distinction drawn between prohibitum, a tiling malum in se and malum prohibitum was over- ruled, (y/) § 507. In 1803 the case of Bowry v. Bennet (z) was tried be- fore Lord EUenborough. A prostitute was sued for the value of (n) [Sne post, § 51 1, note (m).] («) 3 Taunt. 6. (o) 4 Burr. 2070. (a:) 1 M. & S. 594. (/)) [See Planters' Bank z'. Union Bank, (y) [Posf, § 508, note (A).] 16 Wallace, 483, 500; Armstrong iJ.Toler, [z) 1 Camp. 348. See, abo, Lloyd ». H Wheat. 258; McBlair v. Gibbes, 17 Johnson, 1 B. & P. 340, and Crisp v. How. (U. S.) 236 ; Lestapies v. Ingraham, Churchill, there cited in argument; Gir- 5 Barr, 71 ; Brooks v. Martin, 2 Wallace, ardey v. Kicharilson, 1 Esp. 13; Jennings 70.] „. Throgmorton, Ry. & Moo. 251 ; Ap- iq) 3 T. R. 418. pleton u. Campbell, 2 C. & P. 347; and (r) 6 T. R. 405. Smith w. White, L. R. 1 Eq. 626 ; 35 L. J. (s) 2B. &P. 371. Ch. 454. (i) 2 H. Bl. 380. BOOK III.J ILLEGALITY. 493 clothes furnished, and pleaded that the plaintiff well knew her to be a woman of the town, and that the clothes in ques- „ tion were for the purpose of enabling her to pursue her i^enaet. calling. His lordship said : " It must not only be shown that he had notice of this, hut that he expected to he paid from the profits of the defendant' s prostitution, and that he sold the clothes to ena- ble her to carry it on, so that he might appear to have done some- thing in furtherance of it.'' (a) In 1813, Hodgson v. ^^^ Temple (6) was decided. There the action was for the "-Temple. price of spirits, sold with the knowledge that defendant intended to use them illegally. There was a verdict for plaintiff, and a mo- tion for new trial was refused by the court, Sir James Mansfield saying : "This would be carrying the law much farther than it has ever yet been carried. The merely selling goods, knowing that the huyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment, but to effect that, it is necessary that the vendor shoidd he a sharer in the illegal transaction." (c) This decision was given in November, 1813, and is the more re- markable because the case of Langton v. Hughes ((i) j „„„to„ „ had been decided exactly to the contrary, in the king's Hughes, bench, in the month of June in the same year, and was not no- ticed by the counsel or the court in Hodgson v. Temple. Langton v. Hughes was first tried before Lord EUenborough at nisi prius. It was an action for the price of drugs sold to the defendants, who were brewers, the plaintiffs knowing that defendants intended to use the drugs for mixing with beer, a use prohibited by statute. His lordship charged the jurj' that the plaintiffs, in selling drugs to the defendants, knoiuing that they were to he used contrary to the statute, were aiding them in the hreach of that act, and therefore not entitled to recover. He, however, reserved the point. Tlie ruling was maintained by all the judges, and it was distinctly as- serted as the true principle, that " parties who seek to enforce a contract for the sale of articles, which in themselves are perfectly innocent, but which were sold with a knowledge that they were to be used for a purpose which is prohibited by law, are not entitled to recover." (e) (a) [Foster J. in Hill v. Spear, 50 N. H. v. Chamberlin, 10 Vroom, 565 ; Green u. 253, 273.] Collins, 3 ClifF. 494 ; Curran u. Downs, 3 (6) 5 Taunt. 181 Mo. App. 468.] (c) [Seepos*, § 511, note (u) ; Curtis J. (d) 1 M. & S. 593. in Sortwell v. Hughes, 1 Curtis, 245 ; (e) Per Le Blanc J. ; and see the strong Skiff V. Johnson, 57 N. H. 475 ; Stanley observations of Eyre C. J. in Lightfoot v. 494 AVOIDANCE OF THE CONTRACT. [book III. § 508. The leading case of Cannan v. Bryce (/) was decided „ in the king's bench in 1819. The question was, whether Bryce. money lent for the purpose of enabling a party to pay for losses and compounding differences on illegal stock transactions could be recovered. All the previous cases were reviewed, and the court took time to consider. The opinion was delivered by Abbott C. J., and the principle was stated as follows : " The stat- ute in question has absolutely prohibited the payment of money for compounding differences (i. c. in stock-bargains) ; it is impos- sible to say that making sucli payment is not an unlawful act; and if it be unlawful in one man to pay, how can it be lawful for another to furnish him with the means of payment? It will be recollected that I am speaking of a case wherein the means were furnished with -a full knowledge of the ohject to which they xvere to he applied, and /"or the express piurpose of accomplishing that oh- ject." (g) The money lent was, therefore, held not recoverable. The case of Langton v. Hughes was approved and followed, while Faikney v. Reynous and Petrie v. Hannay were practically over- ruled, and the distinction between malum prohibitum and malum McKinneii in se jDointedly repudiated. (7t) In McKinnell v. Rob- son, inson, (i) in the exchequer, in 1838, it was held that Tennant, I B. & P. 551 ; [Jlilner v. Pat- ton, 49 Ahi. 42.3 ; Shepherd o. Reese, 42 lb. 548; Hanauer u. Doane, 12 Wall. 342; Arnott i. Pittston & Elmira Coal Co. 68 N. Y. 558; Clements v. Yturria, 14 Hun, 151 ; Lain;; ... McCall, 50 Vt. 657.] (/) 3 B. & A. 179. (g) [See McGavock v. Piiryear, 6 Coldw. (Tcnn.) 34; Tatum v. Kelley, 25 Ark. 209.] (A) [In Hill V. Spear, 50 N. H. 253, 277, Foster J. said : " There is no valid distinction in the application of the law Malumiiise,- "P°" 'his Subject between malum pro- mala prohibita and jnala in se ; nibilum. ' and II it were ever regard- ed, it has now been wholly laid aside in the decision o£ the later English cases." White V. Buss, 3 Cush. 448,450, per Shaw C. J. ; Bank of United States v. Owens, 2 Peters, 527, 539 ; Greenough v. Batch, 7 Greenl. 462; Utica Ins. Co. v. Kipp, 8 Cowen, 20 ; Clark v. Protection Ins. Co. 1 Story, 109. So far as regards the effect of a statute upon a matter prohihited under a ptnalty, the'e is no distinction be- tween mala prohibita and mala in se. Lewis «. Welch, 14 N. H. 294. " Every statute imposing a penalty imports a prohibition and makes the prohibited act illegal." Story J. in Clark v. Protection Ins. Co. 1 Story, 122.] ((■) 3 iNl. & W. 435 ; [White v. Buss, 3 Cush. 448, 450 ; Cutler u. Welsh, 43 N. H. 497, 498, and cases ; Peck v. Briggs, 3 Denio, 107 ; Ruckman v. Bryan, 3 Denio, 340. But it has been held that the mere knowledge on the part of a person lending money that the borrower intends to make an illegal use of it is not sufficient to render the transaction illegal. McGavock V. Purycar, 6 Coldw. (Tenn.) 34. But a recovery cannot be had if anything is done in aid of the illegal purpose. Kottwitz v. Alexander, 34 Texas, 689.] BOOK III.] , ILLEGALITY. 495 money knowingly lent for gambling at a game prohibited by law could not be recovered, the case of Cannan v. Bryce being re- ferred to by the court as the decisive authority on this subject. § 509. The latest case, that of Pearce v. Brooks, (/c) was de- cided in the same court in 1866. The plaintiff had sup- pg^ce v plied a brougham to a prostitute. Tlie evidence showed Brooks. that the plaintiff knew the defendant to be a prostitute, but there was no direct evidence that plaintiff knew that the brougham was intended to be used for the purpose of enabling the defendant to follow her vocation ; and there was no evidence that plaintiff ex- pected to be paid out of the wages of prostitution. The jury found that the defendant did hire the brougham for the purpose of her prostitution, and that the plaintiff knew it was supplied for that purpose. It was held, first, not necessary to show that plain- tiff expected to be paid from the proceeds of the immoral act ; secondly, that the knowledge by the plaintiff that the ivoman was a prostitute being proven, the jury were authorized in inferring that the plaintiff also knew the purpose for which she wanted an orna- mental brougham ; and thirdly, that this knowledge was sufficient to render the contract void, on the authority of Cannan v. Bryce, which was recognized as the leading case on the subject. (V) § 510. By the common law, a sale to an alien enemy is void, all commercial intercourse being strictly prohibited with an Sale to an alien enemy, save only when specially licensed by the enemy, sovereign, (m) Smuggling contracts are also illegal, and Smuggling where a party in England sent an order to Guernsey for goods, which were to be smuggled into this country, the Lawrence, court held that the plaintiffs, who were Englishmen, residing here, and partners of the vendor in Guernsey, were not entitled to re- cover, (n) This case was followed in Clugas v. Pena- g^^j^ ^^^_ luna. (o) But where the plaintiff, a foreigner, sold goods plated _ abroad to the defendant, knowing his intention to smug- jjoi^an v. gle them, but having no concern in the smuggling scheme Johnson, itself, the court of king's bench held that the sale was complete abroad, was governed by foreign law, (p) was not immoral nor (k) L. R. 1 Ex. 213. See, also, Taylor (n) Biggs v. Lawrence, 3 T. R. 454. V. Chester, L. R. 4 Q. B. 309 ; [Bagot u. (o) 4 T. R. 466. Arnott, Ir. R. 2 C. L. 1.] (p) [As to the influence of comity in (I) [See McGavock v. Puryear, 6 Coldw. such cases, see Foster J. in Hill v. Spear, (Tenn.) 34.] 50 N. H. 273, 274.] (m) Brandon v. Nesbitt, 6 T. R. 23. 496 AVOIDANCE OF THE CONTRACT. [book III. illeo-al there, because no country takes notice of the revenue laws of anotliev ; that the goods were not sold to be delivered in Eng- land, but were actually delivered in the foreign country, and that the plaintiff was therefore entitled to recover, (^cf) § 511. In VVaymell v. Reed (r) the goods were sold abroad, and plaintiff invoked the decision in Holman v. John- son, but was not permitted to recover, because he had aided the purchaser in his smuggling purposes, by pack- ing the goods in a particular manner, so as to evade the revenue, (s) In Pellecat v. Angell (t) the subject again came before the exchequer court, and the previous de- cisions were followed, the court pointing out that the true distinction was this : Where the foreigner takes an actual part in the illegal adventure, as in packing the goods in prohibited parcels, or otherwise, the contract will not be enforced ; but the mere sale of goods by a foreigner in a foreign country, made with the knowledge that the buyer intends to smuggle them into this coun- try, is not illegal and may be enforced, (m) Waymell V. Keed. Sale abroad where ven- dor assists the smug- gler. Pellecat V. AngcU. Distinction in sales made in foreign countries, when ven- dor does or does not aid the smuggler. (q) Ilolman i. Johnson, I Cowp. 341 ; [Hill V. Spear, 50 N. H. 253, 273, 274 ; The New Br. Oil Works Co. u. Parsons, 20 U. C. Q. B. 531 ; Walbridge v. Follett, 2 lb. 280; Sawyer o. Manahan, Tay- lor, (U. C.) 315; Sewell v. Richmond, lb. 423 ] (r) 5 T. K. 599. (s) [See Gaylord v. Soragen, 32 Vt. 110; Aiken v. Blaisdell, 41 lb. 656; Sort- well V. Hughes, 1 Curtis, 245.] (() 2 C, M. & R. 311. («) [Tuttle V. Holland, 43 Vt. 542 ; Hill , o. Spear, 50 N. H. 253. It Cases on sales of spirituous appeared in this case that iKua'Ss Emerson, the purchaser, in a of another contract for the sale of spirit- uous liquors, kept a saloon in Manchester, New Hampshire, where he New Ilamp- was accustomed to retail spir- ■ ituous liquors contrary to law. Spear. Stewart, the vendor, was a dealer in sijirituous liquors in the state of New York, where such traffic was not pro- hibited. Stewart had visited Emerson's saloon in Manchester, and, on one occa- sion, had solicited orders for liquors from Emerson. Subsequently, Stewart sold to Emerson a quantity of spirituous liquors. The contract of sale was made and com- pleted, and the goods were delivered in New York. Stewart had no interest nor concern in the disposition of the liquors by Emerson, and did no .act beyond the sale to Emerson in furtherance of Emer- son's purpose to sell the liquors in New Hampshire ; but there was evidence tend- ing to show that Stewart, when he solic- ited orders from Emerson, and sold him the liquors, had reasonable cause to be- lieve, and did believe, that Emerson in- tended to resell those liquors at his saloon in New Hampshire. It was held by a ma- jority of the court, that the contract ol sale, being valid by the laws of New York, should be enforced by the court in New Hampshire. The propositions on which the majority of the court relied in support of their decision in the above case were : 1. That the validity of a vendor's claim to recover the price of goods sold with knowl- edge that the purchaser intends to make BOOK III.] ILLEGALITY. 497 § 512. At common law, also, certain contracts are prohibited as being against public policy, (a;) Most of these are not contracts properly within the scope of this treatise, such as con- "^k"^* tracts in restraint of marriage ; marriage brokerage con- pd'cy. an unlawful use of them, depends upon -who resided in Vermont, where the sale the question whether or not the original vendor participated actively, to a greater or less extent, in the subsequent unlawful disposition of the goods ; or whether the expectation of advantage and profit to him, growing out of the unlawful dispo- sition of the goods by the purchaser, en- tered into and constituted a part of the inducement and consideration of the orig- inal sale. 2. If such expectation of ad- vantage to the vendor was an ingredient in the consideration for the original sale, or if the original vendor participated in the subsequent unlawful disposition of the goods, he could not recover the price of them in New Hampshire. 3. Mere be- lief, on the part of the seller of the goods, that the purchaser buys for the purpose of carrying them into another state, to be there resold in violation of law, does not invalidate the sale. 4. The mere solicita- tion, by a dealer in liquors, of orders in the future for such goods, even though the person soliciting such orders may have had reason to believe, and did be- lieve, that if such liquors should be or- dered and purchased they would be resold by the purchaser in violation of law, is not such a circumstance as will affect the validity of a subsequent sale of such goods in a state where such sale is not prohibited by law. See Hoar J. in Finch v. Mans- field, 97 Mass. 89, 92 ; Corning v. Abbott, 54 N. H. 469 ; Webber v. Donnelly, 33 Mich. 469. The law in Vermont is very similar. In Gaylord v. Soragen, 32 Vt. 110, the plaintiff, residing in New York, „ , and being authorized to sell Vermont: ° Gaylord II. spirituous liquors there, sold Soragen. g^^^^ jj^^^g ^^ jj^g defendant. of such liquors was unlawful, the plain- tiff, at the time of sale, knowing that the defendant intended to sell them in Ver- mont, contrary to law. The liquors were delivered in New York to a carrier desig- nated by the defendant, to be transported to Vermont at the defendant's risk. But, at the defendant's request, and to prevent the seizure of the liquors in Vermont, the plaintiff marked the casks in a, peculiar way, omitting the defendant's name. Aldis J. said : " Although mere knowl- edge of the unlawful intent of the vendee by the vendor will not bar him from en- forcing his contract to recover for the goods in our courts, yet it is well settled that if he in any way aid the vendee in his unlawful design to violate our laws, such participation in the illegal enterprise will disqualify him from maintaining an action on his contract in this state. The participation by the vendor must be act- ive, to some extent; he must do some- thing, though indirectly, in furtherance of the vendee's design to violate our laws ; mere omission to act is not enough ; but positive acts in aid of the unlawful pur- pose, however slight, are sufficient. As the evidence tended to prove that the plaintiff, by his acts done in connection with the sale and delivery of the liquors, aided the defendant to escape thevigihtnce of the oflScers, and so to have and sell the liquors in violation of law, it should have been admitted." A like decision was made in Aiken v. Blaisdell, 41 Vt. 656, affirming the doctrine of Gaylord v. Sora- gen. See, also, Territt u. Bartlett, 21 Vt. 184; Howe u. Stewart, 40 lb. 145'; McConihe r. McMann, 27 lb. 95; Tuttle (x) [See Fuller v. Dame, 18 Pick. 472 ; Ward, 5 Halst. 87 ; Foote v. Emerson, 10 Frost v. Belmont, 6 Allen, 152; Sedgwick Vt. 344; Union Bridge Co. c^. Troy & V. Stanton, 4 Kernan, 289 ; Clippinger v. Lansingburgh R. R. Co. 7 Lansing, 240.] Hepbaugh, 5 Watts & S. 315; Gulick v. 498 AVOIDANCE OF THE CONTRACT. [book III. tracts ; contracts compounding felonies, &c. (y) Confining our attention to sales illegal at common law, because contravening or V. Holland, 43 lb. 542. The subject un- der consideration was discussed by Clif- ford J. in the case of Green u. Collins, 3 Cliff. 494. In the case of Adams v. Coul- Massachu- Hard, 102 Mass. 167, it was ''/'''■ found that the liquors, the Adams v. . Coulliard. price of which the plaintiff sought to recover, were sold to the de- fendant in New York ; and that the plain- tiff had reasonable cause to believe, but had no knowledge, that they were to be brought to Massachusetts for the purpose of being there sold in violation of law. Colt J. said : " It is claimed, on the part of the defendant, that the contract origi- nated in the purpose to violate a known law of this state; and that our courts will not lend their aid and afford a remedy thereon. To do this, it is said, would violate an elementary principle of the common law. In order to make the plaintiff, under any circumstances, a participant in such un- lawful sale at common law, it is necessary that he should, at least, have knowledge of the unlawful purpose. In some early cases, it was held that mere knowledge of the unlawful purpose of the buyer, on the part of the seller, without further act, where the illegal use to be made of the goods was no inducement in the mind of the seller, would not vitiate the sale, so as to deprive the seller of his remedy. Clearly, it is not enough, if he has only reasonable cause to believe that a viola- tion of law is intended. It was held in Mclntyre v. Parks, 3 Met. 207, that a sale of lottery tickets made in another state, where such sale is lawful, to a citizen in this state, is a lawful transaction, although the seller knows that the purchaser buys for the purpose of illegal sale here. In Webster v. Webster v. Munger, 8 Gray, MuDger. 587_ the plaintiff sued to re- cover the price of intoxicating liquors. Both plaintiff and defendant were citizens of this commonwealth ; but the sale was made in another state, and the defence was, that they were sold in violation of a statute of Massachusetts. The validity of the sale was determined at common law ; and the jury were instructed, in sub- stance, that if the sale was made on the part of the plaintiff ' with a view ' to a re- sale contrary to the laws of this common- wealth, the action could not be main- tained. This instruction was approved, and Thomas J., who delivered the opin- ion, says of the rule in Mclntyre r. Parks, that, if rightly laid down, it is not to be extended, but that the distinction is sound between a case where a seller simply has knowledge of the illegal design, — no more, — and where he makes a sale with a view to such design, and for the purpose of enabling the purchaser to effect it. No case can be found where anything short of actual knowledge, on the part of the seller, of the illegal purpose, has been held to affect his rights under a contract of sale." See Finch v. Mansfield, 97 Mass. 89, 91, 92 ; Webster v. Munger, 8 Gray, 587; Ely v. Webster, 102 Mass, 304; Tracy i: Webster, lb. 307, note; Ab- berger v. Marrin, lb. 70 ; Foster v. Thurs- ton, 11 Cush. 322; Hotchkiss v. Finan, 105 Mass. 86; Corning o. Abbott, 54 N. H. 469; Dolan v. Green, 110 Mass. 322 ; Webber v. Donnelly, 33 Mich. 469. The very elaborate and exhaustive opin- ion of Mr. Justice Clifford, in Green u. Collins, 3 Cliff. 494, contains a summary and review of the authorities here referred to. And the learned judge remarks con- cerning them ; " Cases very nearly allied, it must be admitted, have been differently decided ; but if they are carefully exam- ined and compared one with another, the particular features by which they were dis- tinguished are, with few exceptions, plaiii to be seen." And he points out, by way iy) [On the general subject, see Chitty Contr. (llth Am. ed.) 982 et seq. notes.] and BOOK III.] ILLEGALITY. 499 supposed to contravene considerations of public policy, it is im- possible not to be impressed with the force of the observations made by the judges in Richardson v. Mellish, (z) and by Lord Campbell in Hilton v. Eckersley, (a) as well as the striking illus- trations presented in the reports of the justice of their strictures. Best C. J. said : " I am not much disposed to yield to arguments of public policy ; I *think the courts of Westminster Hall (speak- ing with deference, as an humble individual like myself ought to speak, of the judgments of those who have gone before me) have gone much farther than they were warranted in going, on ques- tions of policy. They have taken on themselves sometimes to de- cide doubtful questions of policy, and they are always in danger of so doing, because courts of law look only at the particular case, of illustration, certain expressions in Web- ster V. Hunger, supra, indicating tliat the very able judge who spoke for the court on that occasion was of the opinion that a sale made with knowledge of the seller that the purchaser intended to use the thing sold in violation of law was illegal and void, irrespective of the question whether it was an ingredient of the con- tract that the goods should be so sold, or that the seller should do any act to assist or facilitate the intended illegal use or sale; but he observes, " the expression Of such views was not necessary to the deci- sion of the case ; as the statement shows not merely that the plaintiff had knowl- edge of the illegal purpose of the defend- ant, but that he sold with reference to it, and for the purpose of enabling the pur- chaser to effect it ; and the court here agrees with that court in the conclusion that the instructions given in that case, if viewed in that light, were thoroughly sound in principle, and that they do not conflict with the cases decided. Unless viewed in that light, the decision is directly opposed to the rule laid down in the case of Sort- well V. Hughes, 1 Curtis, 245, decided by Judge Curtis, and which is an authority in this circuit, and in the judgment of this court expresses the true rule upon the subject." See, also, Curtis u. Leavitt, 15 N. Y. 15, 47; Tracy v. Talmage, 14 lb. 173 ; White v. Buss, 3 Gush. 448 ; Peck v. Briggs, 3 Denio, 107 ; Cheney v. Duke, 10 Gill & J. 11 ; Jameson v. Gregory, 4 Met. (Ky.) 363; Harris v. Runnels, 12 How. (U. S.) 79; Smith u. Godfrey, 28 N. H. 379 ; Bligh v. James, 6 Allen, 570 ; Kreiss V. Seligman, 8 Baib. 439 ; Dater v. Earl, 3 Gray, 482 ; Case u. Riker, 10 Vt. 482 ; Bishop D. Honey, 34 Texas, 245; Rinds- kopf «. De Ruyter, 39 Mich. 1. In Wilson ./. Stratton, 47 Maine, 120, it y^^j^g. was held, in the state of WHsood. , , . , , „ . Stratton. Mame, that a sale of mtox- icating liquors in that state, by a Massa- chusetts dealer, who knows that they are intended by the purchaser to be sold in violation of the laws of Maine, is illegal and void. So, where the Massachusetts dealer, well knowing the law and policy of the state of Maine, prohibiting the in- discriminate sale of intoxicating liquors, sends liis agent to solicit orders for liquors to be sold in Maine, in violation of law, even if the sale is completed in Massachu- setts, is in fraud of the laws of Maine, and cannot be upheld on any sound principle of comity. See Torrey v. Corliss, 33 Maine, 333; Banchor v. Mansels, 47 lb. 58; Barnard o. Field, 46 lb. 526; Me- servey v. Gray, 55 lb. 540; Orcutt v. Nel- son, 1 Gray, 536; Suit v. Woodhall, 113 Mass. 391.] (z) 2 Bing. 242. (a) 6 E. & B. 47 ; 24 L. J. Q. B. 353. 500 AVOIDANCE OF THE CONTRACT. [book in. and have not the means of bringing before them all those consid- erations which enter into the judgment of those who decide on questions of policy I admit that if it can be clearly put upon the contravention of public policy, the plaintiff cannot suc- ceed : but it must be unquestionable : there must be no dcfubt." Burroughs J. joined in the protest of the chief justice " against arguing too strongly upon public policy : it is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law. It is never ar- gued at all but when other points fail." § 513. In Hilton v. Eckersley («) the judges differed in opin- ion as to what public policy really was in the case before them ; and Lord Campbell said : " I enter upon such considerations with much reluctance, and with^^it apprehension, when I think how different generations of judig^^hd different judges of the same generation, have differed iij, opinion upon questions of political economy, and other topics co^niected 'with the adjudication of such cases ; and I cannot help thankiri^that where there is no illegality in bonds and other instrumegisr^t cofumon law, it would have been better that our courts of justice had been required to give effect to them, unless where they are avoided by act of parlia- ment." (h~) § 614. An illustration of the justice of these remarks is to be (a) 6 E. & B. 47 ; 24 L. J. Q. B. 353. (h) [In Hill V. Spear, 50 N. H. 274, Mr. Justice Foster says : " This court will and ought to be reluctant to enforce contracts manifestly against public policy; but when the public policy of the country is not uniform, but different in neighboring localities, and variable in all, it would Public policy Seem to be assuming rather of different too much to hold and insist communities not always that our own notions of pub- the same. jj^, policy are and must be in- fallible, to the exclusion of the opinions and views of other enlightened communi- ties, and the subversion of commercial comity." And so, although under the laws of New Hampshire, a, sale of intox- icating liquor, if made in that state, will be presumed to be illegal and void until the seller's authority to sell is shown, yet, if such sale is made in another state, the presumption will be that the sale is legal until it is shown to be otherwise. Corning v. Abbott, 54 N. li. 469 ; Bliss v. Brainard, 41 lb. 256 ; Ferguson v. CMf- ford, 37 lb. 98 ; Doolittle v. Lyman, 44 lb. 611. But in Bliss v. Brainard, su- pra, it was held that where the sale of liquors, except by persons licensed and for particular uses, is prohibited, it is incum- bent upon the plaintiff, in an action to recover the price of liquors sold, or the amount of a note given for such price, to show affirmatively that he was d,uly li- censed to sell them, and that they were sold for a lawful use ; although the illegal sale was made in another state, where it was held incumbent on the defendant m such an action to show that the plaintiff had no license. See Wilson v. Melvin, 13 Gray, 73 ; Trott v. Irish, 1 Allen, 481 ; Pratt V. Langdon, 97 Mass. 97.] BOOK III.] ILLEGALITY. 501 found in the radical change of public opinion, and of the law upon the subjects of forestalling, regrating, and engrossing, which were reprobated by the common law as against Jng, re- public policy, and punished as crimes. Forestalling was and en- the buying or contracting for any merchandise or victual ^' ^' coming in the way to market, or dissuading persons from bring- ing their goods or provisions there ; or persuading them to en- hance the price there. Regrating was the buying of corn or any other dead victual in any market and selling it again in the same market, or within four miles of the place. Engrossing was the get- ting into one's possession or buying up large quantities of corn or other dead victuals with intent to sell them again, (c) In The King V. Waddington (c?) the defendant was sentenced to a fine of 500Z., and four months' imprisonment (i. e. a further term of one month in addition to his previous confinement of three months), for the offence of trying to raise the price of hops in the market by tell- ing sellers that hops were too cheap, and planters that they had not a fair price for their hops ; and contracting for one fifth of the produce of two counties when he had a stock in hand, and did not want to buy, but merely to speculate how he would en- hance the price. Lord Kenyon made many observations on the subject of public policy, discussed the doctrine of free trade, re- ferred to his study of Smith's Wealth of Nations and other writ- ings on political economy, and declared that the defendant's was " an offence of the greatest magnitude ; " that " no defence could be made for such conduct ; " that the policy of the common law, which he declared to be still in force on this subject, was " to provide for the wants of the poor laboring classes of the country : and if humanity alone cannot operate to this end, interest and policy must compel our attention to it." The passing of sen- tence was postponed to the next term, and Grose J., in delivering the opinion of the court, said : " It would be a. precedent of most aivful moment for this court to declare that hops, which are an article of merchandise, and which we are compelled to use for the preservation of the common beverage of the people of this coun- try, are not an article, the price of which it is a crime, by undue means, to enhance." § 515. The common law rules on the subject of those offences (c) 4 Black. Com. 158; and Mr. Chit- (d) 1 East, 143. ty's note, ed. 1844. 502 AVOIDANCE OF THE CONTRACT. [BOOK III. were abolished by the statute 7 & 8 Vict. c. 2i, and although Common HO legislation on the subject has taken place in America, ib^Ushed ^'^'■- Story says : (e) " These three prohibited acts are 7 & 8 Vict ,;,Qt; only practised every day, but they are the very life Law in of trade, and without them all wholesale trade and job- America, i^ij-ig -^vould be at an end. It is quite safe, therefore, to consider that they would not now be held to be against pubhc policy." Notwithstanding these observations, it is quite beyond doubt that there are various well-defined cases where contracts of sale are still held illegal at common law as being violative of pub- lic policy and the interests of the state. These are chiefly : 1st. Contracts for the sale of ofifices, or the fees or emoluments of office ; 2d. Contracts of sale in restraint of trade ; and 3d. Con- tracts for the sale of lawsuits, or interests in litigation. § 516. Contracts for the sale or transfer of public offices or ap- Contract pointments, or the salary, fees, or emoluments of office, offices. have in many cases been prohibited by statute, as will presently be shown ; but by common law antecedent to these en- actments such sales were held to be subversive of public policy, as opposed to the interests of the people and to the proper ad- ministration of govei-nment. (/) " Nulla alia i-e magis Roraana respublica interiit, quam quod magistratiis officia venalia erant." Co. Litt. 234 a. The courts have reprobated every species of traffic in public office, and of bargains in relation to the profits derived GarfortiiJ). ^I'o'i^ them. Tlius, in Garforth v. Fearon, (g') the com- Fearon. n^on pleas held, in 1787, that an agreement, whereby the defendant promised to hold a public office in the customs in trust for the plaintiff, and to permit the plaintiii to appoint the deputies and receive all the emoluments of the place, was illegal and void ; Lord Loughborough observing that the effect was to make the plaintiff " the real officer, but not accountable for the due execution of it; he may enjoy it without being subject to the restraints imposed by law on such officers, for he does not appear as such officer ; he may vote at elections, may exercise inconsist- ent trades, may act as a magistrate in affairs concerning the reve- (<■) Story on Sales, p. 647, § 490. 553 ; Carlton v. Wliitcher, 5 N. H. 196; (/) [See Duke v. Asljce, 11 Ired. 112 ; Cardigan v. Page, 6 lb. 183 ; Meredith v. Gray „. Hook, 4 Comst. 449; Outon v. Ladd, 2 lb. 517; Swayze v. Hull, 3 Halst. Kixics, 3 Marsh. 432 ; Lewis v. Knox, 2 54.] Bibb, 453 ; Giant v. McLester, 8 Ga. (j) 1 H. Bl. 327. BOOK III.] ILLEGALITY. 503 nue, may sit in parliament, and he will be safe if he remains un- discovered. If extortion be committed in the office by those ap- pointed, the profits of that extortion redound to him, but he escapes a prosecution ; for, not being the acting officer, he does not appear upon the records of the exchequer, and is not liable to the disa- bilities imposed by the statute on officers guilty of extortion, who are incapacitated to hold any office relating to revenue. Whether a trust can be created in such an office is for the consideration of the court in which the suit was originally brought. The only question in this court is, whether the agreement springing out of such a transaction can support an action ? " In Parsons parsons v. V. Thompson, (A) in 17'JO, the same court held illegal a TLompsoa. bargain by which the plaintiff, a master joiner in his majesty's dockyard at Chatham, agreed to apply for superannuation on con- dition that the defendant, if successful in obtaining his place, would share the profits with the plaintiff. In this case stress was laid on the fact that the bargain was unknown to the person hav- ing the power to appoint. § 517. In equity a perpetual injunction was granted against en- forcing a bond for the purchase of an office, as opposed to public policy, although the sale was not within the prohibitions Law v. of the statutes, (i) And in Law v. Law (Jc') a bond ^^'^' was held illegal by which a party covenanted to pay 101. per an- num, as long as he enjoyed an office in the excise, to a person who by his interest with the commissioners had obtained the office for him. § 518. In Blachford v. Preston (/) the sale by the owner of a ship in the East India Company's service, of the place Biaohford of master of the vessel, was held illegal, as being in vio- "' '^^^^'"'^ lation of the laws and regulations of the company, and of public policy, and Lord Kenyon said : " There is no rule better estab- lished respecting the disposition of every office in which the public are concerned than this, detur digniori ; on principles of public policy, no money consideration ought to influence the appointment to such offices." In Card v. Hope (m) the court went Cavdu. farther, and not only affirmed the doctrine of Blach- "p®" [h) 1 H. Bl. 322. See, also, Waldo v. C. 124; Methwold o. Walbank, 2 Ves. Martin, 4 B. & C. 318, case of a contract Sen. 238. relative to an appointment in the Petty (k) 3 P. Wnas. 391. Bag Office. (/) 8 T. R. 89. (i) Harrington v. Da Chastel, 1 Bro. C. (m) 2 B. & C. 661, 504 AVOIDANCE OF THE CONTRACT. [BOOK III. ford V. Preston, bub expressed a strong opinion that the majority of tlie owners of any ship, whether in public or private service, wlio had the right to appoint the ofScers, could not make sale of an appointment, because public policy gives every encouragement to shipping in this country, and the power of appointing tiie officer without the consent of the minority carries with it the duty of exercising impartial judgment in regard to the office, ut Harring- dctur dii/iiiori. In Harrington v. Du Chastel (w) Lord Chastei'^ Thurlow held illegal a bargain by which an officer in Corpora- the king's houshold recommended a person to anotlier erpooi V."' office in the household in consideration of an annuity to Wright. jjg pg^jjj (.Q ^ third person. In Corporation of Liverpool V. Wright (o) the defendant was appointed clerk of the peace by the plaintiffs, under the municipal corporations act, which made the tenure of the office dependent only on good behavior, and fixed the fees attached to the office. The municipal council agreed to appoint, and the defendant to accept, under an arrangement which in substance bound the defendant to pay over to the bor- ough fund all his fees in excess of a certain annual amount. On demurrer to a bill, filed to enforce this agreement. Vice Chan- cellor Wood held it void, as against public policy, on two grounds : First, because a person accepting an office of trust can make no bargain in respect of such office. Secondly, because where the law assigns fees to an office, it is for the purpose of upholding the dignity and performing properly the duties of that office ; and the policy of the law will not jjermit the officer to bargain away Palmer ^ portion of those fees to the appointor or to anybody V. Bate. else. In Palmer v. Bate (^) the court of common pleaa certified to the vice chancellor that an assignment of the income, emolument, produce, and profits of the office of the clerk of the peace for Westminster (after deducting the salary of the deputy for the time being), is not a good or effectual assignment, nor valid in the law. § 519. The pay or half-pay of a military officer is not a legal Sale of subject of sale, (g) Nor a pension or annuity to a civil iiiega'i,''uii- officer, unless exclusively for past services, as was held (n) 1 Bro. C. C. 124. (q) Fkrty v. Odium, 3 T. R. 681 ; Lid- (o) 28 L. J. Ch.868. derdale v. Montrose, 4 T. R. 248; Bar- [p] 2 Br. & B. 673. wick v. Reade, 1 H. Bl. 627. BOOK III.J ILLEGALITY. 505 in Wells v. Fostei- (r) where Parke B. explained the '^ssexciu- sively for principle or the cases as follows : " The correct distinc- past ser- vices. Wells V. tion made in the cases is, that a man may always assign a pension given to him entirely as a compensation for Foster. past services, whether granted to him for life or merely during the pleasure of others. In such a case the assignee acquires a title to it, both in equity and at law, and may recover back any sums received in respect of it by the assignor after the date of the assignment. But where the pension is granted not exclusively for past services, but as a consideration for some continuing duty or service, although the amount of it may be influenced by the length of the service which the party has already performed, it is against the policy of the law that it should be assignable." § 520. A contract of sale, by the terms of which the vendor is restrained generally in the carrying on of his trade, is Restraint against public policy, and is void, (s) These cases arise °f '™*" *^ , ^ J. o necessary whom the contract is made is unreasonable and void." (q~) for protec- Applying this rule, the court then held that tor such a dee renders profession as that of a dentist, the limit of London was voM as to not too large : (K) that the further restraint was unrea- *^'^^^^- sonable, and that the contract was not illegal as a whole, because illegal in pa7't ; that the stipulation as to not practising in Lon- don (€) was valid, and was not affected by the illegality of the other part, (i) This decision was followed in Green v. q^^^^ ^. Price, (Jc) where an agreement not to carry on business P™^- (/) 7 Bing. 743. v. Tallis, 1 E. & B. 404, 405. See the late (g) [See per James V. C. in Leather and well considered case of Roussillon v. Cloth' Co. u. Lorsont, L. R. 9 Eq. 345, Roussillon, L. R. 14 Ch. Div. 351; 28 354 ; Lawrence v. Kidder, 10 Barb. 641 ; Weekly Rep. 623.] Lange v. Werk, 2 Ohio St. 519 ; Kellogg (h) [See Warfield v. Booth, 33 Md. 63.] V. Larkin, 3 Chand. (Wis.) 133. As to (i) The court held that " London " the burden of proof in such cases, Chap- meant the city of London, and did not pel w. Brockway, 21 Wend. 158; Ross o. include Great Russell Street, Middlesex. Sadgbeer, lb. 166; Beard v. Dennis, 6 13 M. & W. 517. Ind. 200 ; Lord Campbell C. J. in Tallis (k) 13 M. & W. 699. 33 514 AVOIDANCE OF THE CONTRACT. [BOOK III, as perfumers within the cities of London and Westminster, or the distance of 600 miles from the same respectively, was held Yahd as to London and Westminster, but void as to the 600 miles ; and this was aiSrmed in Cam. Scacc. (Z) It has also been held that r, , , where the contract is reasonable at the time when it is Coiitra.cc valid it made, subsequent change of circumstances will not affect good when ' -^ ° made. its validitj'. (jn) 8 528. Contracts for the sale of lawsuits or interests in htiga- tion are, in certain cases, also void at common law, as Sales of '. . lawsuits. being against public policy. (Jnamperty is a contract tor Champerty ^j^ purchase of another's suit or right of action : or a and main- J^ ° tenance. bargain by which a person agrees to carry on a suit at his own expense for the recovery of another's property on condi- tion of dividing the proceeds. This, as well as maintenance, is an offence at common law, and cannot, therefore, form the subject of a valid contract. Maintenance, according to Lord Coke, (n) " is derived of the verb manutenere, and signifieth in law a taking in hand, bearing up or upholding of quarrels and sides, to the dis- turbtmce or hindrance of common right." § 529. In Stanley v. Jones (o) an agreement by a man who Stanie ^'^"^ evidence in his possession respecting a matter in V. Jones. dispute between third persons, and who professed to be able to procure more, to purchase from one of the contending par- ties, at the price of this evidence, a share of the money to be re- covered by it, was held to be champertous ; and champerty was defined to be the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute or some profit out of it. " The object of the law was not so much to prevent the purchase or assignment of a matter then in litigation as the purchase or assignment of a matter in litigation for the purpose of maintaining the action." And the court held that in this re- stricted sense the offence of champerty remains the same as for- (l) 16 M. &W. 346. See, also, Nich- (n) Co. Lit. 368 b; i Black, Com. oils u. Stretton, 10 Q. B. 346, and Tallis 135 ; Elliott v. Richardson, L. E. 5 C, F. c. Tallis, 1 E, & B. 392 ; 22 L. J. Q. B. 744. 185. But see Alsopp v. Wheatcroft, L, (o) 7 Bing. 369; and see Sprye ». E. 15 Eq. 59 ; [Erie Railway Co. u. Union Porter, 7 E. & B. 58 ; 26 L. J. Q- B. 64. Locomotive & Express Co. 6 Vroom, 240 ; [But see Sedgwick u. Stanton, 4 Kernan, Dean v. Emerson, 102 Mass. 480.] 289.] (m) Elves y. Crofts, 10 C. B. 241; Jones V. Lees, 1 H. & N. 189. BOOK III.J ILLEGALITY. 615 merly. (^) In Hutley v. Hutley (g) it was held that HutievD. mere relationship between the parties, or even some col- Hutley. lateral interest, could not render valid an agreement Taking an otherwise champertous for dividing the proceeds of an ut'ga't1on"as action. Taking a transfer of an interest in litigation as a n^t'^^J^'*-'' security is not champertous, and is a valid contract, (r) peauus. SECTION II. — CONTRACTS ILLEGAL BY STATUTE. § 530. When contracts are prohibited by statute, the prohibition is sometimes express, and at others implied. Wherever Prohibition the law imposes a penalty for making a contract, it im- ^mpUed."' pliedly forbids parties from making such a contract, and when a contract is prohibited, whether expressly or by implica- implied tion, it is illegal, and cannot be enforced. Of this there whenever ' o ' penalty is is no doubt, (s) imposed. (p) See, further, as to maintenance and champerty, Re Masters, 4 Dowl. 18 ; Fin- don V. Parker, 11 M. & W. 675; Simp- son V. Lamb, 7 E. & B. 84, and 26 L. J. Q. B. 121 ; Flight v. Leman, 4 Q. B. 883 ; Cook V. Field, 15 Q. B. 460 ; Bell v- Smith, 5 B. & C. 188; Williamson «. Henley, 6 Bing. 299 ; Pechell v. Watson, 8 M. & W. 691 ; Shackell v. Rosier, 2 Bing. N. C. 634; Williams ;;. Protheroe, 3 Y. & J. 129, in Cam. Scacc. ; S. C. 5 Bing. 309 ; Earle v. Hopwood, 9 C. B. N. S. 566; 30 L. J. C. P. 217 ; Pince v. Beattie, 32 L. J. Ch. 734 ; Prosser o. Edmonds, I Y. & C. 481 ; Knight v. Bowyer, 27 L. J. Ch. 521 ; Bainbridge v. Moss, 3 Jur. N. S. 58 ; [Sandford Ch. in Thallhimer u. Brincker- hoff, 3 Cowen, 623, 643 el seq. In Peck V. Briggs, 3 Denio, 107, Bronson C. J. said : " In the late revision of the laws In New York i"^ ^ew York], nothing was malDtenance left of the old doctrine of is now solely . , , , . a statute maintenance beyond a prohi- offence. bition against taking a con- veyance of lands in suit, buying or selling pretended titles, and conspiracies falsely to move or maintain suits." And in Sedg- wick v. Stanton, 4 Kernan, 301, Selden J. said ; " I still think, in view of the mani- fest tendency of modern judicial opinions, as well as of the plain scope and intent of 'our legislation upon the subject, that not n vestige of the law of maintenance, in- cluding that of champerty, now remains in this state, except what is contained in the Revised Statutes." See Whitaker v. Cone, 2 John. Cas. 58 ; Belden v. Pitkin, 2 Caines, 147; Sweet v. Poor, 11 Mass. 549; Thurston v. Percival, 1 Pick. 415; Lathrop a. Amherst Bank, 9 Met. 489; Allen V. Hawks, 13 Pick. 79 ; Smith v. Thompson, 7 B. Mon. 305; Caldwell .;. Shepherd, 6 Mon. 392; Redman v. San- ders, 2 Dana, 70 ; Key v. Vattier, 1 Ohio, 132.]- (g) L. R. 8 Q. B. 112. (r) Anderson v. Radcliffe, E., B. & E. 806-819 ; 28 L. J. Q. B. 32 ; in error, 29 L. J. Q. B. 128. (s) Bensley v. Bignold, 5 B. & Aid. 335 ; Forster v. Taylor, 5 B. & Ad. 887 ; Cope (/. Rowlands, 2 M. & W. 149; Chambers v. Manchester & Milford Rail- way Co. 5 B. & S. 588 ; 32 L. J. Q. B. 268 ; In re Cork & Youghal Railway Co. L. R. 4 Ch. Ap. 748; [Woods v. Arm- strong, 54 Ala. 150; Wadleigh w. Bevel- ling, 1 Bradwell (111.), 596; Caldwell v. Bridal, 48 Iowa, 15; Durgin v. Dyer, 68 Me. 143 ; James v. Josselyn, 65 lb. 138. No action lies in Massachusetts to recover for the price of milk sold by the can, at 616 AVOIDANCE OF THE CONTEACT. [book III. § 531. But the question frequently arises, whether, on the true construction of a statute, the contract under considera- tion has really been prohibited, and in determining this point much weight has been attributed to a dis- tinction held to exist between two classes of statutes, those passed merely for revenue purposes, and those Distinction between statutes passed for revenue purposes aud otliers. wholesale, in cans not sealed according to the requirements of the statute of that state, although the state sealer refused to seal them for the statute price. Miller v. Post, 1 Allen, 434. Hoar J. in this case said : " The English decisions are numer- When con- ous and clear, which establish tract IS made [j^g doctrine that where a con- in manner prohibited tract is made in a manner noacUon^' prohibited by a statute passed lies upon it. for the protection of a buyer, no action can be maintained upon it; and that, where the statute directs the mode in which the contract shall be made, not fol- lowing the direction is equivalent to diso- beying a prohibition. And, if the statute imposes a penalty upon the act done, this will make the contract void in like man- ner as if it were in terms prohibited, because a penalty implies a prohibition. The same principles have been frequently recognized by this court. Wheeler v. Russell, 17 Mass. 258; Allen u. Hawks, 13 Pick. 82 ; Pattee v. Greely, 13 Met. 284; Libbey v. Downey, 6 Allen, 299; Smith V. Arnold, 106 Mass. 269 ; Sawyer V. Smith, 109 lb. 220; Prcscott o. Bat- tersby, 119 lb. 285. The contract upon which the plaintiff declares was made in direct contravention of the requirements of the statute. He sold his milk by the can, as a measure, and his cans were not sealed. The statute required all cans used in the sale of milk to be sealed, and im- posed a penalty for a failure to comply with its provisions. This made a sale of milk in cans whicd were not sealed an un- lawful and prohibited sale." See Spring- field Bank v. Merrick, 14 Mass. 322; Rus- sell V. Degrand, 15 lb. 35; Shaw C. J. in White V. Buss, 3 Cush. 449, 450; Coombs 0. Emery, 14 Me. 404 ; Seidenbender v. Charles, 4 Serg. & K. 159; Mitchell v. Smith, 1 Binn. 118; S. C. 4 Ball. 269; Sharp V. Teese, 4 Halst. 352 ; Bank of Rutland u. Parsons, 21 Vt. 199; Territt u. Bartlett, lb. 184; Bancroft v. Dumas, lb. 456; Pray u. Burbank, 10 N, H. 377; White u. Franklin, 22 Pick. 181; Atlas Bank v. Nahant Bank, 3 Met. 581 ; Harris v. Runnels, 12 How. (U. S.) 80. The validity of a contract is to be deter- mined by the law of the place where it is made. Bliss u. Brainard, 41 N. H. 256, 261. In this case Fowler J. said ; "Gen- erally speaking, the validity or invalidity of a contract is to be determined by the law of the place where it is made. If valid there, it is, by the gen- ' ■' " Generally eral law of nations, held to be validity de- valid everywhere, by the tacit f^wt't "place or implied consent of the par- where con- .,. . , .,, , , tract made, ties ; II void or illegal there, as a general rule, it is held void and ille- gal everywhere. The exception to this rule as to the validity of contracts is, that contracts which are in evasion or fraud of the laws of a country, or of the rights 01 duties of its subjects; which are against good morals, or against religion, or against public rights; and those op- posed to national policy or national in- stitutions ; are deemed nullities in every country affected by such considerations, though they may be valid by the laws of the place where they are made. But if a contract is void in its origin, it seems difficult to find any principle upon which any subsequent validity can be given to it in any other country." Whit- ney V. Whiting, 35 N. H. 457 ; Backman V. Jenks, 1 Alb. L. J. 123. As to the acts and circumstances which indicate that a contract of sale has been made at a par- ticular place, or in a particular state, see Boothbay v. Plaisted, 51 N. H.437; Cor- BOOK III.J ILLEGALITY. 517 which have in contemplation, wholly or in part, the protection of the pubhc, or the promotion of some object of public policy, (i) It is necessary to review the cases, as the principles established by them seem to be imperfectly stated in some of the text-books. § 532. The leading case on this point is Johnson v. Hud- son, ((i) decided by the king's bench in 1809. Different johnson . statutes had provided, 1st, that all persons dealing in Hudson, tobacco should, before dealing therein, take out a license under penalty of 501.; and 2d, that no tobacco should be imported, either wholly or in part manufactured, under penalty of forfeiture of the tobacco, the package, and the ship. In this state of the law, the plaintiffs, who had never before dealt in that article, re- ceived a consignment of tobacco manufactured into cigars, which they duly entered at the custom-house, and then sold to defendant without taking out a license. The court held that the action was maintainable, observing " that here there was no fraud upon the revenue, on which ground the smuggling cases had been decided ; nor any cla%i,se making the contract of sale illegal, but at most it was the breach of a mere revenue regulation which was protected by a specific penalty ; and they also doubted whether this plain- tiff could be said to be a dealer in tobacco within the meaning of the act." § 533. Next, in 1829, Brown v. Duncan (m) came before the same court. The statutes provided, 1st, that no distil- Brown v ler should, under penalty, deal in the retail sale of spirits Duncan, within two miles of the distillery ; and 2d, that in taking out a license for distilling, the names of the persons taking out the license should be inserted. One of five partners in a distillery was engaged in the retail trade within two miles of the distillery, and his name was, it seems, intentionally omitted in taking out the distillers' license. The partners then appointed an agent to sell their whiskey in London, and the defendant guarantied the ning o. Abbott, 54 lb. 469, 470; Hill v. Internal Rev. St. in relation to stamping Spear, 50 lb. 253 ; Finch v. Mansfield, certain instruments, see Campbell v. Wil- 97 Mass. 89; Dolan v. Green, 110 lb. cox, 10 Wall. 421; Harper v. Clark, 17 322; Backman w. Jenks, 1 Alb. L. J. Ohio St. 190; Stewart «. Hopkins, 30 lb. 123.] 502; Hitchcock o. Sawyer, 39 Vt. 412; {t) [New Brunswick Oil Works Co', v. Desmond v. Norris, 10 Allen, 250.] Parsons, 20 U. C. Q. B. 531; Mullen u. (fi) U East, 180. Kerr, 6 D.C. Q.B. (O. S.) 171. As to the (u) 10 B. & C. 93. See, also, Wetherell effect of a non-compliance with the U. S. u. Jones, 3 B. & Ad. 221. 518 AVOIDANCE OF THE CONTRACT. [BOOK III. fidelity of the agent. In the action by the partners to enforce this contract, its illegality was pleaded. The court held that the plaintiffs could recover on the authority of Johnson v. Hudson, saying " there has been no fraud on the part of the plaintiffs on the revenue, although they have not complied with the regulations which it has been thought wise to adopt in order to secure, as far as may be, the conducting of the trade in such a way as is deemed most expedient for the benefit of the i-evenue These cases are very different from those where the provisions of acts of par- liament have had for their object the protection of the public, such as the acts against stock -jobbing and the acts against usury. It is different, also, from the case where a sale of bricks required by act of parliament to be of a certain size was held to be void because they were under that size. There the act of parliament operated as a, protection to the public as well as to the revenue, securing to them bricks of particular dimensions. Here the clauses of the act of parliament had 7iot for their object to protect the public, but the revenue only." § 534. In "1836 Cope v. Rowlands (x) was decided in the ex-> Cope V. chequer, and it was held that a city of London broker Rowlands, could not maintain an action for his commissions in buy- ing and selling stock, unless duly licensed according to the 6 Aime, c. 16, s. 4, which provides that if any person should act as a broker in making sales, &c. without such license, he shall forfeit 25/. " for every such offence." In the course of the argument, Parke B. said : " Very considerable doubt was thrown on the distinction which has been taken between breaches of laws passed for revenue purposes and others, in the case of Brown v. Duncan, and when it comes to be considered, I think that distinction will be overruled." Tiie court took the case under consideration, and the decision was delivered by the same learned baron, who again said : " It maybe safely laid down, notwithstanding some cU<-ta apparently to the contrary, that if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so has in view the protection of the revenue, or any other object. The sole question is whether the statute means to prohibit the con- tract.'" Notwithstanding this statement, the learned baron went on to say that the question before the court was whether the stat- {x) 2 H. & W. 149; and see Ferguson v. Norman, 5 Blng. N. C. 76, approving Cope V. Rowlands. BOOK III.] ILLEGALITY. 519 ute under discussion " is meant merely to secure a revenue to the city, .... or whether one of the objects be the protection of the public On the former supposition, the contract with a broker for his brokerage is not prohibited by the statute ; in the latter it is." The court then decided that the benefit and secu- rity of the public formed one object of the statute, and that the plaintiffs were not entitled to recover. § 535. Again, in 1845 the same point was discussed in the same court, in Smith v. Mawhood, («/) where the defence in ^^^^^^ „_ an action for goods sold and delivered was based on the Mawhood. allegation that the goods were tobacco, and that the plaintiff had not complied with the law requiring him to ha.ve his name painted on the house in which he carried on his business, in the manner specified in the law, under penalty that the person so offending should forfeit 2001. Held that the plaintiff could maintain his action. Parke B. said : " I think the object of the legislature was not to prohibit a contract of sale by dealers who have not taken out a license pursuant to the act of parliament. If it was, they certainly could not recover, although the prohibition were merely for the purpose of revenue. But, looking to the act of par- liament, I think its object was not to vitiate the contract itself, but only to impose a penalty on the party offending, for the pur- .pose of the revenue." The other judges concurred, and Alderson B. pointed out, as a controlling circumstance in construing the statute, that the penalty was " for carrying on the trade in a house in which the requisites were not complied with : and that there is no addition to his criminality if he makes fifty sales of tobacco in such a house." (s) This distinction seems to be as sound as it is acute. In Cope v. Rowland the broker was not allowed to re- cover, because, by the law, each sale was an offence, punished by a separate penalty ; but in Smith v. Mawhood there was but one offence, punished by but one penalty, viz. the offence of failing to paint a proper sign on the house in which the business ivas done. Making a sale in such a house was not declared by the law to be an offence. § 536. In the court of common pleas, in 1847, all the forego- ing cases were cited and considered in Cundell v. Daw- cundeilv. son. (a) At the close of the argument, Wilde C. J. Dawson. (j) 14 M. & W. 463. also, in Aiken v. Blaisdell, 41 Vt. 655, (s) [A similar decision was made in 666; Pope «. Beals, 108 Mass. 561.] Lamed v. Andrews, 106 Mass. 435. So, (a) 4 C. B. 376. 520 AVOIDANCE OF THE CONTRACT. [bOOK III. said, that considering the diversity of dicta and decisions on the subject, the court would not pronounce any judgment without looking into the cases more carefully, and the matter was there- fore held under advisement from the 23d April to 8th May, when the chief justice delivered the opinion of the court. The action was for the price of coals, and the defence was that the plaintiff had violated the statute 1 & 2 Vict, c 101, by failing to deliver to the defendant a ticket as required by that statute, stating the quantity and description of the coals delivered. The statute di- rected such delivery, under penalty, in case of default of 20Z. " for every such offence." Tlie chief justice said: " The statutes which have given rise to the question of the right to recover the price of goods by sellers who have not complied with the terms of such statutes are of two classes : the one class of statutes hav- ing for their ohject the raising and protection of the revenue ; the other class of statutes being directed either to the protection of buyers and consumers, or to some ohject of public policy. The present case arises upon a statute included in the latter class The class of statutes enacted simply for the security of the reve- nue do not apply to the present case ; and various determinations which are contained in the books, upon the construction of those statutes, and the effect of a non-compliance with their enact- ments by the seller of goods, rest upon principles not applicable to the present case." The court then held, on the authority of Lit- tle V. Pool, (5) that the coal acts (c) were intended to prevent fraud in the delivery of coals ; to protect the buyer ; and judg- ment was therefore given for the defendant. § 537. In 1848 the same court adverted to the same distinction Ritchie t). in Ritchie w. Smith. ((^) The case was a very clear one. Smitii. j^ ^f^g .^ bargain between parties, by which the buyer was to be enabled to carry on a retail trade in spirits on part of the vendor's premises, under the vendor's license, so as to make one license cover both trades. The statute 9 Geo. 4, c. 61, in- flicted a penalty when liquor was sold to be drunk on the prem- ises, without such license, of not more than 20Z. nor less than 5/., "for every such offence." Wilde C. J. said that "it is impos- sible to look at this agreement without seeing that the parties (6) 9 B. & C. 192. were shipped on to the wharf of the pur- (c) Tlie coal act, 1 & 2 Vict. c. 101, chaser. Blanford v. Morrison, 15 Q. B- does not apply where coals are unloaded 724, and 19 L. J. Q. B. 533. directly from the vessel in which they (d) 6 C. B. 462. BOOK III.] ILLEGALITY. 521 contemplated doing an illegal thing, in the infraction of a law- enacted not simply for revenue purposes, but for the safetj' and protection of the public morals." All the judges, Coltraan, Maule, and Williams, put the judgment on the same ground, that the law was made not merely for revenue purposes, but for the protection of the public morals, (e) § 538. The propositions that seem fairly deducible from the foregoing authorities are the following : First. That General where a contract is prohibited by statute, it is immate- [he^d™ rial to inquire whether the statute was passed for rev- w^g'gn enue purposes only, or for any other object. It is enough ti>e two that parliament has prohibited it, and it is therefore statutes. void. (/) Secondly. That when the question is whether a con- tract has been prohibited by statute, it is material, in construing the statute, to ascertain whether the legislature had in view solely the security and collection of the revenue, or had in view, in whole or in part, the protection of the public from fraud in contracts, or the promotion of some object of public policy. In the former case the inference is that the statute was not intended to prohibit contracts ; in the latter that it was. Thirdly. That in seeking for the meaning of the law-giver, it is material also to inquire whether the penalty is imposed once for all, on the offence of failing to comply with the requirement of the statute, or whether it is a re- curring penalty, repeated as often as the offending party may have dealings. In the latter case the statute is intended to pre- vent the dealing, to prohibit the contract, and the contract is there- fore void ; but in the former case such is not the intention, and the contract will be enforced. (^) § 539. It is quite in accordance with these principles that in Bensley v. Bignold Qi) it was held by the common pleas Acts reia- that a printer who had omitted to afSx his name to a ''inters. (e) It is not a fraud on the revenue, nor where the penalty is imposed for some illegal, to sell to an unlicensed person beer other purpose than that of making the which is to be retailed by a licensed per- contract illegal. Lewis v. Welch, 14 N. son at a public house. Brooker v. Wood, H. 294 ; Favor v. Philbrick, 7 lb. 340. 5B. &Ad. 1052. See, also, the remarks of Wilde J. in (/) [Ante, § 530, note (s).] White v. Franklin Bank, 22 Pick. 184; (g) [Larned !>. Andrews, 106 Mass. 435; and in Lowell v. Boston & Lowell R. R. Aiken w. Blaisdell, 41 Vt. 655, 666. There Co. 23 lb. 32; Schermerhorn d. To] man, is an important distinction between stat- 4 Kernan (N. Y.), 93, 124, 125.] utes which impose a penalty for the pur- (A) 5 B. & A. 335. pose of prohibiting a contract, and those 522 AVOIDANCE OF THE CONTRACT. [BOOK III. B nsie ' V ^ook, ill violation of 39 Geo. 3, c. 79, s. 27, which pun- Bignoid. ishes such omission by a penalty of 20?. for every copy publisJied, could not recover for work and labor done, and ma- terials furnished. The statute was declared to have been enacted Acts rela- fo^" public purposes. So, also, in Forster v. Taylor, (i) "T"*". a faruier was held not entitled to recover the price of sales of ^ ^ ^ butter. butter sold because he had packed it in firkins, not Forster!). marked, in violation of the prohibition of the statute, Taylor. ^ 36 Geo. 3, c. 88 ; and in Law v. Hodson (Ai) a vendor tive to the failed in his action because his bricks had been sold of bricks. smaller dimensions than was permitted by the statute Law V. 17 Geo. 3, c. 42. In both these statutes a penalty was ' imposed for every offence. In Lightfoot v. Tenant (Z) frade^Mts! ^^^ ^ale was of lawful goods, but they were sold know- Lifchtfoot ingly foi' the purpose of being shipped on board of for- V. Tenant, gjg^.^ ships trading to the East Indies, and by the 7 Geo. 1, c. 21, s. 2, all contracts for loading or supplying such ships with cargo were declared void. The plaintiff was held not enti- tled to recover. § 540. There have been numerous decisions, also, under the Weights various statutes which have been passed, modified, and and nieas- ^ i c j* , , • p , • • ^ ures acts, repealed irom time to time, tor ascertaining and es- tablishing uniformity of weights and measures, all of which are quite in accordance with those above reviewed, (m) The statute Qg„ii, 1 & 2 W. 4, c. 32, prohibits the sale of birds of game laws. after the expiration of ten days from the respective days in each year on which it becomes unlawful under the act to kill or take such birds. This act includes live game. («) The 17th section authorizes every person who shall have obtained a game certificate to sell game to a licensed dealer, with a proviso that no gamekeeper shall sell any game, except for account and on the written authority of his master, whenever his game certificate has (i) 5 B. & Ad. 887. Q. B. 356 ; Jones v. Giles, 10 Ex. 119, (J;) U East. 300; and see a case on the and 23 L. J. Ex. 292 ; and in Cam. Scacc. game laws. Helps «. Glenister, 8 B. & C. 24 L. J. Ex. 259, and 11 Ex. 393 ; Watts 553. „. Friend, 10 B. & C. 446 ; [Miller i>. Post, (I) 1 B. & P. 551. 1 Allen, 434; Smith v. Arnold, 106 Mass. (?n) See Rex v. Major, 4 T. R. 750 ; 269.] Rex u. Arnold, 5 T. R. 353; Tyson c. (n) Loome w. Bayly, 30 L. J. M. C. 31 ; Thomas, 1 M'CI. & Y. 119; Owens v. but see, also, Porritt v. Baker, 10 Ex. Denton, 1 C, M. & R. 711; Hughes v. 759. Humphreys, 3 E. & B. 954, and 23 L. J. BOOK III.] ILLEGALITY. 523 cost less than 3Z. 13s. 6^. The 25th section prohibits, under pen- alty of not more than 21. for each head of game, tlie offence of selling game by an vinlicensed person, who has not obtained a game certificate, or of selling, even when possessed of a game cer- tificate, to any other person than a licensed dealer ; but, by the 26th section, the prohibition does not extend to an innkeeper or tavern-keeper who sells to his guests, for consumption in his house, game bought from a licensed dealer. The 27th section imposes penalties on the buyer of game who buys from one not a licensed dealer, unless the purchase be made bond fide at a shop or house where a board is affixed to the front, purporting to be the board of a licensed dealer in game. § 541. The statute of 8 & 9 Vict. c. 109, s. 18, provides " that all contracts or agreements, whether by parol or in writ- Gaming, ing, by way of gaming or wagering, shall be null and ^ftoe"^ void; and that no suit shall be brought or maintained f"f*j"^( in any court of law or equity for recovering any sum of goods, money or valuable thing alleged to be won upon any wager, or which should have been deposited in the hands of any person, to abide the event on which any wager should have been made." § 642. At common law, wagers that did not violate any rule of public decency or morality, or any recognized principle of public policy were not prohibited, (o) Since the passage of the above (o) Sherborn v. Colebach, 2 Vent. 175 ; Kee ... Manice, 11 Cush. 357 ; Patterson Johnson v. Lanslev, 12 C. B. 468; Dalby v. Clark, 126 Mass. 531 ; so in Vermont; V. India Life Assurance Co. 15 C. B. 365 ; Collamer v. Day, 2 Vt. 144 ; Tarleton v. 24 L. J. C. P. 2, 6. [A wager is not a Baker, 18 lb. 9. See Carrier v. Brannan, valid contract in New Hampshire; Win- 3 Cal. 328; Bun u. Riker, 4 John. 426; che.iter n. Nutter, 52 N. H. 507 ; Perkins Phillips v. Ives, 1 Rawle, 37. See, further, V. Eaton, 3 lb. 152; Hoit v. Hodge, on this subject, 1 Chitty Contr. (llth Am. 6 lb. 104; Clark v. Gibson, 12 lb. 386; ed.) 735-738, and cases in notes; Hasket nor in Maine; Lewis v. Littlefield, 15 d. Wootan, 1 Nott &Mc. 180; Martin v. Maine, 233. Judicial opinions in Massa- Terrell, 12 Sm. & M. 571 ; Ryerson v. chusetts have been adverse to an action on Derby, 1 Russell & Chesley (N. S.), 13; ^ ^ a wager; Shaw C. J. in Ball Doxey v. Miller, 2 Bradwell (111.), 30; *^"'' I;. Gilbert, 12 Met. 399; Samp- Perkins y. Eaton, 3 N. H. 155 ; Whitwell son V. Shaw, 101 Mass. 150; Amory v. w. Carter, 4 Mich. 329 ; Wilkinson z;. Tous- Gilman, 2 lb. 1 ; Babcock v. Thomp- ley, 16 Minn. 299 ; Petillon v. Hippie, 90 son, 3 Pick. 446. But if the money is 111. 420; Richardson v. Kelley, 85 lb. 491 ; demanded of the stakeholder before he Brown v. Thompson, 14 Bush, 538 ; Gil- pays it to the winner, the depositor can more v. Woodcock, 69 Me. 118 ; McDon- recover from the stakeholder or the win- ough v. Webster, 68 lb. 530 ; Graham v. ner, if the money has been paid to him. Thompson, Ir. R. 2 C. L. 64 ; Diggle v. Morgan y. Beaumont, 121 Mass. 7; Mc- Higgs, 2 Ex. D. 422; Bailey v. McDuf- 524 AVOIDANCE OF THE CONTRACT. [BOOK in. statute, however, cases have arisen which present the question whetlier an executory contract for the sale of goods is not a device for indulging in the spirit of gaming which the statute was in- tended to repress. It has already been shown (^ante, §§ 82, 83) that a contract for the sale of goods to be delivered at a future day is valid, even though the seller has not the goods, nor any other means of getting them than to go into the market and buy them. But such a contract is only valid where the parties really intend and agree that the goods are to be delivered by the seller, and the price to be paid by the buyer. If, under guise of such a contract, the real intent be merely to specu- late in the rise or fall of prices, and the goods are not to be de- livered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction con- Grizewood stitutes nothing more than a wager, and is null and void V. Biane. under the statute, (p) In Grizewood v. Blane, (p^) where the contract was for the future delivery of railway shares, Jervis C. J. left it to the jury to say " what was the plaintiH's intention, and what was the defendant's intention at the time of making the contracts, whether either party really meant to pur- chase or to sell the shares in question, telling them that if they did not the contract was, in his opinion, a gambling transaction, and Rourkei). void." The ruling was held to be correct, (g) In the Short. case of Rourke v. Short (r) the plaintiff and defendant, while discussing the terms of a bargain for the sale of a parcel of rags, differed as to their recollection of the price at which a parcel fee, 2 Pugsley & Burbridge (N. B.), 26 ; Biss. 338 ; Clarke v. Foss, lb. 540 ; Rum- M'Elwaine u. Mercer, 9 Ir. C. L. R. 13. sey v. Berry, 65 Me. 570; Byers o. Beat- In Alvord u. Smith, 63 Ind. 58, it was de- tie, Ir. R. 2 C. L. 220 ; Thacker v. Hardy, cided that offering a premium to the owner L. R. 4 Q. B. D. 685 ; Williams v. Tiede- of the horse that could make the best time man, 6 Mo. App. 269 ; "Waterman v. Buck- did not constitute a bet or wager, was not land, 1 lb. 45 ; Gregory v. Wendell, 39 unlawful or against public policy, and that Mich. 337 ; 40 lb. 432 ; Marshall v. Thurs- the sum promised could be recovered by ton, 3 Lea (Tenu.), 740.] the owner of the horse making such best ( p^) 11 C. B. 536. See the same case time.] as to the pleadings in 21 L. J. C. P. 46; (p) [Kirkpatrick a. Bonsall, 72 Penn. also, Knight v. Cambers, and Knight i). St. Io.t; Bigelow !). Benedict, 70 N. Y. Fitch, 15 C. B. 562, 566 ; Jessopp u. Lut- 202; Parsons v. Taylor, 12 Hun, 252; wyche, 11 Ex.614. Yerkes u. Salomon, 11 lb. 471 ; Story v. (q) [Ante, § 82, note (s).] Salomon, 71 N. Y. 420 ; Kingsbury v. (r) 5 E. & B. 904 ; 25 L, J. Q. B. 196. Kirwan, 20 Alb. L. J. 14 ; Re Green, 7 BOOK HI.] ILLEGALITY. 525 had been previously invoiced by the plaintiff to the defendant, and then agreed to a sale on these terms, viz. that the rags should be paid for at six shillings a cwt. if the plaintiff's, but only three shillings a cwt. if the defendant's statement as to the former sale should turn out to be correct, six shillings being more and three shillings being less than the value of the goods per cwt. It was held that although the goods were really to be delivered and the price to be paid, yet the terms of the bargain included a wager that rendered it illegal. § 542 a. [There is the following provision in Illinois : " Who- ever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain, or other comn;iodity, stock of any railroad or other company, or gold, .... shall be fined, &c and all contracts made in violation of this sec- tion shall be considered gambling contracts and shall be void." R. S. of 111. (187-i), c. 38, § 130. In Lyon v. Culbert- Lyon*, son (r^) the facts were as follows : The appellees brought Cuibertson. suit against the appellants to recover damages for a failure to per- form a contract for the purchase of a certain quantity of wheat. The contract was embodied in the following instrument : " Chi- cago, August 14, 1872. We have this day bought of Cuibertson, Blair & Co., 10,000 bushels of No. 2 Spring wheat in store, at $1.57^ per bushel, to be delivered at seller's option, during Au- gust, 1872. This contract is subject in all respects, to the rules and regulations of the board of trade of the city of Chicago. J. B. LyojS- & Co." The rules and regulations were as follows : " Rule IX. Margins on Time Contracts. Section 1. On all time contracts, made be- tween members of the association, deposits for security and mar- gin may be demanded by either or both parties When margins are demanded, the party called upon shall be entitled to deduct from the margin called any difference there may be in his favor between the market price and the contract price of the property bought or sold. Any deposit made to equalize the con- tract price with the market price shall be considered as a deposit for security, and not margin. Sec. 2. Should the party called upon, as herein provided for, fail to respond within the next bank- ing hour, it shall thereafter be optional with the party making such call, by giving notice to the delinquent, to consider the contract (j-l) [83D1. 33.] 526 AVOIDANCE OF THE CONTRACT. [BOOK III. filled at the miu-ket value of the article at the time of giving such notice ; and all differences between said market value and the contract price shall be settled the same as though the time of said contract had fully expired." On the 20th of August the ap- pellees demanded further margins, but Lyon failed to respond within the hour allowed. Culbertson therefore elected to con- sider the contract filled, and charged the appellants with the difference between the purchase price and the market price at time of notice. The difference was the matter in dispute. The jury found for the plaintiffs. A motion for a new trial was over- ruled, and judgment entered for the plaintiffs, from which the defendants appealed, and on the appeal the judgment below was reversed. Walker J. said :...." But the parties having in- corporated the rules of the board of trade into their agreement, the question arises as to its effect on the contract. It in terms provides that when either party shall be in default in putting up margins, after notice and within the next banking hoar, the party calling for them shall thereupon have the right to consider the contracts filled at the market value at the time of giving such notice, and all differences between such market value and the con- tract price shall be settled the same as though the time for fulfil- ling the contract had fully expired. This, in terms, does not require an offer, or an ability or willingness to perform on either part. It only, in terms, requires a mental operation, unaccom- panied with any physical act. Until the expiration of the hour, and for a period of time afterwards, the party claiming a default has by the terms of the rule the option to consider the contract filled or not, as he may choose. Had the agreement required the party, before he exercised the option, to have made an offer, or at least to have shown that he had the ability to fulfil his part of the agreement, and was willing to do so, then the contract would have conformed to legal principles ; but, under the terms of this contract, the appellees vrere not required to have a bushel of grain they could have delivered at the place of performance. It is true the contract speaks of wheat ' in store,' but neither wheat nor warehouse receipts were offered, nor was it shown that the appel- lees had any wheat in Chicago, and it could not have been in the contemplation of the parties to deliver or receive it elsewhere, or it would have been so stated in the contract The fact that no wheat was offered on demand shows, we think, that neither BOOK III.] ILLEGALITY. 527 party expected the delivery of any wheat, but in case of de- fault in keeping margins good or even at the time for delivery, they only expected to settle the contract on the basis of differ- ences, veithout either performing or offering to perform his part of the agreement ; and if this was the agreement, it was only gaming on the price of wheat, and if such gambling The par- transactions should be permitted, it must eventually contem-' lead to what are called corners, which engulf hundreds P'^'^ the ' _ ° actual de- in utter ruin, derange and unsettle prices, and operate 'i™')' a°. Mein- (r) 4 M. & W. 270. [See Allen./, rath, 101 Mass. 366, 368 ; Ladd v. Rogers, Gardiner, 7 R. L 22 ; Hazard v. Day, '■*. 11 Allen, 209, In Bradley v. Rea, 14 Al- Allen, 487.] BOOK III.] ILLEGALITY. 539 any maker of, or dealer in, chain cables or anchors, of any chain cables whatever, or any anchor exceeding in g^ie of weight 168 pounds, not previously tested and duly bt^s^nd" stamped according to the provisions of the act. anchors. § 556. In America, the law in general upon the subjects em- braced in this chapter is in accordance with the English f,^ ^ j^ law. The cases in our courts upon contracts of sale America. where the thing sold was intended by both parties for illegal pur- poses, or was transferred with a knowledge on the part of the vendor that the buyer intended to use it for illegal purposes, were elaborately reviewed and discussed in the supreme court of the United States in two cases, Armstrong t'. Toler, reported in 11 Wheaton, 258, and McBlair v. Gibbes, 17 Howard, 232. The principles established by these two cases may be summed up as follows : First. No action lies on any contract, the consideration of which is either wicked in itself or prohibited by law. Second. A collateral contract, made in aid of one tainted by illegality, cannot be enforced. Third. A collateral contract, disconnected from the illegal transaction which was the basis of the first con- tract, is not illegal, and may be enforced. § 557. In relation to sales made on Sunday, nearly if not all the states have passed laws substantially in accordance with the 29 Charles 2, c. ,7, and there is a very great diversity of opinion on the questions which have arisen under these statutes, (s) In many of the states the law makes no distinction between sales made by a party in his ordinary calling and any other sale, but forbids all secular business on Sunday. A note given for prop- erty sold on Sunday is held of course to be invalid in the hands (s) [But it has been pretty generally Harris, 10 lb. 566 ; Saltraarsh v. Tuthill, „ , held in the American states, 13 lb. 390; Sellers v. Dagan, 18 Ohio, Sunday con- * * nr tracts are that a contract for the sale or 489 ; Towle v, Larrabee, 26 Maine, 464 ; ™' ■ exchange of goods or chattels Adams v. Hamell, 2 Doug. (Mich.) 73; made and completed on Sunday, in viola- Eobeson v. French, 12 Met. 24; Day u. tion of the statutes for the observance of McAllister, 15 Gray, 433; Allen v. Gardi- that day, is void. Lyon v. Strong, 6 Vt. ner, 7 K. I. 24, 25 ; George i^. George, 47 219; Sumner v. Jones, 24 lb. 317 ; Eey- N. H. 27 (in which the subject is fully ex- nolds u. Stevenson, 4 Ind. 619; Link v. amined by Bellows J.) ; Cameron u. Peck, Clemmens, 7 Blackf. 479 ; Allen v. Dem- 37 Conn. 555, 557 ; Sayre v. Wheeler, 32 ing, 14 N. H. 133; Smith u. Bean, 15 Iowa, 559; S. C. 31 lb. 112; Tucker u. lb. 577; Varney u. French, 19 lb. 233; West, 29 Ark. 386; Ellis v. Hammond, Murphy V. Simpson, 14 B. Mon. 419; 57 Ga. 179; Peake v. Conlan, 43 Iowa, •O'Donnell v. Sweney, 5 Ala. 467 ; Hussey 297 ; Meader v. White, 66 Me. 90 ; Block V. Eoquemore, 27 lb. 281; Dodson v. v. McMurry, 56 Miss. 217.] 540 AVOIDANCE OF THE CONTRACT. [book III. of the payee, (i) but it is not settled whether such a note is void in the hands of an innocent indorsee, (m) A sale is there held not to be invalid although commenced on Sunday, if not com- pleted till another day, nor if it merely grow out of a transaction which took place on Sunday. («) And a note, though signed on («) [Towle V. Larrabee, 26 Maine, 464 ; Adams v. Hamell, 2 Doug. (Mich.) 73; Goss V. Whitney, 27 Vt. 272 ; Lovejoy v. Whipple, 18 lb. 379; Cranson u. Goss, 107 Mass. 440, 441 ; Pattee v. Greeley, 13 Met. 284 ; Pope v. Linn, 50 Maine, 83 ; Benson u. Dralce, 55 lb. 555 ; Hilton o. Houghton, 35 lb. 143; Rainey v. Capps, 22 Ala. 288.] (u) Allen V. Deming, 14 N. H. 133; Saltmarsh v. Tuthill, 13 Ala. 390. [In Cranson Cranson V. Goss, 107 Mass. V. Goss. ^39^ which was an action on a promissory note by an indorsee against the maker, it appeared that the plaintiff was a bond fide holder of the note in suit, for a valuable consideration, and that he ob- tained it before it was due, without notice of any defect, illegality, or other infirmity in it. It also appeared that the contract, upon which the note itself was based, was made upon Sunday ; and that the note was made, signed, and fully delivered tipon Sunday, to the original payee. The note bore date of the succeeding Wednes- Righta of in- day. Gray J., delivering the uZmL judgment of the court, said: on Sunday. " The plaintiff, therefore, not having participated in any violation of law, and having taken the note before its maturity, for good consideration and with- out notice of any illegality in its inception, may maintain an action thereon against the maker. To hold otherwise would be to allow that party, who alone had been guilty of a breach of the law, to set up his own illegal act as a defence to the suit of an innocent party." This view is sup- ported by the judgments of all the courts, English and American, that have consid- ered the question. Begbie u. Levi, 1 C. & J. 180; S. C. 1 Tyrwh. 130; Houliston u. Parsons, 9 Upper Canada, 681 ; Crom- bie 1^. Overholtzer, 11 lb. 55; Bank of Cumberland v. Mayberry, 48 Maine, 198 ; State Capital Bank u. Thompson, 42 N. H. 369 ; Vinton u. Peck, 14 Mich. 287 ; Saltmarsh v. Tuthill, 13 Ala. .390, 406 ; Clark u. Pease, 41 N. H. 414 ; Clinton Nat. Bank v. Graves, 48 Iowa, 228; Johns v. Bailey, 45 lb. 241. See the case of Stevens r. Wood, 127 Mass. 123. But the indorsee of a note otherwise valid cannot maintain an action on „ ., , How if note it in his own name agamst indorsed on the maker, if he procured it S^i^aay. to be indorsed by the payee on the Lord's day, because in the prosecution of his suit he would be obliged to rely on an "illegal transaction," i. e. an indorsement made on the Lord's day. Benson u. Drake, 55 Maine, 555.] (x) Stackpole v. Simonds, 23 N. H. 229; Smith u. Bean, 15 lb. 577 ; Sumner v. Jones, 24 Vt. 31 7 ; Goss v. Whitney, lb. 187; Butler u. Lee, 11 Ala. 885; [Jlerrill v. Downs, 41 N. H. 72 ; Adams u. Gay, 19 Vt. 35» ; Barron v. Pettes, 18 lb. 385; Lovejoy u. Whipple, lb. 379; Cameron ^. Peck, 37 Conn. 555; Sayles V. Wellman, 10 R. 1. 465. But where the sale is made and the property is delivered, so far as the veudor is concerned, on Sun- day, the contract will be void, although the property purchased is act- if contractis ually taken by the purchaser -^J*^^ into his possession, on some it is void; 1 .J o -lu aliter, \fnoi subsequent day. omitn v. ^^ ^^^. Bean, 15 N. H. 577; Allen w. PloMd. Deming, 14 lb. 133. Where stipulations for a sale of chattels were made on a secular day, but the contract was after- wards completed by delivery on Sunday, the contract was held to be illegal. Smith V. Foster, 41 N. H. 215. The subject is very fully discussed by Sargent J. in this case. And so it would seem the contract will not be enforced unless it can be car- BOOK III.j ILLEGALITY. 541 Sunday, may be enforced if delivered on some other day; (?/) and when the vendee has obtained possession of the property sold to him on Sunday, with the assent of the vendor, it is held that the title has passed, and that he may maintain his possession under the void contract as against both the vendor and his creditors. («) § 558. There is great conflict of decisions on the question whether the vendee becomes liable (either under a new contract, or by reason of a ratification of the old one) when he takes pos- ried out without invoking the aid of any of the tevms agreed upon the Lord's day, although the contract may, in other re- spects, have been made on a secular day. See Bradley v. Rea, 14 Allen, 20 ; Day v. McAllister, 15 Gray, 433 ; Cranson u. Goss, 107 Mass. 441 ; Pope v. Linn, 50 Maine, 83 ; Tillock v. Webb, 56 lb. 100; Plaisted u. Palmer, 63 lb. 576 ; Morgan V. Bailey, 59 Ga. 683 ; Bryant v. Booze, 55 lb. 438. Where goods are sold and delivered to two persons on the Lord's day, the sale being induced by the false representations of one of them on a pre- vious day, and, on a subsequent day, not being on the Lord's day, the seller de- mands the price of the latter, and he promises to pay it, this amounts to a sale to him, and he is liable for the price. Winchell v. Carey, 115 Mass. 560. So where a party sold and delivered to an- other on Sunday a pair of horses for $340, and on the following Tuesday the purchaser paid $200, and gave a note for $140, on which the seller afterwards brought an action, it was held that, al- though the contract was originally made on Sunday, the plaintiff was entitled to recover by reason of its subsequent ratifi- cation, and also by reason of a new prom- ise, for which the retention of the property was a sufficient consideration. Sayles v. Wellman, 10 R. I. 465.] iy) Hilton v. Houghton, 35 Maine, 143 ; Lovejoy v. Whipple, 18 Vt. 379; Clough V. Davis, 9 N. H. 500 ; Hill v. Dunham, 7 Gray, 543. (z) Smith V. Bean, 15 N. H. 577 ; Allen V. Deming, 14 lb. 133 ; [Myers v. Mein- rath, 101 Mass. 368; King v. Green, 6 tract being fully exe- cuted, law leaves par- ties where it finds them. Allen, 139; Hall v. Corcoran, 107 Mass. 259; Horton v. Buffington, 105 lb. 399; Gray J. in Cranson v. Goss, 107 lb. 441 ; Ladd V. Rogers, 11 Allen, 209. " The disability on the part of the seller to reclaim the goods wUl avail the pur- chaser holding them as a sufficient title." Ames J. in Horton i;. Buffington, 105 Mass. 400 ; Myers u. Meinrath, 101 lb. 366; King v. Green, 6 Allen, 139. In Myers v. Meinrath, 101 Mass. 369, it was decided by the court, and clearly and forci- bly maintained by Wells J. in delivering the opinion, that an action will not lie in Massachusetts for the conver- Sunday con- sion of a chattel, sold and de- livered by the plaintiff to the defendant in exchange for an- other chattel, on the Lord's day, and retained by the defendant after- wards, notwithstanding the plaintiff re- turns the chattel for which it was ex- changed, and demands a corresponding return by the defendant. Where the owner of a wagon sold it on the Lord's day to one who resold it to a third person, who was ignorant that his vendor had bought it on the Lord's day, it was held that it was not liable to be taken for a debt against the original owner. Horton V. Buffington, supra. The property passes by a sale though made on Sunday, and the contract being thus executed will not be disturbed on the ground of illegality. Green v. Godfrey, 44 Maine, 25, 27 ; Levet V. Creditors, 22 Louis. Ann. 105 ; flail u. Costello, 48 N. H. 176 ; Beauchamp v. Comfort, 42 Miss. 94 ; Frazer v. Robinson, lb. 121 ; Thompson v. Williams, 58 N. H. 248.] 542 AVOIDANCE OF THE CONTRACT. [BOOK HI. sesssion of tbe thing sold on some other day, after making a pur- chase of it on Sunday. The case of Williams v. Paul, (a) and the observations of Parke B. seriously questioning its authority, (J) have been much discussed in the American courts. In the case of Adams v. Gay (c) the purchaser refused, at the request of the vendor, to rescind the contract and return the thing sold, and this was held to be an affirmation of the Sunday bargain, and to ren- der the purchaser liable ; and in Sargent v. Butts (c^) the same court held that a subsequent promise ratified an award made on Sunday, so tliat an action would lie on the award. So in Sumner V. Jones (e) where a note was given on Sunday for the price of a horse sold that day, and the buyer afterwards made payments on account of the note, it was held that these payments, coupled with his retaining the horse in his possession, were a ratification of the contract, entitling the vendor to recover the sum remaining due on the note. In Alabama, (/) however, and in New Hamp- shire (^) the courts have rather been inclined to follow the opin- ion of Parke B. than the decision in Williams v. Paul. In the case of Boutelle v. Melendy, (^) the New Hampshire court expressly held that an illegal contract is incapable of ratification or of form- ing a good consideration for a subsequent promise. (K) § 559. The French Civil Code, art. 1133, provides that " the (a) 6 BiDg. 653. 240, 244, note (a) ; Reeves v. Butclier, 2 (b) Ante, § 554. Vroom (N. J.), 224; Myers v. Meinrath, (c) 19 Vt. 358. 101 Mass. 368 ; Eyno v. Darby, 20 N.J. (d) 21 Vt. 99. Eq. (5 C. E. Green) 231 ; Finn v. Dona- (e) 24 Vt. 317. [See Harrison v. Col- hue, 35 Conn. 216; Pate v. Wright, 30 ton, 31 Iowa, 16.] Ind. 476. But see Sayles v. Wellman, 10 (/) Butler V. Lee, 11 Ala. 885. R. I. 467, 468. As to cases arising in [g) Allen v. Deming, 14 N. H. 133, and states where the hours of the Lord's day Boutelle v. Melendy, 19 lb. 196. are fixed by statute at less statute (h) [A contract made in violation of than twenty- four, and being fl™fSi! the Lord's day in Massachusetts is abso- affected by that provision. Lord's day. lutely void and incapable of ratification, see Nason v. Dinsmore, 34 Maine, 391; Day V. McAllister, 15 Gray, 433; Ladd «. Bryant w. Biddeford, 39 lb. 193; Mer- Rogers, 11 Allen, 209; Bradley v. Rea, riam v. Stearns, 10 Cush. 257; Hiller v. 14 lb. 22 ; Hazard o,rty in fulfilling the condition, (j^) or incapacitates Jiimself from performing his own promise, or ab- solutely refuses performance, so as to render it idle and useless for the other to fulfil the condition. No authority is needed, of course, for the proposition that the party in whose favor the con- dition has been imposed may expressly waive it. The cases, how- ever, are numerous to establish the propositions above stated, in relation to the implied waiver. Waiver § 667. If a man offer to perform a condition precedent certain '° ^'^ favor of another, and the latter refuse to accept the cases. performance, or hinder or prevent it, this is a waiver, and the hitter's liability becomes fixed and absolute. As long Perform- ago as 1787, Ashhurst J., in delivering the opinion of structed. tlie king's bench, in Hotham v. East India Company, (r) said that it was evident from common sense, and therefore needed no authority to prove it, that if the performance of a condition precedent by the plaintiff had been rendered impossible by the neglect or default of the defendant, " it is equal to perform- Positivere- ance." (s) On the same principle, a positive absolute throther refusal by one partj^ to carry out the contract, or his - fuififcoV conduct in incapacitating himself from performing bis tract. promise, is in itself a complete breach of contract on his part, and dispenses the other party from the useless formality of tendering performance of the condition precedent: (f) as if A. en- (?!) [Aitcheson v. Cook, 37 U. C. Q. B. knap, 1 Cusli. 279 ; Smith v. Lewis, 26 490; Haden «. Coleman, 73 N. Y. 567; Conn. 110; Mill Dam Foundry v. Hovey, International Steamship Co. v. United 21 Pitk. 437 ; Borden u. Borden, 5 Mass. States, 13 Ct. of Claims, 209.] 67 ; Shaw v. Hurd, 3 Bibb, 372 ; Grove v. if) [Peek o. United States, 14 Ct. of Donaldson, 15 Penn. St. 128; Kugler v. Claims, 84.] Wiseman, 20 Ohio, 361 ; FoUansbee o. (r) 1 T. R. 645. Adams, 86 III. 13 ; Taylor u. United (s) See, also, Pontifex v. Wilkinson, 1 States, 14 Ct. of Claims, 453.] C. B. 75; Holme i/. Giippy, 3 M. & W. {t) [In Sumner t), Parker, 36 N. H, 449, 387; Armitage v. Insole, 14 Q. B. 728; 454, Eastman J. said : " When a party to Ellen V. Topp, 6 Ex. 424 ; Laird u. Pirn, a contract refuses to execute Refusalor 7 JI. &\V. 474; Cort i). Ambcrgate Rail- any substantial part of his f'^'^^J" way Company, 17 Q. B. 127 ; 20 L. J. Q. ■ agreement, he thereby gives Justi™ B. 460; Kussell ». Bandeiva, 13 C. B. N. to the other party the option ">^'=™°°- S. 149; 32 L.J. C. P. 68; [Lord i,. Bel- to rescind the entire contract, by offering PART I.J CONDITIONS. 551 as such by the party to whom the promise was made ; for if he afterwards continue to urge or demand com- gage B. to write articles for a specified term in a periodical pub- lication belonging to A., and before the end of the term A. should discontinue the publication ; or if he agree to sell to B. a specified ox, and before the time for delivery should kill and consume the animal; or to load specified goods on board a vessel on a day fixed, and before that day should send them abroad on a different vessel, it is plain that it would be futile for B., in the cases sup- posed, to tender articles for insertion in the discontinued publica- tion, or the price of the ox already consumed, or to offer to re- ceive on his vessel goods already sent out of the country ; and lex neminem ad vana cogit. (u) § 568. But a mere assertion that the party will be unable or will refuse to perform his contract is not sufficient ; it Mere as- . -Ill I- ^ sertion must be a distinct and unequivocal absolute refusal to that a perform the promise, and must be treated and acted upon be unable or unwill- ing to comply, no waiver. Amory u. Broderick, 5 B. & A. 712; Short u. Stone, 8 Q. B. 358; Cainea a. Smith, 15 M. & W. 189 ; Reid v. Hoskins, 4 E. & B. 979 ; 25 L. J. Q. B. 55, and 26 L. J. Q. B. 5 ; Avery v. Boden, 5 E. & B. 714 ; 6 E. & B. 953 ; 25 L. J. Q. B. 49, and 26 L. J. Q. B. 3 ; Bartholomew u. Marwick, 15 C. B. N. S. 710; 33 L. J. C. P. 145 ; Franklin v. Miller, 4 Ad. & E. 599; PlanchiS v. Colburn, 8 Bing. 14; Robson V. Drummond, 2 B. & Ad. 303 ; Inchbald v. The Western Neilgherry Coffee Company, 17 C. B. N. S. 733 ; 34 L. J. C. P. 1 5 ; [Heard v. Lodge, 20 Pick. 53, 60, 61 ; Law v. Henry, 39 Ind. 414; Bruce v. Tilson, 25 N. Y. 194 ; Newcomb v. Brack- ett, 16 Mass. 161 ; Buttrick u. Holden, 8 Cush. 233, 235, 236 ; Bannister v. Weath- erford, 7 B. Mon. 271 ; Clark v. Crandall, 3 Barb. 612 ; Harris v. Williams, 3 Jones (N. Car.) Law, 483 ; Haines v. Tucker, 50 N. H. 307, 310. A refusal, by one of the parties to a contract founded on mutual and concurrent conditions, to perform his covenants, will excuse a want of entire and absolute preparation by the other. Smith 1^. Lewis, 24 Conn. 624 ; S. C. 26 Conn. 110.1 to restore what he has received, and re- placing the parties in their original situa- tion, provided the offer to do this is made in a reasonable time, and the situation of the parties remains so far unchanged that they can be restored to their first posi- tion." Webb V. Stone, 24 N. H. 282, 288 ; Luey V. Bundy, 9 lb. 298. So, in Hill v. Hovey, 26 Vt. 109, it was held that where a party, who is to do the precedent act, fails in the performance, the other party may abandon the contract, and recover for what he has done ; he is not bound to make a special demand for the perform- ance of the precedent act. See 2 Chitty Contr. (11th Am. ed.) 1090, and note (p); Dodge V. Greely, 31 Maine, 343. Where a purchase has been made of chattels to he received at a future day, at a fixed price, payable at a specified time, the seller may rescind the contract, after a failure by the purchaser to pay the full purchase- money at the stipulated time. Dwinel v. Howard, 30 Maine, 258 ; Preble y. Bot- tom, 27 Vt. 249 ; Smith v. Foster, 18 lb. 182.] (u) Cort V. The Ambergate Railway Company, 17 Q. B. 127; 20 L. J. Q. B. 460; Bodwell v. Parsons, 10 East, 359; 552 PERFORMANCE OF THE CONTRACT. [BOOK IV. pliance with the contract, it is plain that he does not understand it to be at an end. (2;) The authorities will be found collected and considered in the notes to Cutter v. Powell, 2 Smith's Leading Cases, 1. The supreme court of the United States has cited the foregoing passage with approval as a correct statement of the law. (?/) § 569. The whole law on this subject has been reexamined and Frost V. conclusively settled in the exchequer chamber, in Frost ^°'e"- V. Knight (L. R. 5 Ex. 322 ; 7 Ex. Ill), in which the doubts intimated by the lower court as to the principle of Hochster V. De La Tour were held to be ill-founded, and the decision of that court reversed by an unanimous judgment. In New York, also. Casein the court of appeals, in the case of Burtis v. Thompson New York. ^^^ j^_ y_ 246), which, like Frost v. Knight, was an ac- tion based on a positive refusal to fulfil a promise of marriage, the action being brought in advance of the time fixed for the mar- riage, decided in favor of the plaintiff ; and the case of Hochster V. De La Tour was cited in the judgment. (2) § 570. It is no excuse for the non-performance of a condition Impos- that it is impossible for the obligor to fulfil it, if the sibilitv as „ , . . ., , T^ -i- i • an excuse, periormance be in its nature possible. But if a thing be physically impossible, quod natura fieri non concedit, or be ren- dered impossible by the act of God, as if A. agree to sell and deliver his horse Eclipse to B. on a fixed future day, and the horse die in the interval, the obligation is at end. (a) In Tay- (x) Barwick V. Buba, 2 C. B. N. S. 563; (a) Shep. Touch. 173, 382; Co. Lit. 26 L. J. C. P. 280 ; Eipley v. McClure, 4 206 a ; Faulkner r. Lowe, 2 Ex. 595 ; Ex. 345 ; Hochster v. De La Tour, 2 E. & Williams u. Hide, Palm. 548 ; Laughter's B. 678 ; 22 L. J. Q. B. 455 ; Avery v. case, 5 Rep. 21 b ; Htill ... Wright, E., Boden, 5 E. & B. 714 ; 6 E. & B. 953 ; 25 B. & E. 746 ; 27 L. J. Q. B. 145 ; 2 Wms. L. J. Q. B. 49 ; 26 L. J. Q. B. 3 ; The Saund. 420; Tasker v. Shepherd, 6 H. & Danube Railway Co. v. Xenos, 11 C. B. N. 575; 30 L. J. Ex. 207. [If the con- N. S. 152; 13 C. B. N. S. 825; 31 L. J. tract be for the performance Act of God C. P. 84, 284 ; Philpots v. Evans, 5 M. & of an act, which the party excuses W. 475. [See De Peyster v. Pulver, 3 promising to do it alone is ^11™*™ Barb. 284 ; Mill Dam Foundry v. Hovey, competent to perform, and he j," ""ment"' 21 Pick. 417, 444, 445; Smith v. Lewis, is prevented by the act of God forpCTSOTal 24 Conn, 624; S. C. 26 lb, 110; Haines from performing it, the obli- ■"="'"■ V. Tucker, 50 N, H. 311 ; Leeson v. No. gation is discharged. Knight v. Bean, 22 British Oil Co. Ir. R. 8 C. L. 309.] Maine, 531 ; Dickey v. Linscott, 20 lb. (!/) Smoot V. The United States, 15 4.53; Quain J. in Howell «. Coupland, L Wall. 36. {z) [See *°^-l rule does not prevail when the essential R. 9 Q. B. 467; post, § 570 a; Leitrim (z) [See HoUoway v. Griffith, 32 luwa, „. Stewart, Ir. R. 5 C. L. 27. This PART I.] CONDITIONS. 553 lor V. Caldwell (6) the whole law on this subject was reviewed by Blackburn J., who gave the unanimous decision of Tavioru. the court after advisement. It was an action for breach '^''^dweii. of a promise to give to the plaintiff the use of a certain music-hall for four specified days, and the defence was that the hall had been burnt down before the appointed days, so that it was impossible to fulfil the condition. This excuse was held valid. The learned trict V Dauchy. purpose of the contract may be accom- plished. Shepley J. in White v. Mann, 26 Maine, 361, 368. See Leonard v. Dyer, 26 Conn. 177, 179. In School DistrietNo. 1 V. Dauchy, 25 Conn. 530, 535, 536, it ap- SchoolDis- peared that a party agreed to build and complete a school- house by a certain time, and before that time arrived, and when he had nearly completed the building, it was de- stroyed by lightning, whereby alone he was prevented from performing his con- tract, which was absolute in its terms. This destruction of the building was held not to excuse the non-performance of the contract. Ellsworth J., who delivered the opinion of the court, said : " We believe the law is well settled that if a person promises absolutely, without exception or qualification, that a certain thing shall be done by a given time, or that a certain event shall take place, and the thing to be done, or the event to take place, is neither impossible nor unlawful at the time of the promise, he is bound by his promise, nnless the promise before that time be- comes unlawful. Any seeming departure from this principle of law (and there are some instances that, at first view, appear to be of this character) will be found, we think, to grow out of the mode of constru- ing the contract, or of affixing a condition, raised by implication from the nature of the subject, or from the situation of the parties, rather than from a denial of the principle itself. It is said, however, that there is one real exception to the rule, viz. where the act of God intervenes to de- feat the performance of the contract ; and that is the exception on which the defend- ant relies in this case. The defendant in- sists that where the thing contracted to be done becomes impossible by the act of God, the contract is discharged. This is altogether a mistake. The cases show no such exception, though there is some sem- blance of it in a single case, which we will mention. The act of God will excuse the not doing of a thing where Distinction the law had created the duty, between , ... , duty fixed but never where it is created by law and by the positive and absolute ^^ parties, contract of the party. The reason of this distinction is obvious. The law never creates or imposes upon any one a duty to perform what God forbids, or what He renders impossible of performance, but it allows people to enter into contracts, as they please, provided they do not violate the law." Shaw C. J. in Mill Dam Foun- dry w. Hovey, 21 Pick. 441. See per Storrs J. in Eyan u. Dayton, 25 Conn. 194; Adams v. Nichols, 19 Pick. 275 ; Boyle v. Agawam Canal Co. 22 lb. 381 ; Lord v. Wheeler, 1 Gray, 282; Phillips v. Ste- vens, 16 Mass. 238 ; Beebe v. Johnson, 19 Wend. 500 ; Kribs v. Jones, 44 Md. 396 ; Delaware &c. R. R. Co. u. Bowns, 58 N. Y. 573 ; Kemp u. Knickerbocker Ice Co. 69 lb. 45 ; Booth v. Spuyten Duyvil Roll- ing Mill Co. 60 lb. 487. In Harmony V. Bingham, 2 Kernan, 106, the same prin- ciple is laid down, that, " where a party engages unconditionally, by express con- tract, to do an act, performance is not ex- cused by inevitable accident, or other un- foreseen contingency, not within his con- trol." See Clark v. Franklin, 7 Leigh, 1 ; Wilson V. Knott, 3 Humph. 473 ; Brumby V. Smith, 3 Ala. N. S. 123 ; Wareham Bank v. Burt, 5 Allen, 112 ; M'Connell u. Kilgallon, 2 L. R. Ir. 119 ; Dewey v. Union Sch. Dist. 1 Am. L. Rev. N. S. 535.] (b) 3 B. & S. 826 ; 32 L. J. Q. B. 164. 554 PERFORMANCE OF THE CONTRACT. [BOOK IV. judge there stated as an example, that " where a contract of sale is made, amounting to a bargain and sale, transferring cused from presently the property in specific chattels, which are to goods'per- be delivered by the vendor at a future day, there, if the outhil"^ chattels without the fault of the vendor perish in the fault. interval, the purchaser must pay the price, and the ven- dor is excused from performing his contract to deliver, which has thus become impossible. That this is the rule of English law, is established by the case of Rugg v. ]Minet."(c) After some fur- ther illustrations, the rule was laid down as follows : " The prin- ciple seems to us to be, that in contracts in which the performance depends on the continued existence of a given p)erson or thing, a condition is implied, that the impossihilitij arising from the perish- ing of the person or thing shall excuse the performance.'" Qd) This case was followed in Appleby v. Meyers, in Gam. Scacc. (e) And Robinson i" Robinson V. Davison (e) the same principle was ap- V. Davison. p]jg(j ^q excuse the defendant, a lady, for breach of a promise to play upon the piano at a concert, when she was too ill to perform ; the court holding that the promise was upon the im- plied condition that she should be well enough to play. In Dexter V. Norton (47 N. Y. 62) it was held, upon the- authority of Tay- lor V. Caldwell, as well as upon the American cases, that in an Dexter v. executory agreement for the sale and delivery of speci- fied goods, the vendor is excused from performance, if American . . law. the goods perish without his fault, so as to render deUv- ery impossible. § 670 a. [The rule laid down in Taylor v. Caldwell was followed Howell r. hi Howell V. Coupland, L. R. 9 Q. B. ■4G2. In this case it Coupianci. appeared that the plaintiff and defendant, in the month of March, entered into an agreement, whereby the defendant agreed to sell, and the plaintiff to purchase, " 200 tons of regent potatoes grown on land belonging to the defendant in Whaplode, at the rate 31. 10s. Gd. per ton, to be delivered in September or (c) 11 East, 210. Scacc. L. R. 2 C. P. 651 ; 36 L. J. C. P. (d) [See note (^), /)os(,§ 571 ; Lovering 331. See, also, Boast i'. firth, L. R. 4 C. u. Buck Mountain Coal Co. 54 Punn. St. P. 1 ; Clifford u. Watts, L. R. 5 C. P. 291; Stewart u. Loring, 5 Allen, 306; 577; Wliincup u. Hughes, L. R. 6 C. P. Tilt V. Silverthorne, 11 U. C. Q. B. 619.] 78 ; Robinson l: Davison, L. R. 6 Ex. (e) Apjileby c. Meyers, L. R. 1 C. P. 269 ; [Spalding v. Rosa, 71 N. Y. 40.] 615 ; 35 L. J. C. P. 295, reversed in Cam. PART I.] CONDITIONS. 555 October, and paid for as taken away." At the time of the agree- ment the defendant had sixty-eight acres ready for potatoes, twenty-five acres having been already sown, the other forty-three acres being afterwards sown ; and the acreage was amply sufficient to grow more than 200 tons in an average year. In July the crop promised well ; but in August the potato blight appeared, and the crop failed, so that the defendant was able to deliver only 80 tons. The plaintiff brought an action for the non-de- livery of the other 120 tons. It was held that the contract was for a portion of a specific crop, and was witliin the principle of Taylor v. Caldwell, and the contract must be taken to be sub- ject to the implied condition that the parties shall be excused if, before breach, performance becomes impossible from the perish- ing of the thing without default in the contractor. This decision was affirmed on appeal, 1 Q. B. Div. 258. In Russell v. Levy, 2 Low. Can. 457, the court went even farther than the EasseU court of queen's bench in England. The action was for "• ^^^■''' recovery of money paid in advance upon the contract, and for damages for the non-delivery of certain timber. Levy was to pay Lowndes a certain sum per foot for the timber, the timber to be collected from the country north of Quebec, and piled on wharves of Lowndes at Quebec, and to be delivered as required by Levy. While so piled on Lowndes' wharf, and before the property had passed to Levy, the timber was burned. The court held that Levy might recover his money back, but as to damages for non-deliv- ery Sir James Stuart, Baronet, C. J. said : . . . " The sale was not a sale of birch timber generally, but of a specific determined quality of timber, to be collected north of Quebec, to be piled on a wharf during the winter, measured and delivered according to contract ; and it having been destroyed by fire it could not be replaced by any other description of timber. Now this timber was destroyed by vis major, without any fault or neglect on part of Lowndes, who was thereby prevented from fulfilling his con- tract, and in such case no liability attaches by law upon the party for damages by reason of the non-execution of the con- tract."] § 571. And a party is equally excused from the performance of his promise ■ when a legal impossibility/ supervenes. Legal im- If, after promise made, an act of parliament is passed P°*^' ' "^'' rendering the performance illegal, the promise is at an end, and 556 PERFORMANCE OF THE CONTRACT. [book IV. the obligor no longer bound. (/) But if the thing promised Thing be possible in itself, it is no excuse that the promisor rtsei^'^ '° became unable to perform it by causes beyond his own control, for it was his own fault to run the risk of undertaking unconditionally to fulfil a promise, when lie might have guarded himself by the terms of his contract. (^) Thus, in Kearon v. Kearon v. Pearson, (K) the defendant undertook to deliver a cargo Pearson. q£ coals on board of a vessel with the usual dispatch. The defendant commenced the delivery, but a sudden frost occurred, so that no more coal could be brought from the colliery by the "flats" navigating the canal. The delivery was thus delayed about thirty days, and the court was unanimous in holding that Barker v. the defendant was not excused from performing his Hodgson, promise. So in Barker v. Hodgson, (J) the defendant at- tempted to excuse himself for not furnishing a cargo in a foreign (/) Brewster v. Kitchell, 1 Salk. 198 ; Davis f. Cary, 15 Q. B. 418; Doe v. Hugely, 6 Q. B. 107 ; Wynn u. Shrop. Un. Railway & Canal Co. 5 Ex. 420; Brown v. Mayor of London, 9 C. B. N. S. 726, and 31 L. J. C. P. 280; and see the whole subject elaborately discussed in the decision of the queen's bench, delivered by Hannen J. in Baily v. De Crespigny, L. R. 4 Q. B. 180; [Clancy r. Overman, 1 Dev. & Bat. 402; Stone i). Dennis, 3 Porter, 231 ; Jones tj. Judd, 4 Comst. 412 ; Brick Pres. Church v. New York, 5 Cowen, 538; Baylies v. Fcftyplace, 7 Mass. 325; Amer. Jur. Oct. 1833, art. iii. p. 251.1 (g) [Wareham Bank v, Burt, 5 Allen, 113 ; Eddy y. Clement, 38 Vt. 486; Lloyd !>. Guibert, L. R. 1 Q, B. 121 ; Wells v. Calnan, 107 Mass. 514; Levering v. Buck M. Coal Co. 54 Penn. St. 291 ; Oakley v. Morton, 1 Kernan, 25; Harmony v. Bing- ham, 2 lb. 107, 108; School Dist. No. 1 v. Dauchy, 25 Conn. 530 ; Ryan v. Dayton, lb. 194; Lord u. Wheeler, 1 Gray, 282; Davis V. Smith, 15 Mo. 467; Huling v. Ctaig, Addis. (Penn.) 342; Goddard ^. Bebout, 40 Ind. 114; Thomas v. Know I es, 128 Mass. 22. It is not a valid excuse for In agriii'- DO' performing an agreement ment to sell j^ deliver goods of a certain gooda not ° specific, quality, that goods of that kind were not to be had at the no excuse particular season when the oftoft'kind contract was to be executed, cannot be Youqua v. Nixon, 1 Peters C. C. 221 ; Gilpins v. Consequa, lb. 91. As to the effect of the death, sickness, or other inability of the party for whom or by whom labor is to be perfonned in ex- cusing performance, see Alexander u. Smith, 4 Dev. 364; Fuller ...Brown, II Met. 440; Knight v. Bean, 22 Me. 531, 536 ; Dickey v. Linscott, 20 lb. 453 ; Lakeman v. Pollard, 43 lb. 463 ; Ryan ». Dayton, 25 Conn. 188; Hubbard v. Bel- den, 27 Vt. 645 ; Ryan u. Dayton, 25 Conn. 188 ; Willington v. West Boylston, 4 Pick. 101 ; Stewart v. Loring, 5 Allen, 306 ; Farrow v. Wilson, L. R. 4 C. P. 744 ; Yerrington v. Greene, 7 R. I. 589 ; Hughes w. Wamsutta Mills, 11 Allen, 201 ; Wolfe V. Howes, 20 N. Y. 197 ; Green v. Gilbert, 21 Wis. 395. But a mere naked promise to return in good order, and at a specified time, a thing hired, does not, as matter of law, import a contract on the part of the hirer to insure it against loss accruing without his fault. Field a. Bracket!, 56 Me. 121.] (h) 7 H. &N. 386; 31 L. J. Ex. 1. (0 3 M. & S. 267 ; but see Ford d. Cotesworth, L. R. 4 Q. B. 127 ; 5 Q. B. 544, in error. PART I.] CONDITIONS. 557 port, on the ground that a pestilence broke out in the port, and all communication between the vessel and the shore was interdicted by the authorities, so that it was unlawful and impracticable to send the cargo on board, and Lord EUenborough said : " Perhaps it is too much to say that the freighter was compellable to load his cargo ; but if he was unable to do the thing, is he not answer- able upon his covenant ? .... If, indeed, the performance of this contract had been rendered unlawful by the government of this country, the contract would have been dissolved on both sides ; and this defendant, inasmuch as he had been thus compelled to abandon his contract, would have been excused for the non-per- formance of it, and not liable to damages. But if, in consequence of events which happen at a foreign port, the freighter is prevented from furnishing a loading there, which he has contracted to fur- nish, the contract is neither dissolved, nor is he excused for not performing it, but must answer in damages." (Jc) So, in Kirk«. Kirk V. Gibbs, (V) the charterers of a vessel agreed to ^''^''^• furnish to the captain, at Pisco, in Peru, the pass necessary to enable him to load a cargo of guano " free of expense, within twenty-four hours of his application." The charterers having loaded an insufficient cargo, pleaded in an action against them for this breach of the charter-party, that by the laws of the republic of Peru no guano could be loaded without a pass from the govern- ment, and that on inspection of the vessel the government refused a pass, and that on the plaintiff's repairing the vessel, a pass was granted for only a limited quantity, which was loaded, and that no more could be loaded without exposing both vessel and cargo to seizure. On demurrer, this plea was held bad. But the insuffi- ciency of the plea consisted in this, that it did not allege that the owners of the vessel were in default, or that the vessel was not really fit to carry a full cargo, but only that the government officers refused the permit ; and the charterer had made an abso- lute promise to furnish one, from which nothing could excuse him unless hindered by some act or default of the other party. § 572. There are two old cases in which the vendors took advantage of the' buyers' ignorance of arithmetic to impose on them conditions practically impossible. In Thornborow Thom- V. Whitacre (jri) the declaration was in case, and alleged whitacre. (h) [See Knowles v. Dabney, 105 Mass. (I) 1 H. & N. 810 ; 26 L, J. Ex. 209. 437, 442.1 1 (™) 2 ^°^^ Eaym. 1164. 558 PERFORMANCE OF THE CONTRACT. [BOOK IV. that the defendant, in consideration of 2s. 6c?. paid, and of 4Z. lis. 6d. promised to be paid on the defendant's performance, agreed to dehver to the plaintiff two grains of rye-corn on the following JNIonday, four grains on the Monday after, eight grains on the Monday after " et progressu sic deliberaret qnolibet alio die Lunae successive infra nnum annum ab eodeni 29 Martii bis tot grana Secalis quot die Lunse proximo prascedente respective deliberanda forent." The defendant demurred on the ground that the per- formance was impossible, Salkeld saying all the rye in the world would not make so much, and arguing that there were three im- possibilities that would excuse an obligor, impossibilitas legis, as a promise to murder a man ; impossibilitas rei, as a promise to do a thing in its own nature impossible; and impossihilitas facti, where though the thing was possible in nature, yet man could not do it, as to touch the heavens, or to go to Rome in a day. But Holt C. J. said that impos^blUtas rei et fucti were all one: that the defendant's promise was only impossible with respect to his inability to perform it, and that the words quoUbet alio die Lunce must be construed as if written in English, every other Monday, i. e. every next Monday but one, which would bring the obligation much nearer the defendant's ability to perform it. Af- ter some further argument, Salkeld, perceiving the opinion of the court to be adverse to the defendant, offered the plaintiff to return the half-crown and give him his costs, which was accepted, and no James V. judgment was delivered. The reporter says that in argu- lorgan- jj^g ^j^jg case, the old case of James v. Morgan (w) was remembered. The report is so concise that it is given entire. " K. B. Mich. 15 Car. 2. Assumpsit to pay for a horse a barley- corn a nail, doubling it every nail : and avers that there were thirty-two nails in the shoes of the horse, which, being doubled every nail, came to -iOO quarters of barley : and on non-assumpsit pleaded, the cause being tried before Hyde, at Hereford, he di- rected the jury to give the value of the horse in damages ; and so they did, and it was afterwards moved in arrest of judgment, (o) for a small fault in the declaration, which was overruled, and judg- ment given for the plaintiff." The Hyde here mentioned was not the well-known Sir Nicholas Hyde, temp. Charles I., but Sir Robert Hyde, the chief justice, who had just been placed on the bench, and only remained in office two years (Foss' Tab. Cur. 66). The (n) 1 Levinz, Ul. (o) 1 Keble, 569. PART I.] CONDITIONS. 559 ground of his decision nowhere appears. For further authorities upon this subject of impossible conditions, the reader is referred to the cases in the note, (p) § 573. A strong illustration of the rigor of the rule by which parties are bound to the performance of a promise deliberately made is furnished by the case of Jones v. St. John's Col- Jones i>. •' _ St. John's lege, (§') where a builder had contracted to do certain College. works by a specified time, as well as any alterations ordered by named persons within the same time, and the plaintiff attempted to excuse himself for delay by averring that the alterations or- dered were such, and the orders given for them were received at so late a time, that it was impossible for him to complete them within the period specified in the contract, as the defendant well knew when he gave the order ; but the court held that if he chose to bind himself by his promise to do, unconditionally, a thing which he could not possibly perform, under a penalty for not doing it, he was bound by the bargain and liable to the penalties stipulated for the breach of it. § 574. The conditions most frequently occurring in contracts of sale will now be considered. It is not uncommon to Sale de- make the performance of a sale dependent on an act to an"act"to'"' be done by a third person. Such conditions must be |'hi£}""' ^^ complied with before rights dependent on them can be son. enforced, (g^) and if the third party refuse, even unreasonably, to perform the act, this will not dispense with it. Thus, Brogden ». in Brogden v. Marriott, (r) the vendor sold a horse for *^'"'"'"t- one shilling cash, and a further payment of 2001., provided the horse should trot eighteen miles within one hour, the task to be performed within one month, and " J. N. to be the judge of the performance." It was held to be no defence to the buyer's action for the delivery of the horse that J. N. refused to be present at the trial, and Tindal C. J. said it was a " condition which the de- {p} Reid V. Hoskins, 6 E. & B. 953; 26 and 4 T. R. 94, in error; Jervis v. Tom- L. J. Q. B. 5 ; Eposito v. Bowden, 4 E. & kinson, 1 H. & N. 19.^ ; 26 L. J. Ex. 41 ; B. 963 ; 7 E. & B. 763; 27 L. J. Q. B. 17 ; Paradine v. Jane, Aleyn, 27 ; Cliitty on Pole V. Cetcovitch, 9 C. B. N. S. 430 ; 30 Cent. 646; Leake on Cont. c. iii. s. HI ; L. J. C. P. 102 ; Mayor of Berwick v. 0,s- Broom's Leg. Max. 245. wald, 3 E. & B. 665, and 5 H. L. Cas. (?) L. R. 6 Q. B. 115. 856; Atkinson v. Ritchie, 10 East, 530; (?') [Aitcheson i;. Cook, 37 U. C. Q. B. Adams u. Royal Mail Company, 5 C. B. 490 ; Read v. Decker, 67 N. Y. 182.] N. S. 492 ; Mills v. Auriol, 1 H. BI. 433, (r) 2 Bing. N. C. 473. 560 PEEFOEMANCE OF THE CONTEACT. [BOOK IV. fendanfc should have shown to have been performed, or that the Thurneii v. performance vs^as prevented by the fault of the opposite Baibirnie. party." So, in Thurnell v. Balbirnie (.s) the declaration averred an agreement that defendant should purchase the plain- tiff's goods " at a valuation to be made by certain persons, viz. Mr. Newton and Mr. Matthews, or their umpire," the former in behalf of the plaintiff, and the latter in behalf of the defend- ant : that Newton was ready and willing to value the goods, and that the) defendant and Matthews, though notified and requested to proceed with the valuation, and to meet Newton for that pur- pose, continually neglected and refused to do so ; and that the defendant was notified that Newton would meet Matthews or any other person whom the defendant might nominate for the pur- piose of snaking the valuation, but the defendant wholly neg- lected, &c. To this declaration there was a special demurrer, for want of an allegation that the defendant hindered or pre- vented Matthews from making the valuation, and the demurrer was sustained. § 575. On the same principle it has been held, in other con- The party tracts On Conditions of this kind, that the party who must*^show^ claims must show the performance of the condition on perform- which his claim depends, or that the opposite party pre- condition, vented or waived the performance. On an agreement to do work which is to be settled for according to the measure- ment of a named person, the measurement by that person is a condition precedent to the claim for payment ; (f) on an insurance where the claim for payment was made to depend on a certificate from the minister of the parish, that the insured was of good character, and his claim for loss bond fide, it was held that the insured could not recover without the certificate, even though the minister unreasonably refused to give it : (m) and where building work was to be paid for on a certificate in writing by an archi- tect, that he approved the work, no recovery could be had until the certificate was given, (a;) (s) 2 M. & W. 786. Richardson v. Mahon, 4 L. K. Ir. 486;] (0 Mills u. Bayley, 2 H. & C. 36 ; 32 Morgan v. Birnie, 9 Bing. 672 ; Clarke v. L. J. Ex. 179. Watson, 18 C. B. N. S. 278; 34 L. J. C. (u) Worslcy v. Wood, 6 T. R. 720, P. 148 ; Roberts v. Watkins, 14 C. B. N, {x) [Ferguson v. Corp. of the Town of S. 592 ; 32 L. J. C. P. 291 ; Goodyear v. Gait, 23 U. C. C. P. 66 ; De Cew v. Clark, Mayor of Weymouth, 35 L. J. C. P. 12, 19 lb. 155; Lull v. Korf, 84 111. 225; PART I.] CONDITIONS. 561 § 576. If the performance of the condition for a valuation be rendered impossible by the act of the vendee, the price of the thing sold must be fixed by the jury on a quan- dition ren- tum valebat, as in Clarke v. Westrope, («/) where the possible by- outgoing tenant sold the straw on a farm to the incomer vendor' at a valuation to be made by two different persons, but toto™' pending the valuation the buyer consumed the straw. lalebaL In like manner, where an employer colluded with an ciarke v. architect, upon whose certificate the builder's claim for ^<^s'''<'P«- payment depended, so that the builder was prevented from getting the certificate, a declaration setting forth that fact in terms suffi- cient to aver fraud was held maintainable by all the barons of the exchequer. (2) § 577. The condition on which a sale depends may be the hap- pening of some event, and then the question arises as to g^^j^ ^^_ the duty of the obligee to give notice that the event happem'na" has happened. As a general rule, a man who binds of event. himself to do anything on the happening of a particular °,"'y '" •J ^'^ _ ° ^ give notice. event is bound to take notice, at his own peril, and to Qg^g^^i comply with his promise when the event happens, (a) luieofiaw. But there are cases in which, from the very nature of the trans- action, the party bound on a condition of this sort is entitled to notice from the other of the happening of the event on which the liability depends. Thus, in Haule v. Hemyng (6) it was Hauie v. held that the vendor, who had sold certain weys of bar- H<='"y°s- ley, to be paid for at as much as he should sell for to any other man, could not maintain an action against the purchaser before giving him notice of the price at which he had sold to others, the reason being that the persons to whom the plaintiff might sell were perfectly indefinite, and at his own option. But no notice is necessary where the particular person whose action is made a condition of the bargain is named, as if in Hauie v. Hemyng the bargain had been that the purchaser would pay as much as the iy) 18 C. B. 765; 25 L. J. C. P. 287. opinion delivered by Parke B. in Vysa (z) Batterburyv. Vyse, 2 H. & C. 42; 0. Wakefield, from which the doctrine in 32 L. J. Ex. 177; [De Cew u. Clark, 19 the text is chiefly extracted. [Stinson u. U. C. C. P. 155.] Branigan, 10 U. C. Q. B. 210; Russell v. (a) 2 Wms. Saunders, 62 a, note (4). Eowe, 7 lb. 484; Mckerson v. Gardiner, 12 (b) Cited in 6 M. & W. 454, in the lb. 219; Robertson v. Hayes, 15 lb. 293.] 36 562 PERFORMANCE OF THE CONTRACT. [BOOK IV. vendor should get for the barley from .T. S., (e) for the party bound in this event is sufficiently notified by the terms of his con- tract that a sale is or will be made for J. S., and agrees to take notice of it ; there is a particular individual specified, and no op- True teat tion to be exercised by the vendor. And it seems that of the ne- ^|^- jg ^.|-,g ^,.yg ^ggf yi^. that if the obligee has reserved cesRity 01 _ ^ ^ ° notice". any option to himself, by which he can control the event on which the duty of the obligor depends, then he must give no- tice of his own act before he can call upon the obligor to comply Tj-seB. with his engagement, (e^) Therefore, in Vyse v. Wake- Wakefieid. ^^i^^ (^^^ where the defendant had covenanted to ap- pear at any time or times thereafter, at an office or offices for the insurance of lives within London, or the bills of mortality, and answer such questions as might be asked respecting bis age, &c. in order to enable the plaintiff to insure his life, and would not afterivards do anij act to prejudice the insurance, the declaration alleged that the defendant did, in part performance of his covenant, appear at a certain insurance office, and that plaintiff insured the defendant's life, and that the policy contained a proviso by which it was to become void if the defendant went beyond the limits of Europe. Breach : that the defendant went beyond the limits of Europe, to wit, to Canada. Special demurrer, for want of averment that the plaintiff had given notice to the defendant that he had effected an insurance on the life of the defendant, and that the policy contained the proviso alleged in the declaration. Held that the declaration was bad. (<») (c) Viner's Ab. Condition, A, d, pi. But where the matter lies as much within 15. the cognizance of the one party as the (ci) [De Mill V. Hartford Ins. Co. 4 other, notice is not necessary. When, Allen (X. B.), 341, 351.] however, notice is necessary, cither by the (d) 6 Jl.&W. 442. See Makin y. Wat- terms or nature of the contract, it is of kinson, L. R. 6 Ex. 25 ; Stanton v. Aus- the gist of the action, and must be spe- tin, L. R. 7 C. P. 651 ; Sutherland v. All- cially averred in the declaration, for wilh- husen, 14 L. T. N. S. 6G6 ; Armitage v. out such averment no complete right of Insole, 14 Q. B. 728 ; 19 L. J. Q. B. 202. action can appear." See Lent v. Padel- (e) [In Watson v. Walker, 23 N. H. ford, 10 Mass. 230, 235 ; Clough v. Hoff- 471, 4<.il, Eastman J. said : " In relation man, 5 Wend. 500 ; Tasker v. Bartlett, 5 to notice, the rule is, that whenever the Cush. 359, 364, where Mr. Justice WiUe fact, upon which the defendant's liability says it is a well known principle, " that is incurred, lies peculiarly where one party has knowledge of a ma must be within the knowledge and terial fact, not known to the other party, pllintiffand pri^'ty of the plaintiff, notice he is bound to give notice." Where a ■when thereof must be stated to have contract is to be performed " upon no- been given to the defendant, tice,'' it is necessary to give such notice. PART I.] CONDITIONS. 663 § 578. A very frequent contract among merchants is a sale of goods " to arrive." It is not always easy to deter- Sale of mine whether the language used in such cases implies f^rjve."'" a condition or not, or what the real condition is. The earlier cases were at nisi prius, but in recent times these con- Boyd ». tracts have been multiplied to a great extent. In Boyd ^'*^'"- V. SifEkin (/) the sale was of " thirty-two tons, more or less, of Riga Rhine hemp on arrival per Fanny and JElmira," &c. and the vessel arrived, but without the hemp. Held that the sale was conditional on the arrival, not of the vessel but of the hemp. And the same conclusion was adopted by the court in Hawes v. Humble, (g^ where the sale was thus expressed : " I Hawes v. have this day sold for and by your order on arrival 100 tumble, tons," &c. In Idle v. Thornton (A) the contract was xhomton. for " 200 casks first sort yellow candle tallow, at 68s. per cwt. on arrival : if it should not arrive on or before the 31st December next, the bargain to be void : to be taken from the king's landing scale, &c. ex Catherina, Evers." The vessel with the tallow on board was wrecked ofE Montrose, but the greater part of the tal- low was saved, and might have been forwarded to London by the 31st December, but was not so forwarded, and was sold at Leith. Lord Ellenborough held that the contract was conditional on the arrival of the tallow in London in the ordinary course of navigation, and that the vendor was not bound, after the shipwreck, to for- ward it to London : at all events, not without a request and oiler of indemnity by the purchaser. In Lovatt v. Hamil» Lovatt v. ton (i) the contract was, " We have sold you fifty tons Hamilton, of palm oil, to arrive per Mansfield, &c. In case of non-arrival, As where it was agreed between the plain- deliver the flour. Quarles v. George, 23 tiff and defendant, that the defendant Pick. 400. So if a person has contracted should deliver to the plaintiff one thou- to do a thing on demand or on notice, he sand barrels of flour, at a certain rate per will be entitled to a reasonable time in barrel, at any time within six months from which to do the thing, after a demand the date of the contract, and give him six made or notice given. See Baker v. Mair, days' notice prior to the time of such de- 12 Mass. 121 ; Newcomb v. Brackett, 16 livery, and that the plaintifi' should pay lb. 161 ; Eames u. Savage, 14 lb. 425. the stipulated price therefor on delivery. See Topping ■«. Root, 5 Cowen, 404 ; Wat- It was held, in an action by the plaintiff son v. Gorren, 6 U. C. Q. B. 542.] against the defendant for not delivering (/) 2 Camp. 326. the flour within the six months, that under (g) 2 Camp. 327, n. ; [Shields y. Pettee, the provisions of the contract it was in- 2 Sandf. 262. J cumbent on the defendant to do the first (A) 3 Camp. 274. act, by giving notice of his readiness to (i) 5 M. & W. 639. 564 PERFORMANCE OF THE CONTRACT. [BOOK IV. or the vessel's not having so much in, after delivery of former contracts, this contract to be void." During the voyage a part of the cargo of the Mansfield was transshipped by an agent of the vendors into another vessel belonging to the vendors, but without their knowledge, and the oil arrived safely on that vessel. The Mansfield also arrived safely. The question was whether the arrival of the oil in the Mansfield was a condition precedent to buyer's right to claim the delivery, and the court, without hearing the vendors' counsel, held the affirmative to be quite clear, (/c) S 579. In Alewyn v. Pryor (J) the sale was of " all the oil on Aiewyn board the Thomas . ... on arrival in Great Britain : V. Pryor. ^^ j^g delivered by sellers on a wharf in Great Britain to be appointed by the buyers, with all convenient speed, but not to exceed the SOth day of June next" &c. The vessel did not arrive till the 4th July, and the purchaser refused to take the oil. Held that the arrival ly the 30iA June was a condition precedent, and Johnson v. not a Warranty by the seller. In Johnson v. Macdon- jVTflccioii" aid. aid (m) the sale was of 100 tons of nitrate of soda, " to arrive ex Daniel Grant," and there was a memorandum at foot, " should the vessel be lost, this contract to be void." The vessel arrived without any nitrate of soda, and it was strenuously con- tended that the expression " to arrive," when coupled with the stipulation in the memorandum, showed the meaning to be an undertaking by the vendor that the soda should arrive, and that he would deliver it if the vessel arrived safely. But all the judges were of opinion that there was a double condition precedent, and that the contract was to take effect only if the vessel arrived, and if on arrival the soda was on board. § 580. In Gorrisen v. Perrin (w) the sale was of " 1,170 bales Gorriseni). °^ gambler, now on passage from Singapore, and ex- Perrm. pected to arrive in London, viz. per Mavenscraig 805 (t) [See Shields w. Pettee, 2 Sandf. 262. 173. On a sale " to arriye," the title does A lot of scrap iron was sold, to arrive by not pass until the goods arrive and are de- the Christopher. In fact it arrived by the livered ; the sale is, in its nature, execu- St. Christopher. It was held that without tory. Benedict u. Fields, 16 N, Y. 597; showing that there was in facta misun- Reimers k. Eidner, 2 Rob. 11; Neldon o. derstanding as to the vessel, and that the Smith, 7 Vroom (N. J.), 148, 154.] misnomer waa of some consequence, the (/) Ey. & M. 406. vendee was not justified in refusing to re- (m) 9 M. & W. 600. ceive the goods. Smith u. Pettee, 70 N. (n) 2 C. B. N. S. 681 ; 27 L. J. C. Y. 13. As to when a vessel has " arrived " P. 29. see Montgomery v. Middleton, 13 Ir. C. L. PART I.] CONDITIONS. 665 bales, per Lady Agnes Buff 365 bales." Both vessels arrived with the specific number of packages, but it was proven that the contents were far short of the agreed number of hales, the latter word meaning in the trade a compressed package of two hundred weight. There was also on board the vessels a quantity of gambler consigned to other parties, sufficient to make up the whole quan- tity sold. The plaintiii, who had bought the goods, claimed in two counts : the first, on the theory that the words of the con- tract imported a warranty that there were 1,170 hales actually on the passage ; the second count, on the theory that even if it was a double condition precedent that the vessels should arrive with that quantity on board, the condition had been fulfilled, although part of the goods belonged to third persons and not to the vendor. The court held, on the first count, that the language of the con- tract was plainly an absolute assurance, a warranty, that the goods were on the passage. On the second point, which was not nec- essary to the decision, the court, reviewing Fischel v. y\si the plaintiff 667 tons of iron, to be shipped from Swe- Reniie- den, in about equal portions, in each of the months of June, July, August, and September. The plaintiff shipped only twenty-one tons in June, which the defendant refused to accept as part com- pliance with the contract, and it was held that the delivery at the time specified was a condition precedent, and that plaintiff could not on these facts maintain an action against the defend- ant for not accepting, (r') But this case has been much ques- tioned, particularly in Simpson v. Crippin, infra. In Jonassohn V. Young (s) the agreement was for a supply of coal by jonassohn the plaintiff to the defendant, as much as one steam "■ Young, vessel could convey in nine months, plying between Sunderland and London, the coals to be equal to a previous cargo supplied on trial, and the defendant to send the steamer for them. In an action for breach of this agreement, the defendant, among other defences, pleaded that the plaintiff had first broken the contract by detaining the vessel on divers occasions an unreasonable time, far beyond that permitted by the contract, before loading her, (9I) [Leonard v. "Wall, 5 tJ. C. C. P. 9.] Shand v. Bowes, 1 Q. B. Div. 470 ; Bowes (r) 5 H. & N. 19 ; 29 L. J. Ex. 73. v. Shand, 2 App. Cas. 455 ; Shand v. (ri) [Rouse v. Lewis, 4 Abb. (N. Y.) Bowes, 2 Q. B. D. 112; The Elting Wool- App. Dec. 121 ; Bloomer v. Bernstein, L. len Co. u. Martin, 5 Daly, 417.] E. 9 C. P. 588 ; Preeth v. Burr, lb. 208 ; (s) 4 B. & S. 296 ; 32 L. J. Q. B. 385. 580 PERFORMANCE OF THE CONTRACT. [BOOK IV. •wherefore the defendant immediately, on notice of the plaintiff's default, refused to go on with the execution of the contract. A demurrer to this plea was held good. In Simpson v. Crippin (t) the defendants had agreed to supply the plaintiff with Simpson =" . . V. Crippin. g^QOO to 8,000 tons of coal, to be delivered in the plain- tiff's wagons at the defendants' colliery, " in equal monthly quan- tities during the period of twelve months from the first July next." During the first month, July, the plaintiff sent wagons for 158 tons only, and on the 1st August, the defendants wrote that the contract was cancelled on account of tlie plaintiff's fail- ure to send for the full monthly quantity in the preceding month. The plaintiff refused to allow the contract to be cancelled, and the action was brought on the defendants' refusal to go on with it. Held that although the plaintiff had committed a breach of the contract by failing to send wagons in siifiicient number the first month, the breach was a good ground for compensation, but did not justify the defendant in rescinding the contract, under the rule established by Pordage v. Cole, (m) Two of the judges (Blackburn and Lush) declared that they could not understand Hoare v. Rennie, and declined to follow it. (x) § 591:. In a sale of goods by sample, it is a condition inaplied by law that the buyer shall have a fair opportunity of sample is comparing the bulk with the sample, and an improper tiiat buyer rcfusal by the vendor to allow this is a breach which a'fair'op^^ justifies the purchaser in rejecting the contract. In portunity Lorymcr v. Smith Cm) the purchaser asked to look at to compare J voives con- quantity consumed was more than necessary for trial, sumption for if so, the sale will have become absolute by the ap- tried. proval implied from thus accepting a part of the goods. (5) This was ruled by Parke B. in Elliott v. Thomas (c) and approved by the court in banc, in that case, as well as by Martin and Bramwell BE. in Lucy v. Mouflet. (c?) In Okell v. Question Smith (e) Bayley J. also held, that where certain cop- ^™i"-^' '^^ per pans had been used five or six times by the defend- ■"<"'"^''^* ■ Bicester and Duke of Grafton hounds," and learned after retain of a the sale that this was not true. A condition of the sale ^'"'*|"u'?' iurect wnile was, " horses not answering the description must be re- 'n posses- ,11 TTT 1 1 • ^''^" ^^ turned before five o clock on Wednesday evenmg next, buyer, otherwise the purchaser shall be obliged to keep the lot with all faults." Although the plaintiff had heard of the above stated misdescription, he took away the horse on trial, as he did not buy it for hunting, and the horse, while on its way to the plain- tiff's premises, in charge of the plaintiff's servant, took fright and seriously injured itself by running against the splinter-bar of a carriage. The plaintiff returned the horse before five o'clock on Wednesday evening, and the action was brought to recover back the price paid to the auctioneer. The jury found that the injury to the horse was not caused by any default of plaintiff. Held that (m) [See Blood u. Palmer, 2 Fairf.' 105 Mass. 237; Nutter w. Wheeler, 2 Low. 414; Eldridge v. Benson, 7 Cush. 483; 346; In re Linforth, 4 Sawyer Circ. Ct. Meldrum v. Snow, 9 Pick. 441 ; Sutton v. 370 ; ante, § 2, note (t).] Crosby, .54 Barb. 80 ; Walker t). Butterick, (n) L. E. 7 Ex. 7. 586 PERFORMANCE OF THE CONTRACT. [BOOK IV. the injury to the horse did not deprive the plaintiff of the right of return, and that the special contract in the case made it an ex- ception to the general rule, that a contract of sale cannot be re- scinded if the party claiming the rescission has altered the condi- tion of the thing sold, (o) § 599 a. [In the recent case of Hinchcliffe v. Barwick 5 Ex. Hinch- Diy. 177, the plaintiff bought a horse of the defendant Barwick. at public auction, subject to the following condition : " Horses warranted quiet in harness, or quiet to ride, or good workers, or in any other respect, not answering such warranty Conditions must be returned before five o'clock the day after the oTiiorse" ®^^®' shall then be tried by a competent person to be not an- appointed by the proprietors of the establishment, and swenng ^ ^ ./ i i warranty, the decision of such person shall be final." The plain- tiff did not return the horse, which was warranted to be a good worker, within the stipulated time. In an action on the war- ranty, it was held that the plaintiff's only remedy was under the condition, and that he could not maintain his action on the war- ranty. Thesiger L. J. said : " It is well established at law that, where a warranty has been given, the only remedy, if the horse prove unsound, is an action for breach of warranty. A buyer cannot return the horse unless there is some special bargain between the parties. But at public sales by auction at a reposi- tory, sales are made between parties unknown to one another, and it is an object at such sales that the dealings should be carried out in such a way as to insure as little litigation as possible. The mode in which this object is carried out at all horse repositories is, that where a warranty is given, which is not complied with, the horse is to be returned within a certain time The con- sequence of this mode of dealing is that few disputes occur. Bear- ing in mind this practical view of the matter, what have these parties agreed to ? The condition is one framed by the auction- eer as the condition on which one man buys and another sells — the buyer and seller stand on equal terms within it. The words are not clear, but they are sufficiently intelligible. They do not say that the horse may, but that he must be returned within a certain time ; he iliall be tried by a person to be ap- pointed by the auctioneer, whose decision shall be final. I think that these words mean that the purchaser agrees that the re- (o) [See Hunt v. Wyman, 100 Mass. 198.] PART I.] CONDITIONS. 587 turn of the horse in the manner provided for is his only remedy." (o')] § 600. When the vendor sells an article by a particular descrip- tion, it is a condition precedent to his right of action Saieby that the thing which he offers to deliver, or has deliv- fnfofe""" ered, should answer the description. Lord Abinger pro- condition . . ^ o 1 precedent. tested against the confusion which arises from the prev- alent habit of treating such cases as warranty, saying : tion is not " A good deal of confusion has arisen in many of the but condi- cases upon this subject, from the unfortunate use made *'""■ of the word warranty. Two things have been confounded to- gether. A warranty is an express or implied statement of some thing which a party undertakes shall be part of a contract, and though part of the contract, collateral to the express object of it. But in many of the cases, the circumstance of a party selling a particular thing by its proper description has been called a war- ranty, and the breach of such a contract a breach of warranty ; {p} (o^) [In the Solicitors' Journal and Re- porter for Oct. 23, 1880, in an article on Conditions for Return of Horses, the writer says, in speaking of Hinchcliffe v. Barwick, supra : " It is not necessarily an authority for the proposition that a mere condition that any horse not answering to a war- ranty must be returned before a specified time, will, in case the horse Is not returned before that time, have the effect of shutting out the purchaser's remedy by an action for breach of warranty. Such a condition may perhaps be held to amount to a lim- itation of the time for objections to the horse on the ground that it does not an- swer to the warranty ; in which case, as Mr. Justice Littledale said in Eywater v. Richardson, 1 A. & E. .508, it is, ' as if the vendor had said " after so many hours or days I do not warrant." ' But unless the warranty is held to be thus limited, it is difficult to see how a mere provision that any horse not answering to warranty must be returned within a certain time can be held to restrict the remedy of the purchaser for breach of warranty to that one mode of redress. To hold that an unlimited specific warranty given with a horse may be cut down by ambiguous general expressions with conditions of sale to a warranty for only a very limited time, is to afford direct encouragement to un- fair practice." See Lewis u. Hubbard, 1 Lea (Tenn.), 436 ; Marshall v. Perry, 67 Me. 78; post, § 900, note (u).] {p) [In Hogins v. Plympton, 11 Pick. 99, 100, Shaw C. J. said: "There is no doubt that, in a contract of sale, words of description are held to con- American stitute a warranty, that the tS'wordf articles sold are of the species of descrip- , ,.^ , ..1). tion in a sale and quality so described." constitute a See, also. Lamb v. Crafts, 12 warranty. Met. 355; Bradford v. Manly, 13 Mass. 139; Hastings v. Levering, 2 Pick. 214; Morrill u. Wallace, 9 N. H. 114, 115; Winsor v. Lombard, 18 Pick. 60; Wolcott V. Mount, 7 Vroom, 262, 266; S. C. 9 Vroom (38 N. J. Law), 496; Bunnell v. Whitlaw, 14 U. C. Q. B. 241; Poos v. Sabin, 84 111. 564 ; Bryant u. Sears, 49 Iowa, 373 ; Baker v. Lyman, 38 XJ. C. Q. B. 498 ; Harpell v. CoUard, 6 U. C. Law J. 212. Again in Winsor v. Lombard, 18 Pick. 60, the same learned judge said: " It is now held that, without express war- ranty or actual fraud, every person who sells goods of a certain denomination or 588 PEKFORIIANCE OF THE CONTRACT. [book IV. but it would be better to distinguish such cases as a non-com- pliance with a contract which a party has engaged to fulfil ; as if description undertakes, as part of his con- tract, that the thing delivered corresponds to the description, and is in fact an article of the species,' kind, and quality thus ex- pressed in the contract of sale." Wilde J. reasserts the same doctrine in Henshaw V. Robins, 9 Jlct. 87, and cites Osgood u. Lewis, 2 H. & Gill, 495, and Borrekins v. Sevan, 3 Rawle, 23, in support of it, and adds : " The principle maintained by these cases is, that the description, contained in a bill of parcels of goods sold, is evidence of the terms of the contract of sale, and so imports a warranty that the goods are the goods described, and that they sub- stantially agree with the terms of the description." See Batturs v. Sellers, 5 H. & John. U7; 6 lb. 249; Hawkins v. Pemberton, 51 N. Y. 204; Wolcott o. Mount, 7 Vroom, 262 ; Beals v. Olmstead, 24 Vt. 114; The Richmond Trading & Manuf. Co. v. Farquar, 8 Blackf. 89; Wier V. Bissett, 2 Thompson (N. S.), 178; Mader v. Jones, 1 Russell & Chesley (N. S.), 82; Hardy u. Fairbanks, James (N. S.), 432. The words of the writing relied Decisions on upon as a waiTanty in Hast- thc point. jp„.g ^, LoTgring, supra, were, " Sold E. T. Hastings two thousand gal- lons prime quality winter oil." These words were held to amount to a warranty that the articles sold agreed with the de- scription. So, in Bounce v. Dow, 64 N. Y. 411, the article ordered was "XX. pipe iron.'' The article sent in compliance with the order wag billed as such. This was held to be a warranty of the charac- ter of the article. In Henshaw v. Robins, supra, the bill of sale was : " H. & Co. bought of T. W. S. & Co. two cases of indigo, $272.35," The article sold was in fact not indigo, but a different substance, so prepared as to deceive skilful dealers in indigo. The question was distinctly made whether the bill of sale constituted a warranty that the article was as repre- sented. The court held that it did. The words of the description in Osgood v. Lewis, supra, were " winter pressed sperm oil." This was treated as a warranty that the oil was winter pressed. See Flint v. Lyon, 4 Cal. 17. So where wool, sold in sacks, was described as of a particular quality, the vendor was held to warrant thereby that the wool was of that quality, in The Richmond Trading & Manuf. Co. o. Farquar, 8 Blackf. 89. It is held to be sufficient in Pennsylvania if the goods are in specie, that for which they are sold, and are merchantable under the denomi- nation affixed to them by the vendor. Jennings u. Gratz, 3 Rawle, 168. See Borrekins u. Bevan, 3 Rawle, 23 ; Carson V. Baillie, 19 Penn. St. 375. But in Fraley Bispham, 10 Penn. St. 320, where the bill of sale described the property sold as " superior sweet-scented Kentucky leaf to- bacco," the vendor was held not liable on a warranty, if the tobacco wag Kentucky leaf, though of a very low quality, ill- flavored, unfit for the market, and not sweet-scented. See Jennings v. Gratz, 3 Rawle, 168; Carson u. Baillie, 19 Penn. St. 375 ; Wetherill v. Neilson, 20 lb. 448 ; Borrekins u. Bevan, 3 Rawle, 23 ; Daily i;. Green, 15 Penn. St. 118, 126; Ender u. Scott, 11 111. 35; Hyatt v. Boyle, 5 Gill & J. 110; Hawkins v. Pemberton, 6 Rob. 42; S. C. 51 N. Y. 198. So a mere description of the property sold as " certain lots of boards and dimension stuff now at and about the mills at P." does not amount to a warranty that the property was merchantable ; Whitman v. Freese, 23 Maine, 212 ; but only that it was such as would be known in the mar- ket, and among those conversant with the trade therein, as property of the descrip- tion under which it was sold. Mixer v. Coburn, 11 Met. 559; Dollard v. Potts, 6 Allen (N. B), 443. So, on a sale of " Manilla sugar," if there be no express warranty nor price, the purchaser has no ground to complain that he has not re- ceived what he bought, if the article de- livered be what is usually called in com- PART I.J CONDITIONS. 589 a man offers to buy peas of another and he sends him beans, he does not perform his contract; but that is not a warranty; there merce by that name, although it may con- tain more impurities than sugar of that name usually does. Gossler u. Eagle Sugar Kefinery, 103 Mass. 331. See Whitney v. Boardman, 118 Mass. 242, 248. In Swett v. Shumway, 102 Mass. 365, 368, Colt J. said : " The plaintiffs had contracted with the defendant for the manufacture of articles described as " all the horn chains they manufacture.'' There was no express warranty as to quality or description, and the inquiry at the trial was, what article the words " horn chains manufactured" by the plaintiffs were un- derstood by the parties to mean. The de- fendant contended that the words implied a warranty that the chains should be made wholly of horn, and that there was a failure to comply if part of the links were made of hoof ; but the ruling of the court was, that if there was an article called and known in the market as horn chains, made partly of horn and partly of hoof, and the parties intended this article when they entered into the contract, it was sufficient. This ruling was right. There are many articles which are named from one of several different materials of which they are made. A contract, for example, to furnish gold watches or ma- hogany furniture would not be construed to require the whole watch to be gold, or the whole piece of furniture to be ma- hogany." A contract for an article de- scribed as "good fine wine" was held too vague and indefinite to import a warranty, in Hogins u. Piy mpton, 1 1 Pick. 97 ; Coate V. Terry, 26 U. C. C. P. 35. So a bill of sale describing an article as " tal- low " gives to the purchaser no assurance that it shall be of good quality or color. Lamb v. Crafts, 12 Met. 353. There are some American cases in which it was held that a description of an article in a bill of sale, or other documents used in the sale thereof, is neither an affirmation nor a warranty. See Seixas v. Wood, 2 Caines, 48; Carley v. Wilkins, 6 Barb. 557; Swett V. Colgate, 20 John. 196; Hotch- kiss V. Gage, 26 Barb. 141 ; Barrett v. Hall, 1 Aiken, 269 ; Hastings u. Lover- ing, 2 Pick. 220 ; Carondelet Iron Works a. Moore, 78 III. 65. The decisions in Seixas v. Wood, and Swett o. Colgate, supra, were modified, to some extent, by the decision in Hawkins v. Pemberton, supra, and overruled in White u. Miller, 71 N. Y. 118 ;' Church C. J. in Bounce v. Dow, 64 lb. 415; Van Wyck v. Allen, 69 lb. 61 ; Beasley C. J. in Wolcott v. Mount, 38 N. J. (Law) 496. In Gaylord Manuf. Co. u. Allen, 53 N. Y. 515, 519, it was decided that, in the absence of fraud or latent defects, an acceptance of the article sold upon an executory contract, after an opportunity to examine it, is u consent and agreement that the quality is satisfactory and as conforming to the con- tract, and bars all claim for compensation for any defects that may exist in the arti- cle. The party cannot, under such cir- cumstances, retain the property, and after- wards sue or counter-claim for damages, under pretence that it was not of the char- acter and quality or description called for by the agreement. See Dutchess Co. v. Harding, 49 N. Y. 321 ; Reed o. Randall, 29 lb. 358; (distinguished in Dounce v. Dow, 57 lb. 16) ; Dounce v. Dow, 64 lb. 411; Brown v. Burhans, 4 Hun (N Y.), 227 ; McCormick v. Sarson, 45 N. Y. 265 ; Good v. Harper, 3 U. C. Q: B. 67 ; Heydecker v. Lombard, 7 Daly, 19 ; Green- thai V. Schneider, 52 How. Pr. 133 ; More- house V. Comstock, 42 Wis. 626. But as to quantity the rule does not apply if the contract be severable. Visscher v. Green- bank Alkali Co. 11 How. 159. See Howie V. Rea, 70 N. Car. 559. So, in Gilson v. Bingham, 43 Vt. 410, it was held that if the purchaser of an article manufactured for him under a special executory con- tract, there being no warranty or fraud, accept it, though defective, he becomes thereby bound to pay the contract price ; but if he reject it and give notice of the 590 PERFORMANCE OF THE CONTRACT. [BOOK IV. is no loarranty that he should sell him peas ; the contract is to sell peas, and if he sells him anything else in their stead, it is a non- performance of it." (j) There can be no doubt of the correctness of the distinction here pointed out. If the sale is of a described article, the tender of an article answering the description is a con- dition precedent to the purchaser's liability, and if this condition be not performed, the purchaser is entitled to reject the article, {f) or, if he has paid for it, to recover the price as money had and received for his use, (r) whereas, in case of warranty, the rules are different, as will appear i^ost, book V. part II. ch. ii. There is no controversy as to this principle, and a few only of the more modern cases need be referred to, as affording illustrations of its application. § 601. In Nichol v. Godts (s) the sale was of " foreign refined Nichoi V '^^P® °^^' warranted only equal to samples." The oil terir Godts. dered corresponded with sample, but the jury found it was not " foreign refined rape oil." Held that a sale by sample has reference only to quality ; that the purchaser was not bound to receive what was not the article described ; Pollock C. B. say- ing, in answer to the argument that there was no warranty the oil should be refined rape oil : " it is not exactly a warranty, but non-acceptance, he can bring his action „. Morton, 11 Ir. L. R. 230 ; Kirkpatrick for the non-performance of the contract; ,;. Gowan, Ir. E. 9 C. L. 521.] but he cannot accept it and bring such (^i) y" xhe rejection and return of arti- action both ; nor can he accept it and im- ^les of a different kind and description, pose conditions and sue the vendor for not answering to the terms of the con- non-compliance with the conditions im- tract, does not stand upon the ground of posed. But the article may be returned rescission ; nor does the right to return within a reasonable time after it has been rtem depend upon the existence of a war- ascertained that It does not satisfy the ranty." Wells J. in Blansfield v. Trigg, contract, although the contract contains us Mass. 354, '355. 1 no stipulation for such return. Freeman (r) [See Smith i;. Lewis, 40 Ind. 98; t'. Clute, 3 Barb. 424; Park v. Morris &c. Doane v. Dunham, 65 111. 512. So, if a Co. 4 Lansing, 103. But where the pur- person purchases articles which are to be chaser takes an express warranty at the delivered by a certain time, and are prom- time of the purchase, that the goods when isgjj to be of a certain good quality, and delivered shall be of a certain quality, he after payment for the same, and when it may relieve himself from the obligation to is too late to return them without preju- return them on discovering that they are dice to himself, he finds out that they are not of that quality, and may still hold of inferior quality, he may sustain an ac- the vendor responsible for the deficiency, tion for damages, although he has taken Wadley v. Davis, 63 Barb. 500.] the articles and used them. Cox v. Long, (?) In Chanter v. Hopkins, 4 M. & W. 69 N. Car. 7.] 399. [See Keed v. Randall, 29 N. Y. 358 ; (s) 10 Ex. 191 ; 23 L. J. Ex. 314. Dounce v. Dow, 57 N. Y. 21 ; Malcomsou PAET I.] CONDITIONS. 591 if a man contracts to buy a thing, he ought not to have something else delivered to him." (s^) § 602. In Shepherd v. Kain («) a vessel vras advertised for sale as a " copper-fastened vessel," on the terms that she was ghepherd to be " taken with all faults without allowance for any "• Ka'"- defects whatsoever." She was only partially copper-fastened, and would not be called in the trade a copper-fastened vessel. Held that the vendor was liable for the misdescription, the court saying that the words " with all faults," meant all faults which the vessel might have " consistently with its being the thing described," i. e. a copper-fastened vessel, (t^) But in the very similar case of Taylor v. BuUen, (u) where the vessel was described as Baylor v " teak-built," and the terms were " with all faults, .... Buiien. and without allowance for any defect or error whatever," it was held that the addition of the word " error " distinguished the case from Shepherd v. Kain, and covered an unintentional misdescrip- tion, so as to shield the vendor, in the absence of fraud, from any responsibility for error in describing the vessel as teak-built. In Allan V. Lake (a;) it was held that a sale of turnip-seed ^^-^^^ ^ as " Skirving's Swedes " was not a sale with warranty Lake. of quality, but with a description of the article, and that the con- tract was not satisfied by the tender of any other seed -^^jgig^ ^, than " Skirving's Swedes." (a;') In Wieler v. Schi- Scbiiizzi. lizzi, (?/) the sale was of " Calcutta linseed, tale quale" and the article delivered contained an admixture of fifteen per cent, of mustard, but it came from Calcutta, and there was a conflict of testimony. It was left to the jury to say whether the article had lost " its distinctive character," so as not to be salable as Calcutta linseed. (s) The jury so found, and the purchaser succeeded in (si) [Edgar «. The Canadian Oil Co. 23 and labelled with the name of the seeds U. C. Q. B. 333.] contained therein. Held, that there was (t) 5 B. & A. 240 ; and see Kain v. Old, no implied warranty that the Snelgrove 2 B. & C. 627. seeds were fresh or otherwise ^'- B™e. (fi-) [In Whitney v. Boardman, 118 good or fit for growing, and that they Mass. 247, Devens J. said : " The mean- would grow, but merely that the packages ing of the phrase, • with all faults,' is such contained such seeds as the labels indi- faults or defects as the article might have, cated, and that the maxim caveat emptor retaining still its character and identity as applied. Snelgrove u. Bruce, 16 U. C. C. the article described."] P. 561. See § 661, note (u),/)os«.] (h) 5 Ex. 779. (y) 17 C. B. 619 ; 25 L. J. C. P. 89. (x) 18 Q. B. 560. (z) [Chisholm v. Proudfoot, 15 U.C. Q. (xi) [A., n, nursery and seedsman, sold B. 203.] B. certain seeds put up in small parcels, 592 PERFORMANCE OF THE CONTRACT. [BOOK IV. his action. This was an action for breach of warranty, but al- though maintained as such, it is plain that on principle the pur- chaser might have rejected the contract in toto. § 603. In Hopkins v. Hitchcock (2^) the plaintiffs, H. & Co., „ , . had succeeded to the firm of S. & H., iron manufact- Hitchcock, urers,' who were in the habit of stamping their iron " S. & H." with a crown. The defendants applied to purchase " S. & H." iron through a broker, and were informed that all iron made by the firm was now marked " H. & Co." The defendants then ordered sixty-seven tons of the iron, and the broker made the bought note for " sixtj'-seven tons S. & H. Crown common bars." The iron on delivery was marked H. & Co., and rejected by the defendants. The jury found the variation in the brand to be of no consequence, and gave a verdict for the plaintiffs. On motion for new trial, the court refused to set aside the verdict, holding that under the special facts and circumstances of the case, and the jury having negatived that the mark was of any consequence, the plain- tiffs had delivered the goods in conformity with the description in the contract. § 604. In Bannerman ■;;. White (a) the sale was of hops, and Banner- there was a known objectionable practice of using sul- White'. phur in their growth, and both parties knew that the merchants had notified the growers of their objection to buy such hops. At the time of the sale the buyers inquired, before asking the price, if sulphur had been used, and the seller answered, "No." The sale was then made by sample, and the delivery corresponded, and the buyer took possession, but afterwards rejected the con- tract on discovering that sulphur had been used. It was uncon- troverted that the defendant would not have bought if the fact had been known to him, and that he could not sell the hops as they were, in his usual dealings with his customers. The jury found that the misrepresentation as to the use of sulphur was not wilful, thus repelling fraud, but that " the affirmation that no sulphur had been used was intended between the parties as a part of the contract of sale, and a warranty by the plaintiff." Erie C. J. in delivering the decision of the court, said that in deciding the effect of this finding, " We avoid the term ' warranty,' because it is used in two senses, and the term ' condition,' because the (^i) 14 C. B. N. S. 65 ; 32 L. J. C. P. (a) 10 C. B. N. S. 844 ; 31 L. J. C. P. 154. 28 PART I.] CONDITIONS. 593 question is, whether the term is applicable. Then the effect is that the defendant required and the plaintiff gave his undertaking that no sulphur had been used. This undertaking was a prelimi- nary stipulation, and if it had not been given, the defendant would not have gone on with the treaty, which resulted in the sale. In this sense, it was the condition upon which the defendant con- tracted." Held that plaintiff had not fulfilled the condition, and could not enforce the sale. § 605. In Josling v. Kingsford (5) the sale was of oxalic acid, and it had been examined and approved, and a great jg^y,„g.v part of it used by the purchaser, and the vendor did not Kingsford. warrant quality. On analysis, it was afterwards found to be chemically impure, from adulteration with sulphate of magnesia, a defect not visible to the naked eye, nor likely to be discovered even by experienced persons. There were two counts in the dec- laration, one for breach of contract to deliver " oxalic acid," the other for breach of warranty that the goods delivered were " ox- alic acid." Erie C. J. told the jury that there was no evidence of a warranty, and that the question was whether the article de- livered came under the denomination of oxalic acid in commercial language. The jury found for the plaintiff. Held, in banc, that the direction was right. § 606. In Az^mar v. Casella, (c) the plaintiff sold cotton to the defendant through a broker, by what was known as a j^^^^^^ certified London contract, in the following words : " Sold, Casella. by order and for account of Messrs. J. C. Az^mar & Co., to Messrs. A. Casella & Co., the following cotton, viz. ^ 128 bales at 25cl. per pound, expected to arrive in London per Cheviot, from Madras. The cotton guarantied equal to sealed sample in our possession," &c. The sealed sample was a sample of " Long-staple Salem cotton ; " the cotton turned out, when landed, to be not in accordance with the sample, being " Western Madras." The con- tract contained a clause : " Should the quality prove inferior to the guaranty, a fair allowance to be made." It was admitted that Western Madras cotton is inferior to Long-staple Salem, and requires machinery/ for its manufacture different from that used for the latter. Held that this was not a case of inferiority of {b) 13 C. B. N. S. 447 ; 32 L. J. C. P. L. J. C. P. 124. [Compare Lyon v. Ber- 94. tram, 20 How. (U. S.) 149, 153.] (c) L. R. 2 C. P. 431-677 in error ; 36 33 emar v. 594 PERFORMANCE OF THE CONTRACT. [book IV. quality, but difference of kind ; that there was a condition prece- dent, and not simply a warranty, and that the defendant was not bound to accept. On error, to the exchequer chamber, the judg- ment of the court below was unanimously confirmed, without hear- ing the defendant's counsel. S 607. Lord Tenterden held, in two cases, (cZ) at nisi prius, „ , . that a vendor could not recover for books or maps sold Books and _ _ i by a description or prospectus, if there were any ma- terial difference between the book or map furnished and that described in the prospectus. Under this head may also properly be included the class of cases in which it has been held that the vendor who sells bills of exchange, notes, shares, certificates, and other securities is bound, not by the collateral contract of warranty, but by the principal contract itself, to deliver as a condition precedent that which is genuine, not that which is false, counterfeit, or not niar- j ^, ketable by the name or denomination used in describing Kyde. it. (e) Thus, in Jones v. Ryde, (/) it was held that the maps sold according; to prospeC' tus. Sale of securities implied condition that they are {genu- ine. {d) Paton V. Duncan, 3 C. & P. 336, and Teesdale v. Anderson, 4 C. & P. 198. (e) [In many American cases this lia- bility has been regarded as founded on an imjjlied warranty. Thus it is held that In America on the sale of a promissory injplipd war- . *i i • t rau[\ in .sde "^o"^. th^ law implies a war- of securities, ranty that the signatures and indortenient u])on it are made by persons who have cajjadty to make a valid con- tract, and are genuine. Thrall v. Newell, 19 Vt. 202 ; Luljdell v. Baker, 1 Met. 193 ; S. C. 3 lb. 469 ; Terry y. Bissell, 26 Conn. 23 ; Cabot Bank v. Morton, 4 Gray, 156; jMerriam v. Wolcott, 3 Allen, 238; Wonhington v. Cowles, 112 Mass. 30; Marklc v. Hatfield, 2 John. 455 ; Her- rick !;. Whitney, 15 lb. 240; Shaver u. Ehle, 16 lb. 201; Murray v. Judah, 6 Cowen, 484 ; Canal Bank u. Bank of Albany, 1 Hill (N. Y.), 287; Aldrich . Jackson, 5 K. I. 21S ; Ledwich t. Mc- Kini, 53 N. Y. 307; Koss v. Terry, 63 lb. 613 ; Webb v. Odell, 49 lb. 583 ; El- lis V. Grooms, 1 Stewart, 47 ; Wilder v. Cowles, 100 Mass. 487. A distinction has sometimes been made between cases where an innocent holder of negoti- Transfer for able paper parts with it by *Vi' alleged delivery without indorsing it, distinction. in payment of a debt due or then created, and the paper proves to have been forged, and cases where no debt is due or created at the time, but the paper is sold as other goods and effects are, holding that in the former class there is and in tlie latter clats there is not an implied warranty of genu- ineness. See Baxter v. Duren, 29 Maine, 434,440; Fisher v. Rieman, 12 Md. 497; Ellis V. Wild, 6 Mass. 321. But Baxter V. Duren, was doubted in Hussey v. Sib- ley, 66 Mc. 192, and Ellif v. Ward, in n'erriam v. Wolcott, 3 Allen, 258. In Littauer v. Goldman, 72 N. Y. 506, it was held that where a promissory note is void by being tainted with usury, fj^te yoid no warranty against such de- t^^^^^>^^°. feet will be implied upon a ranty transfer of such note without "S"'"' ; indorsement, without representations as to its legality, and without knowledge on ilie part of the transferor of the defect.] (/) 5 Taunt. 488. PART I.] CONDITIONS. 595 vendor of a forged nayy-bill was bound to return the money re- ceived for it. (5') In Young v. Cole, (A) the plaintiff, a Youns v. stock-broker, was employed by the defendant to sell for Cole. him four Guatemala bonds, in April, 1836, and it was shown that in 1829 unstamped Guatemala bonds had been repudiated by the government of that state, and had ever since been not a market- able commodity on the stock exchange. The defendant received the price on the delivery of unstamped bonds, both parties being ignorant that a stamp was necessary. The unstamped bonds were valueless. Held that the defendant was bound to restore the price received ; Tindal C. J. saying that the contract was for real Guatemala bonds, and that the case was just as if the contract had been to sell foreign coin, and the defendant had delivered counters instead. " It is not a question of warranty, but whether the de- fendant had not delivered something which, though resembling the article contracted to be sold, is of no value." In Westropp Westropp V. Solomon (2) the same rule was recognized ; nion. and it was also held that in such cases nothing further was recov- erable from the vendor than the purchase-money he had received, and that he was not responsible for the value of genuine shares. § 608. In Gompertz v. Bartlett (/c) the sale was of a foreign bill of exchange : it turned out that the bill was not a Qo^pgjt^ foreign bilU and therefore worthless, because unstamped. ■"■ Bartlett. The purchaser was held entitled to recover back the price, be- cause the thing sold was not of the kind described in the sale. But in Pooley v. Brown, (Z) where the plaintiff bought foreign bills from the defendant, and by the Stamp Act (m) it pooi^y ^. was the duty of the seller to cancel the stamp before he Brown, delivers, and of the buyer to see that this is done before he re- ceives, and both parties neglected this duty, so that the buyer was unable to recover on the bills, Erie C. J. and Keating J. were of opinion that the buyer, who was equally in fault with the vendor under the law, could not avail himself of the principle laid down in Gompertz v. Bartlett ; but Williams J. dissented on that point, though the court was unanimous in holding that the purchaser (g) [See Terry v. BisseU, 26 Conn. 23 ; {k) 2 E. & B. 849 ; 23 L. J. Q. B. 65. Cabot Bank v. Morton, 4 Gray, 156 ; Mer- (l) 11 C. B. N. S. 566 ; 31 L. J. C. P. riam v. Woleott, 3 Allen, 258.] 134. (A) 3 Bing. N. C. 724. (m) 17 & 18 Vict. c. 83, s. 5. (!) 8 C. B. 345. 596 PERFORMANCE OF THE CONTRACT. [BOOK IV. had by bis own lacbes and delay lost all right to complain, under Gurney v. the special circumstance. In Gurney v. Womersley («) ley. "^"^^ a bill of exchange was sold to the plaintiffs, on which all the signatures were forged except that of the last indorser, who had forged all the preceding names, and Bramwell, for defendant, made a strenuous effort to distinguish the case, on the ground that in Jones v. Ryde and Young v. Cole, supra, the thing sold was entirchj false and valueless; -whereas in this case the last indor- sers's signature was genuine, and the bill therefore of some value. But it was held that a party offering a bill for sale, offers in effect an instrument drawn, accepted, and indorsed according to its pur- port. § 609. But it is a question for the jury, whether the thing de- Question livered be what was really intended by both parties as of fact i]^Q subject-matter of the sale, although not very ac- thiii};- de- curately described. Thus, in Mitchell v. Newhall, (o) really the Sale was of " fifty shares," in a foreign railway com- intended pf^ny. The buyer refused to receive from the plaintiff, parties'^ ^^^ stock-broker, delivery of a letter of allotment for Mitchell v. ^^^J shares. Held that he was bound by his bargain, Newhall. proof having been made to the satisfaction of the jury, that no shares in the railway had yet been issued, and that letters of allotment were commonly bought and sold as shares in this company on the stock exchange. And in Lamert v. Heath. Heath (y*) it appeared that the defendant, a stock- broker, had bought for the plaintiff scrip certificates of shares in the Kentish Coast Railway Company. These scrip certificates were signed by the secretary, and issued from the offices of the company, and were the subject of sale and purchase in the market for several months, when the scheme was abandoned, and the com- pany repudiated the scrip as not genuine, on the allegation that it was issued without authority. The plaintiff then sought to re- cover back the price from the stock-broker, on the ground that the latter had not delivered genuine scrip. But the court, without hearing argument on the other side, held the buyer bound by his bargain, the court saying : " If this was the only Kentish Coast (n) 4 E. & B. 133 ; 24 L. J. Q. B. 46 ; the decisions in these cases, in Kennedy o. and see, also, Woodland u. Fear, 7 E. & Panama &c. Mail Co. L. R. 2 Q. B. 5S0. B, 519 ; 26 L. J. Q. B. 202 ; and the re- (o) 15 M. & W. 308. marks of Blackburn J. on the principle of (p) 15 M. & W. 487. PART I.] CONDITIONS. 597 Railway scrip in the market, .... and one person chooses to sell and the other to buy that, then the latter has got all that he contracted to buy." In Lamond v. Davall (g') it was Reserva- held that a sale was conditional, where the vendor had 'i"" °* ' ^ power to reserved power to resell on the buyer's defaiilt ; that a resell on buyor's d6— resale on such default was a rescission of the original fault ren- sale ; and that the vendor could not, therefore, maintain condf- assumpsit on it, his proper remedy being an action for ''""^ • damages for the loss and expenses of the resale. (j) 9 Q. B. 1030. PAET II. VENDOE'S DUTIES. CHAPTER I. WAEEANTT. Section ^SECTION I. — EXPRESS WAKBANTT. What is a warranty .... 610 Antecedent representation . . .610 "Warranty after sale requires new con- sideration . . . .611 No warranty of quality implied by mere fact of sale .... 611 Cai'ea( emptor is general rule . .611 Many exceptions to the rule . .611 "Warranty of title . . 612 No special form of words necessary to create a warranty . . 613 "Whether a warranty was intended hy a representation made is a ques- tion of fact for the jury . . 613 Interpretation of express warranties . 614 Examples of construction of express warranty . . . .615 General warranty does not extend to defects apparent on simple inspec- tion ... . . 616 Meaning of " soundness " in warranty of horses 619 Defects which have been held to con- stitute unsoundness . . . 620 Parol erideuce inadmissible to prove warranty where sale is in writing . 621 "Warranty of future soundness . . 623 "Warranties by agents, general rule . 624 SECTION II. — IMPLIED WAKKANTT OF TITLE. Exists in executory agreements 627 Is implied when vendor affirms the chattel to bo his ... 627 Section This affirmation may be implied from vendor's conduct or from the nature and circumstances of the sale . 627 If vendor knows he has no title and conceals that fact, he is liable for the fraud 627 Only one controverted question . . 628 Discussion of the subject, and review of the authorities . . . 628 Submitted that the general rule is now changed 639 Decisions in America on this point . 641 Civil law 642 French law . ... 643 SECTION III.' — IMPLIED WAEKANTT OF QUALITY. Caveat emptor is general rule . . 644 Rule without exception where the sale is of an existing specific chattel which buyer has inspected . . 644 Warranty of quality implied where goods are supplied to order . . 645 "Where chattel sold hy description, it is not warranty but condition . 645 "Warranty implied on sale hy sample . 648 All sales where samples are shown are not necessarily sales by sample 649 Sample shown by manufacturer must be taken as free from secret de- fects ... .651 Buyer's right of rejection after in- spection . 651 Ineffective inspection is no inspection, if caused by vendor's fault . ■ ^^1 PART 11.] WARRANTY. 599 Section Various rights of buyer when goods not equal to sample . . . 652 Buyer cannot accept part and reject part o£ an entire lot . . . 652 American law as to sale by sample . 653 Average sample 654 Warranty implied from usage . . 655 AYarranty that goods are merchant- able 656 Warranty does not extend to deteri- oration during transit . . . 659 Warranty does not extend' to the paclsages in which the goods are contained 660 Implied warranty where an article is bought for a special purpose known Section to vendor, and buyer relies on ven- dor's skill in supplying it . . 661 Implied warranty is excluded where there has been an express warranty given 666 No implied warranty in favor of a third person ..... 668 The existence of a thing sold is the subject, not of warranty, but of con- dition 669 Is there an implied warranty in sale of provisions ? . . . . 670 Submitted that there is not . . 672 Implied warranty resulting from marks on packages under 25 & 26 Vict. c. 88 67S SECTION I. — EXPRESS WAKEANTY. § 610. A WABEANTY in a sale of goods is not one of the essen- tial elements of the contract, for a sale is none the less t,y^^^ jg ^ complete and perfect in the absence of a warranty. But warranty, it is a collateral undertaking, fowling part of the contract by the agreement of the parties express or implied, (a) It follows, there- fore, that antecedent representation, made by the ven- Antece- dor as an inducement to the buyer, but not forming part sentations. of the contract when concluded, are not warranties. It is not, in- deed, necessary that the representation, in order to constitute a warranty, should be simultaneous with the conclusion of the bar- gain, but only that it should be made during the course of the dealing, which leads to the bargain, and should then enter into the bargain as part of it. Of the general principle, a good illustration is given in Hopkins v. Tanqueray, (J) where the plain- Hopkins d. tiff bought a horse, sold at auction, without warranty. Tanqueray. On the day before the sale, while the plaintiff was examining the horse at Tattersall's stables, the defendant entered, and they being acquainted with each other, he said to plaintiff, " You have nothing to look for; I assure you he is perfectly sound in every respect; " to which the plaintiff replied : " If you say so, I am satisfied," and (a) Foster v. Smith, 18 C. B. 156; Mondel v. Steel, 8 M. & W. 858 ; Street V. Blay, 2 B. & Ad. 456 ; Chanter v. Hop- kins, 4 M. & W. 399 ; [Magrane v. Loy, 1 Cr. & Dix, 286. A warranty is an inci- dent only of a consummated and com- pleted sale. Osborn v. Gantz, 60 N. Y. 540.J (6) 15 C. B. 130; 23 L. .1. C. P. 162; and see per Martin B. in Stucley v. Bai- ly, 1 H. & C. 405 ; 31 L. J. Ex. 483 ; and Camac v. Warriner, 1 C. B. 356. 600 PERFORMANCE OF THE CONTRACT. [BOOK IV. desisted from the examination. Tbe borse turned out to be un- sound, but tbe vendor did not know it when he made the represen- tation, so that there was no pretence for a charge of fraud ; which was indeed disclaimed by tbe buj'er, who stood simply on the point that the conversation was a private warranty to Mm, although the auctioneer put' up the horse without warranty. But all the judges held that this antecedent representation was no part of the contract which was made by the buyer when he bid for the horse ; that it was a representation of the seller's opinion and judgment about the horse, for which he could not be made responsible, if he was honest when expressing it. See, further, as to innocent misrepresentation, ante, §§ 420-422. § 611. It also follows from what precedes, that a warranty .^ given after a sale has been made is void, unless some new warranty ... ,-p, . after sale consideration be given for the warranty. The consider- new con- ation already given is exhausted by the transfer of the property in the goods without a warranty; and there is nothing to support the subsequent agreement to warrant, unless a No war- ^^^ Consideration be given, (c) It further follows, and ranty of sucli is the jreneral rule of law, that no warranty of the quality im- ... plied by quality of a chattel is implied from the mere fact of sale. mere fact rT^^ ^ • , • ^ t^ ^ i-i- of sale. ihe rule in such caSes is caveat emptor, (c') by which is (c) Eoscorla u. Thomas, 3 Q. B.234; cle sold, the warranty will be binding, al- [Tuttle V. Brown, 4 Gray, 457 ; Burdit v. though the sale does not take place till Burdit, 2 A. K. Marsh. 143 ; Reed v. Wood, some days afterwards. Wilmot v. Hard, 9 Vt. 285; Bless v. Kittredge, 5 lb. 28; 11 AVend. 584. But representations by Towell u. Gatewood, 2 Scam. 24 ; Year the vendor in regard to the pi-operty Book, 5 Hen. 7, 7; Burton v. Young, 5 sold, made a month before the sale was Harring. 233 ; Vincent c. Leland, 100 consummated, were held to be too remote Mass. 432; Wilmot v. Hurd, 11 Wend, to affect the sale, in Bryant y. Crosby, 40 584; Congar v. Chamberlain, 14 Wis. Me. 9. Where a statement amounting to 253; Summers V. Vaughan, 35 Ind. 323. a warranty was made in the jUitraetioD at "The warranty must be upon the sale, printed catalogue of an auc- »"ctioasale •' ^ » r to Of WiirrHQty Warranty and One o£ the terms of the tion sale, but at the com- in printed up" n sale- Contract of sale. Any subse- mcncement of the sale the '*'»'°K"«' otherwise qucnt or collateral contract of auctioneer announced that the seller war- si.ieration warranty must arise from an ranted nothing, it was held that the pur- required, express promise or undertak- chaser must show that the warranty con- ing to warrant, and that upon a new con- tained in the catalogue was imported into sideration, distinct from that of the sale the sale. Craig v. Miller, 22 U. C. 0. P- itself." Shaw C. J. in Hogins v. Plymp- 348.] ton, 11 Pick. 97, 99, 100. But if, when (ci) [See article on Caveat Emptor i\i I parties first are in treaty respecting the U. C. Q. B. (0. S.) 193.] sale, the owner offers to warrant the arti- PART II.J WARRANTY. 601 meant that when the buyer has required no warranty, caveat he takes the risk of quality upon himself, (jT) and has '^'"i"'"'- no remedy if he chose to rely on the bare representation of the vendor, unless indeed he can show that representation Manyex- to be fraudulent, (e) To this rule there are many ex- tim'raie. ° ceptions. (/) § 612. In regard to warranty of title, inasmuch as it is an es- sential element of the contract of sale that there should -vyan-anty be a transfer of the absolute or general property in- the °^ t'"**- thing from the seller to the buyer, it would seem naturally to fol- low that by the very act of selling the chattel the vendor under- takes to transfer the property in the thing, and thus warrants his title or ability to sell, and it is believed that such is the true rule of law, but the question is still open to doubt, as will presently be shown. § 613. No special form of words is necessary to create a war- ranty. (/^) It is nearly two hundred years since Lord No special Holt first settled the rule in Cross v. Gardner, (^) and ^°™(^f (d) Sprigwell v. Allen, Aleyn, 91, and 2 East, 448, note ; Parkinson u. Lee, 2 East, 314 ; Williamson v. Allison, 2 East, 446 ; Eaiiey v. Garrett, 9 B. & C. 928 ; Morley v. Attenborough, 3 Ex. 500 ; Ormrod v. Huth, 14 M. & W. 664 ; Hall V. Conder, 2 C. B. N. S. 22 ; 26 L. J. C. P. 138, 288; Hopkins w. Tanqueray, 15 C. B. 130; 23 L. J. C. P. 162; [Holden V. Dakin, 4 John. 421 ; Mixer v. Cobum, 11 Met. 559; Dean v. Mason, 4 Conn. 428 ; Frazier v. Harvey, 34 lb. 469 ; Swett V. Colgate, 20 John. 196 ; Welsh v. Carter, 1 Wend. 185; Moses v. Mead, 1 Denio, 378 ; Kingsbury v. Taylor, 29 Me. 508 ; Otts V. Alderson, 10 Sm. & M. 476 ; West V. Cunningham, 9 Porter, 104 ; Beirne v. Dord, 2 Sandf. 89; Seixas u. Wood, 2 Caines, 48; Wright v. Hart, 18 Wend. 449; Johnston v. Cope, 3 H. & John. 89; Cozzins V. Whitaker, 3 Stew. & Port. 322 ; Taymon ?;. Mitchell, 1 Md. Ch. 496 ; Lord b. Grow, 39 Penn. St. 88; Hawkins u. Pemberton, 6 Robertson, 42 ; S. C. 51 N. Y. 198; Hadley v. Clinton &c. Co. 13 Ohio St. 502; Shaw C. J. in Winsor v. Lombard, 18 Pick. 59, 60; Whitaker v. Eastwick, 75 Penn. St. 229 ; Roberts v. Hughes, 81 111. 130 ; Hadley v. Prather, 64 Ind. 137.] (e) [Warren u. Philadelphia Coal Co. 83 Penn St. 437 ; Jackson v. Wetherill, 7 Serg. & R. 480 ; Whitaker ?;. Eastwick, 75 Penn. St. 229. The rule of caveat emptor does not apply to cases of fraud. Irving V. Thomas, 18 Me. 418 ; Otts v. Alderson, 10 Sm. & M. 476.] (/) Post, Warranty of Quality. (/I) [Warren v. Philadelphia Coal Co. 83 Penn. St. 437 ; Ladomus v. Dash, 2 W. N. Cas. (Phil. 1875) 111 ; Polhemus v. Heiman, 45 Cal. 573 ; Murray v. Smith, 4 Daly (N. Y.), 277 ; Reed «. Hastings, 61 111. 266 ; Thorne v. McVeagh, 75 lb. 81 ; Robinson v. Harvey, 82 lb. 58 ; Le- froy B. in Sceales v. Scanlan, 6 Ir. L. R. 367, 371. If as regards the sale itself the statute of frauds is complied with, the warranty accompanying such sale need not be in writing. Northwood v. Rennie, 28 U. C. C. P. 202, afiBrraed in 3 Ont. App. 37.] (g) Carthew, 90; 3 Mod. 261 ; 1 Show. 602 PERFORMANCE OF THE CONTRACT. [book IV. decidinj? whether represen- tation amounts to warrantr. needed to Medina V, Stougliton, (A) which Buller J. in 1789 laid create war- rarity. down in the opinion given by liim in the famous leading case of Pasley v. Freeman, (i) as follows : " It was riglitly held by Holt C. J., and has been uniformly adopted ever since, that an affirmation at the time of a sale is a warranty, provided it appear in evidence to have been so intended." (It) And in de- termining whether it was so intended, a decisive test is whether Test for the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowl- edge, and on which the buyer may be expected also to (h) 1 Lonl Raymond, 593; Salk. 220. (i) 3 T. R. 57 ; 2 Sm. L. C. 71. (h) See, also. Power v. Barham, 4 Ad. & E. 473 ; Shepherd v. Kain, 5 B. & A. 240 ; Freeman v. Baker, 5 B. & Ad. 797 ; Hopkins u. Tanqueray, 15 C. B. 130; 23 L. J. C. P. 162; Taylor u. BuUen, 5 E.x. 779 ; Powell v. Horten, 2 Bing. N. C. 668 ; Allan V. Lake, 18 Q. B. 560; Simond v. Braddon, 2 C. B. N. S. 324; 26 L. J. C. P. 198; Hopkins o. Hitchcock, 14 C. B. N. S. 65 ; 32 L. J. C. P. 154. [It is equally well settled in the American cases that no particular form of words is necessary to constitute a warranty; but that if the reudor in a sale of chattels makes any assertion or affirmation, which is not a mere expression of judgment or opinion, respecting the kind, quality, or condition of the article sold, upon which he intends the purchaser shall rely as an inducement to the purchase, and upon which the purchaser does rely, that is an express warranty. Morrill v. Wallace, 9 N. H. Ill ; Ilenshaw v. Robbins, 9 Met. 83, 87, 88 ; Hillman v. Wilcox, 30 Jlaiue, 170; Bryant v. Crosby, 40 lb. 18; Os- good V. Lewis, 2 H. & Gill, 495 ; Chap- man u. Murch, 19 John. 290; Roberts v. Morgan, 2 Cowen, 438; Whitney u. Sut- ton, 10 Wend. 412; Cook v. Moseley, 13 lb. 277 ; Rogers i/. Akerman, 22 Barb. 134; Hawkins u. Pemberton, 51 N. Y. 198; Volhemus u. Heiman, 45 Cal. 573; Murray u. Smith, 4 Daly (N. Y.), 277 ; Brown V. Tuttle, 66 Barb. 169 ; Beeman v. No particu- lar form of ■words iiece; sary to con- stitute war- ranty . Buck, 3 Vt. 53 ; Hawkins v. Berry, 5 Gil- man, 36 ; McGregor v. Penn, 9 Yerger, 74 ; Ricks v. Dillahunty, 8 Porter, 133 ; Towell V. Gatewood, 2 Scam. 24; Otts v, Alderson, 10 Sm. & JL 476; Kinley v. Fitzpatrick, 4 How. (Miss.) 59; Ander- son V. Burnett, 5 lb. 165; Hanson i. King, 3 Jones (N. C.) Law, 419; Mc- Farland v. Newman, 9 Watts, 56 ; Stone V. Denny, 4 Jht. 151, 155 ; Ender v. Scott, 11 III. 35; Humphreys v. Comline, 8 Blackf. 516; Murphy o. Gay, 37 Mo. 535 ; Wilbur v . Cartwright, 44 Barb. 536 ; Bond u. Clark, 35 Vt. 577; O'Neal v. Bacon, 1 Houst. (Del.) 215; Beals i>. Olmstead, 24 Vt. 114; Randall o. Thorn- ton, 43 IMainc, 226 ; Hahn v. Doolittle, 18 Wis. 197 ; Blythe v. Speake, 23 Texas, 430; AVeimer v. Clement, 37 Penn. St. 147; Warren v. Philadelphia Coal Co. 83 lb. 437 ; Crary v. Hoffman, 2 W. N. Gas. (Phil. 1875) 16 ; House v. Fort, 4 Blackf. 296 ; Carter v. Black, 46 Jlo. 384 ; Lawton v. Keil, 61 Barb. 558 ; Wolcott t). Mount, 7 A'room, 262 ; Byrne t. Jansen, 50 Cal. 624; Spading o. Marks, 86 111. 125; Kenner v. Harding, 85 lb. 264; Clark V. Ralls, 50 Iowa, 275 ; Horn u. Buck, 48 JId. 358 ; Morgan v. Powers, 66 Barb. 35 ; Greenthal v. Schneider, 52 How. Pr. 133; Brown ,;. Tuttle, 66 Barb. 169; Chisholm V. Proudfoot, 15 U. C. Q. B. 203; Harrison v. Balfe, Bl., D. & 0. (Ir.) 22 ; Bryce v. Parker, 11 So. Car. 337 ; Au- buchon V. Pohlman, I Mo. App. 298 ; Pat- rick V. Leach, 8 Neb. 530 ; Williams t;. Woodworth, lb. 281.] PART 11.] WARRANTY. 603 have an opinion, and to exercise his judgment. In the former case there is a warranty, in the latter not. (Q But Chalmers in Chalmers v. Harding (17 L. T. N. S. 571), the ex- riig."' ' chequer of pleas held that a statement to a farmer by the ven- dor, who was the patentee's agent for sale of an agricultural ma- chine, that it would " cut wheat, barley, oats, &c. efficiently," was not a warranty, but a mere representation of Wood's Patent Reapers generally. This intention is a question of fact AVhether for tlie jury, to be inferred from the nature of the sale ^vaffn-''*' and the circumstances of the particular case, as will ap- ^^"f'f' pear passhn in the authorities to be reviewed, (m) the jury. (I) Per BuUer J. in Pasley v. Freeman, 3 T. E. 51 ; Powell u. Barliam, 4 Ad. & E. 473 ; Jendwine v. Slade, 2 Esp, 572 ; and see per Bramwell B. in Stucley tj. Baily, infra; Carter v. Crick, 4 H. & N. 412; 28 L. J. Ex. 238 ; Camac v. Warriner, 1 C. B. 356. [See American cases cited in note (k) above ; Bishop v. Small, 63 Maine, 12, and cases cited ; Wolcott v. Mount, 38 N. J. Law, 496, 499 ; Reed v. Hastings, 61 111. 266 ; Byrne v. Jansen, 50 Cal. 624. It was held in Fisher u. Budlong, 10 R. I. 525, that although a buyer is not liable in a suit for deceit, for misrepresenting a seller's chance of selling for a good price, when he is under no obligation to the seller for the accuracy of his statement, yet he will be liable if there is any peculiar rela- tion between the parties implying or lead- ing to confidence.] (m) See, specially, Stucley v. Baily, 1 H. & C. 405 ; 31 L. J. Ex. 483 ; [Duffee v. Mason, 8 Cowen, 25 ; Whitney v. Sutton, 10 Wend. 411; Chapman v. Murch, 19 John. 290; Starnes v. Erwin, 10 Ired. 226; Foster v. Caldwell, 18 Vt. 176; Bradford v. Bush, 10 Ala. 386 ; Hum- phreys u. Comline, 8 Blackf. 516; House V. Fort, 4 lb. 296 ; Fogart v. Blackwel- 238 ; McFarland v. Newman, 9 Wolcott V. Mount, 7 Vroom, 262. If there be any doubt upon the evidence whether the vendor intended to make an affirmation or to express an opinion or belief, the matter should be ler, 4 Ired. Watts, 56 ; Who is to determine whether a warranty exists ? submitted to the jury. Morrill u. Wal- lace, 9 N. H. 111. See Stroud v. Pierce, 6 Allen, 413; Whitney u. Sutton, 10 Wend. 411; Foster u. Caldwell, 18 Vt. 176; Baum u. Steven.s, 2 Ired. (N. Car.) Law, 411 ; House v. Fort, 4 Blackf. 293 ; Murray v. Smith, 4 Daly (N. Y.), 277; Tisdale v. Connell, 1 Kerr (N. B.), 401. Whether the statement, made by seller of a cow, that " she is all right," is a war- ranty of her soundness, was held to be a question for the jury, in Tuttle v. Brown, 4 Gray, 457. But in Brown u, Bigelow, 10 Allen, 242, 244, it was held that the construction of a written contract of war- ranty was exclusively for the court. See 1 Chitty Contr. {11th Eng. ed.) 103, and notes. In Stroud v. Pierce, 6 Allen, 413, 416, it appeared that the vendor of a piano-forte aiBrmed that it was well made and would stand up to concert pitch ; and that this affirmation was untrue. The court ruled that this was a representation of fact, and being found to be false the purchaser was entitled to recover for a breach of it. The vendor claimed that it should be left to the jury to find whether the above language was intended to affirm the fact or express an opinion. Chapman J. said : " The intent of the party is im- material. The legal proposition stated by the judge was correct." See Wason v. Rowe, 16 Vt. 525 ; Smith u. Justice, 13 Wis. 600 ; Baker v. Fawkes, 35 U. C. Q. B. 302.] 604 PERFORMANCE OF THE CONTRACT. [BOOK IV. S 614. In relation to express warranties, the rules for inter- Inter re- prethig them do not differ from those applied to other tation of contracts. The intention of the parties is sought and express warranties, carried into effect, and in some cases, even where the alleo-ed warranty was expressed in writing, it has been left with the jury to say whether the intention of the parties was that the representation or affirmation should constitute a warranty or not, , , . for simplex commendatio non ohliqat. (ii) In Jendwine Jendwme ^ . V. siade. ^,_ Slade (o) two pictures were sold at auction by a cata- logue, in which one was said to be a sea-piece by Claude Lor- raine, and the other a fair by Teniers. Lord Kenyon held this no warranty that the pictures were genuine works of these mas- p , ters, but merely an expression of opinion by the vendor. Barham. ]3nt in Power V. Barham, (^) where the vendor sold by a bill of parcels, " four pictures, views in Venice, Canaletti," it was held proper that the jury should decide whether the defend- ant meant to warrant that the pictures were the genuine works of Canaletti. Lord Denman C. J. distinguished the case from Jendwine v. Slade, by the suggestion that Canaletti (g) was a comparatively modern painter, of whose works it would be pos- sible to make proof as a matter of fact ; but that in the case of very old painters the assertion was necessarily a matter of opinion. § 615. In a sale of " a horse, five years old ; has been con- Exampies stantly driven in the plough, warranted ; " the warranty of con- was held to refer to soundness only : fr) and where the struction ^ .; ^ v y of wr u n sale was in these words : " Received 101. for a gray four- WLirr3,iiti6S' year old colt, warranted sound in every respect," the warranty was also confined to soundness, (s) And in still an- other case, where the sale was thus worded : " Received lOOZ. for a bay gelding got by Cheshire Cheese, warranted sound," it was held that there was no warranty that the horse was of the breed (n) [See Morrill u. Wallace, 9 N. H. (o) 2 Esp. 572. m ; Stroul u. Pierce, 6 Allen, 413, 416; (p) 4 Ad. &E. 473. Tewkesbury t. Bennett, 31 Iowa, 83; (q) Canaletti died in 1768; Claude Horton J). Green, 66 N. C. 596. As to Lorraine in 1682 ; Teniers the younger in declarations by the vendor of the value of 1694. the article sold, see Ellis v. Andrews, 56 (r) Richardson v. Brown, 1 Bing. 344. N. Y. 83 ; Bishop u. Small, 63 Maine, 12, (s) Budd v. Fairmaner, 8 Bing. 48. and cases cited.l PART II.] WARRANTY. 605 named, (i) In Lomi v. Tucker (u) the sale was of two Lomi v. pictures, said by the plaintiff to be " a couple of Pous- tucker, sins;" and it was left by Lord Tenterden to the jury to say whether the defendant bought the pictures, believing them, from the plaintiff's representation, to be genuine; for if so, he was not bound to take them unless genuine. In Wood v. ^^^^ ^ Smith, (a;) the action was assumpsit, and the proof was Smith, that the defendant, in reply to the plaintiff's question, had said that a mare sold was " sound to the best of his knowledge ; " and on further question, had refused to warrant, saying, " I never warrant ; I would not even warrant myself." The mare was un- sound, and the defendant knew it. Gurney, for the defendant, insisted that the action should have been tort, for there was an express refusal to warrant. But Lord Tenterden at the trial, and the court in banco afterwards, held, that on these facts there was a qualified warranty that the mare was sound to the best of the defendant's knowledge, and that the action was there- fore well brought in assumpsit. (2/) In Powell v. Hor- po^gn ^_ ton (2) the sale was " of mess pork, of Scott & Co.," Norton. (i) Dickinson v. Gupp, quoted at p. 50, in Budd v. Fairmanerj 8 Bing. 48. [See Mallan v. RadlofT, 17 C. B. N. S. 588; Ketchum v. Wells, 19 "Wis. 25. Where the contract of sale was, " Bought one red horse, six years old, for one hundred and twenty-five dollars, which I warrant sound and kind," the age was held to be a matter of description, and the warranty applica- ble only to the soundness and kindness. Willard v. Stevens, 24 N. H. 271. See Morrill v. Bemis, 37 Vt. 155. A bill of sale of a horse in which he is stated as "considered sound," does not import a warranty of soundness. Wason v. Rowe, 16 Vt. 525 ; Towell v. Gatewood, 2 Scam. 22 ; Baird v. Matthews, 6 Dana, 129 ; Bur- dit V. Burdit, 2 A. K. Marsh. 143.] («) 4 C. & P. 15. See, also, De Sew- hanberg v. Buchanan, 5 C. & P. 343. (x) 5 M. & R. 124. (j) [An affirmation by the vendor that Examples of " horse was not lame, made warraaties. at the time of sale, and that he would not be afraid to warrant that the horse was sound every way as far as he knew, was held to amount to a warranty. Cook V. Moseley, 13 Wend. 277. So where in an action for a breach of a war- ranty of a horse the proof was that the plaintiff said to the defendant that he would not exchange unless the defendant would warrant his horse to be sound, to which the defendant answered, " He is a sound horse except the bunch on his leg." The horse had the glanders. This was held to be a warranty and a breach of it. Roberts w. Morgan, 2 Cowen, 438 ; M'Guin- ness V. Hunter, 6 Ir. Jur. (0. S.) 103. A representation by a vendor upon a sale of flour in barrels, that it is in quality super- fine, or extra superfine, and worth a shil- ling a barrel more than common, coupled with the assurance to the purchaser's agent that he may rely upon such representation, is a warranty of the quality of the flour, and the vendor is liable for any defect, whether he knew of it or not. Carley v. Wilkins, 6 Barb. 557. See Beeman v. Buck, 3 Vt. 53; Ricks u. Dillahunty, 8 Porter, 133.] (z) 2 Bing. N. C. 668. 606 PERFORMANCE OF THE CONTRACT. [BOOK IV. and the defendant attempted to evade his responsibility by show- ing that the pork delivered by him was really mess pork, con- sii/ned to him by Scott & Co. ; but proof was received to show that those words meant in the trade mess pork mannfacttired by Scott & Co., which was worth more in the market than the article delivered by the defendant, and the court held the defendant bound by a warranty that the pork was of that manufacture. Yates « ^^^ ^"^ Yates V. Pym (a) the court refused to admit ^>''"- parol evidence of the usage of trade to qualify an ex- press warranty. The sale was of " prime singed bacon ; " and evidence was offered, that as bacon is an article necessarily deteri- orating from its first manufacture, a usage of the trade was estab- lished, that a certain degree of deterioration, called average taint, was allowed, before the article ceases to become "prime bacon," but the evidence was held rightly rejected. (5) In Bywater v. Bywater v. Richardson (c) a notice that a warranty was to remain son. in force only till twelve o'clock next day, was con- strued to mean that the vendor was responsible only for such de- Chapman fects as might be pointed out before that hour ; and in tiier."''*'' Chapman v. Gwyther ((i) a sale of a horse, " warranted sound for one month," was also construed as a limitation of the vendor's responsibility to such faults as were pointed out within the month, so that he was held not liable for a defect which ex- isted at the time of the sale, but was not discovered till more than a month had elapsed. § 616. A general warranty does not usually extend to defects General apparent on simple inspection, requiring no skill to dis- dTOsnot^ cover them, nor to defects known to the buyer, (e) (a) 6 Taunt. 4-16. Eng. (Ark.) 166; Kenner u. Harding, (6) [See Winsor v. Lombard, 18 Pick. Sup. Ct. 111. Jan. T. 1877, 5 Cent. Law 57, ciied and stated in note (e) below.] Journ. 116 ; S- C. 85 111. 264; Bennett (c) 1 Ad. &E. 508. V. Buchan, 76 N. Y. 386. In Brown (d) L. R. 1 Q. B. 464 ; 35 L. J. Q. B. v. Bigelow, 10 Allen, 242, it was held 142. See Mt-biiarJ v. Aldvidge, 3 Esp. that a bill of sale of "one horse, sound 271; Buchanan u. Parnshaw, 2 T. K. and kind," is a warranty of soundness, 745. [See § 599 a, ante.\ upon which the vendor is li- Brown v. (e) [Vandewalker v. Osmer, 65 Barb, able if the horse proves to B'gelow. 556,561. This rule does not apply where be permanently lame, although the pur- As to war- the vendor uses art to con- chaser knew he was lame a week before ing'oliv'ious' '^'^^' ^^^ ^°'^^ conceal such the sale, and his lameness was talked of defects. defects. Chadsey v. Greene, before the sale, and the vendor then re- 24 Conn. 562. See Richardson v. John- fused to give a warranty. Bigelow C. J. son, 1 La. An. 389 ;' Dillard v. Moore, 2 said: "The doctrine that a warranty of PART 11.] WARRANTY. 607 But the warranty may be so expressed as to protect the extend to buyer against the consequences growing out of a patent parent on defect. (/) In Liddard v. Kain ((/) the sale was of spection?' horses known to the buyer to be affected, one with a Liddard V. Kain. soundness does not include or covei- patent and obvious defects rests on the reason- able presumption that the parties could not have intended the warranty to apply to a defect rendering the horse unsound which was seen and known to both parties at the time of sale. But here the appear- ance of the horse did not disclose actual unsoundness. The unsoundness was not patent. Lameness may or may not make a horse unsound. If it was only acci- dental and temporary, it would not be a breach of warranty; but if it was chronic and permanent, arising from causes which were beyond the reach of immediate rem- edies, it would be clearly a case of un- soundness." See Birdseye v. Frost, 34 Barb. 367. In regard to the rule stated in the text, see Williams v. Ingram, 21 Texas, 300 ; Hill v. North, 34 Vt. 604 ; Dillard v. Moore, 2 Eng. (Ark.) 166; Fisher v. Pollard, 2 Head (Tenn.) 314; Mulvany u. Rosenberger, 18 Penn. St. 203 ; Schuyler u. Euss, 2 Caines, 202 ; Long V Hicks, 2 Humph. 305 ; Richard- son v. Johnson, 1 La. An. 389 ; Dana v. Boyd, 2 J. J. Marsh. 587 ; Hudgins u. Perry, 7 Ired. 102; Vandewalker v. Os- mer, 6.5 Bai'b. 556. Where a large num- ber of barrels of mackerel, branded under the inspection laws as No. 1 and No. 2 mackerel, were sold under a warranty that they were of that grade or description, it was held that the vendors could not be understood to warrant the fish free from rust, although it appeared that mackerel affected by rust are not considered as No. 1 and No. 2, but only to warrant that they were inspected Lombard. and branded as such. Winson u. Lom- bard, 18 Pick. 57. The sale of the mack- erel in this case was made on the 22d May. Shaw C. J. said : " In the sale of mackerel, both parties must be presumed to be acquainted with the inspection laws, both must be understood to know the sea- son of the year when this species of fish are caught, packed, and branded, and the species of damage or deterioration to which they are liable, and that if mackerel are sold in the spring, they cannot be of an inspection more recent than that of the preceding autumn. With these circum- stances mutually understood we have no doubt that when these fish were sold as No. 1 and No. 2, the understanding of the parties was that they were fish packed, inspected, and branded as of those num- bers respectively." "In this respect the parties referred to the brand, and to this extent they acted upon the faith of it. Then, as there was no express warranty of the actual condition of the fish, or of the manner in which they were kept and taken care of after the inspection, and from that time to the sale, and as there was no description embracing these par- ticulars, it must be presumed that both parties relied upon the faith of the inspec- tion and brand." Parol evidence is ad- missible to show that the vendor informed the purchaser, at the time of the sale, of the defect alleged. Schuyler v. Euss, 2 Caines, 202. In Pinney v. Andrus, 41 Vt. 631, Wilson J. said: "But it seems to be now well settled that the rule of law which exempts a vendor from liability upon a general warranty of soundness, (/) [^ party may warrant against an obvious and patent defect as well as against any other. Pinney v. Andrus, 41 Vt. 631 ; Stucky v. Clyburn, Cheves, 186 ; Thompson v. Botts, 8 Mo. 710 ; Wilson V. Ferguson, Cheves, 190 ; Hambright u. Storer, 31 Ga. 300 ; Scarborough i). Rey- nolds, 13 Richardson, 98; House u. Fort, 4 Blackf. 293 ; Fisher v. Pollard, 2 Head (Teun.), 314.] {g} 2 Bing. 183. 608 PERFORMANCE OF THE CONTEACF. [bOOK IV. cough, and the other with a swelled leg ; but the vendor agreed to deliver the horses at the end of a fortnight, sound and free from blemish, and this warranty was held to include the defects above mentioned, although known to the purchaser. § 617. Margetson v. Wright, (/j) which was twice tried, is in- Mar etson structive on this point. The sale was of a race-horse, V. Wiight. -vvbich had broken down in training, was a crib-biter, and had a splint on the off fore-leg. The horse, sound in other respects, would have been worth 5001. if free from the defects named. He was sold by the defendant to the plaintiff, after dis- closure of these defects, for 901. The defendant refused to give a warranty that the horse would stand training, and refused to sign a warranty that the horse was " sound, wind and limb," without adding the words, " at this time." Six months afterwards the horse broke down in training, and Park J. told the jury that the express warranty rendered the defendant responsible for the conse- quences of the splint, though it was known to the purchaser ; but that the addition of the words, " at this time," was intended to exclude a warranty that the horse would stand training. On mo- tion for new trial, the first branch of this ruling was held errone- ous. Tindal C. J. saying: "The older books lay it down that defects apparent at the time of a bargain are not included in a warranty, however general, because they can form no subject of deceit or fraud, and originally the mode of proceeding on a war- ranty was by an action of deceit grounded on a supposed fraud, (i) There can, however, be no deceit where a defect is so manifest that both parties discuss it at the time ; a party, therefore, who should buy a horse, knowing it to be blind in both eyes, could not ■where the defect is perfectly visible and solely upon his own judgment in making obvious to the unaided senses, does not ex- the purchase. Nor has that rule any ap- tend to an apparent defect, to plication to the case of a special warranty Wilson J. as understand the true nature against a specified defect.''] covw'a by ^'"^ extent of which requires (A) 7 Bing. 603 ; 8 Bing. 454. general wur- the aid of skill, experience, Or {i) [Huston v. Plato, 3 Col. 402; and judgment. Nor is the rule see the remarks of Phelps J. in Vail i'. applicable to a case where the vendor has Strong, 10 Vt. 457, to the effect that resorted to any acts or representations in where an action is brought g j^j respect to the property, intended or nat- upon a warranty, and the sci- recorery urally calculated to throw the purchaser enter is averred, the plaintiff j'^ntytsTaid off his guard, and induce him to omit may recover either on the ex- withscrai- such thorough examination of the condi- press contract or for the de- tion of the jiroperty as he might, and very ceit. Larey v. Taliaferro, 57 Ga. 443. likely would ha\e made, if he had relied See § 904, note (n),post.] PART II.] WARRANTY. 609 sue on a general warranty of soundness. In the present case, the splint was known to both parties, and the learned judge left it to the jury to say whether the horse was fit for ordinary purposes. His direction would have been less subject to misapprehension if he had left them to consider whether the horse was at the time of the bargain sound, wind and limb, saving those manifest defects contemplated hy the parties" On the new trial then ordered, the plaintiff proved, to the satisfaction of the jury, that there were two kinds of splints, some of which cause lameness, and others do not, and that the splint in question did cause a subsequent lame- ness, and they found that the horse at the time of the sale, " had upon him the seeds of unsoundness arising from the splint." Held, that this result not being apparent at the time, and the buyer not being able to tell whether the splint was one that would cause lameness, was protected by the warranty that the horse was then sound, (j}') § 618. But in Tye v. Fynmore, (Jc) where the sale was of " fair merchantable sassafras wood," the purchaser refused to ,p take the article, alleging that these words meant in the Fynmore. trade, the roots of the sassafras tree, but that the wood tendered by plaintiff was part of the timber of the tree, not worth more than one sixth as much as the roots. In answer to this it was shown that a specimen of the wood sold was exhibited to the buyer before the sale, and that the buyer was a druggist, well skilled in the article. Lord Ellenborough said : " It is immaterial that the defendant is a druggist, and skilled in the nature of medicinal woods. He was not bound to exercise his skill, having an express undertaking from the vendor as to the quality of the commod- ity." (0 {i') See, also, Butterfield K. Burroughs, the article purchased, he is fore the ISalk. 211; Southerne k. Howe, 2 EoUe, to be considered as having '"'^^'^• 5 ; 2 Bl. Com. 165, 166. waived his right to indemnity under the (k) 3 Camp. 462 ; [Henshaw v. Robins, warranty. On this question the authori- 9 Met. 83.] ties are conflicting. But we are of opinion (I) [Ante, § 429, note (h) ; Attwood v. that the examination of the article by the Small, 6 CI. & Fin. (Am. ed.) 233, note plaintiff, at the time of the sale, is no evi- (2) ; First National Bahk v. Grindstaff, dence of his intention to waive any legal 45 Ind. 158. In Henshaw v. Eohins, 9 right. If the spurious nature of the arti- Met. 83, 89, which was an action for cle might have been detected on inspec- breach of warranty in a sale of indigo, tion, it might have been otherwise ; but we Wilde J. said : " The plaintiff is, there- must infer, from the instruction of the Implication fore, entitled to recover, un- court, that the jury found that the article tide is be- less, by the examination of was so disguised that the deception could 39 610 PERFORMANCE OF THE CONTRACT. [BOOK IV. § 619. The meaning of the word " sound," when used in the Meaning sale of horses, has been the subject of several decisions, of "sound- j^j^^ j|. jg settled that the interpretation of a warranty to wavranty that effect depends much on custom and usage, as well of horses. • . ° „. , ,, as upon the circumstances of the particular case. The Kiddell I'. -"^ . . ,. , ,, _ Burnard. rule was fully considered in Kiddell v. Burnard. (?n) A verdict was given at nisi prius in favor of the plaintiff, who had purchased, with a warranty of soundness, some bullocks at a fair. The learned judge (Erskine J.) told the jury that the plaintiff was bound to show that at the time of the sale the beasts had some disease, or the seeds of some disease (w) in them, which would render them unfit, or in some degree less fit, for the or- dinary use to which they would be applied. On the motion for new trial, Parke B. said : " The rule I laid down in Coates v. Stevens (o) is correctly reported, and I am there stated to have said : ' I have always considered that a man who buys a horse warranted sound must be taken as buying him for immediate use, and has a right to expect one capable of that use, and of being immediately put to any fair work the owner chooses. The rule as to unsoundness is, that if at the time of the sale the horse has any disease, which either does diminish the natural useful- ness of the animal so as to make him less capable of work of any description, or which in its ordinary progress will diminish the natural usefulness of the animal, or if the horse has either from disease or accident undeii;one any alteration of structure, that either actually does at the time, or in its ordinary effects will, diminish the natural usefulness of the horse, such horse is unsound. Q?^ If the cough actually existed at the time of the sale not have been detected by a skilful dealer day a. Morgan, 1 E. & E. 1 ; 28 L. J. in indigo, without resorting to an analyt- Q. B. 9. ical experiment, so that no neglect can be (n) [Woodbuiy v. Eobbins, 10 Gush, imputed to the plaiutifl: in not making a 520 ; Stephens u. Cbappell, 3 Strobh. careful experiment." But the law will 80.] not permit a purchaser, having the prop- (o) 2 Moo. & Bob. 157. erty before him, and defects in it plainly (p) [Roberts u. Jenkins, 21 N. H. 116, discoverable, to shut his eyes and ears, 119, 120; Kornegay v. White, 10 Ala. and omit to use his senses, and pretend 255 ; Burton u. Young, 5 Harr. 233 that he relied on the representations made Brown v. Bigelow, 10 Allen, 244, 245 by the vendor, and was thereby misled. Hook v. Stovall, 21 Ga. 69; Crouch v. Vandewalker u. Osmer, 65 Barb. 556, Culbreath, 11 Rich. 9 ; Woodbury f. Roll- 561.] bins, 10 Cush. 520; Eondreu v. Durfee, (m) 9 M. & W. 668; and see HoUi- 39 Miss. 324.] PART II.J WARRANTY. 611 as a disease, so as actually to diminish the natural usefulness of the horse at that time, and to make him less capable of immediate work, he was then unsound ; (g) or if yon think the cough, which, in fact, did afterwards diminish the usefulness of the horse, existed at all at the time of the sale, you will find for the plaintiff. I am not now delivering an opinion formed at the moment on a new subject ; it is the result of a full previous consideration.' That is the rule I have always adopted and acted on in cases of unsound- ness, although in so doing I differ from the contraiy doctrine laid down by my brother Coleridge in Bolden v. Brogden." (r) All the judges, Alderson, Gurney, and Rolfe BB., concurred in this exposition, the first named saying : " The doctrine laid down by my brother Parke to-day, and in the case of Coates v. Stevens, is not new law : it is to be found recognized by Lord Ellen- borough fs) and other judges in a series of cases." In ^ ,^ -r.,1 JB _ , . -, Bolden v. Bolden v. Brogden, (>•) which it is submitted was over- Brogden ruled in Kiddell v. Burnard, Coleridge J. had told the by Kiddell jury that the question on such a warranty was whether the animal had upon him a disease calculated permanently/ to render him unfit for use, or permanently to diminish his useful- ness, (f) § 620. It may be convenient to state some of the defects which have been held to constitute unsoundness. Any organic Defects defect, such as that a horse had been nerved ; (u) bone- beeniiefd* spavin in the hock ; («) ossification of the cartilages ; («/) '"j™"^"' the navicular disease (s) and thick wind (a) have been soundness. held to constitute unsoundness in horses, and goggles in sheep. (6) But roaring has been held not to be, (c) and in a later case to be, (d) unsoundness. Crib-biting (e) has been held to be not un- (q) [See Roberts v. Jenkins, 21 N. H. {x) "Watson v. Denton, 7 C. & P. 85. 116; Kornegay v. White, 10 Ala. 255; .(y) Simpson v. Potts, Oliph. Law of Tatum o. Mohr, 21 Ark. 349 ; Thompson Horses, 224. V. Bertrand, 23 lb. 730 ; Merrick v. Brad- (z) Matthews v. Parker, Oliph. Law of ley, 19 Md. 50.] Horses, 228; and Bywater v. Richardson, (r) 2 Moo. & Rob. 113. 1 Ad. & E. 508. (s) Elton V. Brogden, 4 Camp. 281 ; (a) Atkinson v. Horridge, Oliph. Law Elton V. Jordan, 1 Stark. 127. of Horses, 229. {t) See, also, Onslow y.Eames, 2 Stark. (b) Joliff v. Bendell, Ry. & Moo. 136. 81; Garment v. Barrs, 2 Esp. 673, which (c) Bassett v. CoUis, 2 Camp. 523. seem also to be overruled by Kiddell v. (d) Onslow v. Eames, 2 Stark. 81. Burnard. (e) Broennenburgh v. Haycock, Holt N. (u) Best ». Osborne, Ry. & Moo. 290. P. 630. 612 PERFORMANCE OF THE CONTRACT. [BOOK IV. soundness, but to be covered by a warranty against vices. (/) Mere badness of shape that is likely to produce unsoundness, and which really does produce unsoundness, is not a breach of warranty of soundness if the unsoundness does not exist at the time of the sale. As where a horse's leg was so ill-formed that be could not work for any length of time without cutting, so as to produce lameness ; (^) or had cui-by hocks, that is, hocks so formed as to render him very liable to throw out a curb, and thus produce lameness ; (A) or thin-soled feet, also likely to produce lame- ness, (i) But a horse may have a congenital defect, which, in H Uida V ^^self, is unsoundness. In Holliday v. Morgan (k) a Morgan. horse sold with a warranty of soundness had an unu- sual convexity in the cornea of the eye, which caused short-sight- edness and a habit of shying. The direction to the jury was, that " if they thought the habit of shying arose from defectiveness of vision, caused by natural malformation of the eye, this was un- soundness. All the judges held this direction correct, and con- curred in the doctrine of Kiddell v. Burnard, (I) that the true test of unsoundness is, as expressed by Hill J., " whether the defect complained of renders the horse less than reasonably fit for present use.'''' (IP) § 621. Where the written sale contains no warranty, or ex- presses the warranty that is given by the vendor, parol dence in- evidence is inadmissible to prove the existence of a war- to prove ranty in the former case, or to extend it in the latter, by (/) Scholefield v. Robb, 2 Moo. & Rob. Halsington, 43 Vt. 608, a horse was war- 210. [See Dean v. Morey, 33 Iowa, 120.] ranted " sound and right," but he proved (g) Dickinson v. Follett, 1 Moo. & Eob. to be a "cribber." The court said: "Per- 299. haps this horse was physically sound al- (A) Brown u. Elkington, 8 M. & W. though he was what is called a cribber, 132. and perhaps not ; as to that we make no (;) Bailey v. Forrest, 2 C. & K. 131. decision and express no opinion, but the (k) 1 E. & E. 1 ; 28 L. J. Q. B. 9. warranty was as to more than soundness, (I) 9 M. & W. 668. it was that the horse was sound and right. (l^) [In Washburn ;;. Cuddihy, 8 Gray, A fair interpretation of this warranty 430, it was held that crib-biting, affecting would make it mean that the horse was Unsound- ^^^ health and condition of right in conduct and behavior — as to all ness in the horse, so as to render him matters materially affecting its value, as less able to perform service well as in physical condition." Whether and of less value, is unsoundness. See corns in a horse's feet constitute a breach Paul V. Hardwick, sittings at "Westminster of warranty of soundness is a question of H. T. 1831, cited 1 Chitty Con tr. (11th fact for the jury. Alexander i). Dutton, Am. ed.) 655, note (r). In Walker c 58 N. H. 282.J PART II.J WARRANTY. 613 inference or implication, (m) In Kain v. Old, (w) the warranty bill of sale in the usual form contained no warranty that sale is the vessel sold was copper-fastened ; there had been a 3""™" previous written representation by the vendor that she Old. was copper-fastened. Held that this prior representation formed no part of the contract, and was not a warranty. Abbott C. J. thus expounded the law : " Where the whole matter passes in parol, all that passes may sometimes be taken together as forming parcel of the contract, though not always ; because matter talked of at the commencement of a bargain may be excluded by the language used at its termination. But if the contract be in the end reduced into writing, nothing which is not found in the writ- L. to furnish him with a certain quantity of tallow, of good quality and color, at a cer- tain price per pound, and to Lamb v. deliver it at a certain place, Crafts, and afterwards furnished and delivered the specified quantity, and made and signed bills of parcels in which the arti- cle was denominated " tallow," without other description or designation ; L. ac- cepted the tallow, and paid the agreed price for it. Upon these facts, it was held that the agreement was within the statute of frauds, and that L. could not recover for a breach of v^arranty made by C. at the time of the agreement, that the tallow should be of good quality and color ; and also, that if the delivery of the tallow by C, and the acceptance and payment by L. were to be regarded as constituting one entire contract of sale, yet there was no contract of warranty, because the bill of parcels, which was the only written mem- orandum signed by C, specified none, and contained no description or denomination from which a warranty could be inferred. Parol evidence of the warranty was ex- cluded, in this case, because it formed a part of the original agreement, all of which was within the statute of frauds; and, not being in writing, none of it could be en- forced, and no warranty accompanied the actual delivery of the tallow and the giv- ing and acceptance of the biUs of par- cels.] (n) 2 B. & C. 627. (m) [See Eeed v. Wood, 9 Vt. 285 ; Salem Ind. Co. v. Adams, 23 Pick. 256 ; Lamb v. Crafts, 12 Met. 353; Batturs v. Sellers, 5 H. & John. 117 ; Dean v. Mason, 4 Conn. 432 ; Mumford v. McPherson, 1 John. 414; Wilson v. Marsh, lb. 503; Van Ostrand u. Reed, 1 Wend. 424 ; Whitraore v. The South Boston Iron Co. 2 Allen, 58 ; Foster J. in Boardman v. Spooner, 13 lb. 361, and cases cited; Eice V. Forsyth, 41 Md. 389 ; Fry v. The Richelieu Co. 9 Low. Can. 406 ; Morrow v. The Waterous Engine Co. 2 Pugsley & Burbridge (N. B.), 509 ; MuUain v. Thomas, 43 Conn. 252 ; Galpin v. At- water, 29 lb. 93 ; Shepherd u. Gilroy, 46 Iowa, 193. The writing is supposed to contain the whole contract between the parties. Randall u. Rhodes, 1 Curtis C. C. 90 ; Niles v. Culver, 8 Barb. 205 ; Sparks v. Messick, 65 N. C. 440. Where a bill of sale of a vessel was executed between the parties, contain- ing a warranty of soundness, parol evidence was held inad- missible to prove an addi- tional warranty of soundness. Pender v. Fobes, 1 Dev. & Bat. 250 ; Henderson u. Cotter, 15 U. C. Q. B. 345. See, also. Smith v. Williams, 1 Car. Law, 363 ; 1 Murph. 426 ; Peltier v. Collins, 3 Wend. 459 ; Wood v. Ashe, 1 Strobh. 407. In Lamb e. Crafts, 12 Met. 353, it ap- peared that C, whose business was that of collecting rough tallow and preparing it for market, made an oral agreement with Contract in writing, parol evi- dence inad- misBible to prove war- ranty. 614 PERFORMANCE OF THE CONTRACT. [book IV. ing can be considered as a part of the contract. A matter antece- dent to and dehors the writing may in some cases be received in evidence, as showing the inducement to the contract, such as a representation of some particular quality or incident to the thing sold ; but the buyer is not at liberty to show such a representa- tion, unless he can also show that the seller, by some fraud, pre- vented him from discovering a fault which he, the seller, knew to exist." (o) § 622. But where the written paper was in the nature of an Dickson D. informal receipt merely, held that parol evidence of a zizinia. warranty was admissible. (^) In Dickson v. Zizinia (q) Parol evi- dence 18 ad missible when writ- ing is in nature of receipt ; bill of par- cels, &e. (o) See, also, Pickering u. Dowson, 4 Taunt. 779 ; Wright v. Crookes, 1 Scott N. E. 685. ip) Allen V. Pink, 4 M. & W. 140; [Tisdale v. Connell, 1 Kerr (N. B.), 401 ; Bennett v. Tregent, 24 U. C. C. P. 565 ; Gordon v. Waterous, 36 U. C. Q. B. 321 ; Perrine u. Cooley, 10 Vroom, 449. In Bradford u. Manly, 13 Mass. 139, where a bill of parcels was given by the vendor to the purchaser, in which the article sold was described as a certain quantity of " cloves," the purchaser was allowed to prove by parol that the sale was by sample, and that the article delivered was inferior in quality to the sample. See Williams v. Spafford, 8 Pick. 250. In Hogins v. Plympton, 11 Pick. 97, there was « written agreement of the vendor, by which he undertook to ship to the purchaser, a certain quantity of " good fine wine,'' and acknowledged the receipt of payment, and in an action by the purchaser to recover of the vendor for delivering wine inferior to the descrip- tion, parol evidence, offered by the vendor, was admitted to show the actual terms of the case, and that he shipped the wine se- lected by the purchaser. Bradford v. Manly, supra, was cited in this case, and considered in point. The case of Wal- lace o. Rogers, 2 N. H. 506, was decided on similar principles. Bills of parcels, it is said, introduce an exception to the gen- eral rule respecting the admissibility of parol evidence, being informal documents, intended only to specify prices, quantities, and a receipt of payment, and not being used or designed to embody or set out the terms and conditions of a contract of bar- gain and sale. Hazard v. Loring, 10 Cush. 267 ; Schenck v. Saunders, 13 Gray, 37, 41, 42 ; Fletcher v. Willard, 14 Pick. 464 ; Hildreth v. O'Brien, 10 Allen, 104 ; Stacy V. Kemp, 97 Mass. 168 ; Frost v. Blanch- ard, lb. 155; Boardman v. Spooner, 13 Allen, 353 ; Atwater v. Clancy, 107 Mass. 369; Harris v. Johnston, 3 Cranch, 311; Wallace v. Eogers, 2 N. H. 506 ; Sutton v. Crosby, 54 Barb. 80 ; Foot v. Bentley, 44 N. Y. 166. The cases are numerous in which parol evidence has been held ad- missible to explain and qualify a warranty contained in a bill of parcels. See At- water V. Clancy, Hazard v. Loring, Board- man V. Spooner, Frost v. Blanchard, and other cases above cited ; Hcnshaw e. Rob- ins, 9 Met. 83, 87 ; Pike v. Fay, 101 Mass. 136, 137; Harris v. Johnston, 3 Cranch, 311. A bill of sale of a horse, containing also a receipt for the payment of the price, does not exclude parol evidence that the vendor, at the time of the sale, warranted the horse sound. Hersom v. Henderson, 21 N. H. 224; Filkins v. Whyland, 24 Barb. 379. So a transfer of personal property may be shown by parol evidence to have been only a pledge, although ac- companied by a bill of parcels in this (q) 10 C. B. 602 ; 20 L. J. C. P. 72. PART 11.] WARRANTY. 615 there was an express warranty that a cargo of Indian corn, sold to the plaintiff, should be equal to the average of shipments of Salon- ica of that season, and should be shipped in good and merchantable condition, and the court refused to allow the warranty to be ex- tended by evidence or implication, so as to render the defendant answerable that the corn should be in fit condition for a foreign voyage. But in Bigge v. Parkinson, (r) where the ven- gj^^^ ^ dor gave a written guaranty that stores furnished for a Parkinson, troop-ship should pass survey by the East India Company's offi- cers, this was held not to dispense the vendor from the warranty implied by law, (s) that the provisions should be reasonably fit for use for the intended purpose. In By water v. Rich- B^^^^ter v. ardson (i) there was a warranty of soundness, but the Richardson. purchase was made at the repository, where there was a rule painted on a board fixed to the wall, that a warranty of sound- ness, when given there, was to remain in force only until twelve o'clock at noon on the next day after the sale ; and the court held, on proof of the buyer's knowledge of the rules, that the warranty was limited, and it was the same as if the seller had told him that he would warrant the horse against such defects only as might be pointed out within twenty-four hours. § 623. Blackstone says that " The warranty can only reach to things in being at the time of the warranty made, and Warranty not the things in future : as that a horse is sound at the soundness. buying of him, not that he will be sound two years hence." (m) But the law is now different, as is explained by Mr. Justice Cole- ridge in his notes on this passage. Lord Mansfield, also, in a form: "A. B. bought of C. D. [certain complete contract between the parties to goods described]. Received payment, C. it, cannot be explained by parol, as can D." Hazard u. Loring, 10 Cash. 267; be more general receipts for property or Whitaker v. Sumner, 20 Pick. 399. Parol money. Niles u. Culver, 8 Barb. 205 ; evidence is admissible to show a usage of Goodyear v. Ogden, 4 Hill, 104 ; Stone v. trade as to the mode of making sales, the Vance, 6 Ham. (Ohio) 247 ; Batturs v. ■written memorandum and the bought and Sellers, 5 H. & '.John. 117 ; S. C. 6 lb. sold note being silent upon the subject; 249; Chapman v. Searle, 3 Pick. 38; Boorman c. Jenkins, 12 Wend. 567; and Eice v. Forsyth, 41 Md. 389.] to prove that the vendor informed the (r) 7 H. & N. 955; 31 L. J. Ex. 301, in purchaser, at the time of the sale, of the Cam. Scacc. defect charged. Scbuyler v. Russ, 2 (s) Post, Implied Warranty of Quality. Caiues, 202. But a paper purporting to (t) 1 Ad. & B. 508. be a receipt, but containing in truth a (w) 3 Bl. Com. 166. 616 PERFORMANCE OF THE CONTRACT. [book IV. case (:r) where this passage was cited, said : " There is no doubt but you may warrant a future event." («/) § 624. Warranties are sometimes given by agents, without ex- Warranties press authority to that effect. In such cases the question by agents, g^^.jggg ^g ^q ^{jg power of an agent, who is authorized to rule. sell, to bind his principal by a warranty. The general rule is, as to all contracts including sales, that the agent is au- thorized to do whatever is usual to carry out the object of his agency, and it is a question for the jury to determine what is usual. (2) If in the sale of the goods confided to him it is usual in the market to give a warranty, the agent may give that war- .[ , ranty in order to effect a sale, (a) Thus, in Alexander V. Gibson. ^_ Gibson, (J) a servant who was sent to sell a horse at (x) Eden v. Parkinson, 2 Doug. 735. {y) [See Upton v. Suffolk County Mills, 11 Cush. 586 ; Pike v. Fay, 101 Mass. 134 ; Swett V. Shumway, 102 lb. 365, 368 ; Fatman v. Thompson, 2 Disney, 482 ; Stamm v. Kuhlman, 1 Mo. App. 296. But if the warranty cannot be performed within a year, it must be in writing. Nicholls V. Nordheimer, 22 U. C. C. P. 48. See Northwood v. Rennie, 28 lb. 202.] (z) Bayliffe v. Butterworth, 1 Ex. 425 ; Graves v. Legg, in Cam. Scacc. 2 H. & N. 210; 26 L. J. Ex. 316; Pickering c. Busk, 15 East, 38. (a) [The American decisions are gen- erally in harmony with the doctrine of the text. Skinner v. Gunn,9 Porter, 305; Gaines u. MoKinley, 1 Ala. (N. S.) 446; Bryant v. Moore, 26 Maine, 84, 87; Sand- ford u. Handy, 23 Wend. 260; Nelson v. Cowing, 6 Hill, 337 ; Hunter v. Jameson, 6 Ired. 252 ; Williamson 0. Canaday, 3 lb. 349 ; Woodford u. McClenahan, 4 Gilman, 85; Bradford ». Bush, 10 Ala. 386; Peters !•. Farnsworth, 15 Vt. 155; Boothby v. Scales, 27 Wis. 626 ; Taggart V. Stanbery, 2 McLean, 543, 544; Lane v. Dudley, 2 Murph. 119 ; Ezell v. Franklin, 2 Snted (Tenn.), 236; Croom u. Shaw, 1 Florida, 211 ; Upton u. Suffolk County Mills, 11 Cush. 586, 589 ; Morris v. Bowen, 52 N. PL 416, 421 ; Palmer u. Hatch, 46 Mo. 585 ; Randall v. Kehlor, 60 Maine, 37 ; Fay v. Richmond, 43 Vt. 25; Murray o. Brooks, 41 Iowa, 45 ; Applegate v. Mof- fitt, 60 Ind. 104. Where the customary mode of selling certain kinds American of merchandise is by sample, ca.«eson .. . , , power of II an agent is employed to agent to make the sale, he may select "'"^i'- the sample and bind his principal to the warranty resulting from a sale by sample. Andrews v. Kneeland, 6 Cowen, 354. An agent to sell would unquestionably, in all cases, be authorized to affect his principal with a warranty that the article sold would answer the description given of it in the power or direction under which the sale was made. See Upton v. Suffolk County Mills, 11 Cush. 586. But though the power to sell may authorize the agent to warrant the present condition or quality of the article sold, yet there is no implica- tion from such power of an authority to warrant its future condition, e, g. that flour shall keep sweet on a voyage to Cal- ifornia. Upton V. Suffolk County Mills, 11 Cush. 586. See Randall u. Kehlor, 60 Maine, 37, 47. In Blood u. French, 9 Gray, 197, 198, Bigelow J. said: "We doubt whether, in an ordinary sale of goods by auction, an auctioneer virtute officii has any right or authority to war- rant goods sold by him in the absence of (6) 2 Camp. 555. See, also, Helyear v. Hawke, 5 Esp. 72. PART II.] WARRANTY. 617 a fair ^ and receive the price, was held by Lord EUenborough to be authorized to give a warranty of soundness, because " this is the common and usual manner in which the business is done." In Dingle v. Hare, (c) an agent selling guano was held pin^g „. authorized to warrant it to contain thirty per cent, of Hare, phosphate of best quality, the jury having found as a fact that ordinarily these manures were sold with such a warranty, all the judges agreeing, and Byles J. saying : " It is clear law, that an agent to sell has authority to do all that is necessary and usual in the course of the business of selling, and if it was usual in the trade for the seller to warrant, Wilson (the agent) had authority to warrant." § 625. In Brady v. Todd, (t?) the common pleas had before it the subject of warranty of a horse, by a servant author- g^ady ». ized to sell, and Erie C. J. gave the unanimous decision '^''^^■ of the judges after advisement. As this is the most authoritative exposition of the present state of the law on this point, full ex- tracts are given. The facts were, that the plaintiff applied to the defendant, who was not a dealer in horses, but a tradesman in London, having also a farm in Essex, in order to buy the horse, and the defendant thereupon sent his farm-bailiff with the horse to the plaintiff, with authority to sell, but none to warrant. The bailiff warranted the horse to be sound and quiet in harness ; and it was contended that " an authority to an agent to sell and de- liver imports an authority to warrant," which the court held to be an undecided point. After referring to Helyear v. Hawke and Alexander v. Gibson, supra, and Fenn v, Harrison, (e) the learned chief justice said : " We understand those judges to refer to a gen- eral agent employed for his principal to carry on his business, any express authority from his principal as his agent, he cannot repudiate a war- to do bo, and without proof of some known ranty made by the agent of the article and established usage of trade, from which sold, which was an essential part of the an authority can be implied." At all contract. Churchill w. Palmer, 115 Mass. events, the court held in the case that an 310; Eadie o. Ashbaugh, 44 Iowa, 519. auctioneer has no authority to bind an See, as to warranty by deputy sheriff at administrator personally to a warranty of sale of personal property. Mink v. Jarvis, the condition of goods of the intestate. 8 U. C. Q. B. 397 ; Mink v. Jarvis, 13 lb. So it was held in Dodd v. Farlow, 11 84.] Allen, 426, that a merchandise broker can (c) 7 C. B. N. S. 145; 29 L. J. C. P. have no implied authority, from the usage 144. of trade, to warrant goods sold by him to [d] 9 C. B. N. S. 592 ; 30 L. J. C. P. be of merchantable quality. Where a party 223; [Coaley v. Perrine, 12 Vroom, 322.] adopts a sale made by another, for him (e) 3 T. E. 759. 618 PERFORMANCE OF THE CONTRACT. [BOOK IV. tliat is, the business of horse-dealing, in which case there would be by law the authority here contended for Ifc is also contended that a special agent, without any express authority in fact, might have an authority by law to bind his principal, as where the prin- cipal holds out that the agent has such authority, and induces a party to deal with him on the faith that it is so. In such a case the principal is concluded from denying this authority as against the party who believed what was held out and acted on it (see Pickering v. Busk), (/) but the facts do not bring the defendant within this rule. The main reliance was placed on the argument that an authority to sell is by implication an authority to do all that, in the usual course of selling, is required to complete a sale, and that the question of warranty is, in the usual course of a sale, required to be answered ; and that, therefore, the defendant by implication gave to Greigg (the farm-bailiff) an authority to an- swer that question, and to bind him by his question. It was a part of this argument that an agent authorized to sell and deliver a horse is held out to the buyer as having authority to warrant. But on this point, also, the plaintiff has, in our judgment, failed. We are aware that the question of warranty frequently arises upon the sale of horses, but we are also aware that sales may be made without any warranty, or even an inquiry about warranty. If we laid down for the first time that the servant of a private oivner, intrusted to sell and deliver a horse on one particular occa- sion, is therefore by law authorized to bind his master by a war- ranty, we should establish a precedent of dangerous consequence. For the liability created by a warranty extending to unknown as well as known defects, is greater than is expected by persons in- experienced in law ; and as everything said by the seller in bar- gaining may be evidence of warranty to the effect of what he said, an unguarded conversation with an illiterate man sent to de- liver a horse may be found to have created a liability which would be a surprise equally to the servant and the master. We there- fore hold, that the buyer taking a warranty from such an agent as was employed in this case takes it at the risk of being able to prove that he had the principal's authority, and if there was no authority in fact, the law does not, in our opinion, create it from the circumstances It is unnecessary to add, that if the seller should repudiate the warranty made by his agent, it follows if) 15 East, 38. PART II.] WARRANTY. 619 that the sale -would be Toid, there being no question raised upon this point." § 626. In Howard v. Sheward (^) the general rule, that the agent of a horse-dealer has an implied authority to war- jjg^^ij „_ rant soundness when making sale of a horse, was recog- Sheward. nized, and it was further held that a purchaser under such a war- ranty would be protected, even though the agent had been pri- vately instructed not to warrant ; and therefore that evidence was not admissible to sbow a custom of horse-dealers not to warrant in cases where a horse sold has been examined by a competent veterinary surgeon and pronounced sound. (A) SECTION n. — IMPLIED ■WAEEANTY OP TITLE. § 627. The law in relation to the implied warranty of title in chattels sold was in an unsettled state until a recent de- implied cision in the common pleas, which has gone far toward of title, establishing a satisfactory rule. In the examination of the sub- ject, it will be found that on some points there is no conflict of opinion. First. It is well settled that in an executory warranty agreement the vendor warrants, by implication, his title glg^^ut'JJy in the goods whicb he promises to sell. Plainly, nothing agreement. could be more untenable than the pretension that if A. promised to sell 100 quarters of wheat to B., the contract would be fulfilled by the transfer, not of the property in the wheat, but of the pos- session of another man's wheat. Secondly. It is also ^f™^' universally conceded, that in the sale of an ascertained vendor, specific chattel, an affirmation by the vendor that the chattel is chattel is his is equivalent to a warranty of title ; and warranty that this aSirmation may be implied from his conduct, as °* ''"''■ 1 1 j: u amr- well as from his words, and may also result from the mation nature and circumstances of the sale. But it has been pued from said, thirdly, that in the absence of such implication, ii'!c™'iuct. -' ' _ _ T ^^ absence and where no express warranty is given, the vendor, by of such af- 1 • j."ii J firmation, the mere sale of a chattel, does not warrant his title and quwref ability to sell, though all again admit, fourthly, that if ^^J^^Te in such case the vendor knew he had no title, and con- has no title, and con- cealed that fact from the buyer, he would be liable on ceais the fact it is the ground oi fraud, (i) fraud. (g) L. E. 2 C. P. 148. (i) [Sweetman v. Prince, 62 Barb. 256 ; [h) [See Bryant v. Moore, 26 Me. 84, Payne v. Eodden, 4 Bibb, 304. In Sweet- 87.] man v. Prince, 62 Barb. 256, 267, Mullin 620 PERFORMANCE OF THE CONTRACT. [book IV. § 628. One ques- tion only that is con- troverted. Discussion of the sub- ject and re- view of the authorities. The one controverted question is thus narrowed to this point, whether in the sale of a chattel an innocent ven- dor by the mere act of sale asserts that he is owner, for if so, he warrants according to the second of the fore- going rules. The negative is stated to be the true rule of law on this point in recent text-books of deservedly high repute. (A;) Undoubtedly, in some of the ancient J. said: "It is not necessary to cite au- thorities to show that a pur- As to when ' vendee can show that vendor did not own the New York rule. chaser of personal property cannot defeat a recovery for the price, by showing that the property is owned by an- other, unless he has been ousted, or there has been a, recovery by the true owner. But there is this important qualification of the rule — that if the seller has been guilty of fraud or deceit in the sale, proof of the fraud will defeat an action for the price, although there has been no ouster nor recovery had by the true owner. But it seems to me that where the vendor is not the owner of the property sold, he is not entitled to have it returned when he has been guilty of a fraudulent concealment or represen- tation as to his title, as he would be if he were owner, and had been guilty of some other fraud in reference to the property ; and one very conclusive reason is, that the purchaser is himself liable to the true owner for the value of the property, hav- ing had it in his possession and use,'' Chase i: Hall, 24 Wend, 102, In Penn- sylvania, if the vendee would avail himself Pennsylva- oi a breach of warranty of title nia rule, [^ an action for the price, he must show an eviction or an invokxntary loss of possession, Krumbhaar v. Birch, 83 Penn, St. 426. In California the doc- California trine is that there is no breach ™'^- of a warranty of title until the vendee's possession is disturbed by the true owner. Gross u. Kierski, 41 Cal. Ill, In Illinois it has been held that on a suit upon a, note given for personal property, it is no defence to Illinois set up a breach of an implied '"'*■ warranty of title so long as the vendee is in undisturbed possession of the chattel. Linton v. Porter, 31 111. 107. In Ken- tucky if there were an implied warranty of title the vendee may re- Kentucky: cover before eviction. It is j° pif^Y^ sufficient to allege that the warranty, property belongs to another. Payne v. Rodden, 4 Bibb, 304 ; Chancellor v. Wig- gins, 4 B, Monroe, 201. But if it is a breach of an express war- Kentucky: ranty of title the vendee must 1° °t™L .' an express show an eviction. Tipton v. warranty, Triplett, 1 Mete. (Ky.) 570. In Massa- chusetts it has been decided that it is im- material that the purchaser ji^sachu- has not been deprived of the '^"' '"''• possession of the chattel, Grose v. Hen- nessey, 13 Allen, 389; Perkins v. Whelan, 116 Mass, 542. But if the ..third person who has the title to the goods is an as- signee in bankruptcy, it seems that a dif- ferent rule applies. Gay v. Kingsley, 11 Allen, 345 ; Fogg v. Willcutt, 1 Gush. 300 ; Hallett V. Fowler, 8 Allen, 93. In Ten- nessee it is held that there is a breach of the warranty of title the mo- Tennessee ment it is made, and upon '"'°' eviction or a voluntary offer to return the property the vendee has a complete right of action. Word v. Cavin, 1 Head, 506. In Missouri it is held that a purchaser of personal property is not re- Missouri quired to wait for an actual ''"'°- deprivation by the true owner. He may surrender the property voluntarily, but must then be able to show conclusively that (t) Chitty on Cont. 414 (9th ed,) ; on Cont, 198 ; 2 Taylor on Ev. 997 ; Bui- Broom's Legal Max. 766 (4th ed.) ; Leake leu & Leake, Prec. of PI. 229, 230. PART II.] WARRANTY. 621 authorities on the common law, the rule is substantially so stated. In Noy's Maxims, c. 42, it is said : " If I take the horse of an- other man and sell him, and the owner take him again, I may have an action of debt for the money ; for the bargain was per- fect by the delivery of the horse, and caveat emptor : (^i) and in Co. Lit. 102 a, Coke says : " Note, that by the civil law every man is bound to warrant the thing he selleth or conveyeth, albeit there be no express warranty ; but the common law bindeth him not unless there be a warranty, either in deed or in law, for caveat emptor." Blackstone, however, gives the contrary rule, (Q " if the vendor sells them as his own." But the authority mainly relied on by the learned authors mentioned in the note is the elabo- rate opinion given by Parke B, in the case of Morley v. Atten- borough, («i) where the dicta of that eminent judge certainly sustain the proposition, although the point was not involved nor decided in the case. § 629. It is, however, the fact that no direct decision has ever been given in England to the effect that where a man sells a chat- tel he does not thereby warrant the title, (n) It has been often said in cases that such was the rule of law, but no case has been decided directly to that effect. Since the decision in Morley v. Attenborough, there have been repeated references to the dicta contained in the opinion of Parke B. on this point, and dissatisfac- tion with them has been more than once suggested. It will be quite sufficient to confine the review of the decisions to Morley v. Attenborough and the subsequent cases, as they contain a full dis- cussion of the whole subject, and reference to all the old authori- ties, except one to be specially noticed. § 630. Morley v. Attenborough (o) was the case of an auction sale, by order of a pawnbroker, of unredeemed pledged Morley «. goods, eo nomine, and the court decided that, in the ab- borough. his surrender was to the true owner. (ii) [Thompson v. Nelles, 4 XJ. C. C. P. Dryden v. Kellogg, 2 Mo. App. 87. It 399; Krumbhaar v. Birch, 83 Penn. St. Right of has been held in Iowa, that 426. See § 640, post.] removtuen where there is a sale of per- {1} 2 Bl. Com. 451. on goods. sonal property with warranty (m) 3 Ex. 500. of title, the vendee may remove an exist- (n) Per Byles J. in Eichholz v. Banis ing lien upon the property and deduct the ter, 17 C. B. N. S. 708; 34 L. J. C. P amount thus paid from the sum which he 105. owes on the purchase-money. Harper v. (o) 3 Ex. 500. Dotson, 43 Iowa, 232.] 622 PEKFOBMANCE OF THE CONTRACT. [BOOK IV. sence of an express warranty all that the pawnbroker asserted by his offer to sell was, that the thing had been pledged to him and was unredeemed, not that the pawnor had a good title ; not pro- fessing to sell as owner, he did not warrant ownership. The fol- lowing language contains the dicta : " The bargain and sale of a specific chattel by our law (which differs in that respect from the civil law) undoubtedly transfers all the property the vendor has, where nothing further remains to be done, according to the intent of the parties to pass it. But it is made a question whether there is annexed by law to such a contract, which operates as a conveyance of the property, an implied agreement on the part of the vendor that he has the ability to convey, (o^) With respect to executory contracts of purchase and sale, where the subject is unascertained, and is afterwards to be conveyed, it would proba- bly be implied that both parties meant that a good title to that subject should be transferred, in the same manner as it would be implied under similar circumstances that a merchantable article was to be supplied. Unless goods which the party could enjoy as his own and make full use of were delivered, the contract would not be performed. The purchaser could not be bound to accept if he discovered the defect of title before delivery ; and if he did, and the goods were recovered from him, he would not be bound to pay, or, having paid, he would be entitled to recover back the price, as on a consideration ivliich had failed, (p) But where there is a bargain and sale of a specific ascertained chattel, which operates to transmit the pi-operty, and nothing is said about title, what is the legal effect of that contract ? Does the contract nec- essarily import, unless the contrary be expressed, that the vendor has a good title, or has it merely the effect of transferring such (oi) [Johnston v. Barker, 20 U. C. C. in Modey v. Attenborougt, Browim. P. 228.] referred to supra. Harrison Cockburn. (p) [The plaintiff agreed to sell to the C. J. said : " The case comes fairlv and defendant timber, which the plaintiff was fully under the operation of the exception to cut on a certain lot of crown land, (that is, of executory contract of sale). He cut the timber and delivered it to the The conclusion at which we have arrived defendant. But the plaintiff not having is one that hpnesty, justice, and equity all obtained a patent before cutting the trees, demand in the dealing between man and the timber was subject to a government man, where one attempts to sell and an- claim of $111. The court held that the other to Wy goods and chattels, axii not CinaJian *^"'^^ '^^"^ within the princi- simply the interest which the seller may be decision on pic laid down in that portion supposed to have in them." Prown i). contract. of Lord Wensleydale's opinion Cockburn, 37 U. C. CJ. B. 532.] PART 11.] WARRANTY. 623 title as the vendor has ? . . . . The result of the older authorities is, that there is by the law of England no warranty of title in the actual contract of sale, any more than there is of quality. The rule of caveat emptor applies to both ; but if the vendor knew that he had no title, and concealed that fact, he was always held responsible to the purchaser as for a fraud, in the same way that he is if he knew of, the defective quality, (p^) This rule will be found in Co. Litt. 102 a ; 3 Rep. 22 a ; Noy Max. 42 ; Fitz. Nat. Brev. 94 c ; in Springwell v. Allen, Aleyn, 91, cited by Littledale J. in Early v. Garrett, 9 B. & C. 932, and in Williamsons. Allison, 2 East, 449, referred to in the argument It may be that, as in the earlier times, the chief transactions of purchase and sale were in markets and fairs, where the bond fide purchaser obtained a good title as against all except the crown (and afterwards a prosecutor, to whom restitution is ordered by the 21 Hen. 8, c. 11), the common law did not annex a warranty to any contract of sale. Be that as it may, the older authorities are strong to show that there is no such warranty implied by law from the mere sale. In recent times a different notion appears to have been gain- ing ground (see note of the learned editor to 3 Rep. 22 a) ; and Mr. Justice Blackstone says, ' In contracts for sale it is constantly understood that the seller undertakes that the commodity he sells is his own ; ' and Mr. Wooddeson, in his Lectures, goes so far as to assert that the rule of caveat emptor is exploded altogether, which no authority warrants. At all times, however, the vendor was liable, if there was a warranty in fact, and at an early period the affirming those goods to be his own by a vendor in possession appears to have been deemed equivalent to a warrant}'. Lord Holt, in Medina v. Stoughton (1 S&lk. 210 ; Ld. Raymond, 598), says that ' where one in possession of a personal chattel sells it, the bare affirming it to be his own amounts to a warranty.' And Mr. Justice BuUer, in Pasley v. Freeman (3 T. R. 67), disclaims any distinction between the effect of an affirmation when the ven- dor is in possession or not, treating it as equivalent to a warranty in both cases From the authorities in our law, to which may be added the opinion of the late Lord Chief Justice Tindal in Ormerod v. Huth (14 M. & W. 604), it would seem that there is no implied warranty of title on the sale of goods, and that if there be no fraud a vendor is not liable for a bad title, unless there (pi) [Sweetman v. Prince, 62 Barb. 256.] 624 PEEFOEMANCE OF THE CONTRACT. [BOOK IV. is an express warranty, or an equivalent to it, by declarations or conduct ; and the question in each case, where there is no warranty in express terms, will be whether there are such circumstances as will he equivalent to such a warranty. Usage of trade, as a mat- ter of fact, would of course be sufficient to raise an inference of such an engagement : and without proof of such usage the very nature of the trade may be enough to lead to the conclusion that the person carrying it on must be understood to engage that the purchaser shall enjoy that which he buys as against all persons. It is, perhaps, with reference to such sales, or to executory con- tracts, that Blackstone makes the statement above referred to. .... We do not suppose that there would be any doubt if the articles are bought in a shop professedly carried on for the sale of goods, that the shopkeeper must be considered as warranting that those tvho purchase will have a good title to keep the goods pur- chased. In such a case the vendor sells ' as his own,' and that is what is equivalent to a warranty of title. But in the case now under consideration the defendant can be made responsible only as on a sale of a forfeited pledge eo nomine, : . . . and the ques- tion is, whether on such a sale, accompanied with possession, there is any assertion of an absolute title to sell, or only an as- sertion that the article has been pledged with him, and the time allowed for redemption has passed." Held that the latter was the true meaning of the contract. The learned judge continued as follows : " It may be that though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliquidated damages, yet the purchaser may recover back the purchase-money, as on a consideration that failed, if it could be shown that it was the understanding of both parties that the bar- gain should be put an end to if the purchaser should not have a good title. But if there is no implied warranty of title, some circumstances must be shown to enable the plaintiff to recover /or money had and received. This case was not made at the trial, and the only question is, whether there was an implied war- ranty." § 631. In the foregoing review of the older authorities by L'Apostre Parke B. the case of L'Apostre v. L'Plaistier escaped the tier. research of his lordship, (g^) .The case is mentioned (q) It had likewise escaped the research of the author of this treatise when the first edition was published. PART II.] WARRANTY. 625 in 1 P. Williams, 318, as a decision by C. J. Holt on a differ- ent point. But when it was cited as an authority in Ryall v. Rowles (r) (1 Vesey, 348), Lee C. J., sitting in bankruptcy with Lord Chancellor Hardwicke, said : " My account of that case is different from that in Peere Williams It was held by the court that offering to sell generally was sufficient evidence of offer- ing to sell as owner, but no judgment was given, it being ad- journed for further argument." (See the case of Ryall v. Rowles, as published in the 4th edition of Tudor's L. C. in Equity, at p. 738, for this report by the C. J. Lee of the decision in L'Apostre V. L'Plaistier.) § 632. Next came Hall v. Conder. (s) The written sale stated that the plaintiff had obtained a certain patent ill this jj^u ^ country, and had already sold " an interest of one half Conder. of the said English patent, and is desirous of disposing of the re- maining half, to which he hereby declares that he has full right and title" and he thereupon conveyed to the defendant " the above-mentioned one half of the English patent hereinbefore re- ferred to." In an action for the price, the defendant pleaded, first, that the alleged invention was worthless, of no public utility, and not new in England ; and secondly, that the plaintiff was not the true and first inventor thereof. The court held that there was no warranty that the patent right was a good right, sajang : " Did the plaintiff profess to sell, and the defendants to buy, a good and indefeasible patent right ? or was the contract merely to place the defendant in the same situation as the plaintiff was in, with refer- ence to the alleged patent ? " (s') Held that the latter was the true nature of the contract. In this case, again, there is nothing to show that the sale of a chattel does not imply an affirmation of ownership, for there was an express warranty of ownership ; but the subject-matter and true construction of the. warranty were the points in question, and the warranty was held to mean that the patent, such as it was, belonged to the plaintiff, and to no one else, not that the patent was free from intrinsic defects that might make it voidable or defeasible. The dicta, however, was strongly in support of those in Morley «. Attenborough. So, in smiths. Smith V. Neale, (i) the same court, on facts almost iden- ^^'''^■ (r) Also reported sub nom. Kyall v. (s^) [Harlow o. Putnam, 124 Mass. EoUe, 1 Atk. 165. 556.] (s) 2 C. B. N. S. 22 ; 26 L. J. C. P. (<) 2 C. B. N. S. 67 i 26 L. J. C.P. 143. 138, 288. 40 626 PEKFORMANCE OF THE CONTRACT. [BOOK IV. tical with those of the preceding case, held, that a contract for the sale or assignment of a patent involves no vrarranty that the in- vention is new, but merely that her majesty had granted to the vendor the letters patent, which were the thing sold. S 633. In Chapman v. Speller, (w) the plaintiff gave the defend- ant 51. profit on a purchase made by the defendant at a Chapman ^ ^ _ -^ )'. Speller, sheriff's sale under a writ of Ji. fa., and the defendant handed to the plaintiff the receipt, which he had got from the auc- tioneer, in order to enable the plaintiff to claim the goods. The goods were afterwards taken under a superior title, and the plain- tiff brought action, alleging a warranty of title by the defendant ; but the court refused to consider the point of law, saying that the defendant had only sold " the right, whatever it was, that he had acquired by his purchase at the sheriff's sale." The court, how- ever, added : " We wish to guard ourselves against being supposed to doubt the right to recover back money paid upon an ordinary purchase of a chattel, where the purchaser does not have that for which he paid." § 634. In Sims v. Marryat (x) there were affirmations by the „. defendant, which were construed to amount to an ex- Marryat. press warranty, and the question now under considera- tion was not decided ; but Lord Campbell said : " It does not seem necessary to inquire what is the general law as to implied warranty of title on sales of personal property ivhich is not quite satisfac- torily settled. According to Morley v. Attenborough, if a pawn- broker sells unredeemed pledges, he does not warrant the title of the pawnor, but merely undertakes that the time for redeeming the pledges has expired, and he sells only such right as belonged to the pawnor. Beyond that the decision does not go, but a great maiig questions are suggested in the judgment wldch still remain open." § 634 a. [In Somers v. O'Donohue (a;^) there was a sale of a Somers v. ^lorse at auction, and evidence tending to show that the O'Donohue. auctioneer said that he would stand between the pur- chaser and all claims ; that no one need fear to buy ; that he had come honestly by him. A verdict was taken for the plaintiff, the purchaser, in an action against the auctioneer, the declaration con- taining a special count and the common money counts. A rule («) 14 Q. B. 621 ; 19 L. J. Q. B. 241. (xi) 9 U. C. C. P. 208. I,x) 17 Q, B. 281 ; 20 L. J. Q. B. 454. PART II.] WARRANTY. 627 nisi for a new trial was discharged, and Draper C. J., said : " Not- withstanding the case of Morley v. Attenborough, and particularly- after the case of Sims v. Marryat, I should have great hesitation in holding, that where a man having a chattel in his possession sells and delivers it to another for value, there is not from the very nature of the transaction an implied undertaking that he has a right to sell The strong inclination of my own opinion is to hold that where a man sells a chattel as his own, which is at the time of sale in his actual possession, and delivers it to the pur- chaser from whom it is taken by the right owner, the vendor is to be treated as impliedly warranting that he has a right to sell, and is theref6re bound to compensate his vendee for the loss. In the present case it is not necessary to rest the decision on that ground, as there was some evidence to go to the jury of a warranty which was left to their consideration by the learned chief jus- tice."] § 635. Then came Eichholz v. Banister, («/) in which one of the open questions at least was expressly decided by the Ei(,iihoiz v. common pleas in Michaelmas, 1864. The facts were Banister, very simple. The plaintiff went to the warehouse of the defend- ant, a " job-warehouseman," in Manchester, and bought certain goods, which the defendant said were " a job lot just received by him." The following was the invoice, which was in print, except the words in italics : 20 Charlton Street, Portland Street, Manchester, April 18, 1864. Mr. Eichholz, Bought of R. Banister, job-warehouseman. Prints, gray fustians, &c. job and perfect yarns, in hanks, cops, and bundles. VI pieces of prints, 52 yards at bid. per yard <£19 6 \\ per cent, for cash. 6 19 The price was paid and the goods delivered, but it turned out that they had been stolen, and the buyer was compelled to restore them to the true owner, and brought action on the common money counts, to which the defendant pleaded never indebted. Defendant (y) 17 C. B. N. S. 708 ; 34 L. J. C. P. 105, 628 PERFORMANCE OF THE CONTRACT. [BOOK IV. insisted at the trial that he had not warranted title, and the point was reserved. The judges gave separate opinions, all concurring in the existence of a warranty of title. Erie C. J. said that the rule was taken on a point of law that " a vendor of personal chat- tels does not enter into a warranty of title, but that the purchaser takes them at his peril, and the rule of caveat emptor applies. .... I decide, in accordance with the current of authorities, that if the vendor of a chattel at the time of the sale either by words affirm that he is the owner, or hy Ms conduct gives the pur- chaser to understand that he is such oumer, then it forms part of the contract, and if it turns out in fact that he is not the owner, the consideration fails, and the money so paid by the purchaser can be recovered back." (2/-^) After quoting a passage from the opin- ion in Morley v. Attenborough, his lordship continued : " I think where the sale is as it was in the present case, the shopkeeper does by his conduct afErm that he is the owner of the article sold, and he therefore contracts that he is such owner ; and if he be not in fact the owner, the price paid for the purchase can be recovered back from him. So much for the present case." His lordship, then referring to the old authorities cited, said of the passage from Noy, quoted ante, § 628, that " at first sight this would shock the un- derstanding of ordinary persons ; but I take the meaning of the principle which it enunciates to be that where the transaction is of this nature, that I have the manual possession of a chattel, and without my atBrming that I am the owner or not, you choose to buy it of me as it is, and give me the money for it, you the pur- chaser taking it on those terms cannot afterwards recover back what you have paid because it turns out that I was not the true owner." His lordship then pointed out that Morley v. Atten- borough, Cliapman v. Speller, and Hall v. Conder had all been decided on this principle ; and that in " all these cases I think that the conduct of the vendor expressed that the sale was a sale of such title only as the vendor had ; but in all ordinari/ sales the party who undertakes to sell exercises thereby the strongest act of dominion over the chattel which he proposes to sell, and would, therefore, as I think, commonly lead the purchaser to believe that he was the oivner of the chattel. In almost all ordinary transac- tions in modern times the vendor, in consideration of the pur- chaser paying the price, is understood to affirm that he is the owner (ij^) Mercer v. Cosman, 2 Hannay (N. B.), 240. PART II.] WARRANTY. 629 of the article sold The present case shows, I think, the wisdom of Lord Campbell's remark on the judgment of Parke B. in Morley v. Attenborough, when he said : (z) ' It may be that the learned baron is correct in saying, that on a sale of pei-sonal property the maxim of caveat emptor does by the law of England apply, but if so, there are many exceptions stated in the judgment which well-nigh eat up the rule.' " Byles J. concurred, and said : " It has been stated over and over again, that the mere sale of chattels does not involve a warranty of title, hut certainly such statement stands on barren ground and is not supported by one single decision; and it is subject to this exception, that if the ven- dor by his acts or by surrounding circumstances affirm the goods to be his, then he does warrant the title. Lord Campbell was right when he said that the exceptions to the application of caveat emptor had well-nigh eaten up the rule." Keating J. concurred. § 636. It is impossible to read the judgment of Erie C. J. in this case without yielding assent to the assertion that in Remarks modern times, in all ordinary sales, the vendor by exer- case. cising the highest act of dominion over the thing in offering it for sale, thereby leads the* purchaser to believe that he is owner, and this dictum is fully supported by the report by Lee C. J. of the decision given in L'Apostre v. L'Plaistier, ante, § 631. This being equivalent to a warranty, the result would be, in modern times, that as a general rule the mere sale of a chattel implies a warranty of title, whereas the old rule is accounted for by Parke B. on the ground that in the olden days the question of title did not enter into men's minds or intentions, because the sales were commonly made in market overt, where the title obtained by the buyer was good against everybody but the sovereign. It should also be remembered, when inferences are drawn from very ancient decisions, that there formerly existed statutory provisions which have long grown obsolete. The laws passed in the times of Eth- elbert and Edgar specially prohibited the sale of anything above the value of 20d. unless in open market, and directed every bargain and sale to be made in the presence of credible wit- nesses, (a) § 637. The question was alluded to by the lord chancellor (Chelmsford) in delivering the opinion of the court in Page v. {z) In Sims v. Marryat, 17 Q. B. 281; {a) Wilkins's Leg. Anglo-Sax., LL. 20 L. J. Q. B. 454. Ethel. 10, 12 ; Eadg. 80. 630 PERFORMANCE OF THE CONTRACT. [BOOK IV. Cowasjee Eduljee, (5) where, in the case of a sale of a stranded vessel by the master, he said : " But supposing the plaintiff to have acted upon a mistaken view of the necessity of the case, the defendant could not insist upon there being any implied warranty of title. The plaintiff sold the vessel in the special character of master, and not as owner, and acted upon a bond fide belief of his authority to sell." § 638. The subject was again considered in the common pleas Bao-ueiev ^'^ Trinity Term, 1867, in Bagueley v. Hawley, (c) but v. Hawley. with no Satisfactory progress towards a final settlement of the point. The defendant bought a boiler, at auction, under distress for a poor-rate. The boiler was set in brick-work, and was too large to be taken away without leaking down part of the outer wall of the boiler-house. The defendant agreed to sell it to the plaintiff at an advanced price as it stood. The plaintiff knew that the boiler had been bought at the auction by the defendant, and went with him to the auctioneer to obtain an extension of time for taking away the boiler; and this was conceded to him, but when he went to remove it, persons claiming to be mortgagees had it at work, and refused to allow its removal, stating tliat it had been illegally distrained. The plaintiff insisted that there was a warranty of title, and a warranty that he should be allowed to remove the boiler ; the defendant contended that he merely sold such title as he had. Blackburn J. left it as a question of fact to the jury, who found that the sale was absolute and uncon- ditional, and that there was an understanding that the plaintiff was to have effectual possession of the boiler, and they gave a verdict for the plaintiff. On leave reserved, a rule was made ab- solute for a nonsuit, by Bovill C. J. and M. Smith J. ; dissentiente Willes J. Bovill C. J. put his opinion on the ground that by the general rule of law no warranty is implied in the sale of goods, but Smith J. on the principle of Chapman v. Speller ; while Willes J. agreed with the jury and Blackburn J. that " the thing which the defendant sold was a boiler and not a lawsuit." The circumstances were so peculiar, and the opinions of the judges so little in accord, that the case has not much value as a prece- dent. § 639. On the whole, it is submitted that, since the decision (6) L. R. 1 P. C. App. 127-144; 3 (c) L. R. 2 C. P. 625; 36 L. J. C. P. Moore P. C. N. S. 499. 328. PART II.J WARRANTY. 631 in Eichholz v. Banister, the rule is substantially altered. The exceptions have become the rule, and the old rule has „ , ^ . . Submitted dwindled into the exception, by reason, as Lord Camp- that the bell said, " of having been well-nigh eaten away." The rule is now rule at present would seem to be stated more in accord '^ ^"^"^ ' with the recent decisions if put in terms like the following : A sale of personal chattels implies an affirmation ly the vendor that the chattel is his, and therefore he ivarrants the title unless it he shown by the facts and circumstances of the sale that the vendor did not intend to assert ownership, hut only to transfer such interest as he might have in the chattel sold, (c^) Eichholz v. Banister was on the money counts, and therefore, strictly speaking, only decides that the price paid may be recovered back by the buyer on the failure of title in the thing sold ; but as the ratio decidendi was that there was a warranty implied as part of the contract, there seems no reason to doubt that the vendor would also be liable for unliquidated damages for breach of warranty. § 640. Before leaving the subject, it should be noted that in Dickenson v. Naul ((?) and in Allen v. Hopkins, (e) it Dickenson was decided that where a party had bought and received ^^^^^^' delivery of goods from one not entitled to sell, and had Hopkins, afterwards paid the price to the true owner, he was not liable to an action by the first vendor for the price ; these decisions being directly opposed to the maxim in Noy, quoted ante, § 628. § 640 a. [A. agreed to sell certain land to B., and on the pay- ment of a certain sum in instalments to execute a deed ji^j^aijon of the land to B. B. made default in the payments. Af- »• trover. ter such default A. sold the land to C. and gave him a deed there- of. B. had previously gone into possession and was in possession when A. executed the deed to C. After the default of B. and after the conveyance to C, B. cut timber on the lot and sold the (ci) [A. borrowed money of B., and in transfer to C. all our right, title, and inter- consideration thereof pledged to B. 180 est in and under the contract, together cases of tobacco by a contract in writing, with all the property mentioned therein." reciting that the tobacco was A.'s "own It was held that there was no implied property and free from all incumbrance, warranty of title to the tobacco on the and all of the crop of 1871." B. borrowed part of B. First Nat. Bank of Northamp- FirstNat. money of C, and in considera- ton v. Mass. Loan & Trust Co. 123 Mass. Ss'^.Loan tion of the loan, B. signed and 330.1 & Trust Co. delivered to C. the following (d) 4 B. & A. D. 638. assignment of the above-named contract : (e) 13 M. & W. 94. " For value received, we hereby assign and 632 PERFORMANCE OF THE CONTRACT. [book IV. logs to D. who did not know of C.'a title. C. brought ejectment against B. and recovered. C. then gave notice to D. not to pay any more money to B. but to pay the remainder to him. It was held that B. could not recover in assumpsit from D. for the price of the logs, (e^)] § 64:1. In America, the distinction between goods in possession Decisions of the vendor and those not in possession, so decisively in^Amer- repudiated by Buller J. in Paisley v. Freeman, (/) and by the judges in Eichholz v. Banister, ((/) and in Morley v. Atten- borough, (A) seems to be fully upheld ; and the rule there is, that as to goods in possession of the vendor there is an implied war- ranty of title; (i) but where the goods sold are in possession of a (el) [McMahon v. Grover, 3 TJ. C. C. P. 65 ; Starshall v. Beeber, 53 Ind. 83 ; Por- ter V. Bright, 82 Penn. St. 441.] (/) 3 T. R. 58. (g) 17 C. B. N. S. 708. (h) 3 Ex. 500. (i) Bennett u. Bartlett, 6 Cush. 225; Vibbard ». Johnson, 19 John. 78; Case v. Hall, 24 Wend. 102; Dorr v. Fisher, 1 Ciish. 27.3 ; Burt v. Dewey, 40 N. Y. 483 ; [Gookin v. Graham, 5 Humph. 484 ; Scott c. Scott, 2 A. K. Marsh. 215 ; McCoy v. Artcher, 3 Barb. 323 ; Heermance v. Ver- noy, 6 John. 5 ; Sweet v. Colgate, 20 lb. 196; liew u. Barber, 3 Cowen, 272 ; Vib- bard :;. Johnson, 19 John. 77 ; McKnight ! . Devlin, 52 N. Y. 399, 401 ; Hoe i: San- born, 21 lb. 552, 556 ; Thurston v. Spratt, 52 Maine, 202 ; Hale v. Smith, 6 Greenl. 420; Eldridge v. Wadleigh, 3 Fairfield, 372; Butler o. Tufts, 13 JIaine, 302; Huntingdon v. Hall, 36 lb. 501 ; Mc- Calie V. Morehead, 1 Watts & S. 513 ; Chism V. Wood, Hardin, 531 ; Payne v. Rodden, 4 Bibb, 304 ; Cozzins v. Whit- aker, 3 Stew. & Port. 322 ; Inge v. Bond, 3 Hawks, 101 ; Mockbee v. Gardner, 2 H. & Gill, 176; Coolidge v. Brigham, 1 Met. 551 ; per Shaw C. J. in Dorr v. Fisher, 1 Cash. 273 ; Emerson v. Brigham, 10 Slass. 202; Bucknam v. Goddard, 21 Pick. 71 ; Darst V. Brockway, 11 Ohio, 462; Lines u. Smith, 4 Florida, 47 ; Chancellor c. Wiggins, 4 B. Mon. 201 ; Colcock v. Goode, 3 McCord, 513; Ricks c. Dilla- hunty, 8 Porter, 134 ; Williamson v. Sam- mons, 34 Ala. 691 ; Whitney v. Heywood, 6 Cush. 82, 86 ; Sargent v. Currier, 49 N. H. 310; Storm v. Smith, 43 Miss. 497 ; Rice V. Forsyth, 41 Md. 389 ; Marshall v. Duke, 51 Ind. 62 ; Hackleman v. Harri- son, 50 lb. 156; Whitaker v. Eastwick, 75 Penn. St. 229 ; Gross r. Kierski, 41 Cal. Ill ; Morris v. Thompson, 85 111. 16. A warranty of title is to be im- WarvaDty of plied, from the contract, as ;„ exchange much in the case of an ex- same as sale, change of articles then in the possession of those making the trade, as upon a sale ; and this implied warranty is as much a part of the contract as if it had been express. Hunt u. Sackett, 31 Mich. 18 ; Patee v. Pelton, 48 Vt. 182 ; Byrnside V. Burdett, 15 W. Va. 702. "Possession here,'' says Mr. Justice Dewey, in Whit- ney u. Heywood, 6 Cush. 82, "must be taken in its broadest sense, and as includ- ing possession by a bailee of the Tender. The excepted cases must be substantially cases of sales of the mere naked interest of persons hav- sion," what . It means, ing no possession, actual or constructive ; and in such cases no war- ranty of title is implied. The posses- sion of an agent or of a tenant in com- mon, holding the goods for the vendor and as his property, and not adversely, is the constructive possession of the vendor, and if he sells goods thus held as his, a warranty of title is implied." Morton J. PART II.] WAERANXy. 6S3 third party at the time of the sale there is no such warranty, and the vendee buys at his peril, (k) And in the note of the learned editor of the last edition of Story on Sales (3d ed. p. 459), it is said that " this distinction has now become so deeply rooted in the decision of courts, in the dieta of judges, and in the conclusions of learned authors and commentators, that even if it were shown to be misconceived in its origin, it could not at this day be easily eradicated." And Kent sustains this view of the law of the United States. (J) § 642. By the civil law, the warranty against eviction exists in all cases. The law 3 ff. de act. empt. gives the maxim in the words of Pomponius as follows : " Batio posses- '^' *^' sionis quce a venditore fieri debet talis est ut si quis earn posses- sionem Jure avocaverit, tradita possessio non intelliga- tur." Pothier gives the rule in these words : " The vendor's obligation is not at an end when he has delivered the thing sold. He remains responsible after the sale, to warrant and in Shattuck v. Green, 104 Mass. 42, 45. The possession of tlie vendor is equivalent to an affirmation of title. McCoy ». Art- cher, 3 Bai-b. 323. In eases where the implied warranty of title arises, it extends to a prior lien or incumbrance. Dresser V. Ainsworth, 9 Barb. 619; Sargent v. Currier, 49 N. H. 310, 311. As to the effect upon this implied warranty of an assignment and delivery, to the purchaser by the seller, of the bill of sale under which the latter acquired the property sold, see Shattuck v. Green, 104 Mass. 42. Long u. Anderson, 62 Ind. 537 is some- what in conflict with Shattuck v. Green, supra. Whether under the implied war- ranty of title, if the vendor had no title at the time of sale, but acquired one after- wards, it would inure to the benefit of the purchaser, see Sherman v. Champlain Trans. Co. 31 Vt. 162.] {k) Huntington u. Hall, 36 Me. 501 ; McCoy V. Artcher, 3 Barb. 323 ; Dresser t<. Ainsworth, 9 Barb. 619 ; Edick v. Crim, 10 Barb. 445 ; Long v. Hickingbottom, 28 Miss. 772 ; [Andres v. Lee, 1 Dev. & Bat. Eq. 318; Sewall J. in Emerson a. Brig- ham, 10 Mass. 202 ; Pratt u. Philbrook, 32 Me. 23; Scranton v. Clark, 39 N. Y. 220; Fletcher v. Drath, 66 Mo. 126; Stephens v. Ells, 65 lb. 456. In a sale by executors, administrators, and other trus- tees, there is no implied warranty of title. Mockbee v. Gardner, 2 H. iSb Gill, 176; Ricks V. Dilahunty, 8 Porter, 133 ; For- sythe V. Ellis, 4 J. J. Marsh. 298 ; Pres- cott w. Holmes, 7 Rich. Eq. 9 ; Brigham V. Maxcy, 15 111. 295 ; Blood v. French, 9 Gray, 197, cited ante, § 624, note (a). So in case of sales by officers of the law. Worthy v. Johnson, 8 Ga. 236 ; Hensley V. Baker, 10 Mo. 157; Davis u. Hunt, 2 Bailey, 412; Yates u. Bond, 2 McCord, 382; Morgan v. Fencher, 1 Blackf. 10; Rodgers v. Smith, 2 Cart. (Ind.) 526 ; Bostick V, Winton, 1 Sneed, 525 ; Bashore V. Whisler, 3 Watts, 490; Stone w. Pointer, 5 Munf. 287; Hicks v. Skinner, 71 N. C. 539; Fore v. McKenzie, 58 Ala. 115; Neal i;. Gillaspy, 56 Ind. 451 ; Brunner v. Brennan, 49 lb. 98 ; State u. Prime, 54 lb. 450 ; Harrison u. Shanks, 13 Bush, 620; Sheppard u. Earles, 13 Hun, 651; Baker «. Arnot, 67 N. Y. 448 ; Mechan- ics' Sav. Ass. o. O'Conner, 29 Ohio St. 651.] {1} Vol. 2, p. 478. 634 PERFORMANCE OF THE CONTRACT. [BOOK IV. defend the buyer against eviction from that possession. This obligation is called warranty." (w) § 643. In the French law, so deeply implanted is the obliga- tion of warranty against eviction, that it exists so far as Code. to compel return of the price, even though it has been expressly agreed that there shall be no warranty. The articles of the Civil Code are as follows : 1625. The warranty due by the vendor to the purchaser has two objects : first, the peaceful pos- session of the thing sold ; secondly, the concealed defects or red- hibitory vices of the thing. 1626. Although at the time of sale there may have been no stipulation as to warranty, the seller is legally bound to warrant the buyer against suffering total or partial eviction from the thing sold, or from liens asserted on the thing (^charges pretendues sur cet objef), and not mentioned at the time of the sale. 1627. The parties may, by special convention, add to this legal obligation, or diminish its efiect, and may even stipu- late that the vendor shall be liable to no warranty. 1(J28. Al- though it be stipulated that the vendor shall be liable to no war- ranty, he remains bound to a warranty against his own act : any contrary agreement is void. 1629. In the same case, of a stipu- lation of no warranty, the vendor remains bound to return the price to the purchaser in the event of eviction, unless the buyer knew, when he bought, the danger of eviction, or unless he bought at his own risk and peril. This subject, however, is more fully treated cmte, book II. ch. vii. on the Nature and Effect of a Sale by the Civil Law. SECTION III. — IMPLIED WAEEANTY OF QUALITY. § 644. The maxim of the common law, caveat emptor, is the Caveat general rule applicable to sales, so far as quality is con- trfgeneral cerned. The buyer (in the absence of fraud) purchases ■^u'^- at his own risk, unless the seller has given an express warranty, or unless a warranty be implied from the nature and circumstances of the sale, (n) A representation anterior to the (m) Vente, 2 part, ch. 1, sec. 2, No. no warranty of the quality of to™- 82. the articles sold, there is no (n) [See French t^. Vining, 102 Mass. principle of law which prevents a stipula- 135 ; Bryant v. Pember, 45 Vt. 487 ; Bow- tion being made by the vendor as to the man v. Clemmer, 50 Ind. 10. Although quality which will have the effect of a war- Stipulation an ordinary contract for the ranty. E. g. : C, having previously solil may amouD^t sale of chattels carries with it coal to W., offered him a lot at a certain PART II.] WARRANTY. 635 sale, and forming no part of the contract when made, is, as already shown (ante, §§ 610, 611), no warranty ; but a representation, even though only an inducement to the contract, and forming no part of it, will, if false to the knowledge of the vendor, be a No excep- ground for rescinding the contract as having been ef- anexTs'tbg fected through fraud. So far as an ascertained specific XtteHi,- chattel, already/ existing, and which the buyer has in- speetedby , . 111^' buyer has spectea, is concerned, the rule of caveat emptor admits of been sold. no exception by implied warranty of quality, (o) § 645. But where a chattel is to be made or supplied to the order of the purchaser, there is an implied warranty that chattel to it is reasonably fit for the purpose for which it is ordi- \l ^^^l ^ narily used, or that it is fit for the special purpose in- i™P''«ii •/•I ir warranty tended by the buyer, if that purpose be communicated of quality, to the vendor when the order is given, as is shown by the authori- ties now to be reviewed. (^) If the specific existing specific chattel, however, is sold by description, and does not cor- f^'""""' sold respond with that description, the vendor fails to comply, t'<"i. not with a warranty or collateral agreement, but with a contract itself, by breach of a condition precedent, as explained ante, § 600. (g) This was strongly exemplified in Josling v. Kings- ford, (r) where the vendor was held bound, as on a condition pre- cedent, to deliver "oxalic acid," although he had exhibited the bulk of the article sold to the buyer, and written t6 him that he would not warrant its strength, in order to "avoid any unpleasant differences," and suggested to him to make a fresh examination if he thought proper. ■§ 646. On the other hand, a severe application of the rule of price, accompanying the offer with a state- Chanter v. Hopkins, 4 M. & AV. 64, and ment that it was of the same quality as cases cited ante, § 611, note (d); [Dem- that which had been previously sold to ing v. Foster, 42 N. H. 165, 174; Byrne him by the plaintiff. W. agreed to take v. Jansen, 50 Cal. 624 ; Morris v. Thomp- it if it was good coal, but said if it was son, 85111. 16 ; Robinson Machine Works w. not he did not want it. The coal having Chandler, 56 Ind. 575 ; Dooley o. Gallag- been delivered, C. brought an action for her, 3 Hughes (Circ. Ct.), 214; Swift «. the price ; and it was held that evidence Haliday, Arms., Mac. & Ogle (Ir.) 81. See was admissible on behalf of the defendant Owens v. Dunbar, 12 Ir. L. R. 304.] to show that the coal furnished under this (p) [Rodgers u. Niles, 11 Ohio St. 48; contract was not as good as that previ- Byers v. Chapin, 28 lb. 300.] ou'sly furnished. Warren v. Philadelphia (?) [Ante, § 600, note (;;) ; Gaylord Coal Co. 83 Penn. St. 437; Wilson v. Manuf. Co. t;. Allen, 53 N. Y. 515, 519.] Dunville, 4 L. R. Ir. 249.] (r) 13 C. B. N. S. 447 ; 33 L. J. C. P. (o) Parkinson v Lee, 2 East, 314; 94. 636 PERFORMANCE OF THE CONTRACT. [BOOK IV. caveat emptor, wliere the thing sold answers the description, to- gether with a lucid statement of the law, and the distinction be- tween warranty of quality and description of the thing, may be found in the decision of the exchequer of pleas, delivered by Parke Barr v ^- ™ Barr V. Gibson, (s) The defendant sold to the Gibson. plaintiff, on the 21st October, 1836, " all that ship or vessel, called the Sarah, of Newcastle," &c. covenanting in the deed-poll by which the conveyance was made, that he "had good right, full power, and lawful authority " to sell. It turned out that the ship, which was on a distant voyage, had got ashore on the coast of Prince of Wales's Island on the 13th October, eight days before the sale ; on a survey, on the 14th, it was recom- mended that she should be sold as she lay, because, under the circumstances of the winter conaing on, and the want of facilities and assistance, the ship could not be got off so as to be repaired there : but if in England she might easily have been got off. At the sale, on the 24th of October, the hull produced only 101. Pat- teson J. left it to the j>iry to say whether, at the time of the sale to the plaintiff, the vessel was or was not a ship, or a mere bundle of timber, and the jury found she was not a ship. On a rule to set aside the verdict, which was thereupon given for the plaintiff, Parke B. said : " The question is not what passed by the deed, but what is the meaning of the covenant contained in it." § 047. " In the bargain and sale of an existing chattel, by which the property passes, the law does not (in the absence of fraud), imply any warranty of the good quality or condition of the chattel so sold. The simple bargain and sale, therefore, of the ship does not imply a contract that it is then seaivorthy, or in a serviceable condition; and the express covenant that the defendant has full power to bargain and sell does not create any further ob- ligation in this respect. But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description; (i) for which the cases of Bridge V. Wain (m) and Shepherd v. Kain, (a;) and other cases, are au- thorities ; and therefore the sale in this case of a ship implies a contract that the subject of the transfer did exist in the character of a ship, and the express covenant that the defendant had power (s) 3 M. & W. 390. («) 1 Stark. 504. (0 [See ante, § 600, note (p) ; Wol- (x) 5 B. & A. 210. cott V. Mount, 7 Vroom, 262, 266.] PART II.] WARRANTY. 637 to make the bargain and sale of the subject before mentioned must operate as an express covenant to the same effect. That cov- enant, therefore, was broken if the subject of the transfer had been at the time of the covenant physically destroyed, or had ceased to answer the designation of a ship ; but if it still bore that character, there was no breach of the covenant in question, although the ship was damaged, unseaworthy, or incapable of being beneficially em- ployed. The contract is for the sale of the subject absolutely, and not with reference to collateral circumstances. If it were not so, it might happen that the same identical thing in the same state of structure might be a ship in one place and not in another, accord- ing to the local circumstances and conveniences of the place where she might happen to be. If the contracting parties intend to pro- vide for any particular state or condition of the vessel, they should introduce an express stipulation to that effect We are of opinion, upon the evidence given on the trial, the ship did continue to be capable of being transferred as such at the time of the con- veyance, though she might be totally lost within the meaning of a contract of insurance Here the subject of the transfer had the form and structure of a ship, although on shore, with the pos- sibility, though not the probability, of being got off. She was still a ship, though at the time incapable of being, from the want of local conveniences and facilities, beneficially employed as such." New trial ordered. («/) § 648. Of implied warranties in sales of chattels, there are several recognized by law. The first and most general implied , . 11 1 4- warranties. IS, that in a sale of goods by sample, the vendor warrants ^^^^^ the quaUty of the bulk to be equal to that of the sample, sample. The rule is so universally taken for granted that it is hardly nec- essary to give direct authority for it. The cases are very numer- ous in which it has been applied as a matter of course, (z) In (y) See cases cited avte, § 600 et seq. Dord, 1 Selden, 95 ; S. C. 2 Sandf. (S. C.) («) [Bradford v. Manly, 13 Mass. 139; 89; Hargous v. Stone, 1 Selden, 73; Wil- Henshaw u. Robins, 9 Met. 86, 87 ; Oneida liams v. Spafford, 8 Pick. 250 ; Hastings Manuf. Co. v. Lawrence, 4 Cowen, 440; v. Levering, 2 lb. 219; Borrekins v. Andrews o. Kneeland, 6 lb. 354 ; Gal- Bevan, 3 Rawle, 37 ; Rose o. Bcatie, 2 lagher . Alexander, number of hogs, the hogs to (?) 8 C. B. 225. be delivered during "the iirst half of (r) 1 C. B. N. S. 110 ; 26 L. J. C. P. 73. August, 1871 ; to be weighed at Mr. Gor- [Titcomb v. United States, 14 Ct. of Claims, don's scales near Burlington." It was 263. Attwood ;;. Emery, supra, was com- held that the vendor was bound to deliver mented on in The Hydraulic Engineering the hogs at the scales ; that he had until Co. v McHafBe, L. R. 4 Q. B. D. 670 ; noon of the 16th of the month to do it; De Oleaga v. "West Cumberland Iron Co. and that he was bound to keep the hogs lb. 472.] at the scales until noon of that day, and (s) 3 B. & S. 305 ; 32 L. J. Q. B. 38. that the fact that the hogs were at the (t) 4 B. & S. 442, 455 ; 32 L. J. Q. B. scales b, part of the forenoon was not 33, 382. enough. Kirkpatrick v. Alexander, 60 («) Staunton v. Wood, 16 Q. B. 638. 688 PERFORMANCE OF THE CONTRACT. [book IV. Where by the terms of a contract of sale the vendor was to deliver to the purchaser a bill of lading for the cargo which had been bought on the purchaser's orders, it was held that the delivery of the Kll of lading within a reasonable time after its receipt, and without reference to the unloading of the cargo, was incumbent on the vendor, and that the buyer was justified in rejecting the purchase on the refusal to deliver the bill of lad- ing, (a;) § 689. The vendor does not comply with his contract by the „ ,. , tender or delivery of either more or less than the exact Delivery of -^ quantity contracted for, (?/) or by sending the goods sold mixed with other goods. As a general rule, the buyer is entitled to refuse the whole of the goods tendered if they exceed the quantity agreed, and the vendor has no right to insist upon the buyer's acceptance of all, or upon the _. buyer's selecting out of a larger quantity delivered. In Fletcher. Dixon V. Fletcher (s) the declaration alleged an order by defendant for the purchase on his account of 200 bales of cotton, and a shipment to him of 206 bales, and the defendant's refusal to receive said cotton, or " any part thereof." The court allowed the plaintiff to amend his declaration, holding it to be insufficient for want of an averment that the plaintiffs were ready and willing Hart V. to deliver the 200 bales only. So, in Hart v. Mills, (a) Mills. where an order was given for two dozen of wine, and four dozen were sent, it was held that the whole might be returned. CuniifFe v. ■'^'^ Cunliffe V. Harrison (6) a purchase was made of ten Harrison, hogsheads of claret, and the vendor sent fifteen. Held that the contract of the vendor was not performed, "for the per- Yendor must de- liver bill of lading when rightfully demanded, even be- fore cargo landed. Barber «. Taylor. more or of less than the con- tract re- quires not good. See, also, Roberts v. Brett, 11 H. L. Cas. 337, and 34 L. J. C. P. 2-tl, as to interpre- tation of "forthwith.'' [" To ship and de- liver as fast as vessels could be obtained " during the season. Isaacs v. N. Y. Plaster Works, 67 N. Y. 124.] (x) Barber r. Taylor, 5 M. & W. 527. (y) [Renter v. Sala, 4 C. P. D. 239; Croninger «. Crocker, 62 N. Y. 151 ; High- land Chemical & Mining Co. v. Matthews, 76 Ih. 145. So, if he deliver the goods in an essentially altered jCondition. Reynolds V. Shuter, 3 U. C. Q. B. 377.] The rule is less rigid where goods are ordered from a correspondent who is an agent for buying them. See Ireland v. Livingston, L. E. 2 Q. B. 99 ; 36 L. J. Q. B. 50 ; L. R. 5 Q. B. 516; 5 Eng. App. 395; ante, § 590; Johnston o. Kershaw, L. R. 2 Ex. 82 ; .'i6 L. J. Ex. 44. (z) 3 M. & W. 146 ; [Rommel u. Win- gate, 103 Mass. 327, cited and stated ante, § 376, note (/).] (a) 15 M. & W. 85. (6) 6 Ex. 903. PART II.J DELIVERY. son to whom they are sent cannot tell which are the ten that are to be his, and it is no answer to the objection to say that he may choose which ten he likes, for that would be to force a new contract upon him." (c) In Nicholson v. Bradfield Nicholson Union (d') the plaintiffs, under a contract for the sale fieMUn'ion. of Ruabon coals, sent one lot of fifteen tons nine cwt. of real Rua- bon coals on the 1st July, and another lot seven tons eight cwt. of coals, which were not Ruabon coals, on the 2d July, and the two parcels were shot into one heap, and it was held a bad de- huery for the whole. In Levy v. Green (e) the goods ^^^ ^ ordered were sent, but they were packed in a crate with Green. other goods not ordered, though perfectly distinguishable, the ar- ticles in excess being crockery ware of a different pattern. And Coleridge and Earle JJ. considered that the case was distinguish- able on that ground from the cases already cited ; but Campbell C. J. and Wightman J. thought it clear that the vendor had no right to impose on the purchaser the onus of unpacking the goods and separating those that he had bought from the others ; and this latter view was held right by the unanimous decision of the exchequer chamber, (e-^) § 690. If, on the other hand, the delivery is of a quantity less than that sold, it may be refused by the purchaser ; and , if the contract be for a specified quantity to be delivered delivery is less than in parcels from time to time, the purchaser may return required the parcels first received, if the latter deliveries be not ^' ^s<^^- made, for the contract is not performed by the vendor's delivery of less than the whole quantity sold. (/) But the buyer is bound to pay for any part that he accepts ; and after the time for deliv- (c) Per Parke B. was decided that neither this commuuica- (d'l L. E. 1 Q. B. 620; 35 L. J. Q. B. tion nor the retention of the " balance of 176. goods " for several years, without proof (e) 8 E. & B. 575 ; 27 L. J. Q. B. HI ; that he sold them, constituted in law any in Cam. Scacc. 28 L. J. Q. B. 319. promise to pay for them ; his liability was (e') [Croninger v. Crocker, 62 N. Y. a question for the jury. Goodwin k. Wells, 151. See Southwell v. Breezley, 5 Ore- 49 Ala. 309.] gon, 143, But where a purchaser .received (/) Per Park J. in Oxendale v. Weth- DeliTery of goo'ls ii excess of those or- erell, 9 B. & C. 386 ; [ante, § 47, note {1} ; more goods dered, and, on remitting the Roberts v. Beatty, 2 Penn. 63; Wright forbycoD- price forthose ordered, wrote : v. Barnes, 14 Conn. 518; Dula v. Cowles, tract. " Balance ofgoods shipped me 2 Jones (N. C.) Law, 454; Marland v. were not ordered. You will please have Stanwood, 101 Mass. 470; Eockford, R. patience until they are sold ; or they are I. & St. L. R. E. Co. v. Lent, 63 111. 288 ; subject to your order, if you prefer it," it Smith v. Lewis, 40 Ind. 98.] 41 690 PERFORMANCE OF THE CONTRACT. [BOOK IV. Buyer ery has elapsed, he must either return or pay for the part ^r what' received, and cannot insist on retaining it without pay- he keeps, nient until the vendor makes delivery of the rest. Thus, 'Wadding- j^ Waddington v. Oliver, (ci) the plaintiff dehvered on ton V. ^ v^ ^ A ^ Oliver. 12th December twelve bags of bops, in part performance of a contract to deliver 100 bags on or before the 1st January, and dema.nded immediate payment for them, and brought his ac- tion on the buyer's refusal. Held that no action could be main- tained prior to the expiration of the time fixed for delivery of the Oxendale remainder. But in Oxendale v. Wetherell (Ji) the plain- ereO.''"'" tiff was held entitled to recover for loO bushels of wheat delivered and kept by the buyer on a contract for the sale of 250 bushels, in an action brought after the expiration of the time fixed for the delivery of remainder. In Hoar v. Ren- Hoar V. ^ Rennie. nie, (J) where the contract was to deliver 667 tons of iron in four equal parts, in four successive months, the vendor having tendered delivery of only twenty-one tons in the first month, was held to have broken his contract so as to justify the purchaser's rejection of the whole bargain. But this case is ,j strongly questioned. See ante, § 593. In Morgan v. Gath. Gath (A) the purchase was of 500 piculs of cotton, and only 420 were delivered. The jury having found on the facts that the buyer had consented to receive the 420 piculs, and had had them weighed, and accepted them, held that he could no longer object that the whole 600 piculs had not been delivered. § 691. The quantity to be delivered is, however, sometimes Quantity Stated in the contract with the addition of words such as "abrat" "about," or " more or less," {¥) which shows that the so much quantity is not restricted to the exact number or amount or "more . or less." specified, but that the vendor is to be allowed a certain Cross ». moderate and reasonable latitude in the performance. Egiin- In Cross v. Eglin (I') the purchase was of " about 300 ((/) 2 B. & P. N. R. 61. ards v. Shaw, 67 111. 222 ; Wilson v. Wagar, (A) 9 B. & C. 386. See, also, Mavor u. 26 Mich. 4.52.] Pyne, 3 Bing. 285; [ante, § 47, note (I) ; (i) 5 H. & N. 19 ; 29 L.J. Ex. 73. Shields v. Pettee, 2 Sandf. 262; Wright (h) 3 H. & C. 748; 34 L. J. Ex. 165. V. Barnes, 14 Conn. 518; McKnight v. (fci) [Creighton v. Comstock, 27 O.St. Devlin, 52 N. Y. 399 ; Wilde J. in Snow 548 ; Brawley v. United States, 96 U. S. V. Ware, 13 Mot. 49 ; Bowker v. Hoyt, 18 168 ; Merriam v. United States, 14 Ct. of Pick. 555 ; Roberts v. Beatty, 2 Penn. 62 ; Claim.s, 289.] Wilkins V. Stevens, 8 Vt. 214 ; Starr Glass (/) 2 B. & Ad. 106. Co. V. Morey, 108 Mass. 570, 574 ; Rich- PART II.] DELIVERY. 691 quarters (more or less) of foreign rye, .... shipped on board the Queen Ulizaheth, &c. ; also about fifty quarters of foreign red wheat, &c. &c." The vessel arrived, having on board 345 quar- ters of rye and ninety-one of wheat. The plaintiffs, the buyers, had paid by bill of exchange for fifty quarters of wheat and 300 quarters of rye ; but the defendants, making no dispute about the wheat, insisted that the plaintiff should take the whole 845 quar- ters of rye, and refused to deliver any unless they would accept all. The plaintiffs thereupon, after making a formal demand of 300 quarters of rye and fifty of wheat, abandoned the contract, and sued for the amount of the bill of exchange which they had paid. Evidence was offered (and rejected) to show that it was contrary to the custom of merchants to require a buyer to receive so large an excess as was offered to the plaintiffs, under the expres- sion " more or less." The plaintiffs had a verdict, and the court refused to disturb it. Lord Tenterden C. J. and Littledale J. both thinking that the excess was too great to be covered by the words " more or less ; " Park and Patteson JJ. expressing a doubt on that point, but holding that, the expressions being obscure, the burden of proof lay on the vendors, who were seeking to enforce the contract, and that they had failed to show clearly what was the meaning of the parties. In Cockerell v. Aucompte (m) Cockereii the court refused to give consideration to an objection compte. against paying for 127 tons of coal, on a contract to deliver 100 tons " more or less ; " but the coals had been suppUed, and there was no offer to return them. Bourne v. Seymour («) Bourne u. was a contract for the sale of "about " 500 tons of ni- Seymour, trate of soda, but the terms of the written contract made out by the brokers were so obscure that the case is of no value as a prece- dent. Creswell J. said that he did not think the par- ^j^^^g „ ties understood the contract, " nor do I." (o) In Moore Campbell. V. Campbell (p) the sale was of fifty tons of hemp, and the ven- (m) 2 C. B. N. S. 440 ; 26 L. J. C. P. cepted — about 300 or 350 tons '' — was 194. complied with by a delivery at the port of (n) 16 C. B. 337 ; 24 L.. J. C. P. 202. discharge of as much as that vessel, being (o) 24 L. J. C. P. 207. [In Pembroke seaworthy and in good order, could carry. Iron Co. V. Parsons, 5 Gray, 589, it was though only two hundred and twenty- held that an agreement to sell " a cargo seven tons. Bourne v. Seymour, cited in of old railroad iron, to be shipped per text, was distinguished. See Eobinson v. barque Charles William, at. thirty dollars Noble, 8 Peters, 181.] per ton, delivered on the wharf at the (p) 10 Ex. 323; 23 L. J. Ex. 310. port of discharge, dangers of the seas ex- 692 PERFORMANCE OF THE CONTRACT. [BOOK IV. dor offered the buyer two delivery orders from a warehouse for " about " thirty tons, and " about " twenty tons respectively, which the buyer declined, unless the vendor would guaranty that the whole quantity amounted to fifty tons. The vendor refused, and on the trial offered evidence that it was the usage of trade in Liv- erpool, where the contract was made, to insert the word " about " in delivery orders of goods warehoused. Held, that if this evi- dence had been offered in reference to the purchase of fifty tons of goods contracted to be sold and delivered simply, the evidence would be inadmissible ; but if the contract be to sell and deliver goods in a warehouse, and there is a known usage of the place that warehousemen will not accept delivery orders in any other form, by reason of objecting to make themselves responsible for any particular quantity, the delivery warrants made in that form would, if tendered, be a sufficient compliance with the vendor's duty under the contract § 692. In McConnell v. Murphy, (jf) decided in the privy coun- McConneii cil in April, 1873, where the sale was of " all of the "' "^ ■'■ spars manufactured by A., say about 600, averaging six- "saj' teen inches : the above spars will be out of the lot man- so many, ufactured by J. B.," the court held that a tender of 496 spars, which were all of the specified lot that averaged sixteen inches, was a substantial performance of the contract by the ven- dor. These words " say about 600 " were held to be words of ex- pectation and estimate only, not amounting to an understanding that the quantity should be 600. The case of Gwilhn v. Daniell (2 C, M. & R. 61 ; 5 Tyr. 644) was approved and followed ; and the effect of the word " say," when prefixed to the word "about," was considered as emphatically marking the vendor's purpose to guard himself against being supposed to have made any absolute promise as to quantity. (V) Where delivery is to be made accord- ing to bills of lading, the authorities have already been reviewed, ante, § 591. § 693. Where the vendor is bound to send the goods to the Where purchaser, the rule is well established, as shown ante, vendor is ' ' . , to send § 181, that delivery to a common carrier, a fortiori, to goods de~ . livery to One Specially designated by the purchaser, is a delivery (q) 21 W. K. 609 ; [Pembroke Iron (r) See, further, Leeming ^. Snaith, 16 Works V. Parsons, 5 Gray, 589 ; Robinson Q. B. 275 ; Barker «. Windle, 6 E. &B. V. Noble, 8 Peters, 181.] 675 ; Hayward v. Scougall, 2 Camp. 56. PART II.] DELIVERY. 693 to the purchaser himself ; the carrier being, in contem- common . . , ii'i 1.1 carrier plation of law m such cases, the bailee of the person to suffices. whom, not by whom, the goods are sent ; the latter when employ- ing the carrier being regarded as the agent of the former for that purpose, (s) If, however, the vendor should sell goods. Vendor undertaking to make the delivery himself at a distant ™act to de- place, thus assuming the risks of the carriage, the car- '^i^t^nt' * rier is the vendor's agent, (f) Where goods are ordered r''«=«> ^'^^ from a distant place, the vendor's duty to deliver them rier is hu in merchantable condition is complied with if the goods g^^ ^^ j^ are in proper condition when delivered to the carrier, notrespon- provided the injury received during the transit does not necessary exceed that which must necessarily result from the tran- tion occa- sit. Where hoop-iron was sold in Staffordshire, deliver- thTtranat. able in Liverpool in the winter, the vendor was held to have made a good delivery, although the iron was rusted and unmerchantable when delivered in Liverpool, on proof that this deterioration was the necessary result of the transit, and that the iron was bright and in good order when it left Staffordshire, (m) § 694. But the vendor is bound, when delivering to a carrier, to take the usual precautions for insuring the safe delivery Vendor to the buyer, (m^) In Clarke v. Hutchins (a;) the ven- tXe the dor, in delivering goods to a trading vessel, neglected to "auUonrto (s) Dawes v. Peck, 8 T. R. 330 ; VS^aite V. 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, U M. & W. 277 ; Meredith v. Meigh, 2 E. & B. 364, and 22 L, J. Q. B. 401 ; Cusack o. Robin- son, 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 ; [Magruder v. Gage, 33 Md. 344; Hall v. Gaylor, 37 Conn. 550; Hunter v. Wright, 12 Allen, 548, 550; Putnam v. Tillotson, 13 Met. 517 ; Orcutt V. Nelson, 1 Gray, 536 ; Merchant v. Chap- man, 4 Allen, 362 ; "Wilcox Silver Plate Co. V. Green, 72 N. Y, 17 ; Pacific Iron Works V. Long Isl. R. Co. 62 lb. 272 ; Morey v. Medbury, 10 Hun, 540 ; Higgins V. Murray, 73 N. Y. 262. See Everett v- Parks, 62 Barb. 9, 15 ; Garretson v. Selby, 37 Iowa, 529 ; Strong v. Dodds, 47 Vt. 348.] (() Dunlop V. Lambert, 6 CI. & P. 600 ; [Everett v. Parks, 5 Alb. L.J. 248.] (m) Bull I: Robison, 10 Ex. 341 ; 24 L. J. Ex. 165. [See Cushman v. Holyoke, 34 Maine, 289.] («!) [If the manufacturer of a chattel, after it is made, agrees to deliver it at the usual place of business of the person for whom it was made, he is liable for any in- jury to it from carelessness in the trans- portation, although, at the time of the contract for making it, nothing was said about delivery, and there was no usage as to delivery. Taylor o. Cole, 111 Mass. 363; Hanauer v. Bartels, 2 Col. 514.] {x) 14 East, 475. See, also, Buckman V. Levi, 3 Camp. 414 ; Cothay u. Tute, 3 Camp. 129. 694 PERFORMANCE OF THE CONTRACT. [BOOK IV. insure safe apprise the carrier that the vakie of the goods exceeded carrier? ^ 6?., although the carriers had published, and it was no- ciarke v. torious in the place of shipment, that they would not be Hutchins. answerable for any package above that amount unless entered and paid for as such. The package was lost, and on the vendor's action for goods sold and delivered, it was held by the king's bench. Lord Ellenborough giving the decision, that the vendor had not made a delivery of the goods, not having " put them in such a course of conveyance as that, in case of a loss, the defendant might have his indemnity against the carriers." § 695. In offering delivery the vendor is bound to give the Vendor buyer an opportunity of examining the goods, so that g?™an°op- t'^® latter may satisfy himself whether they are in ac- portunitj- cordance with the contract, (x^) Thus, in Isherwood v. to inspect _ . . the goods. Whitmore, (^z) the defendants, having received notice ?'wMt-°'^ that the goods were at a certain wharf ready for deliv- more. ery on payment of the price, went there, but on apph- cation to inspect the goods were shown two closed casks said to contain them. The persons in charge refused to allow the casks to be opened. Held that the plaintiff had not made a valid offer of delivery. § 6'JG. There may be a symbolical delivery of goods, divesting Symbolical *^® vendor's possession and lien. (2) Lord EUenbor- deiivery. ough Said, in Chaplin v. Rogers, (a) that " where goods are ponderous and incapable of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tantamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by the delivery of other indicia of property." And there was a like dictum by Lord Kenyon in Ellis v. Hunt. (5) On this principle the delivery of {x^} [See Croninger v. Crocker, 62 N. Y. not a symbolical delivery of the oxen, un- 151-] less specially so agreed. Clark w. Draper, (y) 11 M. & W. 347 ; and per Parke B. 19 N. H. 419.] in Startup v. McDonald, 6 M. & G. 593; (a) 1 East, 192. [Boothby v. Scales, 27 Wis. 626.] (6) 3 T. R. 464. [The formalities of a (z) [The symbol employed must have delivery necessary to protect a purchaser, been delivered with the intention of trans- in such cases, will adapt themselves in a ferring the title to the property sold, measure to the nature and situation of the Clark V. Draper, 19 N. H. 419; Cart- property sold. Thus, of ponderous arti- wright V. Phcenix, 7 Cal. 281. In the cles a constructive delivery will be suffi- sale of oxen, a delivery of the brass knobs, cient; Leisherness u. Berry, 38 Me. 83; which had been worn upon their horns, is Shurtlcff v. Willard, 19 Pick. 210; Bethel PART II. J DELIVERY. 695 the grand bill of sale of a vessel at sea has always been held to be a delivery of the vessel, (c) Steam Mill Co. v. Brown, 57 Me. 9 ; Boynton v. Veazie, 24 lb. 286 ; Terry v. Wheeler, 25 N. Y. 520 ; Jewett v. War- ren, 12 Mass. 300; Hay den .;. Demets, 53 N. Y. 426 ; Taylor v. Richardson, 4 Hous- ton (Del.), 300 ; Peoples' Bank v. Gridley, 91 HI. 457 ; Audenried v. Randall, 3 Cliff. 99; Tucker v. Ross, 19 U. C. Q. B. 295; Newcomb v. Cabell, 10 Bush, 460; Adams K. Foley, 4 Clarke (Iowa), 52 ; Richard- son V. Gray, 29 U. C. Q. B. 360 ; Puckett V. Reed, 31 Ark. 131 ; Calcutt v. Ruttan, 13 U. C. Q. B. 146 ; although it may leave the vendor in actual possession for certain purposes; such as transportation or de- livery at another place. Bethel Steam Mill Co. V. Brown, 57 Me. 9, 18; Boyn- ton V. Veazie, and Terry v. Wheeler, vhi supra; Montgomery v. Hunt, 5 Cal. 366. So, a delivery of the key of a shop or other storehouse, though at a place distant from it, if made with the intention to surren- der the possession of the property stored therein to the purchaser, will render the sale of such property effectual against third persons. Vining v. Gilbreth, 39 Me. 496 ; Packard v. Dnnsmore, 1 1 Cush. 282 ; 2 Kent, 499, 500 ; Wilkes v. Ferris, 5 John. 335 ; Chappel v. Marvin, 2 Aiken, 79 ; Ludwig w. Fuller, 17 Me. 166; Ricker r. Cross, 5 N. H. 571 ; Shindler v. Houston, 1 Denio, 48 ; S. C. 1 Comst. 261 ; Calkins 0. Lockwood, 17 Conn. 164; Stinson u. Clark, 6 Allen, 340. So, where sheep were selected and marked and left in the possession of a third person, who was re- quested and who consented to hold them for the purchaser, this was held to be a sufScient delivery to complete the sale and pass the property as against the creditors of the vendor. Barney v. Brown, 2 Vt. 374. See Walden u. Murdock, 23 Cal. 540; Doyle v. Lasher, 16 U. C. C. P. 263 ; McMartin v. Moore, 27 lb. 397. On the 30th April, 1 868, the plaintiff by his agent made an oral contract with the defendant to sell him 170 barrels and six half barrels of mackerel at a specified price, and being all the mackerel stored in the agent's storehouse ; the mackerel were to be de- livered to the defendant as he wanted them. On May 1st, following, the de- fendant paid the plaintiff's agent $600, and received a written paper acknowledg- ing the receipt of $600 " on account of mackerel in store No. 10, Long Wharf, at (c) Atkinson u. Maling, 2 T. R. 462. [The delivery of a deed of transfer of a Sale of ship ship at sea passes the title to at »ea. ()]g purchaser, subject only to be defeated by his negligence in not taking possession of her within a reasonable time after her return to port. Brinley v. Spring, 7 Greenl. 241 ; Gardner v. How- land, 2 Pick. 602 ; Joy v. Sears, 9 lb. 4 ; Tucker v. BufSngton, 15 Mass. 477 ; Bad- lam V. Tucker, 1 Pick. 389; Turner v. Coolidge, 2 Met. 350. See Veazie v. Som- erby, 5 Allen, 280 ; McLean v. Grant, 1 Kerr (N. B.), 50. The cargo of a ship at sea may be ' transferred by a delivery of the bill of lading, with an assignment in- dorsed on it. See § 813, note (c^), post. Peters v. Ballister, 3 Pick. 495 ; McKee v. Garcelon, 60 Me. 167 ; Pratt v. Parkman, 24 Pick. 42, 47 ; Gibson v. Stevens, 8 How. (U. S.) 399, 400. So by a delivery of the invoice with an assign- gale of ment upon it there being no cargo, bill of lading in the possession of the vendor. Gardner v. Howland, 2 Pick (2d ed.) 509, and notes. The same prin ciples apply to the sale of all other chat- tels in the same or a similar situation, Pratt V. Parkman, 24 Pick. 46, 47 ; Gal- lop V. Newman, 7 lb. 283; Gardner v Howland, 2 lb. 602 ; Gibson v. Stevens, 8 How. (U. S.) 384, 399, 400; McKee v. Garcelon, 60 Me. 167; Smith v. Daven- port, 34 lb. 520; Patrick u. Meserve, 18 N. H. 300; Dixon u. Buck, 42 Barb. 70 ; First Nat. Bank of Peoria v. No. Railroad, 58 N. H. 203.] 696 PERFORMANCE OF THE CONTRACT. [book IV. § 697. So the indorsement and transfer to the buyer of bills of J ,■ ■ lading, dock and wharf warrants, delivery orders, and property, other like instruments, which among merchants are the purchaser's risk as regards fire.'' The next day the defendant caused each barrel to be examined by a cooper, who refilled with pickle such as needed it, and found two in which the fish had rusted, which were subsequently excepted and carried away by the plaintiff's agent. On or be- fore May 9th, the defendant had paid $2,900 on account of the mackerel. Dur- ing the night of May 9th fifty barrels were stolen. Subsequently the remaining bar- rels were taken away by the defendant. It was held that the sale was completed, and the loss fell on the purchaser. Chase u. Willard, 57 Me. 157 ; Hatch v. Lincoln, 12 Cush. 31. See Straus v. Minzesheimer, 78 111. 492. In Kussell v. O'Brien, 127 Kussell ti. Mass. 349, A. and B. entered O'Brien. JjjJq ^ contract for the sale and purchase of certain goods, to be shipped from a foreign port in twelve equal monthly shipments, and each ship- ment to be considered as a separate sale, the buyer to have the right to select the goods ; sound packages to be accepted, and damaged packages, if any, to be re- jected on the wharf. Eleven of the ship- ments were duly delivered and received. The goods composing the twelfth ship- ment were consigned to A. by the firm of which he had purchased them by one of a line of steamships, common carriers. The bill of lading, indorsed in blank, and the invoice, were received by A. by mail, and, upon the arrival of the steam- ship, were deposited by A. at the cus- tom - house, and he received a permit stating that the duties on the goods had been paid, and giving permission to de- liver them, and on payment of the freight received from the agent of the steamship line a certificate of such payment stating that the consignee was entitled to deliv- ery. The permit and certificate, with a written order from A. addressed to the steamship, for the delivery of the goods to B., were delivered by A. to a teamster, who was employed by B., and had orders from B. to cart away from the wharves all his merchandise whenever it should arrive, and had so carted away the eleven previ- ous shipments. The teamster presented these papers to the delivery clerk of the steamship line, who informed him that the goods in question had not come out, but would probably be out in a day or two. He had not seen the goods, but sup- posed they were there because they were on the bill of lading. On the next day, the goods, being still in the hold, were at- tached by an officer on a writ sued out by a creditor of A., and on the same day, B. paid A. for the goods. Had the goods been on the wharf, the teamster would have been allowed to remove them on giving up the papers. It was held that the jury were warranted in finding a sym- bolical delivery suflScient to perfect B.'s title as against the attaching creditor." Where there is a sale of property under attachment and in the hands of the oflicer, and the purchaser of it from the debtor can- not receive an actual possession, a symbol- ical delivery of it will be sufficient. Ante, § 7, and note. Klinck v. Kelly, 63 Barb. 622. "In such a case an actual change of the possession of the assigned property is not necessary. The deed transfers the title as between the parties to it, and the non- change of possession does not render the assignment void, as to the creditors of the assignor, for the reason that by the com- mon law, and the statute in affirmance thereof, it is the retention of possession by tlio assignor, and not merely the non-de- livery to the assignee, that is made the evidence of fraud in the transaction.'' Gilbert J. in Mumper a. Eushmore, 14 Hun, 591. Wheeler v. Nichols, 32 Me. 233 ; Mitchell v. Cunningham, 29 lb. 376; Whipple v. Thayer, 16 Pick. 25; Fettyplace v. Dutch, 13 lb. 388 ; Puckett V. Eeed, 31 Ark. 131 ; Trieber v. Andrews, lb. 163. So where the property is held in PART II.J DELIVERY. 697 known as representing the goods, would forra a good delivery in performance of the contract, so as to defeat any action by the buyer against the vendor for non-delivery of the goods, according to the principles settled in Salter v. Woollams (cZ) and Wood v. Man- ley ; (e) but the effect of transferring such documents of title upon custody by a third party claiming it. First National Bank of Cairo v. Crocker, 111 Mass. 169, 170; ante, § 6, note (a) ; McKee v. Judd, 2 Kern. 622. A contract of sale including many different articles may be completed by a delivery of part in the name of the whole; and such delivery applies to all the goods embraced in the contract of sale, although they happen to be scattered in different places. Phelps v. Cutler, 4 Gray, 137 ; Boynton v. Veazie, 24 Me. 286 ; Chappel v. Marvin, 2 Aikens, 79 ; Shurtleff v. Willard, 19 Pick. 202 ; Legg V. Willard, 17 lb. 140. Whether a delivery of part was for the whole is a fact to be determined by the jury. Pratt v. Chase, 40 Me. 269. It has been decided in Vermont, that there must be a substan- tial and visible change of possession, in order to perfect a sale of chattels as against the creditors of the vendor ; Hutchins v. Marshall, 10 L. Rep. (N. S.) 55 ; and that notice to the creditors of a sale without such change of possession is of no avail, as it is but notice of an imper- fect sale. Hutchins v. Marshall, supra. But see Ludwig v. Fuller, 17 Me. 162, in which it was held that if a party claim- ing title under the vendor of personal property, either as a subsequent purchaser or as attaching creditor, have notice of the prior sale before his rights accrued, he cannot allege any defects in the sale for want of a delivery. See Young v. Blaisdell, 60 Me. 272.] (d) 2 M. & G. 650. (c) 11 Ad. & E. 34. [See Van Blunt V. Pike, 4 Gill, 270 ; Adams v. Foley, 4 Iowa, 44 ; Tuxworth v. Moore, 9 Pick. 347, 349 ; Horr v. Barker, 8 Cal. 609 ; Pratt V. Parkman, 24 Pick. 46, 47 ; Hol- lingsworth v. Napier, 3 Caines, 182 ; Pleas- ants V. Pendleton, 6 Rand. 473 ; Glasgow I*. Nicholson, 25 Mo. 29 ; Warren v. Mil- liken, 57 Me. 97; Gushing w. Breed, 14 Allen, 376 ; First National Bank of Cairo V. Crocker, HI Mass. 163, 167; posi,§ 864, note (I). It was decided in First Na- tional Bank of Green Bay v. Dearborn, 115 Mass. 219, that the delivery, by an owner of goods, of a common ECfeot of carrier's receipt for them, not ofXrier's negotiable in its nature, as receipt, security for an advance of money, with the intention to transfer the property in the goods, is a symbolical delivery of them, and vests in the person making the ad- vance a special property in the goods suf- ficient to maintain replevin against an of- ficer who afterwards attaches them upon a writ against the general owner. See National Bank of Cairo v. Crocker, 111 Mass. 163, and cases cited. So in New- comb u. Boston & Lowell R. „ ^ ^ ,, . Newcomb v. R. Corp. 115 Mass. 230, it ap- Boston & peared that B. sent goods by ^°™" ^- ^■ railroad from Detroit, Michigan, to Salem, Massachusetts, taking therefor a railroad receipt in which he was named as con- signor and consignee ; that B. indorsed on the receipt an order to deliver to C. ; drew a draft on C. for the price ; attached the draft to the receipt, and sent both to a bank in Massachusetts for collection ; and for- warded an invoice of the goods to C, who went to the bank, accepted the draft, and afterwards sold the goods to D. A., at the request of C, and on an agreement with him that A. should sell the goods, and after deducting the draft and his commis- sion, account to C. for the balance, paid and took up the draft with the receipt at- tached ; and C. indorsed on the receipt an order to deliver the goods to A. ; and it was thereupon held that A. had a special property in the goods ; that C, until he paid the draft, had no title in the goods, and could pass none to D. ; and that the carrier, on delivering them to D., was lia- ble to an action by A. See Seymour v. 698 PERFORMANCE OF THE CONTRACT. [book IV. the rights of the unpaid vendor is discussed hereafter in the chap- ters on Lien and Stoppage in Transitu, §§ 809 et seq. and §§ 862 et seq. The transfer of such documents would of course not be a sufficient delivery by the vendor, if the goods represented by the documents were subject to liens or charges in favor of the bailees. § 698. In a case in the state of Vermont, (/) where wool lying Vendor uot in bulk on the vendor's premises was sold, payable on delivery by weight, the vendor was not allowed, in the absence of an express agreement, to recover the cost of labor, &c. in putting the wool into sacks furnished by the purchaser, the wool not having been weighed till after being put into the sacks. And in Robinson v. The United States (13 Wallace, 363), the supreme court of the United States held parol evidence admissible to prove, in a sale of 100,000 bushels of barley, a usage to deliver in sacks, not in bulk. entitled to costs of labor in putting goods sold by weight and lying in bulk, into pack- ages fur- nished by buyer. Robinson V. The United States. Newton, 105 Mass. 272 ; National Bank of Green Bay ^. Dearborn, 115 lb. 219; StoUenwerck v. Thacher, lb. 224. See §§ 809 et seq. as to transfer of bills of lading and warehouse receipts.] (/) Cole V. Kew, 20 Vt. 21. PABT III BUYER'S DUTIES. CHAPTER I. ACCEPTANCE. Buyer must fetch goods bought Liable in damages for unreasonable delay Where the contract was to deliver the goods " as required " Buyer has right to inspect goods be- fore acceptance .... But " not to measure," when bound by terms to pay before delivery . Section . 699 700 700 701 702 Section Mere receipt is not acceptance . . 703 But may become so by delay in re- jecting 703 Or by exercising acts of ownership . 703 Where goods do not agree with sam- ple 705 Acceptance, when based on deceptive samples, may be retracted . . 705 § 699. The vendor having done or tendei-ed all that his contract requires, it becomes the buyer's duty to comply in his turn with the obligations assumed. In the absence of express stipulations imposing other conditions, the buyer's duties are performed when he ACCEPTS, and PATS the price. As to ACCEPTANCE, Buyer little need be said. When the vendor has tendered de- ^"chTOods livery, if there be no stipulated place, and no special bought. agreement that the vendor is to send the goods, the buyer must fetch them ; for it is settled law that the vendor need not aver nor prove in an action against the buyer anything more than his readiness and willingness to deliver on paj'ment of the price, (a) (a) Jackson v. Allaway, 6 M. & G. 942 ; Boyd V. Lett, I C. B. 222 ; Lawrence v. Knowles, 5 Bing. N. C. 399 ; De Medina u. Norman 9 M. & W. 820 ; Spotswood V. Barrow, 1 Ex. 804 ; Cort v. Ambergate Railway Company, 17 Q. B. 127; 20 L. J- Q. B. 460 ; Baker v. Firminger, 28 L. J. Ex. 130; Cutter v. Powell, 2 Sm. L. C. 1, and notes. [If in an action for goods sold and delivered, the plaintiff proves a delivery at the place agreed, and that there remained nothing further for him to do, he need not show an acceptance by the defendant. Nichols u. Morse, 100 Mass. 523. See Pacific Iron Works o. Long Island R. R. Co. 62 N. Y. 272 ; Wright 700 PERFORMANCE OF THE CONTRACT. [book IV. ble for de- fault in fetching goods in reasonable time. Reasonable time to be determined by jury. Contract to deliver "as required." Jones V. Gibbons. § 700. And if the vendee make default in fetching away goods And is lia- Within a reasonaiU time after the sale, upon request made by the vendor, the vendee will be liable for ware- house rent and other expenses growing out of the custody of the goods, or in an action for damages if the vendor be prejudiced by the delay. (6) The question of what is a reasonable time is one of fact for a jury under all the circumstances of the case, (c) In Jones v. Gib- bons (c^) it was held no defence to an action by the buyer for non-delivery " as required " that he had not requested delivery within a reasonable time. If the ven- dor wanted to get rid of his obligation because of unreasonable delay in taking the goods, or in requiring delivery, it was for him to offer delivery or to inquire of the buyer whether he would take the goods, and he had no right to treat the contract as rescinded by mere delay. § 701. It has already been seen, in the chapter on Delivery, that the buyer is entitled before acceptance to a fair op- portunity of inspecting the goods, so as to see if they correspond with the contract, (ti^) He is not bound to accept goods in a closed cask which the vendor refuses to open ; (e) nor to comply with the contract at all, but may rescind it, if the seller refuse to let him compare the bulk with the sample by which it was sold, when the demand is made at a proper and convenient time ; (/) nor to remain at his place of business after sunset on the day fixed for delivery, nor even if he happens to be there after sunset, to accept unless there be time before midnight for inspecting and receiving the goods ; (^) nor to select the goods V. Weed, 6 U. C. Q. B, 140; Supple v. Gilmour, 5 U. C. C. P. 318.] (6) Per Lord Ellenborough, in Greaves V. Ashlin, 3 Camp. 426; also per Bayley J. in Bloxam v. Sanders, ante, § 678 ; [Denman u. The Cherokee Iron Co. 56 Ga. 319.] (c) Buddie v. Green, 3 H. & N. 906 ; 27 L. J. Ex. 33. [See Howe v. Huntington, 15 Me. 350; ante, § 684, note (e).] (rf) 8 Ex. 920. (rfi) [Pew V. Lawrence, 27 U. C. C. P. 402; Croninger v. Crocker, 62 N. Y. 151 ; Corrigau v. Sheffield, 10 Hun, 227. In Pease i^. Copp, 67 Barb. 132, the court Buyer has right to in- spect be- fore ac- ceptance. said that where merchandise Duty ofven- . . .^ ^ ^ . dee to exam- 13 in its nature open to mspec- j^^ g^^ tion it is the duty of the ven- delivered. dee to examine it at the time of sale, and if it is to be delivered by the vendor at a certain place it is the vendee's duty to have some person at the place of delivery to inspect it before it is transported to some other place.] (e) Isherwood v. Whitmore, 10 M. & W. 757; 11 M. ftW. 347. (/) Lorymer v. Smith, 1 B. & C. 1 ; Toulmin v. Headley, 2 C. & K. 157. ig) Startup v. McDonald, 6 M. & G- 593. PART III.j ACCEPTANCE. 701 bought out of a larger quantity, or a mixed lot that the vendor has sent him. (A) In a word, as delivery and acceptance are con- current conditions, it is enough to say that the vendee's duty of acceptance depends altogether upon the sufficiency or insufficiency of the delivery offered by the vendor. Thus, in a sale of rice in " double bags," the purchaser was held not bound to Makin ». accept the goods in single bags, in Makin v. London Rice r^J^mhis Mills Co. (20 L. T. N. S. 705). In this case there was C"- proof that this mode of packing rice made a difference in the sale. § 702. But in Pettitt v. Mitchell («) it was held that the buyer had not the right to measure goods sold by the yard Eight to under the special circumstances of the case. The sale "^af"™,, f _ goods sold was at auction, and the conditions were that the pur- by the yard. chasers were to pay an immediate deposit of 5s. in the pg{titt„ pound in part payment; that the lots must be taken Mitchell, away, wi^h all " faults, imperfections, or errors of description," by the following Saturday ; that the remainder of the purchase- money was to be paid before delivery: and the catalogue also an- nounced that "the stock comprised in this catalogue has been measured to the yard's end, and will be delivered with all faults and errors of description. All the small remnants must be cleared at the measure stated in the catalogue." The goods remained open for public inspection two days before the sale. The defend- ant bought several lots, and went on the proper day to take the goods, but claimed a right to inspect and measure them before pay- ing, which was refused. The action was for damages in special assumpsit, and the defendant pleaded a breach by plaintiff of con- ditions precedent, to wit, that the purchaser should be entitled " to inspect and examine the lot purchased by him, for the purpose of ascertaining whether the same was of the proper quantity, qual- ity, and description," &c. &c. ; and in another plea, breach of a condition that the purchaser " should be entitled to measure the lot." Held that the law did not imply the conditions stated in the pleas ; and that under the contract as made the buyer was bound to pay before delivery, but that he had the right after de- livery, and before taking away the goods, to measure them and claim an allowance for deficient measure, if any. (A) Dixon V. Fletcher, 3 M. & W. 146 ; 575 ; 1 E. & E. 969 ; 27 L. J. Q. B. HI ; Hart W.Mills, 15 M. & W. 85; Nicholson 28 L.J. Q. B. 319. V. Bradfield Union, L. R. 1 Q. B. 620 ; 35 (i) 4 M. & G. 819 ; [Rimmerv. Ruston, L. J. Q. B. 176 ; Levy v. Green, 8 E. & B. 14 Low. Can. Jur. 325.] 702 PERFORMANCE OF THE CONTRACT. [book IV. Mere re- , ceipt is not acceptance. But be- comes so by delay in reject- ing, or by act of own- ership. § 703. When goods are sent to a buyer in performance of the vendor's contract, the buyer is not precluded from object- ing to them by merely receiving them, for receipt is one thing and acceptance another. (Jc) But receipt will be- come acceptance if the right of rejection is not exer- cised within a reasonable time, (T) or if any act be done by the buyer which he would have no right to do unless he were owner of the goods, (m) The following cases illustrate these rules, in addition to the authorities reviewed ante, ParkLTs §§ ^'^^ ^^ ^^1' ^^^ Parker v. Palmer (w) the purchaser, Palmer. after seeing fresh samples drawn from the bulk of rice purchased by him, which were inferior in quality to the original sample by which he bought it, offered the rice for sale at a hm- ited price at auction, but the limit was not reached, and the rice not sold. He then rejected it as inferior to sample; but held, that by dealing with the rice as owner, after seeing that it did not correspond with the sample, he had waived any objection on that score. In Sanders v. Jameson (o) it was proven that by the custom of the Liverpool corn market the buj-er was only allowed one day for objecting that corn sold was not equal to sample, after which delay the right of rejection was lost. Rolfe B. held that this was a reasonable usage, binding on the pur- chaser. § 704. In Chapman v. Morton (p) a cargo of oil-cake was shipped by the plaintiffs from Dieppe to the defendant, a mer- Sanders v. Jameson. (Ic) [See Fitzsimmons u. Woodruff, 1 N. Y. Sup. Ct. R. 3, 4; Knoblauch u. Kronschnabel, 18 Minn. 300; Brown v. Corp. of Lindsay, 35 U. C. Q. B. 509. And a receipt and acceptance of part of tlie goods does not relieve the vendor from his duty to deliver the rest of the goods according to the contract quality. Kipp V. Meyer, 5 Hun. 111.] (/) Bianchi v. Nash, 1 M. & W. 545; Beverley v. Lincoln Gas Light Company, 6 Ad. & E. S29 ; Couston u. Chapman, ante, § 652 ; L. R. 2 Sc. App. 250 ; [Tread- well V. Reynolds, 39 Conn. 31 ; 1 Chitty Contr. (11th Am. ed.) 651 ; Cox ». Jones, 24 U. C. Q. B. 81 ; Gordon v. Waterous, 36 lb. 321 ; Pennell u. McAfferty, 84 111. 364; Doane v. Dunham, 79 lb. 131; Hirshhorn v. Stewart, 49 Iowa, 418; De- lamater v. Chappell, 48 Md. 244 ; Stafford V. Pooler, 67 Barb. 143 : Greenthal v. Schneider, 52 How. Pr. 133; Coventry r. M'Eniry, 13 Ir. C. L. R. 160; Lewis u. Gibbons, Bl., D. & Osb. (Ir.) 62; Henkel c. Welsh, 41 Mich. 664 ; Shipman v. Graves, lb. 675; Boughton v. Standish, 48 Vt. 594 ; Water's Heater Co. u. Mansfield, lb. 378.] (m) [See Bogue o. Newcomb, 1 N. Y. Sup. Ct. 251 ; Neaffie v. Hart, 4 Lansing, 4 ; Hamilton v. Myles, 24 U. C. C. P. 309 ; Watkins v. Paine, 57 Ga. 50 ; Wilds v. Smith, 2 Ont. App. 8.] (n) 4 B. & A. 387. (o) 2 C. cSb K. 557. I/)) 11 M. & W. 534 ; [Haynera. Sher- rer, 2 Bradwell (111.), 536.] PART III,] ACCEPTANCE. 703 chant at Wisbech, in Cambridgeshire. On its arrival, in Decem- ber, 1841, the defendant made complaint that it did not r.u ' Chapman correspond with the sample. He, however, landed a part "• Moiton. for the purpose of examination, and considering it not equal to sample, landed the whole, lodged it in the public granary, and on the 24th January, 1842, wrote to the plaintiffs that it lay there at their risk, and required them to take it back, which they refused to do. Some intervening negotiations took place without result, and in May, 1842, the defendant wrote to the plaintiffs that the oil-cake was lying in the granary at their disposal, and that if no directions were given by them, he would sell it for the best price he could get, and apply the proceeds in part satisfaction of his damage. The defendant had paid for the cargo by acceptances, before its arrival, and had taken up these acceptances, which were held by third parties. The plaintiffs replied that they considered the transaction closed. In July following, the defendant adver- tised the cargo for sale in his own name, and sold it in his own name, to a third person. On these facts it was held that the de- fendant had accepted the cargo. Lord Abinger said : " We must judge of men's intentions by their acts, and not by expressions in letters, which are contrary to their acts. If the defendant intended to repudiate the contract, he ought to have given the plaintiffs distinct notice at once that he repudiated the goods, and that on such a day he should sell them by such a person, for the benefit of the plaintiff's. The plaintiffs could then have called on the auctioneer for the proceeds of the sale. Instead of taking this course, the defendant has exposed himself to the imputation of playing fast and loose, declaring in his letters that he will not ac- cept the goods, but at the same time preventing the plaintiffs from dealing with them as theirs." Parke B. thought that there was no acceptance by the defendant down to the month of May, " but the subsequent circumstances of his offering to sell, and sell- ing the cargo in his own name, are very strong evidence of his taking to the goods, which will not deprive him of his cross-rem- edy for a breach of warranty, but whereby the property in the goods passed to him which may be considered as having been again offered to him by the plaintiffs' letter in the month of May." An- derson and Rolfe BB. concurred. (5') (?) [In an action to recover for goods the evidence did not establish an assent by Qowingti. alleged to have been sold by the defendant to the offer of the plaintiff, KnowkB. {jjg plaintiff jg tj^g defendant, who sent the goods to the defendant's 704 PERFORMANCE OF THE CONTRACT. [book IV. Refusal to accept where goods do not agree with sam- ple. When ac- ceptance based on deceptive sample may be retracted. § 705. The question whether, on the sale of specific goods, the purchaser may refuse acceptance because they do not correspond with sample, is discussed post, book V. part II. ch. i. The cases of Heilbutt v. Hickson, ante, § 651, and Mody v. Gregson, ante, § 667, are authorities to show under what circumstances an ac- ceptance may be retracted, if the sample itself is de- ceptive. warehouse, where they were receipted for by a boy in his employment and received by his servants without his knowledge. A bill upon the terms of the plaintiffs offer was sent with the goods, but there was no evidence that it was received by the defendant or his agents. A part of the goods were examined at the defendant's warehouse by his examiner. The defend- ant, who bought other similar goods of the plaintiff, went to the examiner's room almost daily to look at goods, and the goods were in the store where they might have been seen by the defendant. The defendant testified that he did not remem- ber whether the goods in question were or were not included in the claim made by him upon an insurance company for loss on his store and its contents, which were destroyed by fire while the goods were re- maining in the store ; and it was held that the evidence did not establish such a sub- sequent acceptance of the goods by the defendant as to warrant the jury in find- ing a contract of sale. Gowing v. Knowles, 118 Mass. 232.1 CHAPTER II. PAYMENT AND TBNDBB. SectioD Payment absolute or conditional . 706 Buyer not entitled to wait for de- mand 707 Buyer must pay even if goods are destroyed before he gets delivery where property has passed to him 708 And even where property has not passed, if he has assumed risk of delivery 708 Tender valid before writ issued . 708 Where price payable only after de- mand, reasonable time allowed to fetch money .... 709 Mode of payment — good when in ' accordance with vendor's request 710 Money sent by post .... 710 Setoff in account stated same as payment 711 Not so in ordinary accounts current 711 Tender is equivalent to payment . 712 Requisites of valid tender . . 713 Production of the money may be waived 713 Cases cited . . . . 713 Examples of sufficient waiver . . 714 Opportunity must be given to exam- ine and count the money . .715 In what coin to be made . . . 715 Waiver of objection to qucdily of money 716 Tender of more than is due . . 717 Demand for change . . . .718 Tender of part of entire debt not valid 719 Tender of balance due after set-off- not allowable . . . .720 Tender must be unconditional . 721 Buyer cannot demand admission that no more is due .... 722 Section But may exclude any presumption against himself .... 722 Tender, with protest . . . 725 Whether at common law debtor could demand receipt ? . . 726 Statute 16 & 17 Vict. c. 59 . . 727 Tender bars action, and not merely damages . ... 728 Payment by bill or note . . . 729 Presumed conditional until contrary shown 729 Payment not always " satisfaction and discharge " . . . . 729 Is absolute when made, but defeas- ible 730 Payment absolute where vendor elects to take bill instead of cash 731 Taking check is not such election . 731 But may operate as absolute pay- ment, if drawer prejudiced by un- due delay in presentment . . 731 Where bill taken in absolute pay- ment, buyer no longer owes price 732 Vendor must account for bill re- ceived in conditional payment be- fore he can sue for price . . 733 Rules of pleading in such case . 733 Reason why vendor must account for bill 734 Conditional payment becomes abso- lute if vendor passes away bill without indorsement . . . 734 Bill or note given by buyer, not his own, nor indorsed by him . . 735 Vendor must show due diligence in preserving buyer's rights against all parties to the bill . . 735 Or buyer will be discharged from payment of price .... 735 706 PERFORMANCE OF THE CONTRACT. [book IV. Section Buyer entitled to same notice of dis- honor as if lie had put his name on the bill .... Country bank-notes Vendor cannot recover price after loss of bill given in payment Or after alteration of it so as to prejudice buyer's rights Where bill is given as collateral se- curity — vendor's duty . Where buyer for cash, paid in ven- dor's own dishonored note . Where bills are given for which buyer is not to be responsible Where forged securities are given . Securities known by the buyer to be worthless ... Sale for " approved bills " Payment to agents Who are agents to receive payment, factors, brokers, shopmen, &c Purchaser from an agent cannot pay principal so as to defeat agent's lien Payment to agent must be in money, in usual course of business Del credere commission makes no dif- ference on this point Auctioneer has no authority to take accejited bill .is cash But semble, may take check Payment by set-off, where agent in 735 736 736 736 737 738 739 739 739 740 741 741 742 Section possession represents himself as owner . . . . Appropriation of payments — debtor has the right to elect . Creditor cannot, till the debtor h.is had an opportunity Appropriation by debtor may be im- plied . . ... Where an account current is kept . Creditor may apply payment, when debtor does not appropriate . Even to debt which he could not re- cover by action .... But it must be to a really existent debt . .... Creditor's election not determined till communicated to debtor . Pro rata appropriation of payment . American rules where bills or notes given in payment . French law on that point Appropriation of payments by French Code Tender under French law Roman law on the subject of this chapter In Home, payment by whomsoever made discharged debtor At common law, qucere Acceptilatio, or fictitious payment and release 744 746 746 747 748 748 748 749 749 750 752 753 753 754 755 756 "56 § 706. The chief duty of the buyer in a contract of sale is to Payment pay the price in the manner agreed on. The terms of or condi- ^^^^ ^^^^ ™*y require, 1st, an absolute payment in cash, tionai. j^j;,j ^\^[g jg always implied when nothing is said ; or, 2dly, a conditional payment in promissory notes or acceptances ; or 3dly, it may be agreed that credit is given for a stipulated time without payment, either absolute or conditional. In the first two cases, the buyer is bound to pay, if tlie vendor is ready to deliver the goods, as soon as the contract is made ; but in the last case he has a right to demand possession of the goods with- out payment. § 707. The rule of the common law is that a man bound to At com- pay has no right to delay till demand made, but must mon law, a ° •' , ■^ c \ ■ r, man bound pay as soon as the money is due, under peril ot being PART III.] PAYMENT AND TENDER. 707 sued : (a) and it has already been stated (a^) that the '" P^y 's " vendor, in the absence of a stipulation to the contrary, tied to wait is not bound to send or carry the goods, 'nor to allege or mini' prove in an action against the buyer anything more than a readi- ness and willingness to deliver. It therefore follows that as soon as a sale is completed by mutual assent, and no time given, the buyer ought at once to make payment, if the goods are ready for delivery, without waiting for a demand, and that an action is maintainable against him for the price if he fail to do so. (5) § 708. In cases where the property has passed, the buyer must pay the price according to the terms agreed on, even if g the goods are destroyed in the vendor's possession, as must pay has already been pointed out, ante, §§ 313 et seq. The goods de- goods are at the buyer's risk : they are his goods from fore he the moment the property passes, and the price is due to fi/^ JhZl the vendor, who simply holds the goods as bailee for the hls^'plsled buyer in such a c^se. (c) And even where the property '" ^™' has not passed, and the price is to become payable only ^^^' ^™° on delivery, yet if the buyer has assented to assume the property risk: or delivery, he must pay the price it the goods are passed, if destroyed before delivery, (c?) (^Ante, § 328.) In Briggs sume^d risk V. Calverley (e) the vendor attempted to go one step »£ delivery, farther, and to reject a tender of the price because not made till after he had instructed his attorney to sue out a latitat against the buyer, and after the attorney had applied for the fender writ, but before the writ was actually issued. Lord Ken- 7"''^ be- •' fore writ yon C. J. said it was impossible to contend that the ten- issued. der came too late, " having been made before the commencement of the suit." (/) § 709. But the contract sometimes provides that the payment is only to be made after demand or notice, and when this Where is the case, a reasonable time must be allowed for the payable (a) [Thomas v. Mallory, 6 U. C. Q. B. (c) Rugg v. Minett, 11 East, 210; ante, 521 ; Davis Sewing Machine Co. v. Mc- § 322; [1 Chitty Contr. (llth Am. ed.) Ginnis, 45 Iowa, 538; Wilcox v. Pillow, 518, and note [k], 519.] 28 U. C. C. P. 100.] (d) Castleu. Playford, L. K.5Ex. 165; (ai) Ante, § 679. 7 Ex. 98 ; Martineau v. Kitching, L. E. 7 [b] 1 Wms. Saunders, 33, note (2) ; Q. B. 436 ; ante, §§ 328, 329. [Maddock u. Stock, 4 U. C. Q. B. 118; (c) 8 T. E. 629. Brandon Manuf. Co. v. Morse, 48 Vt. (/] [See 2 Chitty Contr. (llth Am. 322.] ed.) 1191, and note (?).] 708 PERFORM iNCE OF THE CONTRACT. [book IV. only after demand, reasonable time al- lowed to fetch the money. buyer to fetch the money, (/i) ,In Brighty v. Nor- ton, (^) where a bill of sale provided that payment should be made in ten years, or "at such earlier day or time as the defendant should appoint by notice in writ- ing sent by post, or delivered to the plaintiff or left at his house or last place of abode," it was held that a notice served at noon to make payment in half an hour was not a reasonable notice, the judges concurring in this, though agreeing Brighty v. Norton. Toms V. Wilson. that it was difficult to say in general what would be a reasonable time. In Toms v. Wilson (Ji) it was held by the queen's bench, and in error by the exchequer chamber, that a promise to pay " immediately on demand " could not be con- strued so as to deprive the debtor of an opportunity to get the money which he may have in bank or near at hand ; and Black- burn J. said that " if a condition is to be performed immediately, or on demand, that means that a reasonable time must be given, Massev w according to the nature of the thing to be done." (i) Siaden. And in Massey v. Sladen, (Jc) where the promise was to pay " instantly on demand, and without delay on any pretence whatever," and demand might be made hy giving or leaving ver- bal or written notice for Mm at his place of business, held that in the party's absence, reasonable time must be given for the no- tice left at his place of business to reach him. § 710. As to the mode of payment, the buyer will be discbarged Payment if he make payment in accordance with the vendor's request, even if the money never reach the vendor's good if made in (/I) [The defendants sold to the plain- tiffs a quantity of coal, the price being payable on receipt of the bill of lading. The bill of lading was presented at the plaintiffs' office in New York on Saturday, at five minutes before three p. m., and a check for the purchase-money was de- manded. This was the first notice the Vendee al- plaintiffs had of the shipment Sle'ume of the coal. Some controver- to get money ay ensued between the parties after de- mand. 213 to allowing a certain set- Bass i'. off claimed by the plaintiffs. White. The plaintiffs finally offered the defendants their check for the amoitnt of the purchase-money, which the defend- ants refused to receive, saying that it was after three o'clock, at which time the banks closed. On Monday morning following the plaintiffs offered the defendants the money for the amount of the bill, which defendants declined to receive, and refused to deliver the coal. It was held that the plaintilfs were entitled to a reasonable time after the refusal to receive the check to procure the money, and that until morn- ing of the next banking day was not un- reasonable. Bass V. White, 65 N. Y. 565.] {g] 3 B. & S. 305 ; 32 L. J. Q. B. 38. (A) 4 B. & S. 442, 455 ; 32 L. J. Q. B. 33, 382. {i) Com. Dig. tit. Conditions, G. 5. [k] L. K. 4 Ex. 13. PAKT III.] PAYMENT AND TENDER. 709 hands ; as if it be transmitted by post in compliance '""<'« "^^ \ tl6st6d. \)Y with the vendor's directions and be lost or stolen. (Z) vendor. But Lord Kenyon held that a direction to send by post J^'^'^ysent was not complied with by the delivery of a letter, with the remit- tances inclosed, to the bellman or postman in the street, but should have been put into the general post-office or a receiving office au- thorized to receive letters with money, (m) In Caine V. Coulton (w) the plaintiff's attorney wrote to the de- Couiton. fendant to remit the balance of the account due to the plaintiff, with 13s. id. costs. The defendant remitted by post a banker's bill payable at sight for the amount of the account without the costs. The next day the attorney wrote refusing to accept the bill unless the 13s. 4td. were also remitted. The defendant refused and action was brought ; but the attorney kept the banker's bill, although he did not cash it. The jury found that the attorney had waived any objection to the remittance not having been made in cash, and only objected because the costs were not paid. Held that the payment was good, on the ground that it was the attor- ney's duty to return the banker's bill if he did not choose to re- ceive it in payment. Martin B. said of the attorney's conduct : " He says one thing, but he does another ; he kept the banker's draft. It seems to me to be common sense to look at what is done, and not to what is said." This case was distinguished by Pollock C. B. in giving his decision, from Gordon v. Strange (o) and Hough v. May, (p) which will presently be noticed, on the ground that in this case the creditor ordered the money remitted, which the learned chief baron said was of the very essence of the question. In Eyles v. Ellis (q) both parties kept an g^,,^^^ account at the same banker's, and the plaintiff directed ^"'^■ the amount to be paid there. The defendant ordered the banker (I) Warwick v, Noakes, Peake, 68, 98; it remains, until it reaches its destination [Wakefield v. Lithgow, 3 Mass. 249. But, and is actually received, entirely at the on the other hand, in Crane v. Pratt, 12 risk of the owner." Gurney v. Howe, 9 Gray, 348, 349, Merrick. J. said : " It ap- Gray, 404, 408.] Money sent pears to be perfectly well set- (m) Hawkins v. Eutt, Peake, 186, 248; whoMTi'sk' *'"'' **'*'' ^^ ™oney is trans- [Williams v. Carpenter, 36 Ala. 9.] mitted in a letter through the (n) 1 H. & C. 764; 32 L. J. Ex. 97. post-ofBce by a debtor to his creditor, with- And see Hardman t;. Bellhou^e, 9 M. & out his previous direction or assent, either W. 596. expressly given or to be implied from his (o) 1 Ex. 477. conduct, the usual course of business, or (p) 4 Ad. & E. 954. particular facts and circumstances found, (q) 4 Bing. 112. 710 PERFORMANCE OF THE CONTRACT. [BOOK IV. to put tLe amount to the plaintiff's credit on Thursday, which was done, and the defendant so wrote to the plaintiff on Friday, but the plaintiff did not get the letter till Sunday. On Saturday the banker failed. Held a good payment, although the defend- ant, when the money was transferred on the banker's books, Gordon v ^^'^^ already overdrawn his account, (g^) In Gordon Strange. y_ Strange (?') the defendant sent a post-office order in pajmient of a debt due the plaintiff, without any direction from the plaintiff. The order, by mistake, was made payable to Frederick Gordon instead of Francis Gordon. The plaintiff did not get it cashed, although he was told by the person who kept the post- office that the money would be paid to him if he would sign the name of the payee, as there was no one of the same name in the neighborhood. The plaintiff brought action, without returning the post-office order. The sheriff told the jury that the plaintiff having kept the order, with a knowledge that he might get the money for it at any time, was evidence of payment, although he was not bound, when he first received it, to put any name on it but his own. Held a wrong direction; "the defendant had no right to give the plaintiff the trouble of sending back a piece of paper which he had no right to send him." § 711. If the buyer has stated an account with the vendor, in Set-off in which the vendor has, by mutual agreement, received account t i- i r i n i i a stated, credit for the amount of the goods sold, as a set-on payment, against items admitted to be due by the vendor to the buyer, this is equivalent to an actual cash payment by the buyer of the price of the goods. The principle was thus explained by Lord Campbell, in a case which involved the necessity of a stamp to a written agreement, offered in proof of a plea of payment, (s) " The way in which an agreement, to set one debt against another of equal amount and discharge both, proves a plea of payment, is this : if the parties met, and one of them actually paid the other in coin, and the other handed back the same identical coin in pay- ment of the cross debt, both would be paid. When the parties agree to consider both debts discharged without actual payment, it has the same effect, because, in contemplation of law, a pecun- iary transaction is supposed to have taken place by which each (7I) [Piatt 0. McFaul, 4 U. C. C. P. (s) Livingstone v. Whiting, 15 Q. B. 293.] 722; 19 L.J. Q. B. .528. ()■) 1 Ex.477. PART III.] PAYMENT AND TENDER. 711 debt was then paid." A written memorandum of such a transac- tion was therefore held to be a receipt requirinsr a stamp. E^'e not mi i 1 1 • 1 • i 1 1 • . 1 applicable ihe (?ases establishing the above principles as to ac- to ordinary counts stated are quite numerous ; (i) but the rule is current.' not applicable to ordinary accounts current, with no agreement to set off the items, (u) § 712. In the absence of any of these special modes of payment, it is the buyer's duty, under the contract, to make act- Tender is ual payment in cash, or a tender of payment, which is as equivalent much a performance and discharge of his duty as an ment. actual payment. § 713. A tender is only validly made when the buyer produces -and offers to the vendor an amount of money equal to the price of the goods, (x) But the actual production of the money may be dispensed with by the vendor. (?/) The courts, how- Requisites , 1 . . . . » » T of valid ever, have been rigorous in requiring proot or a dis- tender, pensation with the production of the money. (2) In Dickinson Dickinson v. Shee (a) the debtor went to the attorney ^ . of the creditor, saying he was ready to pay the balance production of the account, 5?. 5s., and the attorney said he could money, not take that sum, the claim being above 8Z. Held, not a good tender, because the money was not produced, and the defendant had not dispensed with the production ; " if he saw it produced, he might be induced to accept of it." In Leatherdale Leather- V. Sweepstone (J) the defendant offered to pay the plain- g^^ep- tiff, and put his hand into his pocket, but before the ^""i«- money could be produced the plaintiff left the room. Held, by (<) Owens K. Denton, 1 Cr., M. & R. (y) [See Sargent v. Graham, 5 N. H. 711 ; Callendar v. Howard, 10 C. B. 290 ; 440, 441. But a mere offer to pay, it not Ashby a. James, U M. & W. 542 ; Mc- appearing that the party had the money Kellar v. Wallace, 8 Moore P. C. 378 ; ready, does not amount to a tender. Ful- Smith y. Page, 15 M. & W. 683; Sutton ler v. Little, 7 N. H. 535; Sargent v. V. Page, 3 C. B. 204 ; Clark v. Alexander, Graham, 5 lb. 440 ; Breed u. Hurd, 6 8 Scott N. E. 147 ; Seholey v. "Walton, 12 Pick. 356 ; Wheeler v. Knaggs, 8 Ohio, M. & W. 510; Worthington v. Grims- 169; Bakeman u. Pooler, 15 Wend. 637; ditch, 7 Q. B. 479 ; Sturdy v. Arnaud, 3 Brown v. Gilmore, 8 Greenl. 107 ; Cash- T. E. 599. man v. Martin, 50 How. Pr. 337.] («) Cottam V. Partridge, 4 M. & G. W [See 2 Chitty Contr. (llth Am.ed.) 271 ; and see ante, § 193. 1191, and note (x).] (x) [See Sargent v. Graham, 5 N. H. (a) 4 Esp. 67 ; [Knight v. Abbott, 30 440; Matheson «. Kelly, 24 U. C. C. P. Vt. 577.] 598.] (h) 3 C. & P. 342. 712 PERFORMANCE OF THE CONTRACT. [BOOK IV. Lord Tenterden, to be no tender. In Thomas v. Evans (c) the Thomas v p'^^ntiff Called at his attorney's oiEce to receive money, Evans. and was told by the clerk that he had lOZ. for him, which had been left by the attorney to be paid to him. The plaintiff, who wrongly supposed that a larger sum had been col- lected for him, said he would not receive the lOZ. The clerk did Finch V '^^^ produce the money. Held, no tender. In Finch v. Brook. Brook, ((i) in the common pleas, in 1834, the defend- ant's attorney called on the plaintiff and said : " I have come to pay you 1?. 12s. bd., which the defendant owes you," and put his hand in his pocket ; whereupon the plaintiff said : " I can't take it ; the matter is now in the hands of my attorney." The money was not produced. Held, no tender. The facts were found on a special verdict, and the judges said that the jury, on the facts, would have been justified in finding a dispensation, and the court Lockyer would not have interfered, (e) Vaughan J. said that II. Jones, gjj. James Mansfield, who had held, in Lockyer v. Jones, (/) that the creditor could not object to the non-produc- tion of the money if at the time of the tender he had refused to receive it on the ground that he claimed a larger amount, (cf) had in a subsequent case said, " that great importance was at- tached to the production of the money, as the sight of it might tempt the creditor to yield." § 714. The following are cases in which the courts have held Exanip'^s the acts or sayings of the creditor sufficient to dispense cient with the production of the money : Douglas v. Pat- rick, (li) where the debtor said he had eight guineas Patrick. and a half in his pocket which he had brought for the purpose of satisfying the demand, and the creditor said " he need not give himself the trouble of offering it, for he would not take Read v. ^^' ^® ^^^ matter was in the hands of his attorney ; " Goldring. Read V. Goldring, (i) where the debtor pulled out his pocket-book and told the creditor, whom he met in the street, that if he would go into a neighboring public-house with him, he would pay him 4L 10s., and the creditor said " he would not take (c) 10 East, 101. (g) [See Dunham v. Jackson, 6 Wend. (d) 1 Bing. N. C. 253. 22.] (e) [See Ashburn v. Poulter, 35 Conn. (h) 3 T. R. 683. 553.] ((•) 2 M. & S. 86. {/) Peake, 239, note. PART III.J PAYMENT AND TENDER. 713 it ; " (/) Alexander v. Brown, (^) where the person who made a tender of 291. 19s. 8d. had in his hand two bank-notes Alexander twisted up and inclosing four sovereigns and 19s. 8c^. in "■ Brown. change, making the precise sum, and told the plaintiff what it was, but did not open it before him, and it was objected that he ought to have shown him the money ; Best C. J. saying in this last case, that if the debtor had not mentioned the amount to the creditor, the tender would not have been sufficient. In Harding Harding v. Davies (Z) the proof was that the defendant, "• Navies, at her own house, offered to pay the plaintiff 10^., saying that she would go up-stairs and fetch it, and the plaintiff said " she need not trouble herself for he could not take it." Held by Best C. J. to be a good tender, (m) the learned chief justice adding, how- ever, " I agree that it would not do if a man said, I have got the money, but must go a mile to fetch it." § 715. The tender must of course be made in such a manner as will enable the creditor to examine and count the Tender money, but it may be produced in a purse or bag ready """j'^Ju^? to be counted by the creditor if he choose, provided the creditor sum be the correct amount, (n) The tender must, amine and at common law, be made in the current coin of the money. realm, (o) or foreign money legally made current by proclama- (j) [In Hazard v. Loring, 10 Cush. 267, 269, Bigelow J. said : " The production When pro- of the money, and the actual mon'eTdiL offer of it to the creditor, is pensed with, dispensed with, if the party is ready and willing to pay it, and is about to produce it, but is prevented from so doing by a declaration on the part of the creditor that he will not or cannot receive it. 2 Greenl. Ev. § 603 ; Barker v. Par- kenhorn, 2 Wash. C. C. 142; Blight v. Ashley, Peters C. C. 15." Parker v. Perkins, 8 Cush. 318. So if a person is prevented from making a tender by any contrivance or evasion of the party to whom the money is to be paid, it will be equivalent to a tender, or a sufficient ex- cuse for not making it. Southworth v. Smith, 7 Cush. 391, 393; Borden v. Borden, 5 Mass. 67, 74; Gilmore u. Holt, 4 Pick. 258, 264; Tasker «. Bartlett, 5 Cush. 359 ; Hazard v. Loring, 10 lb. 267 ; Sands o. Lyon, 18 Vt. 18; Thorne t. Mosher, 5 C. E. Green, 257.] (h) 1 C. & P. 288. {I] 2 C. & P. 77. And see Jones v. Cliir, 1 C. & M. 540 ; Ex parte Danks, 2 De G., M. & G. 936 ; 22 L. J. Bank. 73 ; Jackson v. Jacob, 3 Bing. N. C. 869. (m) [See the remarks upon this case in Sargent v. Graham, 5 N. H. 440, 442, 443, and the reference to it in Breed v. Hurd, 6 Pick. 356.] (n) Isherwood c;. Whltmore, 11 M. & W. 347. [He who makes a tender is not bound to count out the money ; it is enough if the money be there, and offered to the party ; it is for the payee to tell the money. Wheeler v. Knaggs, 8 Ohio, 169; Behaly v. Hatch, Walker (Miss.), 369; Breed t. Hurd, 6 Pick. 356 ; Milburn v. Milburn, 4 U. 0. Q. B. 179.] (o) Wade's case, 5 Rep. 114 a. 714 PERFORMANCE OF THE CONTRACT. [BOOK IV. tion. (^) And by " The Coinage Act, 1870," s. 4, a tender of In what payment in coin is declared to be legal : " In the case of mu"t'be'^" gold coins for a payment of any amount ; in the case of made. silver coins for a payment not exceeding forty shillings ; in the case of bronze coins for a payment not exceeding one shil- ling." By the 7th section of the same act, all contracts, sales, pay- ments, &c. " shall be made, executed, entered into, done, and had according to the coins which are current and legal tender pursu- ant to this act, and not otherwise, unless the same be made, exe- cuted, entered into, done, or had according to the currency of some British possession, or some foreign state." By the 3 & 4 W. 4, Bank of c. 98, s. 6, tenders are valid for all suras in excess of five notes. pounds, if made in notes of the Bank of England, pay- able to bearer on demand, so long as the bank continues to pay on demand its notes in legal coin, (q") § 716. When the tender is made in a currency different from Waiver of ^hat required by the law, the courts are much less rig- tolhe'kind °''°'^^ ^^ inferring a dispensation than in cases where no of money money is produced. If the buyer should offer his ven- easiiy in- dor a Country bank-note, or a check, or silver coin for a debt exceeding 40s., and the vendor shall refuse to re- ceive payment, alleging any other reason than the quality of the tender ; as if he should say that more was due him, and he would not accept the amount tendered, the inference would be readily ad- mitted that he dispensed the buyer from offering the coin or Bank Poigiass '-'^ England notes strictly requisite to make the tender V. Oliver, valid. In Polglass v. Oliver (r) all the earlier cases were reviewed, and it was held that a tender in country bank- notes, where the plaintiff made no objection on that account, but said, " I will not take it ; I claim for the last cargo of soap," was a (/)) Bac. Abr. Tender, B. 2; Wade's 1 S. Car. 147 ; Breen v. Dewey, 16 Minn, case, 5 Rep. 114 ; Cases of Mixed Moneys, 136; Barringer u. Fisher, 45 Miss. 200; Davys, 18. Townsend «. Jennison, 44 Vt. 315; Kel- (q) [As to the legal tender acts declar- logg v. Page, lb. 356; Carter v. Cox, 44 ing certain United States notes a legal Miss. 148; Crawford «. Beard, 13 U. C. C. tender in payment of debts, see Bronson P. 35, and 14 lb. 87 ; Judson o. Griffin, II. Rodes, 7 Wall. 229 ; Butler v. Horwitz, 13 lb. 350.] lb. 258 ; Hepburn v. Griswold, 8 lb. 603 ; (r) 2 Cr. & J. 15. See, also, Jones v. Knox V. Lee, and Parker v. Davis, 12 Arthur, 8 Dowl. P. C. 442; Gaiue v. lb. 457 ; 4 Am. Law Rev. 586 ; Belloc Coulton, 1 H. & C. 764 ; 32 L. J. Ex. 97 ; V. Davis, 38 Cal. 242 ; Rankin v. Demott, ante, § 710. 61 Penn. St. 263; O'Neil u. McKewn, PART III.] PAYMENT AND TENDER. 715 valid tender. Biiyley B. gave as a reason, that " if you objected expressly on the ground of the quality of the tender, it would have given the party the opportunity of getting other money, and making a good and valid tender. But by not doing so, and claim- ing a larger sum, you delude him." (s) ^ § 717. A tender of more than is due is a good tender, for omne majus continet in se minus, and the creditor ought to Tender of take out of the sum tendered him as much as is due to u due. ""^ him. (t) A tender therefore, of 201. 9s. 6d. in bank-notes and silver, proves a plea of tender of 201. (m) So, where the debtor put down 150 sovereigns on the attorney's desk, and told him to take out of it what was due to him, held a good tender for 1081. {x} § 718. But a tender of a larger sum than is due, with a demand for change, is not a good tender, if the creditor objects Tender to giving change. In Watkins v. Robb, (?/) the proof mand'^for in support of a plea of tender of 4:1. 19s. 6d. was that •^'"^nge. the debtor tendered a five pound note, and demanded ^. Robb? sixpence change, but Buller J. was of opinion that the creditor was not bound to give change, and held the tender bad. So a tender of a five pound note in payment of 3Z. 10s., with a demand for the change, was held no tender by Le Blanc J. in Betterbee Bett^rbee V. Davis, (2) the learned judge saying, that if that was "• Davis. (s) [Bank bills cannot be tendered as 84 111. 251 ; even though the tender be cash ; Coxe v. State Bank at Trenton, 3 made to a clerk or agent having author- Halst. 72 ; Moody v. Mahurin, 4 N. H. ity to receive it. Hoyt v. Byrnes, 2 Fairf . 296; Donaldson v. Benton, 4 Dev. & Bat. 475. A waiver of a tender in coin may lender of 435 ; even to the bank which be made by an agreement to accept bank bank bill. issues them. Hallowell & Au- bills before day of payment. Warren v. gusta Bank v. Howard, 13 Mass. 235; Mains, 7 John. 476. A tender of a check Coxe V. State Bank at Trenton, 3 Halst. is not good. Grussy v. Schneider, 50 72. But they will considered a good ten- How. Pr. 134.] der unless objection is made to them on {() 2 Wade's case, 3d resolution, 5 Rep. that account ; Snow v. Perry, 9 Pick. 542 ; 115. Bank of United States v. Bank of Georgia, («) Dean v. James, 4 B. & Ad. 546. 10 Wheat. 333; Wheeler v. Knaggs, 8 {x) Bevens v. Eees, 5 M. & W. 306; Ohio, 169; Warren v. Mains, 7 John, and see Douglas k. Patrick, 3 T. R. 683; 476; Cockrill w. Kirkpatrick, 9 Mo. 688 ; Black w. Smith, Peake, 88, 121. [A valid Williams u. Rorer, 7 lb. 556 ; Seawell v. tender may be made though it be of a Henry, 6 Ala. 226; Noe v. Hodges, 3 gross amount on several demands, if Humph. 162 ; Ball v. Stanley, 5 Yerger, enough be tendered to pay them all. 199; Brown v. Dysinger, 1 Rawle, 408 ; Thetford v. Hubbard, 22 Vt. 440.] Towson V. Havre de Grace Bank, 6 Harr. (y) 2 Esp. 711. & J. 53 ; Fosdick v. Van Husan, 21 Mich. (z) 3 Camp. 70. See Robinson v. Cook, 567 ; Harding v. Commercial Loan Co. 6 Taunt. 336, 716 PERFORMANCE OF THE CONTRACT. [BOOK IV. good, a tender of a 50,000?. note, with demand for change, would be eauallv good. But in Tadman v. Lubbock, decided Tadman v. ^ J ° Lubbock, ill ]yj. Term, 1824 (and reported in the note to Blow v. Russell), (a) where a tender of 11. 13s. was pleaded, the proof was that the party offered two sovereigns and asked for change, and that the other refused the tender, on the ground that more than 11. 13s. was due. The court of king's bench held this a good tender. § 719. It is now settled that there can be no valid tender of part No valid of an entire debt, though a debtor may make a valid *art of en- tender of one of several distinct debts if he specify the tire debt, ^gj^j; qjj account of which he makes the tender ; and if he makes a tender without specifying which of several debts is the subject of the tender, and the amount tendered be insufficient to cover all, it will not be good for any. In Dixon Dixon V. ' . . ° " . Clarke. ^,. Clarke (5) the authorities were all reviewed, and Wilde C. J. gave a very lucid exposition of the whole subject of tender, from which the following passages are extracted : " The argument further involved the general question, whether a tender of part of an entire debt is good On consideration, we are of opinion, upon principle, that such a tender is bad. In actions 6f debt and assumpsit the principle of the plea of tender in our ap- prehension is that the defendant has been always ready (toujoun prist^ to perform entirely the contract on which the action is founded, and that he did perform it as far as he was able by ten- dering the requisite money ; the plaintiff himself precluding a com- plete performance by refusing to receive it. And as in ordinary cases the debt is not discharged by such tender and refusal, the plea must not only go on to allege that the defendant is still ready Qiincorc pri.ity, but must be accompanied by a profert in curiam of the money tendered. If the defendant can maintain his plea, although he will not thereby bar the debt (for that would be in- consistent with the uncore prist and profert in curiani), yet he will answer the action in the sense that he will recover judgment for his cost of defence against the plaintiff, in which respect the plea of tender is essentially different from that of payment of money into court. And as the plea is thus to constitute an answer to the action, it must, we conceive, be deficient in none of the req- uisite qualities of a good plea in bar. With respect to the aver- (a) 1 C. &. P. 366. (6) 5 C. B. 365. PART UI.J PAYMENT AND TENDER. 717 ment of toujours prist, if the plaintiff can falsify it, he avoids the plea altogether. Therefore, if he can show that an entire perform- ance of the contract was demanded, and refused at any time, when by the terms of it he had a right to make such a demand, he will avoid the plea. Hence, if a demand of the whole sum oi'iginally due is made, and refused, a subsequent tender of part of it is bad, notwithstanding that hy part paymeyit or other means the debt may have been reduced in the interim to the sum tendered. And this is the principle of the decision in Cotton v. Godwin, (c) (, ^ If, however, the demand was of a larger sum than that Godwin, originally due under the contract, a refusal to pay it would not falsify the toujours prist, even though the amount demanded were made up of the sum due under the contract and some other debt due from the defendant to the plaintiff. And this is the principle of the decisions of Brandon v. Newington (c?) and Hesketh v. Fawcett, (e) which appear to overrule Tyler v. Bland. (/) This principle, however, we think is only applicable where the larger sum is demanded generally, and can hardly be enforced where it is explained to the defendant at the time how the amount de- manded is made up ; for in such case the transaction appears to be nothing less than a simultaneous demand of the several debts, so as to falsify the averment of toujours prist as to each. But besides the averment of readiness to perform, the plea must aver an actual performance of the entire contract on the part of the defendant so far as the plaintiff would allow. And it is plain that where by the terms of it the money is to be paid on a future day certain, this branch of the plea can only be satisfied by alleging a tender on the very day. And this is the principle of the decisions of Hume v. Peploe (^) and Poole v. Tunibridge. (K) It is also obvious that the defect in the plea in this respect cannot be rem- edied by resorting to the previous averment of toujours prist. Consequently, a plea by the acceptor of a bill or the maker of a note, of a performance post diem, is bad, notwithstanding the tender is of the amount of the bill or note, with interest from the day it became due up to the day of the tender, and notwithstand- ing the plea alleges that the defendant was always ready to pay, (c) 7 M. & W. 147. [See Thetford v. (/) 9 M. & W. 338. Hubbard, 22 Vt. 440.] [g) 8 East, 168. (d) 3 Q. B. 915. (h) 2 M. & W. 223. (c) 11 M. & W. 356. 718 PERFORMANCE OF THE CONTRACT. [bOOK IV. not only from the time of the tender (as the plea was in Hume v. Peploe), but also from the time when the bill or note became pay- able. On the same reasoning it appears to us that this branch of the plea can onlj' be satisfied by alleging a tender of the whole sum due under the contract, for that a tender of part of it only is no averment that the defendant perfoi-med the whole contract as far as the plaintiff would allow." § 720. This thorough exposition of the subject was followed by Harding- the further decision in Hardingham v. Allen, (i) by the Aiieu. same court, in the same year, deciding that where a de- mand was made of 11. Is. for several matters, including 10s. for a particular contract, a tender of 19s. 6t^., without specifying the appropriation to be made of it, did not sustain a plea of tender Seariesw. oi lOs. on the particular contract. In Searles v. Sad- Sadgrave. g^.j^yg ^^^ ^]^g defendant pleaded as to 551. 6s., parcel, balance &c. tender. Plaintiff replied that a larger sum was due set-oS 'not ^^ the time of the tender than the amount tendered, as allowable. ^^^^ entire sum and on one entire contract, which larger sum the plaintiff demanded at the time of the tender, and the de- fendant refused. Rejoinder, that though a larger sum was due lit the time of making the tender, yet before making the tender the plaintiff was indebted to the defendant in an amount equal to the whole of the larger sum, except the said sum of 55Z. 6s., parcel, &c. for money payable, &c. which amount, &c. the defendant was and still is ready to set off, &c. Demurrer and joinder. The demurrer was sustained. Lord Campbell saying that the statute 2 Geo. 2, c. 22, did not cover the case, and that the defendant was bound to plead his set-oft', and pay the residue into court instead of tendering it. {V) The defendant was, therefore, al- lowed to amend on the usual terms. § 721. A tender must be unconditional, or at all events free Tender from any condition to which the creditor may rightfully Mcomli- object, (m) Where there is no ambiguity in the lan- tionai. guage of the debtor, it is a question of law for the court (i) 5 C. B. 793. Gary v. Bancroft, U Pick. 315; Bellows (h) b E. & B. 639; 25 L. J. Q. B. 15. v. Smith, 9 N. H. 285.] See, also, Robinson v. Ward, 8 Q. B. 920; (m) [In Richardson v. Boston Chemical Phillpotts V. Clifton, 10 W. R. Ex. 135. Laboratory, 9 Met. 42, 52, Dewey J. said (/) [A plea of tender is not supported the rnle seemed to be established by numer- by proving an offer of a promissory note ous authorities in Massachusetts and else- due from the plaintiff to the defendant, where, that a tender must be an uncondi- PART ni.J PAYMENT AND TENDER. 719 whether his tender was conditional or not, but if there be ambi- guity, the question is properly left to the jury ; as where a debtor said he had called to tender 81. in settlement of an account, and Lord Denman C. J. left it to the jury whether that meant simply in payment, or involved a condition, and this was held right by the king's bench, (n) § 722. The condition which the debtor is the most apt to im- pose is one to which the law does not permit him to Debtor has subject the creditor. The debtor has no right to insist dem^d '° that the creditor shall admit that no more is due in re- admission that no spect of the debt for which the tender is made. He may more is due 11 • • 1 ■ 1 ,- 1 1 when mak- exclude any presumption against himself that he admits ing tender. the payment to be only for a part, but can go no far- ^'^\"fy ther, and his tender will not be good if he add a condi- any pre- tion that the creditor shall acknowledge that no more is against due. (o) In Sutton v. Hawkins (p) the money was tendered as " all that was due," and this was held bad. Hawkins. In the Marquis of Hastings v. Thorley (c[) a tender of Marquis of a sum " in payment of the half year's rent, due at Lady Thorief.^"' Day last," was held bad by Lord Abinger C. B., as putting on the creditor the condition of admitting that no more rent was due. The rent claimed by the plaintiff was 23Z., and the ten- Mitchell der was of 2\l. In Mitchell v. King (r) a tender by "King, the debtor, who said, " I do not admit of its being taken in part, but as a settlement," was held no tender, (s) In Hough ji(,u„ij V. May (f) the tender was in a check, in these words V. Mav. tional oflfer of the money ; and if accom- panied by any qualifying words, or with a demand of anything to be done by the party to whom the tender is made, beyond the mere receipt of the money tendered, it wiy avoid the tender. See Thayer v. Bracket!, 12 Mass. 450; Loring v. Cooke, 3 Pick. 48 ; Robinson v. Batchelder, 4 N. H. 40; Buffum v. Buffum, 11 lb. 451; Brown v. Gilmore, 8 Greenl. 110; Hep- burn u. Auld, 1 Cranch, 321 ; Bacon v. Conn, 1 Sra. & M. Ch. 348 ; Eastland v. Longshorne, 1 Nott & McC. 194 ; Brooklyn Bank v. DeGrauw, 23 Wend. 342 ; Wood V. Hitchcock, 20 lb. 47 ; Heelas v. Slevin, 53 How. Pr. 356,] (n) Eckstein v. Reynolds, 7 Ad. & E. 80 ; Marsden v. Goode, 2 C. & K. 133. (o) Bowen v. Owen, 11 Q. B. 131. (p) 8 C. & P. 259. ((?) 8 C. & P. 573. (r) 6 C. & P. 237. (s) [Bnt if a debtor tender to his cred- itor a sum of money in full for all legal claims which the creditor may have against him upon account, and the creditor receive the money protesting that it is not suffi- cient, but saying that he will take it and pass it to the debtor's credit upon the ac- count, and the debtor do not express any dissent to this course, the acceptance of the tender will be no bar to the creditor's right to recover such sum as may be found due to him, exceeding the amount of the tender. Gassett u. Andover, 21 Vt. 342. See Tyers u. United States, 5 Court of Claims, 509.] (t) 4 Ad. & E. 954. 720 PERFOKMANCE OF THE CONTRACT. [BOOK IV. " Pay Messrs. Hough & Co. balance account railing, or bearer, 81. lis." This was held no tender, because, as Coleridge J. put it, " Suppose this check had been presented, and it had been afterwards a question for a jury whether the plaintifE had been paid in full ; they would see that before the action was brought the plaintiff had accepted and made use of a check professedly given for the then balance," and this condition vitiated the tender. § 723. But in Henwood v. Oliver, (m) where the defendant Henwood produced the money, saying : " I am come with the D. Oliver, amount of your bill," and the plaintiff refused the money, saying : " I shall not take that. It is not my bill," the tender was held unconditional and good. Patteson J. said : " The defendant who makes a tender always means that the amount tendered, though less than the plaintiff's bill, is all that he is entitled to demand in respect of it. How then would the plaintiff preclude himself from recovering more, by accepting an offer of part, accompanied by expressions that are implied in every tender. Expressio eorum quce tacite insunt nihil operatur. If the defendant when he paid the money had called it part of the amount of the plaintiff's bill, he would thereby have aduiitted that more was due, and the effect of the tender would have been ]3„[, J, defeated." Henwood v. Oliver was followed by Wight- Parker. ,;^^an j_ ijj j3^jj ^_ Parker, («) in a case where the wit- ness who proved the tender, said, " I offered him 4/., and I said I went by the direction of Mr. C. Parker, to pay him -il., in full discharge of his account. I did not say I will pay the money, if you will accept it in full discharge." The learned judge held that there was no such condition annexed to the offer as amounted to saying, " Unless you accept this money in full discharge, I will not pay it at all." § 724. The latest case on this point is Bowen v. Owen, (jj) Bowen i). wliere a tenant sent a person to his landlord with a let- Owen. ter, saying, " I have sent with the bearer, T. T;, a sum of IQl. 5s. lid., to settle one year's rent of Nant-ij-pair." The messenger told the landlord that he had the money with him to (u) See, also, Evans v. Judkins, 4 Camp. C. & P. 419 ; Huxham v. Smith, 2 Camp. 156 ; Strong v. Harvey, 3 Bing. 304 ; Ford 19 ; Read v. Goldring, 2 M. & S. S6. V. Noll, 2 Dowl. N. S. 617 ; Bowen v. (x) 12 L. J. Q. B. 93. Owen, U Q. B. 131 ; Cheminant v. Thorn- (y) U Q. B. 130. ton, 2 C. & P. 50 ; Griffith v. Hodges, 1 PART III.] PAYMENT AND TENDER. 721 pay, but the latter refused, saying more was due. The messenger went away, and returned, saying, he had a few pounds more in his pocket to pay, in addition to the 2QI. 5s. 7^cZ., certain arrears of duties, but the landlord again refused, saying, there was more due. It was objected that these offers, coupled with the plaintiff's let- ter, were no more than a conditional tender, and Rolfe B. so ruled ; but the king's bench held that the letter did not contain a condition, Erie J. stating the general rule, as follows : " The person making a tender has a right to exclude presumptions against himself, by saying, ' I pay this as the whole that is due you ; ' but if he requires the other party to accept it as all that is due, that is imposing a condition ; and when the offer is so made, the creditor may refuse to consider it as a tender." § 725. A tender accompanied by a protest that the amount is not due is a good tender. Lord Ellenborough was of a Tender o o ^ with pro- contrary opinion in Simmons v. Wilmot ; (2) but this test that ,. . the amouDt case must now be considered as overruled on this point is not due. by Scott V. Uxbridge Railway Company, (a) in which the court of common pleas adopted and followed the ruling of Pollock C. B. in Manning v. Lunn. (5) Nor is a tender vitiated because the debtor says he considers it all that is due. (c) A payment or tender, by one of several joint debtors or to one of several joint creditors, is valid, (^d) § 726. Whether or not the debtor was entitled at common law to demand a receipt for money tendered seems to be con- whether at sidered an open question. In Cole v. Blake (e) Lord J'awdebtor Kenyon said that it had been determined that a party J™^ ™'^_ tendering money could not in general demand a receipt "P^'^y"^®" for the money, and quoted one case in which he said ^^^^ ^ that it had been held that the king's receiver, as an ex- Blake, ception to the general rule, was obliged to give a receipt. (/) And in Laing v. Header, (^) where the defendant asked for a stamped receipt, Abbott C. J. said : " A party has no right to say, (z) 3 Esp. 91. 7 M. & G. 607 ; Cooper v. Law, 6 C. B. (o) L. R. 1 C. P. 596; 35 L. J. C. P. N. S. 502 ; 28 L. J. C. P. 282 ; Brandon 293. V. Scott, 7 E. & B. 234; 26 L. J. Q. B. (i) 2 C. & K. 13. 163. (c) Robinson v. Ferraday, 8 C. & P. 752. (e) Peake, 179, 238. [d) Douglas u. Patrick, 3 T. R. 683; (/) Bunbury, 348. Wallace v. Kelsall, 7 M. & W. 264 ; Jones (?) 1 C. & P. 257. V. Yates, 9 B. & C. 532 ; Gordon v. Ellis, 46 722 PERFORMANCE OF THE CONTRACT. [BOOK IV. I will pay you the money if you will give me a stamped receipt, but he ought, according to the 43 Geo. 3, c. 126, to bring a re- Eichard- ceipt with him, and require the other party to sign it." Jackson. But in Richardson v. Jackson, (K) where the court held that the creditor could not object to the tender on the ground that a receipt was asked, because at the time of the offer he only refused it on the ground that a larger sum was due him, Alder- son and Rolfe BB. were careful in guarding themselves against countenancing the rule that a man who pays money is not enti- tled to demand a receipt, RoWe B. saying : " I should be sorry to hold this to be a bad tender on account of the receipt having been mentioned. I should wish to encourage all prudent people to take receipts, for if they do not, in case of death the representa- tives may be deprived of all evidence of the payment." (/) § 727. But now, by statute, (Jc) a stamp of one penny is re- 16 &17 quired on all receipts upon payment of money amount- '\'"ict. c. 59 ss. 3, 4. ' ing to 21., and the debtor is empowered to tender a blank receipt with the proper stamp, at the time of payment, which the creditor is bound to fill up, and to pay the amount of the stamp, Jones «. under the penalty of lOZ. (T) In Jones v. Arthur, (m) Arthur. -^fhere the tender was made by a check in a letter which requested a receipt in return, this request was held not to invali- date the tender. § 728. It is now settled by the decision of the queen's bench Tenderisa in I860, in James V. Vane, C'O overruling Cooch v. bar to ac- ' v ^ » t-v ■ tion, not Maltby (o) and affirming the earlier case of Dixon v. damages. Walker, (p) that a tender is a lar to the action quoad its amount, and not merely a bar to damages. § 720. The payment for goods may by the contract be agreed Payment to take effect in a negotiable security, as in a promissory ^^'j^'"" ""^ note or bill of exchange, and the agreement may be that Absolute the payment thus made is absolute or conditional. In tk)nai'.'^' t^i6 absence of any agreement, express or iniplied, to the Presumed contrary, a payment of this kind is always understood uraesVcon-' to be conditional, the vendor's right to the price reviv- (A) 8 M. & W. 298. (k) 16 & 17 Vict. c. 59, ss. 3, 4. ({) [See Thayer v. Brackett, 12 Mass. (I) 43 Geo. 3, u. 126, ss. 5, 6. 450 ; Loring v. Cooke, 3 Pick. 48 ; Rich- (m) 8 Dowl. 442. ardson v. Chemical Laboratory Co. 9 Met. (n) 2 E. & E. 883 ; 29 L. J. Q. B. 169. 42, 52; "Wood <■. Hitchcock, 20 "Wend. (o) 23 L. J. Q. B. 305. 47.] (p) 7 M. & "W. 214. PART III.] PAYMENT AND TENDER. 72-3 ing on non-payment of the security. But if a dispute t^ary in- arise as to the intention of the parties, the question is shown"! one of fact for the jury, (g^) The intention to take a bill in ab- solute payment for goods sold must be clearly shown, and not de- duced from ambiguous expressions, such as that the bill was taken " in payment " for the goods, (r) or " in discharge " of the price, (s) Lord Kenyon said, in Stedman ■;;. Gooch, (r) that " the law is clear that if in payment of a debt the creditor is content to take a bill or note payable at a future day, he cannot legally com- mence an action on his original debt until such bill or note be- comes payable and default is made in the payment ; but if such bill or note is of no value, as if, for example, drawn on a person who has no effects of the drawer's in his hands, and who therefore refuses to accept it, in such a case he may consider it as waste paper, and resort to his original demand, and sue the debtor : " and this dictum was quoted by Tindal C. J. in Maillard payment V. the Duke of Argyle (f) to show that the word " pay- Necessarily ment " does not necessarily mean payment in satisfac- f"*t?Qand tion and discharge. discharge. § 730. The authorities in support of the rule that in the ab- sence of stipulation to the contrary the negotiable security is only considered to be a conditional payment, defeasible on the dis- honor of the security, need not be reviewed, as there is no con- flict on the point, (u) The payment is absolute on the delivery of the bill, and takes effect from that date, but is de- j^ absolute feated by the happening of the condition, i. e. non-pay- '^!^^'^^^^l' ment at maturity, (a;) iWe. (?) Goldshede o. Cottrell, 2 M. & W. Bing. N. C. 249; Valpy v. Oakley, 16 Q. 20. B. 941 ; GrifBths u. Perry, 1 E. & E. 680 ; (r) Stedman v. Gooch, 1 Esp. 5 ; Mail- 28 L. J. Q. B. 204. [The rule stated in lard V. Duke of Argyle, 6 M. cSb G. 40. the text prevails in most of the American (s) Kemp w. Watt, 15 M. & W. 672. states. See 2 Chitty Contr. (11th Am. (0 6 M:.&. G. 40. ed.) 1135, note (x) and cases cited; Mid- (u) Owenson v. Morse, 7 T. E. 64; dlesex u. Thomas, 5 C. E. Green, 39; Kearslake v. Morgan, 5 T. E. 513 ; Puck- Archibald v. Argall, 53 III. 307 ; Guion v. ford „. Maxwell, 6 T. E. 52 ; Kendrick Doherty, 43 Miss. 538 ; Syracuse &c. E. V. Lomax, 2 Cr. & J. 405; Griffiths ^. E. Co. w. Collins, 3 Lansing (N. Y.), 29; Owen, 13 M. & W. 58 ; James o. Wil- Burkhalter v. Second Nat. Bank, 42 N. Y. Hams, lb. 828 ; Crowe v. Clay, 9 Ex. 604; 538 ; May v. Gamble, 14 Fla. 467.] Belshaw v. Bush, 11 C. B. 191 ; Ford v. [x) Belshaw v. Bush, 11 C. B. 191 ; 22 Beech, 11 Q. B. 873; Simon u. Lloyd, 2 L. J. C. P. 24; Turney v. Dodwell,3 E. & C, M. & E. 187 ; Helps u. Winterbottom, B. 136 ; 23 L. J. Q. B. 137. [In Chamber- 2 B. & Ad. 431 ; Plimley u. Westley, 2 in v. Perkins, 55 N. H. 237, it appeared 724 PERFORMANCE OF THE CONTRACT. [book IV. Where vendor elects to take bill instead of cash, pay- ment ab- solute. Cowasjee V. Thomp- son. § 731. But if the buyer offer to pay in cash, and the vendor takes a negotiable security in preference, the security is deemed to be taken as an absolute, not a conditional, payment. («/) And in Cowasjee v. Thompson, (2) where the vendor elected to take a bill at six months in prefer- ence to the cash, less discount, it was held in the privy council that this was a " payment in substance," mak- ing it the vendor's duty to give up the ship's receipt for the goods, and thus depriving him of the right of stoppage in Taking a transitu. But a man who prefers a check on a banker not such to payment in money is not considered as electing to tion.'^^' take a security instead of cash, for a check is accepted as a particular form of cash payment, and if dishonored the ven- dor may resort to his original claim, on the ground that there When has been a defeasance of the condition on which it was Dreseiit"e'd taken, (rt) But if a check received in payment is not in time. presented within reasonable time, and the drawer is in- jured by the delay, the check will operate as an absolute pay- ment. (J) § 732. Whenever it can be shown to be the intention of the When bill parties that a bill or note should operate as immediate or note is ^ . i ■ t i t r taken in payment, then the buyer will no longer be indebted for payment, the price of the goods, although he may be responsible that the owner of a lot of flour and Payment iy gi'aiti sold and delivered it, acceptance, and received the acceptances of the purchaser in full payment and dis- charge of the price therefor, which the purchaser afterwards refused to pay; and it was held that the seller, having been compelled to take up the acceptances, might elect to consider his agreement to receive the acceptances in payment of the original debt as rescinded, and might re- cover the price of the flour and grain in a suit therefor the acceptances being in court to be disposed of as the safety of the defendant might require.] (y) Marsh a. Pedder, 4 Camp. 257 ; Strong r. Hart, 6 B. & C. 160; Smith u. Ferrand, 7 B. & C. 19 ; Robinson «, Read, 9 B. & C. 449 ; Anderson v. HiUies, 12 C. B. 499; 21 L.J. C. P. 150; Guardians of Lichfield v. Green, 1 H. & N. 884, and 26 L. J. E.x. 140. (z) 5 Moore P. 0. 165. (a) Everett v. Collins, 2 Camp. 515; Smith V. Ferrand, 7 B. & C. 19; per Patteson J. in Pearce v. Davis, 1 M- & Rob, 365 ; Hough v. May, 4 Ad. & E. 954 ; Caine v. Coulton, 1 H. & C. 764; 32 L. J. Ex. 97 ; [Weddigen u. Boston Elastic Fabric Co. 100 Mass. 422 ; Small u. Franklin Mining Co. 99 lb. 277 ; Phil- lips u.Bullard, 58 Ga. 256; Sweett'. Titus, 67 Barb. 327 ; Hodgson v. Barrett, 33 0. St. 63 ; Blair v. Wilson, 28 Gratt. 165. But if the check is that of a third person, the taking of it is presumed to be in pay- ment. Redpath v. Kolfage, 16 U. C. Q. B. 433.] (6) H:opkins v. Ware, L. R. 4 Ex. 268; Byles on Bills, p. 19 (9th ed.) ; [Smith ». Miller, 43 N. Y. 171.] PART III.j PAYMENT AND TENDER. 725 on the security : and the bill or note given in such case buyer no may be that of the buyer himself, (c) or that of a third oweTthe person, on which the buyer has indorsed his name. (cZ) the^oods. § 733. But although a bill or note be taken only as conditional payment, yet as it is primd facie evidence of payment. Vendor the vendor who has received it must account for it be- ^ntToi- fore he can revert to the original contract and dereiand '^"'^ °'^ "°'^ Y even when payment of the price. In Price v. Price (e) the defend- received ant pleaded to an action of debt that he had given his conditional promissory 'note at six months to the plaintiii, who took befonTue' and received it " for and on account " of the debt. Rep- l^^ price*"' lication, that the time had expired before the com- pHcet). mencement of the action, &c. and that the defendant ^™®' had not paid. Special demurrer, assigning for causes, "'^leidj'nEr in that the replication did not show that the plaintiff held such cases, the note, and that it was consistent with the replication that the note might have been indorsed away, and payable to some other person. Joinder in demurrer. Held, after consideration, Parke B. giving the judgment of the court, that it lay on the defendant to make the first averment that the note had been indorsed away, it being Ms own note, which he was bound to pay, and not on the plaintiff to aver the negative in his replication ; overruling Mercer v. Cheese ; (/) but secus, if it had been the note of a third person. § 734. It will be perceived that it was taken for granted in the above case that the vendor could not recover the price Eeason if he had parted with the negotiable security, and the Jor'^m^'st' reason is obvious, for the buyer would thus be com- t^e"^""^!'"' pelled to pay twice, once to the vendor, and again to the "ty- holder of the bill ; and the vendor would thus receive payment twice, once when he passed away the bill, and again when he ob- tained the price. And on this principle it was held, in ]3„nnev «. Bunney v. Poyntz, (^) that the vendor who had nego- Poy^'z- tiated the bill without making himself liable had converted the conditional into an absolute payment. The facts were that his (c) Sibree v. Tripp, 15 M. & W. 23 ; idge v. Allenby, 6 B. & C. 381 ; Lewis v. Guardians of Lichfield v. Green, 1 H. & Lyster, 2 C, M. & R. 704. N. 884 ; 26 L. J. Ex. 140. (c) 16 M. & W. 232. (d) Sard v. Rhodes, 1 M. & W. 153; (/) 4 M. & G. 804. Brown v. Kewley, 2 B. & P. 518 ; Cam- {g) 4 B. & Ad. 568. 726 PERFOEMANCE OF THE CONTRACT. [bOOK IV. agent, who had received the buyer's notes in payment, discounted Yf^^inj. them with the agent's banker, giving his own indorse- who has ment. The vendor had not indorsed them. Held, that negotiated _ ' bill with- the vendor had received payment, and could not recover dorsinff it, from the buyer, though the notes were not paid and the condUio^nai agent had become bankrupt. Plainly, if the vendor lute pay-' ^^^ ^een allowed to recover, the buyer would still have ment. remained liable to pay a second time to the banker who held his notes. But where the vendor had indorsed the note re- Miles V ceived on paying it away, it was held, in Miles v. Gor- Gorton. ton, (A) that on the bankruptcy of the buyer his lien of RemaAs unpaid vendor revived. The learned author of Smith's on this ^ ^ ^ case. Mercantile Law (z) observes of this case, with what seems great propriety, that although the vendor was responsible for the bill he had indorsed and passed away, yet till he had act- ually paid it he ought not to have been allowed to sue for the price of the goods sold, on the general principle that it is a good defence to an action for any debt that a negotiable bill given for it is outstanding in other hands, (/t) § 735. If the bill or note given in payment by the buyer be not Where bill i^jg own, but that of some third person, on which he has or note i • i p t m i- given by not put his name, and is therefore only secondarily lia- not his ble, then it lies upop the vendor to allege and prove the is not in- dishonor of it in an action against the buyer for the doraedby pricg ; (^Q and the vendor in such a case is bound to use Vendor due diligence in taking all the steps necessary to obtain duTdiH-"^'' payment of the security, and to preserve the rights of geiice in j-j-^g buyer against all the parties to the instrument who collecting J iD r it- were liable for its payment to the buyer when he passed it to the vendor ; and in default of the performance of this duty. Or buyer ^^^ buyer is discharged from the obligation of paying will be dis- either the price of the goods or the bill or note given as charged _ ^ ^ ° ^ ^ ^ from pay- conditional payment, (m) The leading case on this sub- price, ject is Camidge v. Allenby. (w) The buyer gave the Camidgei). vendor, in payment for goods sold at York, on Saturday, ™ ^' the 10th December, country bank-notes of a bank at (A) 2 C. & M. 504. (m) [See Middlesex v. Thomas, 5 C. E. (i) P. 539. Green, 39 ; Mehlberg v. Tisher, 24 Wis. (h) Eelshawy. Bush, 11 C. B. 191 ; 22 607 ; Dunn .;. The Fredericton Boom L. J. C. P. 24. Co. 1 Pugsley & Burbridge (N. B.), 675.] [l] Price V. Price, 1 6 M. & W. 232. (n) 6 B. & C. 373. PART III.J PAYMENT AND TENDER. 727 Huddersfield. The notes were given at three o'clock in the after- noon, and the bank had stopped payment at eleven o'clock the same morning, neither party knowing the fact when the payment was made. The vendor did not circulate the notes, nor present them to the bankers for payment, and on the following Saturday, the 17th December, asked the vendee to pay him the amoimt of the iiotes, offering at the same time to return them. Held, that the notes were either taken as money, in which case the risk of everything but forgery was assumed by the party receiv- ing them ; (o) or that they were received as negotiable instru- ments, in which case the vendor had discharged the buyer by his laches. Qp) In Smith v. Mercer Qq) the buyer gave a ^^^^^^ ^ bill drawn by Barned's Bank in Liverpool, on London, Mercer. on the 20th February. The vendor put it in circulation, and the bill was not presented for acceptance in London till the 23d April, when it was dishonored, Barned's Bank having failed on the 19th April. No notice of dishonor was given to the buyer, and it was held that he was discharged; the court holding, as in Camidge v. AUenby, that the .vendor either took the bill as cash, in which case there was no liability ; or as a negotiable security, and then the buyer could not be in a worse position than if he had indorsed the bill, and was therefore entitled to notice as an indorser, in default whereof he was discharged. § 736. But in this case of country bank-notes there would be no laches in the mere failure to present the notes for pay- country ment at the bankers' on finding that they had failed, if bank-notes. the notes were returned to the buyer within a reasonable time, (r) In Crowe v. Clav, (s^ in exchequer chamber, it was Vendor cannot re- held, reversing the judgment of the exchequer of pleas cover price given, (t) that the vendor could not recover the price of |ogtlhe''biii the goods sold when he had lost the acceptance by the f^^^'jjlo^ai buyer, and could not return it. Of course, if the lost payment. bill were afterwards found the right would revive, (m) In Al- (o) See, on this point. Guardians of But see Swinyard v. Bowes, 5 M. & S. Lichfield v. Green, 1 H. & N. 884 ; 26 L. 62 ; Van Wart v. ■WooUey, 3 B. & C. 439 ; J. Ex. 140. Hitchcock v. Humfrey, 5 M. & G. 563. (p) See, also, as to laches, Bjshop «.. (r) Kobson u. Oliver, 10 Q. B. 104 ; Rowe, 3 M. & S. 362 ; Bridges o. Berry, Rogers v. Langford, 1 C. & M. 637. 3 Taunt. 130; Soward w. Palmer, 8 Taunt. (s) 9 Ex. 604. 277. (t) 8 Ex. 295. (?) L. E. 3 Ex. 51 ; 37 L. J. Ex. 24. (u) Dent v. Dunn, 3 Camp 296. 728 PEEFORMANCE OF THE CONTRACT. [BOOK IV. derson v. Langdale (a;) the vendor was held to have lost his Or if he right to recover against the buyer by altering the bill 113.3 JlltCrGQ. , , ( _ - _ the bill given m payment so as to vitiate it, and thus destroy- him" ° ing the buyer's recourse against antecedent parties, Lord Tenterden agreeing with the rest of the court that his ruling to But where the Contrary, at nisi prius, was erroneous. But where los^rno re- the buyer is the party primarily liable, so that he is not anteced°ent injured by losing recourse on any antecedent parties in ["'"h ^^' consequence of the alteration, the vendor may recover tion, ven- on the original contract after the term of credit has ex- dor may , ^ . , i • t i i recover pired, («/) notwithstanding the alteration. It was held, II"?' ill Rolt V. Watson, (z') that the vendor could recover on Eolt V. . Watson. the original contract, even without producing a negoti- able security given to him by the buyer in payment, on proof that the bill drawn to the vendor's order had been lost without in- Overruled dorsement by him, and could not therefore be negotiated. II. Crowe. But this case was overruled in Romuz v. Crowe, (a) and the rule now is that if the instrument was negotiable in form, there can be no recovery on the original contract without pro- ducing it ; otherwise if the bill or note was not negotiable in form. (6) § 737, If a bill or note be indorsed, and given bji^ the buyer Where bill to the Vendor merely as a collateral security, the duty coifaj'e™!^' of the vendor is the same as if the bill had been given vendor'^s "^ Conditional payment ; and if he neglect to present, duty. or to give notice of dishonor to the buyer, the buyer will be discharged from liability on the bill, and the laches will operate so as to constitute the bill absolute payment for its amount, (c) § 738. In one case where goods were sold for cash, the buyer Where refused to pay cash, and g-ave the vendor his own dis- buyer in j. ./ > o sale for honored acceptance, past due, and the payment was held cash gave i'j.i i ,.. , „ vendor his good in tile absence of fraud. But the decision pro- (x) 3 B. & Ad. 661. Price, 16 M. & W. 232-243; Hansard v. (y) Atkinson;;. Handon, 2 Ad. &E. 628. Robinson, 7 B. & C. 90. And see Na- (z) 4 Bing. 273. tional Savings' Banlj Association u. Tra- (a) I Ex. 167. And see Hansard u. nah, L. R. 2 C. P. 556. Robinson, 7 B. & C. 90. (c) Peacock v. Pursell, 14 C. B. N. S. [h) Wain v. Bailey, 10 Ad. & E. 616; 728; 32 L. J. C. P. 266; [Hazard v. Wells, Ramuz v. Crowe, 1 Ex. 167 ; Price u. 2 Abb. N. C. 444.1 PART III.] PAYMENT AND TENDER. 729 ceeded on the ground of an implied assent to this mode "^^n dis- of payment by the vendor, who had not returned his note, dishonored acceptance when sent to him in lieu of cash, (c^) § 739. When the agreement is that the price of the goods sold shall be paid in a negotiable security, held by the buyer, where to which he is no party, and for the payment of which ^'hich"the he is not to be answerable, this may be considered as a ^"jy 1^ species of barter, as was said by Lord Elleixborough in responsible Read v. Hutchinson, (e) Or the bills given by the buyer for price, may be deemed to have passed as cash, just as if they were Bank of England notes, as was said in Camidge v. AUenby, (/) and in Guardians of Lichfield v. Green. (^) If the securities thus passed, however, were forged or counterfeited ; or if not what on their face they purport to be, as if they appeared to be forged se- ctiritiss £ir6 foreign bills needing no stamp, but were really domestic given in bills, invalid for want of a stamp, the vendor would have P^^™™ ■ the right to rescind the sale for failure of consideration, as ex- plained in the chapter on that subject. (Ji) And if the securities, though genuine, were known to the buyer to known by . the buyer be worthless when he passed them, his conduct would be to be deemed fraudulent, (z) and the vendor would be entitled "^°''" ^^^• to rescind the sale, and bring trover for the goods, as shown in the chapter on Fraudulent Sales. (Jc) § 740. In Hodgson v. Davies, (/) Lord EUenborough held, (d) Mayer v. Nyas, 1 Bing. 311. [A. bought goods of B. for a certain sum to be paid by giving up a promissory note of B., which he held, and paying in cash the balance of the contract price over the amount due on the note. It was held, that if A. did not give up the note, B. might recover from him the full contract price of the goods. Gray v. White, 108 Mass. 228.] (e) 3 Camp. 352. [See "Wise v. Chase, 44 N. Y. 337.] (/) 6 B. & C. 373. (g) 1 H. & N. 884 ; 29 L. J. Ex. 140. And see Fydell v. Clark, 1 Esp. 447. (h) Ante, book III. ch. i. [See the points stated, and cases collected upon this subject, in 2 Chitty Contr. (llth Am. ed.) 1106, and note (z^); Goodrich V. Tracey, 43 Vt. 314.] (i) Read v. Hutchinson, 3 Camp. 352 ; Noble V. Adams, 7 Taunt. 59 ; Stedman V. Gooch, 1 Esp. 3 ; Hawse v. Crowe, R. & Mood. 414; per Bayley J. in Camidge V. Allenby, 6 B. & C. 373-382 ; [Loughnau V. Barry, Ir. R. 5 C. L. 538; S. C. 6 lb. 457. Where a promissory note, the maker of which, unknown to both par- ties, was insolvent, had been taken in payment and discharge of a precedent debt, it was held to be a case of mutual mistake of fact, and that the party who so took it was entitled to recover of the party of whom he took it the amount of the original debt. Roberts v. Fisher, 43 N. Y. 159. See Wright v. Lawton, 37 Conn. 167.] [k) Ante, §§ 433 et seq. [See Stewart V. Emerson, 52 N. H. 301.] (/) 2 Camp. 530. 730 PEEFORMANCE OF THE CONTRACT. [BOOK IV. where a sale was made on credit for bills at two and four months : Sale for 1st. That the vendor must accept or reject the bills approved offered within a reasonable time, and five days were ' ^ held too long a time to reserve the right of reiection. Hodgson 1 •!! o J V. Davies. 2d. That a sale for bills does not mean approved bills, and parol evidence to that effect is not admissible when the writ- ten contract mentions "bills" only. 3d. That an approved bill means a bill to which no reasonable objection could be made, and which ought to be approved. § 741. Payment properly made to a duly authorized agent of Payment the vendor is, of course, the same as if made to the ven- agen s. ^^^, }jj,-,^ggj£_ Without entering into the general doc- Whoare . , , , , . , • agents to trmes of the law of agency, it may be convenient to price. point out that in contracts of sale certain agents have been held entitled to receive payment from their known general Factors are authority. (Z^) Thus, a factor is an agent of a general Brokers character, entitled to receive payment and give discharge °° ■ of the price ; (7?i) but a broker is not, for he is not in- trusted with the possession of the goods, (n) In Kaye v. Brett, (o) Parke B., delivering the judgment of the court, said: " If a shopman, who is authorized to receive payment over the counter only, receives money elsewhere than in the shop. Person ^he payment is not good. In Barrett v. Deere (p) Lord narent'au- Tentcrden held that payment to a person sitting in the thority. counting-room, and appearing to be intrusted with the conduct of the business, is a good payment'; and the same learned judge held a tender under similar circumstances to be valid, (^q) ^^^. An auctioneer employed to sell goods in his possesion tioneers f^j. ready money has in general authority to receive pay- ment for them, but the conditions of the sale may be such as show that the vendor intended payment to be made to himself, and in (P) [A wharfinger is not an agent of the (n) Baring y. Corrie, 2 B. & A. 137; Eight of forwarder, to whom the con- Canapbellw. Hassell, 1 Stark, 233; [Whitoa wharflnger signee is authorized to make v. Spring, 74 N. Y. 169; Irwine v. Wat- to receive x- o' payment for payment, the goods having son, 5 Q. B. D. 102, 414.] forwarder, ^^^^ delivered and an account (o) 5 Ex. 269 ; Jackson v. Jacob, .'J having been stated between the consignee Scott, 79 ; [Clark v. Smith, 88 111. 298.] and forwarder. Torrance v. Hayes, 2 tJ. [p) M. &.M. 200. C. C. P. 338.] (q) Willmott v. Smith, M. & M. 238; (m) Drinkwater v. Goodwin, Cowp. [Harris v. Simmerman, 81 111. 413 ; 2.51 ; Hornby v. Lacy, 6 M. & S. 166 ; Eclipse Windmill Co. k. Thorson, 46 Fish V. Kempton, 7 C. B. 687. Iowa, 181.] PART III.J PAYMENT AND TENDER. 731 such case a payment to the auctioneer would not bind the ven- dor ; (r) and it is plain that if the auctioneer acts as a mere crier or broker for a principal who has retained the possession of the goods, the auctioneer has no implied authority to receive payment of the price. A wife has no general authority to receive payment for a husband, and a payment to her of money ^' ^' even earned by herself will not bind the husband, without proof of authority express or implied, (s) § 742. The general rule of law is, that an agent who makes a sale may maintain an action against the buyer in respect p ^ of his privity, and the principal may also maintain an from agent . .,.. ^, cannot pay action in respect of his interest ; (t) but where the agent principal so has himself an interest in the sale, as for example a agent's factor or auctioneer, for his lien, a plea of payment to ''"'■ the principal is no defence to an action for the price by the agent, unless it show that the lien of the agent has been satisfied, (u) In Catterall v. Hindle (a;) a full exposition of the law as payment to the authority to receive payment conferred on agents '""f^^ein to sell, was given in the decision pronounced by Keat- money in ing J. It is not necessary to give the facts, somewhat course of complicated, to which the law was applied. The princi- ples were thus stated : " That a broker or agent employed to sell has primd facie no authority to receive payment otherwise than in money, according to the usual course of business, has been well estabhshed ; (y) and it seems equally clear that if, instead of pay- ing money, the debtor writes oii a debt due to him from the agent, such a transaction is not payment as against the principal, who is no party to the agreement, though it may have been agreed to by the agent,; («/i) see the judgment of Abbott C. J. in Russell v. (r) Sykes v. Giles, 5 M. & W. 645. See Taunt. 243, are reviewed. See, also, Capel V. Thornton, 3 C. & P. 352 ; Wil- Grice v. Kendrick, L. E. 5 Q. B. 340. liamsw. Millington, 1 H. Bl. 81 ; Williams [x) L. E. 1 C. P. 186 ; 35 L. J. C. P. !). Evans, L. E. 1 Q. B. 352; 35 L.J. Q. 161. The decision in this case was re- B. Ill ; [Broughton v. Silloway, 114 Mass. versed on appeal, the exchequer chamber 71 ; Taylor v. Wilson, 11 Met. 44.] being of opinion that the case involved a (s) Offley w. Clay, 2 M. & G. 172. question of fact which had not been sub- (t) Per Lord Abinger in Sykes v. Giles, mitted to the jury. L. E. 2 C. P. 368 ; 5 M. & W. 645. [Noble v. Nugent, 89 111. 522 ; Home («) Williams v. Millington, 1 H. Bl. Machine Co. v. Ballweg, lb. 318.] 81 ; Drinkwater v. Goodwin, Cowp. 251 ; (y) [See Sangston u. Maitland, 11 Gill Eobinson v. Eutter, 4 E. & B. 954 ; 24 L. & J. 286.] J. Q. B. 250, in which Coppin v. Walker, (.yi) [BranskiU v. Chumasero, 5 U. C. 7 Taunt. 237, and Coppin v. Craig, 7 Q. B. 474 ; Bevis v. Heflin, 63 Ind. 129 ; Aultman v. Lee, 43 Iowa, 404.] 732 PERFORMANCE OF THE CONTRACT. [BOOK IV. Bangley, 4 B. & A. 398 ; Todd v. Reid, 4 B. & A. 210 ; the au- thority of which, upon this point, is not affected by the correction as to a fact by Parke B. in Stewart v. Aberdein, 4 M. & W. 224. (2) It has also been held by this court, in the case of Un- derwood V. Nicholls, (a) that the return to the agent of his check, cashed for him by the debtor a few days before, was not part pay- ment as against the principal. ' It amounts to no more,' said ■Tervis C J., ' than the debtor seeking to discharge his debt to the principal, by writing off a debt due to him from the agent, which he has no right to do.' We think the present case the same in principle with Underwood v. Nicholls." .... § 743. " It is right to notice, though it was not pressed in ar- Dei credere gumeut as Creating a distinction, that Armitage acted doesTot'"'^ under a del credere commission from the plaintiff. We chanse think this makes no material difference as to the ques- agent s ... . authority tion raised in the case. The agent selling upon a del spect. credere commission (5) receives an additional considera- tion for extra risk incurred, but is not thereby relieved from any of the obligations of any ordinary agent as to receiving payments on account of his principal." (c) § 744. In Williams v. Evans ((i) the terms of an auction sale Williams were that purchaser should pay down into the hands of the auctioneer a deposit of 5s. in the pound in part pay- Auctioneer '■ . ^ 1 -, T £ hasnoau- ment of each lot, remamder on or before the delivery of receive an the goods. The Sale was on 2d November, and the asca^h"'^^ goods to be taken away by the evening of the 3d. A purchaser of some of the goods at first sale having failed to com- pily with the conditions, his lot was resold on the 4th on the same {z) [1 Chitty Contr. (11th Am. ed.) 306, (c) See, also, Bartlett v. Pentland, 10 and note {x).] B. & C. 760; Underwood v. Nicholls, 17 (a) 17 C. B. 239 ; 25 L. J. C. P. 79. C. B. 239 ; 25 L. J. C. P. 79 ; Favenc v. (6) A del credere commission v/as ie- Bennett, 11 East, 36. [As to the authority fined by Lord Ellenborough in Morris v. of agents to sell on credit, Daylight Bur- Cleasby (4 M. & S. 566), as "the premium ner Co. u. Odlin, 51 N. H. 56, 59, 60; 1 or price given by the principal to the factor Chitty Contr. (11th Am. ed.) 295, and for a guaranty." Disapproval was ex- note (y) ; Riley «. Wheeler, 44 Vt. 189; pressed by his lordship of the dicta in Dresden School District No. 6 v. jEtna Grove v. Dubois, 1 T. R. 112, and in Ins. Co. 62 Maine, 330, and cases cited; Houghton V. Matthews, 3 B. & P. 489. Boorraan v. Brown, 3 Q. B. 511 ; Parsons See, also. Story on Agency, § 33 ; Hornby v. Martin, 11 Gray, 115.] V. Lacy, 6 M. & S. 166; Couturier u. (d) L.R.I Q. B. 352; 35 L. J. Q- B. Hastic, 8 Ex.40; Ex parte White, in re 111. Neville, L. R. 6 Ch. App. 397. PART III.j PAYMENT AND TENDER. 733 conditions, and bought by the defendant, and delivered to him on the 7th. On that day the plaintiff, doubting the auctioneer's sol- vency, told the defendant not to pay him any money. The de- fendant proved that he had paid the auctioneer on the 4th a part of the price in money, and had given him for the remainder a bill of exchange for 151. Is. on the 5th November, accepted by a third person, which vras paid on the 9th, and that the auctioneer had agreed to take this bill as cash. The jury found the payment to be a good one. Held, not a good payment for the 15Z. 7s., the auctioneer having no authority to accept the bill as cash, Semih, but semble, it might have been a good payment if made chiTck.''^ '° by check, if the jury had found it to be so; in accordance with the dictum of Holt C. J. in Thorold v. Smith, (e) § 745. In Ramazotti v. Bo wring (/) the facts were that the plaintiff, in an action of debt for wine and spirits sup- Agent in plied to the defendant, gave evidence that he was the represent- owner of a business carried on under the name of " The '"S himself as owner. Continental Wine Company," and that the goods had jjamazotti been delivered by that company to the defendant. It "■ Bowring. was proven, however, that one Nixon, the plaintiff's son-in-law, had been employed by him as clerk and manager in the business, and had told the defendant that the business was his own, and had agreed to furnish the goods to the defendant in part payment of a debt due by Nixon to the defendant. The goods were re- ceipted for as follows : — 18th October, 1858. Mr. Bowring, — Please receive twelve bottles Martell's brandy. E. A. Arundbll. From the Continental Wine Company. G. Ramazotti. Arundell, who signed the receipt, was one of the defendants in the action. Invoices were sent for other goods, not containing the plaintiff's name, but headed " The Continental Wine Company," and in one, the words " J. Nixon, Manager," were written under- neath. The learned common Serjeant left to the jury the ques- tion whether Nixon or the plaintiff was the owner of the business, (e) U Mod. 87. And see, on this (/) 7 C. B. N. S. 851 ; 29 L. J. C. P. point, Bridges v. Garrett, L. R. 4 C. P. 30; [1 Chitty Contr. (Hth Am. ed.) 306, 580 ; reversed in exchequer chamber, L. E. 307.] 5 C. P. 451. 734 PERFORMANCE OF THE CONTRACT. [BOOK IV. telling them that if Nixon was the owner, the verdict should be for the defendants, but that if the plaintiff was the owner, he was entitled to recover. The court held this a misdirection, Erie C. J. saying : " The proper question to have asked the jury would have been, whether they were of opinion that the plaintiff had enabled Nixon to hold himself out as being the owner of these goods, and whether Nixon did in fact so hold himself out to the defendants as such owner. Then, if the jury should find that such was the case, I am of opinion that an undisclosed principal, adopting the contract which the agent has so made, must adopt it in omnibus^ and take it, therefore, subject to any right of set-off which may exist." The learned judges all intimated, however, that there had been no contract of sale at all, that the goods had been misappropriated by the agent, and that the plaintiff might have recovered in trover for the tort, but that in an action on the contract he was bound to adopt the whole contract. (^) § 745, a. In Pratt v. Willey (Ji) it appeared that the defendant, Pratt u. ^ tailor, made a bargain with one Surtees to furnish him Wiiiey. clothes on credit, for which Surtees agreed to furnish the defendant on credit coals, which he represented as belonging to himself, and gave a card on which was written, " Surtees, coal merchant," &c. The coals really belonged to the plaintiff, who had employed Surtees as his agent to sell them, and when the coals were sent, the name of the plaintiff was on the tickets as the seller. On these facts. Best C. J. told the jury that the defend- ant ought to have made inquiries into the nature of the situation of Surtees, and should not have dealt with him as principal. The question was left to the jury, who found for the plaintiff. § 746. Where the purchaser owes more than one debt to the Appropri- vendor, and makes a payment, it is his right to apply, ation of -ii-i, . i j.j. pa.vments. or, m technical language, appropriate, the payment to Buyer has whichever debt he pleases, (i') If the vendor is unwill- the right to . , . ■"■ ^ ^ make the mg to apply it to the debt for which it is tendered, lie appiopria- j-^j^^gj. j.^f ^gQ j^-^ ^^^ stand upon his rights, as given to him (if) See, also, Semcnza v. Brinsley, 34 Ind. 429 ; Nutall v. Brannin, 5 Bush L. J. C. P. 161 ; Drakeford ^. Piercy, 7 (Ky.), 11 ; McDaniel v. Barnes, lb. 183; B. & S. 515 ; [Bowmauville Machine Co. Champenoes v. Fort, 45 Wis. 355 ; Levy- V. Dempster, 2 Can. Sup. Ct. 21.] stein v. Whitman, 59 Ala. 345; Lee v. (k) 2 C. & P. 350. Early, 44 Md. 80; Trullinger v. Kofoed, (t) [See 2 Chitty Contr. (11th Am. ed.) 7 Oreg. 228.] 1110, and note (iii) ; King v. Andrews, 30 PART III.] PAYMENT AND TENDER. 735 by law, whatever they may be. And it makes no difference that the creditor may say he will not accept the payment as offered, if he actually receive it, for the law regards what he does, not what he says. (A) And if money be received by the creditor Money re- on account of the debtor, without the latter 's knowledge, credUor ra the right of the debtor to appropriate it cannot be af- debtor ' °^ fected by the creditor's attempt to apply it as he chooses ^'S"",' before the debtor has an opportunity of exercising his knowledge. election. (T) § 747. The debtor's election of the debt to which he applies a payment may be shown otherwise than by express Appropria- words. (P) A payment of the exact amount of one of debtormay several debts was said by Lord Ellenborough (m) to be gyimpUca- " irrefragable evidence " to show that the payment was ''."^ *'''"" o Jr J circum- intended for that debt : (w) and in the same case, where stances. the circumstances were that the debtor owed one debt past due, and another not yet due, but the latter was guarantied by a secu- rity given by his father-in-law, these facts, connected with proof of an allowance of discount by the creditor on a payment made, were held conclusive to show that the debtor intended to favor his surety and to appropriate the payment to the debt not yet due. («' ) So if a debtor owe a sum personally, and another as executor, and make a general payment, he will be presumed to have intended to pay his personal debt, (o) {k) Peters v. Anderson, 6 Taunt. 596 ; "H, note (o) ; Eoberts v. Garnie, 3 Simson v. Ingham, 2 B. & C. 65 ; Mills v. Fowkes, 5 Bing. N. C. 455 ; Croft v. Lum- ley, 5 E. & B. 648; 25 L. J. Q. B. 73; and in error, 27 L. J. Q. B. 321 ; 6 H. L. Cas. 672 ; Waller v. Lacy, 1 M. & G. 54 ; Jones u. Gretton, 8 Ex. 773 ; [2 Chitty Contr. (lull Am. ed.) 1110, and note {ri'-), 1111, and note (o) ; Reed v. Boardman, 20 Pick. 441.] {I) Waller v. Lacy, 1 M. & G. 54. (l^) [Pickett V. Merchants' Nat. Bank &c. of Memphis, 32 Ark. 346.] (m) Marryatt u. White, 2 Stark. 101. See, also, Shaw v. Picton, 4 B. & C. 715 ; Newmarch v. Clay, 14 East, 239 ; Plomer V. Long, 1 Stark. 153 ; Kirby v. Duke of Marlborough, 2 M. & S. 18 ; Williams v. Rawlinson, 3 Bing. 71. (n) [2 Chitty Contr. (11th Am. ed.) nil, note (o) ; Eoberts Caines, 14.] (n^) [So a payment may, by express agreement of parties, be appropriated to a debt not due. Shaw u. Pratt, 22 Pick. 305. But a general payment, without more, is to he appropriated to a debt due rather than to one not due. McDowell V. Blackstone Canal Co. 5 Mason, 11 ; Baker v. Stackpoole, 9 Cowen, 420 ; Stone V- Seymour, 15 Wend. 19, 24 ; Law v. Sutherland, 5 Grattan, 357 ; Hunter v. Osterhoudt, 11 Barb. 33; Caldwell u. Wentworth, 14 N. H. 431; Seymour v.- Sexton, 10 Watts, 255 ; Bobe v. Stickney, 36 Ala. 482 ; Essan v. Dunn, 5 Allen (N. B.) 417.] (o) Goddard v. Cox, 2 Str. 1194 ; [Saw- yer V. Tappan, 14 N. H. 352 ; Fowke v. Bowie, 4 Harr. & J. 566. See Scott v. 736 PERFORMANCE OF THE CONTRACT. [book IV. propnation where ac- count cur- rent is kept between the parties. account. § 748. Where an account current is kept between parties, as a El of a - tanking account, the leading case is Clayton's case, (jo) in which Sir William Grant, the master of the rolls, said : " There is no room for any other appropriation than that which arises from the order in which the re- ceipts and payments take place, and are carried into the Presumably it is the sum first paid in that is first drawn out: it is the first item on the debit side of the account which is discharged or reduced by the first item on the credit side ; the appropriation is made by the very act of setting the two items against each other. Upon that principle all accounts current are settled, and jDarticularly cash accounts." This case was followed and approved in Bodenham v. Purchas;(2') but although the rule was recognized as sound in Simson v. Ingham (r) and Hen- niker v. Wigg, (s) it was held that the circumstances of the ease may afford grounds for inferring that the transactions of the par- ties were not intended to come under the general rule. In Field V. Carr (f) the court said that the rule had been adopted in ah If debtor t^e courts of Westminster Hall. (iC) The cases already cited on this point also establish the rule, that whenever a debtor makes a payment without appropriating it ex- pressly or by implication, he thereby yields to his cred- itor the right of election in his turn, (y}') In the exer- cise of this right, the creditor may apply the payment to does not appropri- ate cred- itor may. Appropri- ation by creditor Kay, 18 Pick. 361. Where funda arise from a security for a particular debt, they should be applied to the satisfaction of tliat debt. Sanders v. Knox, 57 Ala. 80.] (p) 1 Merivale, 572, 608. See, also, Brown V. Adams, L. R. 4 Ch. App. 764 ; Thompson v. Hudson, L. R. 6 Ch. App. 320. (q) 2 B. & A. 39. (r) 2 B. &C. 65. (s) 4 Q. B. 792. See, also, Stoveld v. Bade, 4 Bing. 154. {t) 5 Bing. 13. (ii) [So in the American states. See 2 Chitty Gontr. (11th Am. ed.) 1U6, note (o), and cases cited; Sprague v. Hazen- winkle, 53 111. 419; Hill n. Robbing, 22 Mich. 475 ; Trs. of Germ. Luth. Church 0. Heise, 44 Md. 454 ; Jackson v. Johnson, 74 N. Y. 607. And the presumption that payments made on an account current are to be applied in discharge of the earliest item in the account is not rebutted by the fact that those items are for goods sold on condition that they shall not become the property of the purchaser till paid for; although a memorandum of the condition is entered by the seller in his boolss con- taining the account. Crompton v. Pratt, 105 Iilass. 255.] («!) [Hagerman v. Smith, Taylor (U. C), 123 ; Caxwell v. De Vaughn, 55 Ga, 643; The Davis Sewing Machine Co. v. Buckles, 89 111. 237 ; Lewis v. Pease, 85 lb. 31 ; Wilhelm v. Schmidt, 84 lb. 183: Shipsey v. Bowery Bank, 59 N. Y. 485; Harding v. Tifft, 75 N. Y. 461 ; Nat. Bank of the Commonwealth o. Mechanics' Nat. Bank, 94 U. S. 437, 439.] PART III.] PAYMKNT AND TENDER. 737 not appropri- ate to debt created by prohibited contract. a debt which he could not recover by action against the 'awful, defendant, as a debt barred by limitation, (x) and even dibt not* a debt of which the consideration was illegal, (a;) as a h^Xyll- tion. (x) Mills V. Fowkes, 5 Biiig. N. C. 455; Williams v. Griffith, 5 M. & W. 300 ; Ashby v. James, H M. & W. 542 ; [Cartlicart p. Haggart, 37 U. C. Q. B. 47 ; Brown i\ Burns, 67 Me. 535 ; Murphy v. Webber, 61 lb. 478 ; Plummer v. Erskine, 58 lb. 59. But if the contract was one which the law directly prohibited and not Creditoroan- o°e which it simply declined to enforce, the creditor would not have a right to apply a payment to such a debt when other legal demands existed against the debtor. Phillips v. Moses, 65 Me. 70 ; Stavkey v. Gabby, 1 Cr. & Dix, 248 ; Ramsay v. Warner, 97 Mass. 8. So the creditor may apply such payment to a debt on which the statute of frauds does not allow an action to be maintained. Haynes u. Nice, 100 Mass. 327. But although the creditor may appropriate the payment to a debt barred by the statute of limitations, such an appropriation will not have the effect to take the remainder of the debt, if there be any, out of the opera- tion of the statute. Ramsay u. Warner, 97 Mass. 8, 13, 14. In this case Hoar J. said : " The rule as to the application of payments, where there are several debts, is this, that the debtor may, if he chooses, in the first instance, appropriate the pay- ment ; solvitur in modum sol- Appropria- tionbycred- ventis ; if he omit to do so, itor, effect of. , , . i ^u the creditor may make the appropriation ; recipitur in modum recipi- entis ; if the creditor makes the appropri- ation, he may do it to a debt barred by the statute of limitations ; but such an appropriation will not have the effect to take the debt out of the operation of the statute. It seems to be regarded as a mere permission of law to the creditor thus to apply it, and not an intentional payment on that account, which is neces- sary to involve the admission of the whole debt, and the implied renewal of the prom- se to pay it. The debtor is not presumed 47 to have intended to renew a promise which is no longer legally binding upon him, although he has put it into his creditor's power to satisfy pro tanto a claim upon which he had lost his legal remedy. But where there are several ascertained and ad- mitted debts, none of which are barred by the statute, and a payment is made with- out an application of it by the debtor, we think a different rule applies ; and that the payment, when applied by the creditor, has all the effect upon the debt to which it is applied that it would have if it had been made by the debtor expressly on ac- count of it. This distinction between debts barred by the statute at the time when the payment is made, and those not then barred, was expressly recognized in Pond V. Williams, 1 Gray, 630. See Nash V. Hodgson, 6 De G., M. & G. 474 ; Ayer v. Hawkins, 19 Vt. 26; Bancroft v. Dumas, 21 lb. 456; Armistead v. Brooks, 18 Ark. 521 ; Burr v. Burr, 26 Penn. St. 284. The debtor must be held to intend the full effect of a payment upon which- ever debt the creditor may elect to apply it. It was said by Erie and Crompton JJ. in Walker v. Butler, 6 E. & B. 506, that where there are two debts and a gen- eral payment, there is generally evidence for a jury of payment on account of both. The fact that the application does not ap- pear to have been made until the suit was brought is not material. The creditor has a right to make it at any time. Mills V. Fowkes, 5 Bing. N. C. 455. And when it is made, it takes effect from the time of payment, and not from the date of the application. This would obviously be so in respect to the stopping of interest by reason of the payment, and we can see no reason why it should not relate back for all purposes." As to the time when the appropriation should be made by the creditor, see the cases cited to the point in 2 Chitty Contr. (11th Am. ed.) 1111, note (o).] 738 PERFORMANCE OF THE CONTRACT. [BOOK IV. debt contracted in violation of the tippling acts. (?/) But if no appropriation be made by either party in a case where there are two debts, one legal and the other void for illegality, as where one debt was for goods sold, and the other for money lent on a usu- rious contract, the law will apply the payment to the legal con- tract. (2) § 749. It has been held, however, that this doctrine will not But there ^PP^J ^^ cases where there never was but one debt be- must be tween the parties, as in the case of a building contract more ttian _ ^ . ^ one exist- with a Corporation not competent to contract save under to permit Seal, where it was held that the builder, who had sup- plied extra work on verbal orders, could not apply any of the general payments to the discharge of his claim for the extra work, that not being a debt at all against the corporation. Creditor's either equitable or legal, (a) It was held by the king's noTdet'er- bench, in Siinson v. Ingham, (5) that creditors who had communi- appropriated a payment by entries in account in their cated to qwu books, they being the bankers of the debtor, were at debtor. ' J & ... liberty to change the appropriation within a reasonable Ingham. time if they had not rendered accounts in the interval to the debtor, their right of election not being determined by such entry till communicated to the debtor. § 750. In a case where the buyer had bought from a broker two Pro raid, parcels of goods belonging to different principals, and tion'of"*" had made a payment to the broker on account, larger payment, than either debt, but not sufficient to pay both, without any specific appropriation, the king's bench held, that on the in- solvency of the broker the loss must be borne proportionably by his two principals, and that the appropriation must be made by [y) Dawson v. Remnant, 6 Esp. 24, ap- See Foster v. McGraw, 64 Penn. St. 464; proved in Laycock v. Pickles, 4 B. & S. McKelvey 0. Jarvis, 87 lb. 414. In the 507 ; 33 L. J. Q. B. 43 ; Philpot v. Jones, absence of controlling evidence, if a 2 Ad. & E. 41 ; Crookshank v. Eose, 5 C. man indebted to another makes a pay- & P. 19 ; S. C. 1 Mood. & B. 100. ment to him, it will be applied by law to (2) Wright o. Laing, 3 B. & C. 165 ; the satisfaction of the debt. Frederieton [2 Chitty Contr. (Uth Am. ed.) 1110, Boom Co. u. McPhersoa, 2 Hannay (N. and note (tjI), 1111, and note (0), 1115; B.) 8.] Caldwell i/. Wentworth, 14 N. H. 431 ; (a) Lamprell v. Billericay Union, 3 Ex. Rohan «. Hanson, U Cash. 44; Bancroft 283. y. Dumas, 21 Vt. 465 ; Kidder u. Norris, (6) 2 B. & C. 65 ; [Seymour v. Marvin, 18 N. H. 532; Wilhelm u. Schmidt, 84 u Barb. 80; Dorsey v. Wayman, 6 Gill, 111. 183 ; Albert u. Lindau, 46 Md. 334. 59.1 PART III. J PAYMENT AND TENDER. 739 apportioning the payment fro raid between them according to the amount due them respectively, leaving to each a claim against the buyer for the unpaid balance of the price of his own goods, (c) § 752. In America, the common law rule is reversed in some of the states, and in Massachusetts, (d') Vermont, (e) American Maine, (/) and Arkansas, (a) it is held that where a law where ,.,,., bills or promissory note or bill of exchange is given for the price notes are of goods, it is primd facie an absolute payment, though payment. the presumption may be rebutted. (A) (c) Favenc v. Bennett, 11 East, 36. (d) [See Reed v. Upton, 10 Pick. 525 ; Watkins u. Hill, 8 lb. 522 ; West Boyl- Bton Manuf. Co. o. Searle, 15 lb. 230; Marston v. Boynton, 6 Met. 127 ; Maneely V. McGee, 6 Mass. 145 ; Wood v. Bodwell, 12 Pick. 268; llsley v. Jewett, 2 Met. 168 ; Butts !'. Dean, lb. 76 ; Melledge v. Boston Iron Co. 5 Cush. 158 ; Curtis v. Hubbard, 9 Met. 328 ; Thurston v. Blanch- ard, 22 Pick. 18 ; Kimball v. The Anna Kimball, 2 Clifford, 4 ; Hudson u. Brad- ley, lb. 130 ; Wallace v. Agry, 4 Mason, 336, 342, 343; Re Clap, 2 Low. 226, 230. In the last cited case Lowell J. said : " The difference between the law of Massachusetts and that of England and most of the states of the Union, I understand to be merely this : That in the courts of this state a negotiable bill or note is taken to be a more beneficial secu- rity than a book account, or any debt of that kind ; and though it does not oper- ate as a merger in law, is presumed prima facie to be taken as payment. But it is a mere question of fact, and any evidence which rebuts the presumption is compe- tent, and it is easily overcome."] (e) [See Hutchins v. Olcntt, 4 Vt. 549 ; Ferrey v. Baxter, 13 lb. 452; Wait v. Brewster, 31 lb. 516.] (/) [Varner v. Nobleborongh, 2 Greenl. 121; Descadillas u. Harris, 8 lb. 298; Newall V. Hussey, 18 Maine, 249; Paine V. Dwinel, 53 lb. 52 ; Ward i\ Bourne, 56 lb. 161.] ((/) ICampj;. Gullett, 2 Eng. 524; Cos- tar k. Davies, 3 lb. 213.] (h) Story on Sales, § 219, where the cases are cited; [2 Chitty Contr. (\H\i Am. ed.) 1135, and note (x), where the cases are cited. In New York tlie taking of the negotiable note of the debtor does not extinguish the original demand. It operates to suspend the right j-„jg„ ^j of action until the maturity taMng nego- of the paper. Geller v. Seix- for debt : as, 4 Abb. Pr. 103 ; Hughes "'"' '^°*- u. Wheeler, 8 Cow. 77 ; Raymond v. Mer- chant, 3 lb. 147 ; Cole v. Sackett, 1 Hill, 516 ; Hill u. Beebe, 13 N. Y. 556 ; Webster u. Bainbridge, 13 Hun, 180 , Jagger Iron Co. u. Walker, 76 N. Y. 521. In Illinois the taking of negotiable paper is prima facie a payment. Morrison v. Smith, 81 111. 221 ; Kappes v. "'"'°"" White Hard Wood Lumber Co. 1 Brad- well (111.), 280; McConnell v. Stettinius, 2 Gilman 713. So in Indiana. , ,. Indiana. Frazer v. Boss, 66 Ind. 1, p. 14. So in Wisconsin. Mehilberg Wisconsin. 0. Tisher, 24 Wis. 607. In California, in order that this result may follow, an express agreement (jj^iif^^^i^ must be shown. Griffith v. Grogau, 12 Cal. 321 ; Brewster v. Bours, 8 lb. 506 ; Welch v. AUington, -23 lb. 322 ; Brown u. Olmsted, 50 lb. 162. In New Brunswick it is a question of New Bruna- fact as to intention. Dunn '"*• V. Fredericton Boom Co., 1 Pugsley & Burbridge (N. B.), 575. See Hunt v. Boyd, 2 La. 109. In Pennsylvania tak- ing the draft of a third party pennsyl- for a preexisting debt is pre- ™'"'- sumed to be conditional payment. League 740 PERFORMANCE OF THE CONTRACT. [BOOK IV. § 753. By the French Civil Code, art. 1271, it is declared that French " novation " takes place " when a debtor contracts to- '^■*''- wards his creditor a new debt which' is substituted for the old one that is extinguished." Novation is included in ch. v. as being one of the modes by which debts become extinct. Under this article, and the article 127^3, which provides that " novation is not presumed, and the intention to novate must result clearly from the act," there has been quite a divergence of opinion among the commentators on the Code, and a conflict in the ju- dicial decisions as to the effect of giving a negotiable instru- ment for the price of goods sold where the vendor has given an unqualified receipt for the price ; but in the absence of an unre- served and unconditional receipt, all agree that the buyer's obli- Appropri- gation to pay the price is not novated, (z) The French payments. Code gives the debtor the right to •' impute " a payment to the debt that he chooses, art. 1253 ; but he cannot apply money towards payment of the capital of a debt while arrearages of in- terest are due ; and if a general payment is made on a debt bear- ing interest, the excess only, after satisfying interest already due, will be appropriated to ]myment of the capital. Art. 1254. And where no appropriation is made at the time of payment, the law applies the money to that debt, amongst such as are past due, which the debtor is most interested in discharging ; but to a debt past due in preference to one not yet due, even if the debtor has a greater interest in discharging the latter than the former ; if the debts are of the same nature, the appropriation is made to the oldest: if all are of the same nature and the same date, the appro- priation is made proportionably. The creditor is never allowed to elect without the debtor's assent. Art. 1255. § 754. The law of tender is quite different on the Continent V. Waring, 85 Penn. St. 244 ; Mclntyre debt unless it be so expressly agreed. V. Kennedy, 5 Casey, 448. In Hays v. Poole d Rice, 9 W. V.a. 73. In McClurg, 4 Watts, 452, Huston J. said ; Oregon the taking of a prom- " In Pennsylvania the law seems to be issory note is prima facie evidence of pay- settled, that the buyer's giving a prom- raent. Matasce v. Hughes, 7 Oreg. 39.] issory note for goods purchased at or be- (i) See the cases and authors cited and fore the date of the note is not au extin- compared in Sirey, Code Civ. Annot(?, guishmout of the original contract unless art. 1271 ; [2 Chitty Contr. (11th Am. it has been agreed to be so." Weakly v. ed.) 1371 et seq.; Griswold u. Griswold, 7 WestVir- Bell, 9 Watts, 273. In West Lansing, 72; Helms v. Kearns, 40 Ind. gmitt. Virginia a note will not be re- 124.] garded as absolute payment of precedent PART III.] PAYMENT AND TENDER. 741 from our law. There a debtor is allowed to make payment to his creditor by depositing the amount which he admits to Tender un- be due in the public treasury, in a special department, prencii termed Caisse des Consignations. This is as much an ^'^'•^'■ actual payment as if made to the creditor in person, and the money thus deposited bears interest at a rate fixed by the state. This deposit or "consignation" is made extra-judicially, but the debtor must cite his creditor to appear at the public treasury at a fixed time, and notify him of the amount he is about to deposit ; and the public officer draws up a report or "process-verbal" of the deposit, and if the creditor is not present, sends him a notice to come and withdraw it. Code Civ. arts. 1257 et seq. This system is derived from the Roman law, in which the word " ob- signatio " had the same meaning as the French " consigna- tion." § 755. The ancient civil law rules bore a strong resemblance to those of the common law, in regard to payment and Roman tender. Whenever the sum due was fixed, and the date '''^^" of the payment specified either by the law or by force of the contract, it was the debtor's duty to pay without demand, (A) ac- cording to the maxim that in such cases, dies interpellat pro hom- ine ; and the default of payment was said to arise ex re. (J) But in all other cases, a demand (interpellation by the creditoi was necessary, which required to be at a suitable time and place, of which the judge (or prastor) was to decide in case of dispute, and the default in payment on such demand was said to arise ex persona, (to) On the refusal of the creditor to receive (creditoris mora), when the debtor made a tender (ablatio'), the discharge of the debtor took place by his payment of the debt (ohsignatio) into certain public offices or to certain ministers of public worship : " Obsignatione totius debitse pecunise solemniter facta, liberatio- nem contingere manifestum est," the obsignatio being made in sacratissimas cedes, or, if the debtor preferred, he might apply to the preetor to name the place of deposit, (w) (h) Dig. 13. 3 de Condict. Trit. 4 (0 Dig- 40. 5. de Fidei-com, libert. 26, Gaius: 19. 1 de Act. Emp. et Vend. 47, § 1, Ulp. : 22. 32. Marcian. Paul: 45. 1 de Verb. obi. 114, Ulp.: (m) Dig. ttbi supra. Code. 4. 49. de Act. Empt. 12, Const. (n) Cod. 4. 32. de Usuris, 19, Const. Justin. ^ Philipp. : 8. 43. de Solution. 9, Const. Diocl. et Max. 742 PERFORMANCE OF THE CONTRACT. [BOOK IV. § 766. And payment by whomsoever made liberated the debtor. Bv Roman " Nec tamen interest quis solvat utrum ipse qui debet, law, pay- alius pro eo : liberatur enim et alio solvente, sive ment could " r ' be made sciente, sive ignorante debitors vel invito solutio fiat." (o) by any one .11 r-niT- iii dis- On this point the law ot JLngland is not yet settled, as the'debtor. stated by Willes J. in Cook v. Lister, (^j) and the rule As to com- would rather seem to be that payment by a third person, qmere. ' a stranger to the debtor, without his knowledge, would not discharge the debtor. (5) In the late case of Walter v. Walter*. James, (r) Martin B. declared the true rule to be, that James. j^£ ^ payment be made by a stranger, not as making a gift for the benefit of the debtor, but as an agent who intended to claim reimbursements, — though without authority from the debtor at the time of payment, — it is competent for the creditor and the agent to annul the payment at any time before ratifica- tion by the debtor, and thus to prevent his discharge. § 757. Mr. Smith, in his book on Mercantile Law, (s) also calls Acceptiia- attention to the very singular sham or imaginary pay- titi'ouspay- ment used in Rome — as a substitute for a common law release. release — known as acceptilatio. " Est acceptilatio im- aginaria solutio. Quod enim ex verborum obligatione Titito de- betur, si id velit Titius remittere, poterit sic fieri, ut patiatur hsec verba debitorem dicere ; quod ego tihi proniisi, habes ne accep- tum ? et Titius respondeat, haheo. Quo genere ut diximus tantum exsolvuntar obligationes quae ex verbis consistunt, non etiam C£e- terte. Consentaneum enim visum est, verbis factum obligationem, aliis posse dissolvi." (^) The learned author adds, that though this sort of sham payment was applicable only to a debt due by ex- press contract, "an acute person," called Gallus Aquilius, devised a means of converting all other contracts into express contracts to pay money, and then get rid of them by the acceptilatio, a device termed, in honor of its inventor, the Aquiliana stipulatio. This statement is quite accurate, the Aquilian stipulation being recog- nized in the Institutes of Justinian, (m) This "acute person" was a very eminent lawyer, the colleague in the prEetorship, and (0) Inst. lib. 3, tit. 29, 1. Wilkinson, 1 H. & N. 420; 26 L. J. Ex. (;)) 13 C. B. N. S. 543 ; 32 L. J. C. P. 13. 121. (r) L. R. 6 Ex. 124. (7) See Belsliaw v. Bush, 11 C. B. 191 ; (s) Page 533, note. 22 L. J. C. P. 24; Simpson v. Eggington, (() Inst. 3. 30. 1. 10 Ex. 845; 24 L. J. Ex. 312; Lucas v. (») Lib. 3. 29. 2. PART III.] PAYMENT AND TENDER. 743 friend of Cicero (collega et familiaris mens'), (^x) and of great au- thority among the jurisconsults of his day, " Ex quibus, Galium maxime auctoritatis apud populum fuisse ; " (y) especially for his ingenuity in devising means of evading the strict rigor of the Roman law, — which was quite as technical as the common law ever was, — and of tempering it with equitable principles and remedies, (z) {x) De Officiis, lib. 3, § 14. (z) See, for another example, Dig. 28. ly) Dig. 1. 2. de Orig. Jur. 2, § 42, 2. 29. pr. f. Scsevola. Pomp. BOOK V. BREACH OF THE CONTEACT PAET I. EIGHTS AND EEMEDIES OF THE VENDOE. CHAPTER I. PERSONAL ACTIONS AGAINST THE BUYEE. SECTION I. — WHERE PEOPERTT HAS NOT PASSED. Section Sole remedy is action for non-accept- ance 758 Date of the breach . . . 759 Where buyer becomes bankrupt be- fore delivery ... . 759 Or after partial delivery . . . 759 Where buyer gives notice that he will not accept . . . 760 Where buyer interrupts performance partially executed . . . 760 Measure of damages in such cases . 761 SECTION II. — WHERE PHOPEKTT HAS PASSED. Section None but personal action where the goods are in actual possession of buyer 764 Nature of this action . . . .764 Vendor cannot rescind contract for default of payment . 764 Nor because of buyer's bankruptcy . 764 Different forms of declaration in per- sonal action . ... 765 SECTION I. ■ •WHERE THE PEOPEETY HAS NOT PASSED. § 758. When the vendor has not transferred to the buyer the Where the property in the goods which are the subject of the con- tract, as has been explained in book II. : as where the agreement is for the sale of goods not specific, or of specific goods which are not in a deliverable state, or which are to be weighed or measured before delivery: the breach by the buyer of his promise to accept and pay can only affect the vendor by way of damages. The goods property has not passed, vendor's sole rem- edy is ac- tion for damages. PART I.] PERSONAL ACTIONS AGAINST THE BUYER. 745 are still his. He may resell or not at his pleasure. But his only action against the buyer is for damages for non-acceptance : he can in general only recover the damage that he has sustained : (a) not the full price of the goods, (a^) The law, with the Reason of reason for it, was thus stated by Tindal C. J. in deliv- ""^ '''"'■ ering the opinion of the exchequer chamber in Barrow Amaud. V. Arnaud : (6) " Where a contract to deliver goods at a certain price is broken, the proper measure of damages in general is the difference between the contract price and the market price of such goods at the time when the contract is broken, because the pur- chaser, having the money in his hands, may go into the market and buy. (c) So if a contract to accept and pay for goods is broken, the same rule may be properly applied, for the seller may take his goods into the market and obtain the current price for them." (d) § 759. The date at which the contract is considered to have (a) Laird v. Pim, 7 M. & W. 478 ; [Band v. White Mountains Railroad, 40 N. H. 79, 86; 1 Chitty Cent, (llth Am. ed.) 615, and cases in note {p).] (a') [But see Thorndilte v. Locke, 98 Mass. 340 ; Pearson v. Mason, 120 lb. 53, cited and stated ;50S(, § 763, in note (s).; Phillips V. Merritt, 2 U. C. C. P. 513; Moore v. Logan, 5 lb. 294.] (6) 8 Q. B. 604-609. See, also, Mac- lean V. Dunn, 4 Bing. 722 ; Busk v. Davis, 2 M. & S. 403 ; Phillpotts v. Evans, 5 M. & "W. 475 ; Gainsford v. Carroll, 2 B. & C. 624; Boorman v. Nash, 9 B. & C. 145 ; Valpy V. Oakley, 16 Q. B. 941 ; 20 L. J. Q. B. 381 ; Griffiths v. Perry, 1 B. & B. 680 ; 28 L. J. Q. B. 204 ; Lamond u. Da- vall, 9 Q. B. 1030 ; Boswell v. Kilborn, 15 Moore P. C. C. 309. (c) Bat this is not always the rule as to purchaser's damages. See post, part II. ch. i. §§ 869 et seq. [Clement & Hawkes Manuf. Co. t>. Meserole, 107 Mass. 362; Deming v. Grand Trunk R. R. Co. 48 N. H. 455 ; Cutting v. Grand Trunk R. R. Co. 13 Allen, 381 ; Gordon v. Norris, 49 N. H. 376; 1 Chitty Contr. (llth Am. ed.) 621, and note (e) and cases cited ; Aldis J. in Worthen v. Wilmot, 30 Vt. 555, 557; McNaught v. Dodson, 49 lU. 446 ; Harralson v. Stein, 50 Ala. 347 ; Sanborn v. Benedict, 78 111. 309 ; Foos v. Sabin, 84 lb. 564.] (rf) [See Thompson v. Alger, 12 Met. 428 ; Gordon v. Norris, 49 N. H. 376, 385 ; Rand v. White Mountains Railroad, 40 lb. 79 ; Allen v. Jarvis, 20 Conn. 38 ; Girard v. Taggart, 5 Serg. & R. 19 ; Ballentine v. Robinson, 46 Penn. St. 177 ; Ganson v. Madigan, 1 3 Wis. 67 ; Dana v. Fiedler, 2 Kernan, 41 ; Orr v. Bigelovv, 14 N. Y. 556; Dey v. Dox, 9 Wend. 129 ; Davis V. Shields, 24 lb. 322 ; Stanton V. Small, 3 Sandf. 230 ; Mallory v. Lord, 29 Barb. 454, 465 ; Whittemore v. Coates, 14 Mo. 9 ; Williams v. Jones, 1 Bush (Ky.), 621, 627 ; Northup a. Cook, 39 Mo. 208 ; Haines v. Tucker, 50 N. H. 307 ; Griswold v. Sabin, 51 lb. 167 ; Whe- lan V. Lynch, '65 Barb. 329 ; Hewitt v. Miller, 61 lb. 571; Haskell v. Hunter, 23 Mich. 305; Chapman u. Ingram, 30 Wis. 290 ; Camp v. Hamlin, 55 Ga. 259 ; Pittsburgh, Cinn. & St. L. R. R. Co. o. Heck, 50 Ind. 303 ; Shawhan u. Van Nest, 15 Am. Law Reg. (N. S.) 153 ; Lau- bach V. Laubach, 73 Penn. St. 392 ; Brun- skill V. Mair, 15 U. C. Q. B. 213 ; Harris Manuf g Co. v. Marsh, 49 Iowa, 11.] 746 BREACH OF THE CONTRACT. [BOOK V. been broken is that at which the goods were to have been deliv- Date of the ered, not that at which the buyer may give notice that breach. ]jg intends to break the contract and to refuse accept- ing the goods, (e) And on this principle was decided the case of Boorman v. Nash, (/) in which the facts were that in November, Boorman 1825, the plaintiff sold goods to the defendant, deliver- Purchas- ^^^^ ™ ^^^^ months of February and March following, er's bank- ^jjg defendant became bankrupt in January. The goods fore time were tendered and not accepted at the dates fixed by the delivery. contract, and resold at a heavy loss. The loss would have been much smaller if the goods had been sold in January, as soon as the buyer became bankrupt. Held that the contract was not rescinded by the bankruptcy ; (/^) that the assignees had the right to adopt it ; that the vendor was not bound to resell before the time for delivery ; and that the true measure of damages was to be calculated according to the market price at the dates fixed by the contract for performing the bargain. And if goods are deliverable by successive instalments, the assignee of the bank- er after rupt purchaser cannot adopt the contract and claim fur- livery. ^' ^^^^ deliveries under it, without paying the price of what was delivered prior to the bankruptcy, (g) § 759 a. In Morgan v. Bain, L. R. 10 C. P. 15, it appeared that Mor an v ^^^^ defendants had, on the 5th of February, sold to the Bain. plaintiffs 200 tons of iron, to be delivered twenty-five tons monthly at 51. per ton, net cash, or by four months' bill with 2s. 6d. per ton added. By the usage of trade no delivery was due under this contract till the 1st of April. On the 12th of March the plaintiffs found themselves to be insolvent, and they gave notice of the fact to the defendants. On the 16th of March they filed a petition in the bankruptcy court for liquidation by arrangement or composition. The usual course of business under previous contracts between the parties of a similar description was for the defendants to deliver upon such contracts without further demand for delivery. No delivery, however, was made (e) PhillpottSD. Evans, 5M. aw. 47.5; 13; Bingham i,. Mulholland, 25 U. C. C. Leigh V. Paterson, 8 Taunt. 540 ; Ripley P. 210.] .;. M'Clure, 4 Ex. 345; Boswell v. Kil- {g) Ex parte Chalmers, in re Edwards, born, 15 Moore P. C. C. 309. L. R. 8 Ch. App. 289 ; [Mears v. Waples, (/) 9 B. & C. 145. 3 Houst. (Del.) 581 ; Re Wlieeler, 2 (/i) [Brett J. in Morgan v. Bain, L. R. Low. 252. But see Kraft u. Dulles, 2 10 C. P. 26 ; Follansbee v. Adams, 86 111. Cinn. (Ohio) 116.] PART I.] PERSONAL ACTIONS AGAINST THE BUYER. 747 by the defendants or claimed by the plaintiffs in April. On the 5th of April, at the first meeting of the creditors, a resolution was passed to accept a composition of five shillings in the pound. Though the existence of the contract was mentioned at the meet- ing, no mention was made of it in the written statement of the plaintiffs' affairs. No step was taken in relation to the Jertiee's contract by either party until the 13th of May, when the effect of. market for iron having risen, the plaintiffs claimed the delivery of iron in fulfilment of the contract, offering and being ready to pay cash for it. The defendants replied, stating that the plain- tiffs having failed to perform their part of the contract there was an end of it. The plaintiffs thereupon brought an action against the defendants for non-delivery of the iron, in which judgment was ordered for the defendants. Lord Coleridge C. J. said : " We have in this case the fact of insolvency, coupled with the fact that upon such insolvency the insolvents take none of the steps essential to indicate that they meant to stand by the contract. That is evidence from which it may fairly be found that the other party to the contract had a right to con- clude that the insolvents had abandoned it, and, if they did so conclude, to abandon it themselves, and there is also amply suf- ficient evidence that the vendors did so abandon it. In coming to the conclusion at which we have arrived, I think we are well within the authorities on this subject. These are all discussed in the cases of Freeth v. Burr, L. R. 9 C. P. 208 ; Bloomer v. Bern- stein, L. R. 9 C. P. 588, the circumstances of which were analo- gous to those of the present case." Brett J. said : "After the making of the contract the plaintiffs were as a fact insolvent, and, moreover, they gave the defendants notice of the insolvency, which I take to be the governing fact in this case When the fact of insolvency is communicated to the vendor, a duty arises on the part of the insolvent to negative the presumption, that the vendor would be otherwise entitled to draw, that the insolvent intends to abandon the contract. It is not, however, suSicient to put an end to the contract that the insolvent should intend to abandon it ; the vendor must assent to its being put an end to. .... There must be some evidence of mutual rescission I think the smallest evidence would be suflScient of the defendants having done so ; and I think it is supplied by the fact that they did nothing to show that they wished to go on with the contract, 748 BREACH OF THE CONTRACT. [BOOK V. and broke from wbat is stated to have been their ordinary course of trade, viz. by not delivering as usual vrithout any demand for delivery." (g^') § 760. The rules of law on this subject were fully discussed in Cortti. Qqj.(; y_ Ambergate Railway Company, {h} in which the Railway cases Were reviewed, and the judgment of the queen's Where bench delivered by Lord Campbell C. J. The case was purchaser an action for damages by a manufacturer against a rail- ^ives no- c 1 1 J? tice to ven- way Company tor breach or a contract to accept and pay will p'ot re- for Certain railway chairs, part of which had been de- ordereT"'^' livered when the plaintiff received orders from the de- vendor is fendant to make and send no more. The plaintiff there- not bound ... to Ko on upon discontinued making them, although he was in a maliing . . . -,. them. position to Continue the supply according to the contract. The manufacturer had made a sub-contract for a part of the goods which he had promised to supply to the defendants, and was com- pelled to pay 500?. to be released from this sub-contract ; and had made contracts for supplies of the necessary iron, and had built a large foundry for the manufacture of the chairs. Two questions were presented : first, whether the plaintiff could recover without actually making and tendering the remainder of the goods, the declaration alleging that they were ready and willing to perfoi'in their contract until a refusal and wrongful discharge by the de- fendants, and that the defendants had wholly and wrongfully pre- vented and discharged the plaintiffs from supplying the said resi- due ; secondly, what was the proper measure of damages. Lord phiiipotts Campbell said, in relation toPhillpotts v. Evans, (i) that D. 'vans. j^ Yi^^ been properly decided, but that the exchequer of pleas had not determined in that case that the vendor would not have the right of treating the bargain as broken, if he chose to do so, as soon as the buyer gave him notice that he would not accept the goods, without being compelled afterwards to make a tender Ripley v. of them : and that the true point, decided in Ripley v. McClure. McClure, (k) was that a refusal by the buyer to accept in advance of the arrival of the cargo he had agreed to purchase (jfi) [Don V. Law, 12 U. C. C. P. 460; ditions, §§ 566 et seq.; Frost v. Knight, Bingham v. Mulhollaud, 25 lb. 210.] L. R. 5 Ex. 322 ; 7 Ex. HI. (h) 17 Q. B. 127; 20 L. J. Q. B. 460. (/) 5 M. & W. 475. And see Hochester v. De la Tour, 2 E. & (k) 4 Ex. 345. And see Avery v. Bow- B. 678 ; 22 L. J. Q. 'B. 455 ; ante, Con- den, Eeid v. Hoskins, 6 E. & B. 953, 961 ; 25 L.J. Q. B. 49, 55; 26 lb. 3, 5. PART I.] PERSONAL ACTIONS AGAINST THE BUYER. 749 was not necessarily a breach of contract, but that if unretracted down to the time when the delivery was to be made, it showed a continuing refusal dispensing the vendor from the necessity of making tender. His lordship then said that a like continuing re- fusal, unretracted, appeared in the facts of the case under consid- eration, and then laid down the following rule : " On the whole, we think we are justified on principle, and without trenching on any former decision, in holding that where there is an executory contract for the manufacturing and supply of goods from time to time to be paid for after delivery, if the purchaser, having ac- cepted and paid for a portion of the goods contracted for, gives notice to the vendor not to manufacture any more, as he has no occasion for them, and will not accept or pay for them, the ven- dor having been desirous and able to complete the contract, he may, without manufacturing and tendering the rest of the goods, maintain an action against the purchaser for breach of the con- tract, and that he is entitled to a verdict on pleas traversing alle- gations that he was ready and willing to perform the contract, that the defendant refused to accept the residue of the goods, and that he prevented and discharged the plaintiff from manufactur- ing and delivering them." (J) § 761. On the question of damages, Coleridge J. had told the jury at nisi prius that the plaintiff' ought to be put in Measure of the same position as if he had been permitted to com- such case, plete the contract. This direction was approved, the learned chief justice saying that " the jury were justified in taking into their calculation all the chairs which remained to be delivered and which the defendants refused to accept." (m) § 762. Although in general the vendor's recovery in damages is limited to the difference between the price fixed in the in certain contract and the market value on the day appointed for caserthe (') [Clement & Hawkes Manuf. Co. v. that the contractor had on hand a large Meserole, 107 Mass. 362 ; Haines u. amount of raw material, partially pre- Tucker, 50 N. H. 307 ; Smith v. Lewis, pared for the manufacturer of the article 24 Conn. 624; S. C. 26 lb. 110 ; Hughes's contracted for, and that its condition was Case, 4 Ct. of CI. 64 ; Moore v. Logan, 5 such that it could not be sold again with- U. C. C. P. 294.] out a great sacrifice. Chicago v. Greer, 9 (m) [Where a party had contracted for Wallace, 726 ; PoUey o. Waterhouse, 3 a large quantity of a manufactured article Allen (N. B.) 291 ; Moore v. Logan, 5 U. but afterwards refused to take it, it was C. C. P. 294.] held that evidence was admissible to show 750 BREACH OF THE CONTRACT. [BOOK V. vendor delivery, — according to the rule as stated by Parke B. cover the in Laird V. Pirn, (w) that "a party cannot recover the rf^goods,"^^ full value of a chattel, unless under circumstances which owne^rship^ import that the proijerty has jyassed to the defendant, as remains ■ |.[jg ^^gg Qf goods sold and delivered where thev have vested m *-• ^ -^ himself. been absolutely parted with and cannot be sold again," there may be special terms agreed on, in conflict with this rule, (m^) a vendor may well say to a buyer, " I want the money on such a day, and I will not sell unless you agree to give me the money on that day, whether you are ready or not to accept the goods ; " and if these terms be accepted, the vendor may recover the whole price of goods the property of which remains vested in himself. In such a case the buyer would be driven to his cross- action if the vendor, after receiving the price, should refuse de- livery of the goods, (o) § 763. The vendor may in some cases, under an executory con- In some tract partially performed, be entitled to consider the dor^may*' Contract as rescinded and recover on a quantum valebant consider fQj. ^he goods actually delivered. Thus, in Bartholomew contract ^ ^ ^ \. •■ \ rescinded v. Markwick, (^) the plaiitms-. had contracted to sup- tiaiiy exe- ply the defendant with Bux;h furniture as he should re- recover'Sie quire to the amount of 600Z, or 700Z., payable half in tiie'coods cash, and half by bilt at six months. After some of the delivered, goods had been delivered, [the defendant became dis- niew^"'"" pleased, and wrote to the plaintiffs, — "I now close all Markwick. further orders, and desire what I have not purchased be taken off my premises : I will not be responsible for them," &c. &c. The defendant kept goods of the value of 88Z. 17s. 6cl, and on action brought for goods sold and delivered insisted that the plaintiffs ought to have declared specially, and could not recover on the common counts before the expiration of six months, for which a bill was to have been given ; but held by the whole court, that the plaintiffs on receiving the defendant's letter had " a right to elect, if they would treat the contract as rescinded, and to sue for the value of the goods which had been delivered," (g') on the (n) 7 M. & W. 478. (p) 15 C. B. N. S. 711 ; 33 L. J. C. P. (ni) [See Thompson u. Alger, 12 Met. 145. 428, cited and stated post, § 763, note (q) [Clement & Hawkea Manuf. Co. v. (s).] Meserole, 107 Ma.ss. 362 ; Haines v. Tucker, (o) Dunlop V. Grote, 2 C. & K. 153. 50 N. H. 307 ; Smith v. Lewis, 24 Conn. PART I.] PERSONAL ACTIONS AGAINST THE BUYER. 751 authority of Hochester v. De la Tour, (r) and cases of a like character, referred to ante, §§ 567 et seq., in the chapter on Con- ditions, (s) 624 ; S. C. 26 lb. 1 10 ; Thompson v. Smith, 21 U. C. C. P. 1.] (r) 2 E. & B. 678 ; 22 L. J. Q. B. 455. And see Inchbald v. The Western Neil- gherry Coffee Company, 17 C. B. N. S. 733; 34L. J. C. P. 15. (s) [There is said to be a distinction in reference to the rule of damages " between a contract to sell goods, then in existence, and an agreement to furnish materials and manufacture an article in a particular way, and according to order, which is not yet in existence. The latter is said not to be so much a contract for the sale and purchase of goods, as a contract for work and labor merely, and it is held that in that class of cases the statute of frauds does not apply when there is nothing paid and no actual delivery. In a large class of cases of that kind, where the plaintiff has made surgical instruments of a par- ticular kind, and according to order, for the defendant, who had patented the same, and which would of course be worthless in the hands of the plaintiff; or where a tailor had made a suit of clothes to order, of a particular description and for a par- ticular measure ; or a shoemaker had made boots or shoes to order and of a par- ticular size and pattern ; or the carriage- maker had made a carriage in the same way, of a particular style and pattern ; or the artist has painted^ portrait of an in- dividual to order ; or an engineer has con- structed an engine according to order for a particular use, &c. though the mechanic or artist may sell the goods, if he choose, and recover of the defendant the difference between the contract price and the price for which the article was sold, yet it is held that he may if he choose, when he has fully performed his part of the con- tract and tendered the article thus manu- factured to the defendant, or offered it at the place appointed, recover the full value of the article and leave the defendant to sell or use or dispose of it at his pleasure, and for the reason, in addition to that already stated, that the article thus manu- factured for a particular person, or accord- ing to a particular pattern, or for a partic- ular use, may be of comparatively little value to anybody else, or for any other use or purpose ; but cases of this class are recognized as exceptions to the general rule, which is to be applied in the sale of ordinary goods or merchandise which have a fixed market value." Sargent J. in Gordon v. Norris, 49 N. H. 383, 384 ; Allen V. Jarvis, 20 Conn. 38 ; Bement v. Smith, 15 "Wend. 493, and cases; Ballan- tine V. Robinson, 46 Penn. St. 177 ; Rand V. White Mountains Railroad, 40 N. H. 85. Some of the authorities upon this point were reviewed in Shawhan v. Van Nest, 25 0. St. 490, and it was decided that, where the plaintiff, in pursuance of an agreement with the defendant, furnished the materials and constructed a carriage for the defendant, in accordance with his order and directions, for which a stipu- lated price was to be paid, and the defend- ant refused to receive and pay for it when completed and tendered, the measure of damages is the contract price and interest from the time the money should have been paid. Gilmore J. said : " When the plain- tiff below had completed and tendered the carriage in strict performance of the con- tract on his part, if the defendant below had accepted it, as he had agreed to do, there is no question but that he would have been liable to pay the full contract price for it, and he cannot be permitted to place the plaintiff in a worse condition by breaking than by performing the contract according to its terms on his part. When the plaintiff had completed and tendered the carriage in full performance of the contract on his part, and the defendant refused to accept it, he had the right to keep it at the defendant's risk, using rea- sonable diligence to preserve it, and re- cover the contract price, with interest, as 752 BREACH OF THE COTNRACT. [book V. personal action wliere goods are in actual possession of bu^er. SECTIOjST n. — "VVHEEE THE PEOPEETY HAS PASSED. § 764. When by the contract of sale the property in the goods None but has passed to the buyer, the vendor may, under certain circumstances hereafter to be considered, exercise rights on the goods themselves, if the buyer make default in payment ; but whenever the goods have reached the actual possession of the buyer, the vendor's sole remedy is by personal action. He stands in the position of any other creditor to whom the buyer may owe a debt ; all special remedies Cannot re- [xi liis favor qud vendor are gone. By the law of Eng- for default land, differing in this respect from the civil law, the o'fpncl^'* buyer's default in paying the price will not justify an action for the rescission of the contract, unless that right be ex- Nature of pressly reserved. The principle at common law is that '^onaTa'c- ^^^^ goods have become the property of the buyer, and 'i°"- that the vendor has agreed to take for them the buyer's jyromis/i to pay the price. If then the buyer fail to pay, the ven- dor's remedy is limited to an action for the breach of that promise, the damages for the breach being the amount of the price promised, Martindaia ^'^ which may be added interest. The leading case on V. Smith, tiie subject is Martindale v. Smith, (() in which Lord Denman C. J. delivered the opinion of the queen's bencli after ad- visement. His lordship said : " Having taken time to consider oar damages for the breach of contract by the defendant; or, at his election, he could have sold the carriage for what it would have brought at a fair sale, and have re- covered from the defendant the difference between thecontract price and what it sold for." Thompson v. Alger, 12 Met. 428, was an action by the vendor against the purchaser for a breach of contract for the purchase and sale of railway shares. The purchaser had made a part payment for the shares, and while the contract was in force the plaintiff had actually transferred the stock, on the books of the company, to the purchaser, so that the plaintiff had act- ually lost his title to the shares, and upon this special ground the court held that the plaintiff was entitled to recover the full contract price. This rule was again and more hroadly applied in Thorndike v. Locke, 98 Mass. 340 ; and again it was still further extended and applied in Pear- son i-. Mason, 120 Mass. 53, where, upon a contract by the defendant to purchase certain stock then owned by the plaintiff, at his request, for an agreed price, and a tender of the stock by the plaintiff before an action was brought, and a re- newal of the tender at the trial, it was held that the plaintiff was entitled to re- cover as his damages the whole price that the defendant agreed to pay. See Shawhan v. Vnn Nest, supra, and note to it, 15 Am. Law Keg. (N. S.) 153, 160 et seq.] («) 1 Q. B. 395. See, also, Tarling v. Baxter, 6 B. & C. 360 ; Dixon v. Yates, 5 B. & Ad. 313. PART I.] PERSONAL ACTIONS AGAINST THE BUYER. 753 judgment, owing to the doubts excited by a most ingenious argu- ment, whether the vendor has not a right to treat the sale as at an end, and reinvest the property in himself, by reason of the ven- dee's failure to pay the price at the appointed time, ive are clearly of opinion that he had no such right, and that the action (trover) is well brought against him. For the sale of a specified chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the creditor a right of action for the price, and a lien upon the goods, if they remain in his possession, till that price be paid. But that de- fault of payment does not rescind the contract." It has Cannot re- already been shown (ante, § 759) that the bankruptcy of ^™f^ \X the buyer gives to the vendor no right of rescission, be- ^^^^ cause the assignee has by law the right either to disclaim ruptcy. or to adopt and carry out the contracts of the bankrupt, (m) § 765. It is not proposed in this treatise to enter into any dis- cussion of questions of procedure, but it may be stated ^,1^^^^^ generally that the vendor may recover the price of goods f^"™^^."^^;^^^ sold, where the property has passed to the buyer, on the in personal common counts for goods bargained and sold, and goods against sold and delivered, (a;) but that where the property has ''"^'''''• not passed, the declaration must be special for not accepting. («/) The declaration must also be special where the payment is to be made by bill or note, or partly in cash and partly by bill, and the vendee refuses to give either, unless the vendor chooses to wait until the term of credit has expired, in which case he can recover («) Bankruptcy Act, 1869, sec. 23. Am. ed.) 1330 ; Ganson .. Madigan, 13 (x) [1 Chitty Contr. (11th Am. ed.) Wis. 67; Sands v. Taylor, 5 John. 395, 614, and note (n) ; Nichols u. Morse, 100 411 ; Bement v. Smith, 13 Wend. 493- Mass. 523; Morse v. Sherman, 106 lb. 495, 497; Sedgwick Damages (5th ed.), 430; Gordon v. Norris, 49 N. H. 376. 312-316; Mayne Damages (2d Eng. ed.). The rule of damages is the same under 116; Messer v. Woodman, 22 N. H. 172; each of these counts, viz. the contract Ockington u. Richey, 41 lb. 279.] • price. In either case it must be proved {y) Chitty Contr. 407 (9th ed.) ; [1 that the property passed to the purchaser. Chitty Contr. (Ilth Am. ed.) 615, and That being proved, the price, of course, cases in note (?) ; Atwood ,.. Lucas 53 belongs to the vendor, and he may recover Maine, 508; Messer .. Woodman 22 iM. it under either of these counts that may H. 172 ; Bailey v. Smith, 43 lb. 141 ; apply to the facts. Sargent J. in Gordon Ste-arns .,. Washburn 7 Gray, 187 ; V. Norris, 49 N. H. 382; Bailey v. Smith, Gordon v. Norris, 49 N. H. 37b , mw- 43 lb. 143, 144; Thompson v. Alger, 12 market Iron Foundry v. Harvey, -3 lb Met. 428, 443, 444 ; 2 Chitty Contr. ( 1 1th 395.] 48 754 BREACH OF THE CONTRACT. [book V. on the common counts. (2) Bat if the vendee gives notice on a partially executed contract for a sale on credit that he will not carry it out, and yet retain the goods already sent, the vendor, having the legal right to consider the contract as rescinded, may at once bring action on the new contract resulting from the buy- er's conduct, and recover on the common counts the value of the goods delivered, (a) Where the buyer has given a bill in pay- ment, the vendor must account for the bill if dishonored, and can- not recover the price if the bill be outstanding. (5) {z} [1 ChittyContr. (11th. Am.ed.)615, and note (r) and cases ; Bass v. White, 7 Lansing, 171. As to the damages in a special action for the security before the term of credit has expired, see Barron v. MuUin, 21 Minn. 374. The principle al- luded to in the text, supra, applies where the vendee has obtained the goods by fraud on a term of credit. The vendor's remedy is on the express contract or in tort. Magrath v. Tinning, 6 U. C. Q. B. (0. S.) 48+ ; Walvefield v. Gorrie, 5 U. C. Q. B. 159 ; Strutt v. Smith, 1 C, U. & R. 312; Dellone v. Hull, 47 Md. 112; Kel- logg V. Turpie, 2 Bradwell (111.), 55; Sheriff V. McCoy, 27 U. C. Q. B. 597 ; Ferguson v. Carrington, 9 B. & C. 59 ; Bicknell v. Buck, 58 Ind. 354 ; Auger v. Thompson, 3 Ont. App. 19; Silliman u. McLean, 13 U. C. Q. B. 544. See § 433, ante.] (a) Bartholomew v. Marwick, 15 C. B. N. S. 711; 33 L.J. C. P. 145. (6) Ante, § 731 ; [Chamberlin v. Per- kins, 55 N. H. 237, stated ante, § 730, note (a-).] CHAPTER 11. UNPAID vendor's REMEDIES AGAINST THE GOODS. — GENERAL PRINCIPLES. Goods may be in possession of the buyer, and then vendor's right in them is gone .... 766 Or in possession of vendor or his agents 766 Or in transit for delivery to buyer . 766 Unpaid vendor has at least a lien on goods still in his possession unless waived .... 767 Where vendor sells on credit he waives lien 767 What are the unpaid vendor's rights, if goods remain in his possession till credit has expired 767 Or if buyer becomes insolvent be- fore credit has expired . . 767 Meaning of the word deliver in this connection .... 768 Division of the subject . . . 769 Exposition of the law as to unpaid vendors in Bloxam v. Sanders . 769 Bankrupt's assignees cannot main- tain trover against unpaid vendor in possession .... 769 Unpaid vendor does not lose his rights by agreeing to hold the goods in the changed character of bailee for the buyer . . 770 The unpaid vendor's right may ex- ist by special contract after act- ual possession has been taken by buyer 771 When bills given to vendor have been dishonored he may retain possession of goods not yet de- livered 772 And will be responsible only tor actual damages, that is, the dif- ference between contract price and market price Where no difference is proven be tween contract price and market price, nominal damages to be given And it makes no difference whether sale is of specific chattels or of goods to be applied And indorsement of delivery order to sub-vendee confers no greater title than buyer had . Unpaid vendor may estop himself from asserting his rights on the goods as against sub-vendee This estoppel takes place where vendor assents to a sale by his purchaser to a sub-vendee . Effect of delivery order . Vendor may also estop himself from denying as against sub- vendee that the property has passed to the first buyer Propositions deduced from the re- view of the authorities Warehousemen and other bailees may make themselves liable to both parties May estop themselves from setting up the claims of unpaid vendor against purchasers or sub-ven- dees ... . • 773 773 774 774 776 778 779 780 781 756 BREACH OF THE CONTRACT. [BOOK V. S 766. Wheeb the property in goods has passed by a sale, the right of possession also passes, but is, as we have seen, defeasible on the insolvency of the buyer, or the non-performance of con- ditions precedent or concurrent imposed on him by the contract. If the goods have been delivered into the actual posses- be either sion of the buyer, all right on them is gone, (a) as has sf(,JJ°o£^the been stated in a preceding chapter ; but if not so de- buyer, livered, the goods may be placed in two different con- ditions of fact as regards their actual custody. They may be or of the ^^^^^ ™ *^® actual possession of the vendor (or of his vendor; agents or bailees, which amounts to the same thing), or they may have been put in transit for delivery to the buyet-, and or in tran- tlius in actual piossession of neither party to the contract. deUver*^"to When thus in transit, the law gives to the unpaid ven- buyer. (Jor the right of intercepting them if he can, and thereby of preventing them from reaching the actual possession of an in- solvent buyer. This is the right well known in the law of sale as that of stoppage in transitu. § 767. When the goods have not yet left the actual possession Vendor of the vendor, he has at common law at least a lien for a lien for the unpaid price, because he is always presumed to con- price'on tract, unless the contrary be expressed, on the condition s°°^^. and understanding that he is to receive the money when while in o J his posses- ije parts with his goods. But he may agree to sell on sion unless f. , . P . i? waived. credit, that IS, to give to the buyer immediate possession of the goods, and trust to his promise to pay the price infuturo. Such an agreement as this amounts plainly to a waiver of the lien, and if the buyer then exercises his rights and takes away the goods, nothing is left but a personal remedy against him. But if we now suppose that, after a bargain in which the lien has thus been unequivocally waived, the buyer for his convenience, or any other motive, has left the goods in the custody of the vendor until the credit has expired, and has then made default in payment, or has become insolvent before the credit has expired, what are the vendor's rights ? He has agreed to relinquish his lien, and the goods are not yet in transit. Does his lien revive, on the ground that the waiver was conditional on the buyer's maintaining him- self in good credit ? Or can the vendor exercise a quasi right of stoppage in transitu, — a right that might perhaps be termed a (a) [Obermier v. Core, 25 Ark. 562; Gay v. Hardeman, 31 Texas, 245.] PART I.J REMEDIES AGAINST THE GOODS. 757 stoppage ante-transitum ? (J) The true nature and extent of the vendor's rights in this intermediate state of things have not yet perhaps been in all cases precisely defined ; but they have been considered by the courts under such a variety of circumstances, that in practice there is now but little difficulty in advising on cases as they arise, (c) § 768. Before reviewing the authorities, attention must be re- called to the different meanings of the word " delivery," Meaning of as pointed out in book IV. part II. ch. ii. For it will %^^'.^ appear in the investigation of the present subject that ^'7 " '" the vendor is frequently considered by the courts as nection. being in actual possession of the goods, when he has made so com- plete a delivery as to be able to maintain an action for goods sold and delivered. Thus, for instance, in the whole class of case's where the delivery has been effected by the consent of the vendor to assume the changed character of bailee for the buyer, it will be seen that the unpaid vendor is still deemed to be in the actual possession of the goods for the purpose of exercising his remedies on them, in order to obtain payment of the price : and this, even in a case where the vendor gave a written paper acknowledging that he held the goods for the buyer, and subject to the buyer's orders, (c?) § 769. It will be convenient to review, in the first place, the cases which establish the existence of this peculiar right Division of in the unpaid vendor who has waived his lien, and then the subject. to treat separately his remedies, 1st, of resale ; 2dly, of lien ; and 3dly, of stoppage in transitu. The leading cases of s\oj^^mv. Bloxam v. Sanders (e) and Bloxam v. Morley (/) Sanders. (which were said by Blackburn J. in 1866 (^) to be ^enTof"'^ still correct expositions of the " peculiar law " as to un- ^^P^j^^,^ paid vendors) were decided by the king's bench in 1825. "laim^on^ Bayley J. stated the principles as follows : " The ven- dor's right in respect of his price is not a mere lien which he will (b) This is termed the right of retention 280 ; Newhall v. Vargas, 15 Maine, 314 ; in the Scotch law. See ante, § 413. Welsh v. Bell, 32 Penn. St. 12.] (c) [See Parks v. Hall, 2 Pick. 206; {d) Townley v. Crump, 4 Ad. & E. 58, Barrett v. Pritchard, lb. 515 ; Haskell «. and other cases examined post. Rice, U Gray, 240; Kiddle u. Varnum, (e) 4 B. & C. 941. 20 Pick. 280, 285; Milliken u. Warren, (/) 4 B. & C. 951. 57 Maine, 46; Young v. Austin,' 6 Pick. [g) In Donald v. Suckling, L. R. 1 Q. B. 585 ; 35 L. J. Q. B. 237. 758 BREACH OF THE CONTRACT. [BOOK V. forfeit if he parts with the possession, but grows out of his orig- inal ownership and dominion. If goods are sold on credit, and nothing is agreed on as to the time of delivering the goods, the vendee is immediately entitled to the possession ; and the right of possession and the right of property vest at once in him ; but Ms right of possession is not absolute ; it is liable to be defeated if he become insolvent before he obtains possession. Tooke v. Holling- worth, 5 T. R. 215. If the seller has dispatched the goods to the buyer, and insolvency occur, he has a right, in virtue of his original ownership, to stop them in ti'ansitu. Why? Because the froperftj is vested in the buyer so as to subject him to the risk of any accident ; but he has not an indefeasible right to \ki& fosses- sion, and his insolvency, without payment of the price, defeats that right. The buyer, or those who stand in his place, may still obtain the right of possession if they will pay or tender the price, or they may still act on their right of property, if anything un- warrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the damage they sustain by such wrongful sale, and recover damages to the extent of that injury ; but they can maintain no action in which the right of property and right of possession are botli requisite, unless they have both those rights." The assignees of the insolvent buj^er were therefore held not en- Bankrupt's titled to maintain trover against the unpaid vendor, who cannot had sold the goods on credit, but who still held them maintain trover in his own warehouse. In 18.33, Miles v. Gorton (h) against un- ^y^g decided in the exchequer. The vendor sold hops on paid ven- _ ^ '- dorinpos- credit, and kept them in his warehouse on rent charged SGSsjon. to the buyer. The buyer dealt with the hops as his own, Gorton. and sold part of them, which were delivered to the sub- vendee on the buyer's order. The buyer then became bankrupt, and his assignees brought trover for the remainder in the vendor's warehouse ; but the court held that as against them the vendor had the right to retain possession till payment of the price. § 770. In Townley v. Crump, (i) decided in 1836, the defend- Townieyi'. ants, wine merchants in Liverpool, sold to one Wright Crump. ^ parcel of wine held by them in their own bonded ware- house there, for an acceptance at three months, and gave him an invoice describing the wines by marks and numbers, and handed (h) 2 C. & M. 504. (i) 4 Ad. & E. 58. PART I.] REMEDIES AGAINST THE GOODS. 759 him the following delivery order : " Liverpool, 29fch September, 1834. Mr. Benjamin Wright. We hold to your order 39 pipes and 1 hhd. red wine marked J C J M. No. 41 a 67 — 69 a 80 pipes. No. 105 hhd., rent free to 29 November next. John Crump & Co." The bill accepted by Wright was dishonored ; a fiat in bankruptcy issued against him on the 28th January, 1835, and his assignees brought trover against the vendor. It was admitted " that the invariable mode of delivering goods sold while in ware- houses in Liverpool is by the vendors handing to the vendees de- livery orders." Lord Abinger C. B., before whom the cause was tried at the Liverpool assizes, refused to receive evidence that the order in question was equivalent to an accepted delivery order, or that the witness (a broker and merchant holding bonded vaults in Liverpool) would consider the possession of such an order as possession of the property ; but permitted him to say that, in his opinion, the possession of the order would obtain credit for the holder with a purchaser, and that, as a matter of custom, the goods specified in such an order would be considered the property of the person holding the order. His lordship directed a nonsuit, which the king's bench, in banc, refused to set aside. Lord Den- man giving the opinion of the court, composed of himself and Patteson, Williams, and Coleridge JJ., in these words : " There was a total failure of proof that where a vendor, who is himself the warehouseman, sells to a party who becomes bankrupt before the goods are removed from the warehouse, the delivery order operates by reason of this custom to prevent a lien from attach- ing, and I think it is not contended that there is any general usage which could divest the right in such a case, upon the insol- vency of the vendee. Cases have been cited, but none where the question arose between the original vendor and vendee.'"' Unpaid It is impossible to imagine a clearer case than this of does not the vendor's agreement to change the character of his rfghts'on possession into that of a bailee for the buyer ; but this fg°gei[j^ sort of delivery was not allowed so to operate .as to force to ho'd « •> ^ . ba]lee of the vendor to give up the goods to the buyer's assignees the buyer. in bankruptcy, (h') Yet it cannot be doubted that the vendor had done all that he was bound to do in performance of his con- (h) [See Rice v. Austin, 17 Mass. 204; L. R. 10 Ch. App. 491 ; Farmeloe v. Bain, Jewett a. Warren, 12 lb. 300; Frazer u. L. R. 1 C. P. D. 49.5.] Billiard, 2 Strobh. 309 ; Guun v. Bolckow, 760 BREACH OF THE CONTRACT. [BOOK V. tract before the buyer's insolvency, and that he could have main- tained an action for goods sold and delivered. (I) § 771. Next came, in 1840, the case of Dodsley v. Varley, (to) P , , , which arose under the statute of frauds, and the question Varley. vf&s, vphether the vendor had lost his lien, for if not, it was conceded that there was no actual receipt to take the case out Unpaid of the statute. The facts were that a parcel of wool right''may ""''^s bought by the defendant while it was in the plain- s^eciaUon- *^^'^ possession : the price was agreed on, but the wool tract after would have to be weighed : it was then removed to the actual pos- session ^varehouse of a third i^er&on, where the defendant col- buy^e'r. '' lected wool purchased from various persons, and packed it in sheeting provided by himself. There it was weighed, to- gether with other wools, and packed, but not paid for. It was the usual course for the wool to remain at this place till paid for. On these facts it was held that the wool in the warehouse was in the defendant's warehouse, " and that he was in actual j^ossession of it there as soon as it was weighed and packed Consist- ently with this, however, the plaintiff had, not what is commonly called a lien determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of Ms original oivnership, independent of the actual piossession, and consistent with the property being in the defendant." § 772. In 1851, Valpy v. Oakeley (n) was decided in the Vaipy V. queen's bench. The defendant sold 500 tons of iron to *^"'''''^'- one Boydell, to be delivered in three parcels of 100, 200, bills given and 200 tons, and to be paid for by Boydell's accept- have been ance of the vendor's bills drawn on him. Invoices of the he'ma7re- i''°i^ *" ^'^ delivered were sent to the buyer, with bills tain goods drawn on him for the price, which bills he accepted and ered, returned to the vendor. The first bill was paid ; the other two were not paid, and the buyer subsequently became bank- rupt. These two bills were proven under the fiat, one by the ven- dor, and the other by a transferee of the vendor, but no dividend was received under either proof. There remained in the vendor's possession 185^ tons of the iron at the time of the bankruptcy of Boydell, and this action was brought by his assignees in assumpsit on the contract for the non-delivery of this portion. Held, that [1] [See Weld v. Came, 98 Mass. 152.] (n) 16 Q. B. 941 ; 20 L. J. Q. B. 380. (m) 12 Ad. &E. 632, PART I.] REMEDIES AGAINST THE GOODS. 761 the plaintiffs could only recover such damages as the and win be bankrupt might have recovered ; and that he could only only for have recovered the difference between the contract price between^ and the market price ; and only nominal damages where ^ja^™"'^ no such difference is proven. The ratio decidendi in and the . . market this case was distinctly, that on the dishonor of the bills price, given for the price, the parties were placed in the same condition as if the Mils had never been given, and the contract had ieen to pay in ready money. All the judges treated the case as one of lien reviving on the non-payment of the bills. Wightman J. said : " I see nothing to distinguish this from the ordinary case of lien of an unpaid vendor. As long as the bills were running, they may be taken to have been primd facie payment, but they were dishonored before the iron was delivered, and in that case I have no doubt that the vendor's lien attaches, and that he may re- tain his goods until he is paid." (o) The other judges took the same view of this point, though not expressed perhaps as distinctly as by Wightman J. § 773. This point came again before the same court in Griffiths V. Perry (jj) in 1859, the judges being Crompton and Qriaths Hill, neither of whom was on the bench when Valpy v. ■»■ P^-'fy- Oakeley was decided. The circumstances were precisely the same as in the last named case. Crompton J. said : " I apprehend that where there is a sale of specific chattels, to begin with, and a bill is given, there is no lien, in the strict sense of the word ; but if afterwards an insolvency happens, and the bill is dishonored, then the party has, in my opinion, a right analogous to that which a ven- dor who exercises the right of stoppage in transitu has When goods are left in the hands of a vendor, it cannot properly be said to be a stoppage in transitu, for it is one of those cases in which the transitus has not commenced It has always seem_ed to me, and I think it has been established in a great many cases, that there is a similar right where the transitus has not commenced ; and although no right to a strict lien has ever existed, yet where goods remain in the party's hands and insolvency occurs, and the bill is dishonored, there a right analogous to that of stop- Nominal ■ • i-i J- •4-Til \A damages page in transitu arises, and there is a right to witnnoia gj^n dehvery of the goods." It was accordingly held, 1st. That ^^.^^^^ °° (o) [Arnold v. Delano, 4 Cush. 33; {p) 1 E. & E. 680; 28 L. J. Q. B. 204. Thurston v. Blanchard, 22 Pick. 18.] 762 BREACH OF THE CONTRACT. [BOOK V. damage the plaintiff was only entitled to nominal damages, in AVhether accordance with the decision in Valpy v. Oakeley. 2dly. sale is of That it makes no difference in such cases whether the specific chattels or sale is of specino chattels, or an executory contract to besuppiied. supply goods. 3dly. That the indorsement to a third Indorse- person of a delivery order for the goods given by the delivery vendor to the buyer does not confer on such third per- feVno""" son any greater rights than the buyer had. This last fiti'e'on point had been previously settled by a direct decision sub-vendee pf ^jje House of Lords, (cf) which was not cited in the tiian buyer ^^^ had. ■ case. § 774. The rights of the unpaid vendor under the circumstances The un- which we are now considering are not affected by a re- dor ma"' sale to a third person, unless the vendor has by his con- self as'"'"" '^""^ estopped himself from asserting his own rights ; against and we must now turn to the class of cases where the sub-ven- dor, conflict of pretensions on the goods not paid for arose between the original vendor and the sub-vendee, (r) Without re- ferring sjoecially to the early cases, (s) we may pass to the de- Stoveid » cision of the king's bench in Stoveld v. Hughes, (f) in Hughes. 1811. There the defendants had sold timber lying at their wharf to one Dixon, and the timber was marked by mutual „, assent with the initials of the buyer ; and the vendor W hen ven- , . ^ dor as- promised to send it to Shoreham. The buyer gave ac- sented to ' , ,^,-.11^, resale, cejjtances at three months tor the price. A small part t'ocont^est ^^ delivered, and the remainder, while still lying on sub-ven- ^^^^ Vendor's premises, was sold by Dixon to the plain- tiee. tiffs, who paid the price. The plaintiffs informed the defendant of the sale by Dixon, to which the defendant answered " Very well ; " and the plaintiff and the defendant then went together on the wharf of the defendant, and the plaintiff there marked the timber with his own initials, and told the defendant to send no more of the timber to Dixon, and the defendant made no objection. Dixon became insolvent, his bills were protested, and the defendant refused delivery. Lord Ellenborough said, on (q) McEwan v. Smith, 2 H. L. Cas. 309 ; (s) Slubey v. Heyward, 2 H. Bl. .504 ; post, § 776 ; [Keeler v. Goodwin, HI Mass. Hammond v. Anderson, 1 B. & P. N. R. 490, 492, and cases cited.] 69 ; Hanson v. Meyer, 6 East, 626 ; Green (r) [Chapman v. Shepard, 39 Conn. u. Haythorne, 1 Stark. 447. 413,419; Haskell u. Rice, 11 Gray, 240 ; ' (() 14 East, 308 Parker v. Crittenden, 37 Conn. 148.] PART I.J REMEDIES AGAINST THE GOODS. 763 these facts : " The defendants were the only persons who could contravene the sale and delivery to the plaintiff from the Dixons. And when that sale was made known to the defendant Hughes, he assented to it by saying ' "Very well,' and to the marking of the timber by the plaintiff's agent, which took place at the same time. If that be not an executed delivery, I know not what is so." The other judges, Grose, Le Blanc, and Bayley, concurred. In Craven v. Ryder, (tt) in 1816, the vendors undertook to craven «. deliver the goods free on board to the vendee. They Eyier. delivered the goods on board, and took a receipt in their bound" own name, thereby entitling themselves to demand the ^'^{j™' bill of lading. The purchaser resold and received pay- sent. ment, and became insolvent without paying the original vendor. The sub-vendee obtained a bill of lading, rvitliout the assent of the original vendor, and it was held that he had acquired no rights against the first vendor, who had never delivered the property out of his own control. § 775. The next in date, and the leading case, is Dixon v. Yates, (x) in 1833. The plaintiff Dixon had bought a pi^on„. large number of puncheons of rum belonging to Yates, Yates. and lying in the latter's warehouse at Liverpool. He paid for them, thus becoming possessor as well as owner. He afterwards sold forty-six puncheons, parcel of his purchase, to one Collard, a clerk in Yates's service, and gave him an invoice specifying the number and marks of each puncheon, and took Collard's accept- ances for the amount of the invoice. By invariable usage in Liver- pool, the mode of delivering goods sold while in warehouse is that the vendor hands to the buyer a delivery order for the goods. On a former occasion, Collard had made in the same manner a simi- lar purchase of another parcel of the rums, and Dixon gave him delivery orders for them ; but when Collard applied for delivery orders for this second purchase, Dixon refused, but said if he wanted one or two puncheons he, Dixon, would let him have them. Collard then drew two orders on Dixon for one puncheon each, and the latter gave corresponding orders on Yates, and these two puncheons were delivered to a purchaser from Collard. One of Collard's bills became due on the 16th November, and was dis- honored ; and Dixon, on the 18th November, gave notice to Yates not to deliver the remaining forty-four puncheons to any one but (u) 6 Taunt. 433. (^) 5 B. & Ad. 313. 764 BREACH OF THE CONTRACT. [BOOK V. himself, and on the 19th made a verbal, and on the 21st a writ- ten, demand on Yates for the rum, but the latter refused to de- liver it to Dixon. Collard had had the puncheons which he bought coopered at Yates's warehouse, and marked with the letter C. On the 28th October, before Collard's bill was due, be sold twenty-six puncheons of the rum bought from Dixon to one Kaye, receiving in payment Kaye's acceptances, which were duly hon- ored. On the 31st October, Kaye's cooper went to Yates's prem- ises and got Yate'ss warehouseman to go with him to the ware- house, and there marked the casks (which were described in Col- lard's invoice to Kaye by marks and numbers) with the letters J. A. K., and got the casks ready for Kaye's gauger, who gauged them, and the casks were then coopered by Kaye's cooper. When the gauger first came to Yates's office, a clerk of Yates repeatedly refused permission that he should gauge the casks for Kaye, but Collard came afterwards and had it done. Collard had taken sam- ples of the rum when first landed on the quay, but not after it was in the warehouse. It was held by all the judges that the possession of the vendor Dixon had never been divested ; not by Collard's taking the saviples, for they were not taken as part of the bulk ; not by his taking possession of the two puncheons which were actually delivered to him, because it is only when delivery of part is intended to operate as delivery of the whole that it can have that effect ; not by the marking, for that is an equiv- ocal act, and may be merely for the purpose of identifying the goods, besides which, usage required delivery orders, which had been expressly refused ; not by the coopering and gauging, be- cause that had been objected to by Yates's clerk, and was only accomplished through the unauthorized interference of Collard, availing himself of his position as clerk. Park J. in delivering his opinion, said : " There was no delivery to the sub-vendees, and the rule is clear that a second vendee, ivho neglects to take either actual or constructive possession, is in the same situation as the first vendee, under whom he claims : he gets the title defeasible on the non-paijment of the price hy the first vendee. Craven v. Rider, 6 Taunton, 433." (?/) § 776. McEwan v. Smith (2) was decided in the House of Lords McEwau '■^ 1849. The facts were that certain sugars were im- V. Smith. ported by the respondents Smith, and warehoused for (y) See Griffiths v. Perry, ante, § 773. (z) 2 H. L. Cas. 309. PAKT I.] REMEDIES AGAINST THE GOODS. 765 their account by their agent at Greenock, named James Effect of Alexander, in a bonded warehouse of Little & Co. The ordIrP' entry on the warehouse book was, " Received from James Alex- ander for J. & A. Smith." The respondents sold the sugar to Bowie & Co., and gave them an order dated 15th August, 1843, on Alexander, directing him to deliver to the purchasers " the un- der-noted 42 hhds. of sugar, ex St. Mary, from Jamaica, in bond." The sale was for a bill at four months. Bowie & Co. never claimed the delivery, and on the 26th September one of the ven- dors wrote to their agent Alexander, " I have just heard of Bowie & Co.'s failure. Take immediate steps to secure our 42 hhds. of sugar, ex St. Mary, lately sold them, if they are still in ware- house." In the mean time, however, the appellants McEwan had bought the sugar from Bowie & Co., and on the 25tli September they sent to the office of Alexander and produced there the original delivery order of Smith & Co., which had been indorsed to them by Bowie & Co. Alexander's clerk, thereupon, gave them this note : " Delivered to the order of Messrs. McEwan & Sons, this date, forty-two hogsheads of sugar, ex *S'i;. Mary. James Alexander, per J. Adams." Alexander, when he received Smith's letter, re- moved the sugar to another warehouse, and wrote to them on the 27th September : " The order for these sugars was presented on the evening of the 25th inst. in the usual way ; but the young man that came with it from the agents of Messrs. McEwan said that he wished them put in my books as delivered to these gentlemen ; and from the order of delivery being transferred to them, my young man (for I was not within at the time) noted in the little book in which the weights are taken when weighing over, ' delivered to Messrs. McEwan per order of 25th Sept. 1843,' and at their request he gave them a slip of paper to this effect." On these facts Messrs. McEwan claimed that the goods had been delivered to them, and brought their action in Scotland for the goods. It seems manifest, on the face of the transaction, that Messrs. Mc- Ewan acted under the mistaken impression that Alexander held the goods as a warehouseman, for they only applied to have the entry of delivery made on his books, which they could not possibly have considered to be a delivery to them, if they had known that the sugar was in the warehouse of Little & Co. It was accordingly held by the House of Lords that nothing bad been done to change the possession of the sugar up to the 26th September, when the 766 BREACH OF THE CONTRACT. [bOOK V. vendor exercised his lien. Several of the learned lords gave ex- positions of the nature and effect of delivery orders, and of deal- ings between vendors and sub-vendees, in constituting delivery of possession, and in vesting title in a sub-vendee as against the unpaid original vendor. The lord chancellor (Lord Cottenham) first said of the note given by Alexander's clerk, that it was " non- sense to say that by that memorandum the goods were delivered." His lordship then said : " First, it is said that though the delivery note does not pass the property as a bill of lading would have passed it, by being indorsed over from one party to another, stiU it operates as an estoppel upon the party giving it, so far, at all events, as a third party is concerned ; and it is argued that it is a kind of fraud for a person to give a delivery note which the per- son receiving it may use so as to impose upon a third person, and then to deprive that third person of its benefit. But that .... merely puts the argument as to the effect of a delivery note in an- other form, and it assumes that such a document has all the effect of a bill of lading. But as the nature and effects of these two documents are quite different from each other, it seems to me that such an argument has no foundation at all, and cannot be adopted without converting a delivery note into a bill of lading It was contended that, assuming the delivery note given to the first vendee to have no effect in changing the property, yet if the second vendee comes to the original vendor and obtains a new order, the vendor cannot afterwards say that he has not been paid by the first vendee, and so defeat the title of the second vendee, the sale to whom he had in fact sanctioned by making that second note, and dealing with him as a party entitled to the custody of the goods. But this argument is answered by the observation that Mr. Alex- ander is here assumed to have an authority which in fact he never possessed ; for in truth he possessed no authority but that which the first delivery note given to Bowie & Co. had conferred upon him Supposing the note of 25th Sept. to have been signed by Alexander himself, I am of opinion that it gave the second vendee no better title than the first delivery note gave to Bowie & Co. It is not possible to construe this note as a dcalincf betivecn the vendors and the second vendee, when in fact there was no com- munication whatever between them." Lord Campbell said : " The single point in this case is, whether Smith & Co., the respondents, the original vendors of the goods, retained their lien upon them. PAET I.J REMEDIES AGAINST THE GOODS. 767 .... If a bill of lading is given, and that is indorsed for a valua- ble consideration, that would take away the right of the vendor to prevent the delivery of the goods ; but that is not so with a de- livery order It is said that the delivery order and the sub- sequent payment of the price by the second vendee take away the lien of the vendors. These acts do not seem to me to do so ; for, first, this price was not paid to the original owners ; and then to treat what passed between other people as an estoppel to the orig- inal owners is to give the delivery order the effect of a bill of lad- ing, and thus the argument again and again comes round to that point for which no authority in the usage of trade or in the law can be shown." (a) As to the true nature of the unpaid vendor's right on the goods in such circumstances, his lordship was very emphatic in repudiating any supposed analogy with stoppage in transitu. He said : " Several of the judges in the court below discuss at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders.'''' It was in his lordship's opinion clearly the revival of the lien, which entitles the vendor to exercise his right on goods sold originally with a waiver of lien, if the buyer becomes insolvent before the credit expires. (6) § 777. In Pearson v. Dawson (c) the facts were that the de- fendant sold sugar, held in his own bonded warehouse, pearson ». to one Askew, and took an acceptance for the price. Dawson. Askew resold twenty hogsheads of the sugar to the plaintiffs, and gave them a delivery order in the following words : "Mr. John Dawson : Please deliver to Messrs. Pearson & Hampton, or order, twenty hogsheads of sugar, ex Orontes [here were the specified marks, numbers, &c.J. James Askew." This order was handed by the plaintiffs to the defendant, who wrote in pencil on his " sugar book " the plaintiffs' name opposite the particular hogs- heads resold. No one could take the hogsheads out of the ware- house without paying duty, and the plaintiffs having sold two of the hogsheads gave their own delivery order to the defendant for them, and the defendant gave the plaintiffs an order to his ware- houseman to deliver them, and the plaintiffs paid the duty and (a) See, also, Dixon v. Bovill, 3 Mc- (c) E., B. & E. 448 ; 27 L. J. Q. B. Queen H. L. Cas. 1. 248. (6) [See Arnold o. Delano, 4 Cush. 33, cited ante, § 767, note (c).] 768 BREACH OF THE CONTEACT. [BOOK V. took them away. In the like manner other hogsheads, making altogether eight out of the twenty, had been taken from the ware- house by the plaintiffs when Askew become insolvent ; his bills were dishonored, and the defendant then claimed his lien on the twelve remaining hogsheads. But the judges, Lord Campbell C. J. and Coleridge and Erie JJ., were unanimously of opinion that the original vendor was bound to state to the plaintiffs his objec- tions, if he had any, to recognizing the delivery order given by Askew when made known to him, and that having by his con- duct given an implied assent to the resale, he had lost posses- sion and right of lien, and could not contest the title of the sub- vendee. § 778. In Woodley v. Coventry (cZ) the defendants, corn fac- Vendor in tors, sold 350 barrels of flour, to be taken out of a larger fs'estopped quantity, to one Clarke, who had obtained advances even from from the plaintiff on the security of the flour, giving to' that the the plaintiff a delivery order on the defendants. The had passed plaintiff Sent the order to the defendants' warehouse, contTact^ and lodged it there, the granary clerk saying, " It is all bu'^ef"' right," and showing the plaintiff samples of the flour Woodieyt; ^^-^"^ *° Clarke. The plaintiff sold the flour to different- Coventry, persons, and the defendants delivered part of it, but Clarke having in the mean time absconded and become bankrupt, the defendants refused, as unpaid vendors, to part with any more of the flour. The plaintiff brought trover, and it was contended for the defendants that the estoppel set up against them by the plaintiff could not prevail against the rule that trover will not lie where the property is not vested ; and that by the contract be- tween the defendants and Clarke no property had passed, because the sale was not of any specific flour, but of flour to be supplied generally, in accordance with the samples. But the court held that the defendants were estopped also from denying that the property had passed, and refused to set aside the verdict given in plaintiff's favor. Under very similar circumstances, the queen's Knights V. bench held, in Knights v. Wiffen, (e) that the estoppel Wiften. |-qq]j. place even where the buyer had paid the price be- fore presenting the delivery order, the court holding that the buy- er's position was nevertheless altered through the defendant's con- duct, because the buyer was thereby induced to rest satisfied that (d) 2 H. & C. 164 ; 32 L. J. Ex. 185. (e) L. R. 5 Q. B. 660. PART I.] REMEDIES AGAINST THE GOODS. 769 the property had pagsed, and to take no farther steps for his own protection, (e^) § 779. According to the foregoing authorities an unpaid vendor in actual, possession of the goods sold, even where he proposi. has relinquished his lien by the terms of his contract, j"'"^''?" has the following rights, of which he is not deprived by the review assenting to hold the goods as bailee of the buyer : First, thorities. If the controversy be between the unpaid vendor and the insolvent buyer, or the assignees of the latter, the vendor may refuse to give up possession of the goods without payment of the price. (/) (And see ante, § 763, as to antecedent partial deliveries not paid for.) Secondly, The vendor's remedy will not be impaired by his giving a delivery order for the goods if countermanded before his bailee attorns to the buyer. (^) Thirdly, The rights of the unpaid vendor are the same against a sub-vendee as against the original buyer, (K) unless he be precluded by the estoppel result- ing from his assent, express or implied, to the sub-sale when in- formed of it. (i) These rights taken in connection with the remedy by resale, and the vendor's lien, treated of in the two succeeding chapters, cover almost every conceivable controversy that can arise relative to the rights of an unpaid vendor before the buyer has obtained actual possession of the goods, (i^) § 780. It will be again necessary to refer more particularly (^post, ch. iv. on Lien) to the effect of delivery orders, but before leaving the subject of estoppel, attention may properly be directed to the cases in which it has been applied to warehouse- Warc- men and bailees, who may by their conduct make them- may make selves responsible to sub-vendees without relieving them- 'fa^e aJ'^' selves of liability towards the unpaid vendor. For the ^'^l^^^^l doctrine of estoppel in general, the reader is referred to ties. (el) [Voorhis t). Olmstead, 66 N. Y. 113. 309; Griffiths v. Perry, 1 E. & E. 680; See Farmeloe v. Bain, L. E. 1 C. P. D. [Keeler v. Goodwin, HI Mass. 490.] 445,] (A) Craven v. Eyder, 6 Taunt. 433; per (/) Tooke V. Hollingworth, 5 T. R. Parke B. in Dixon v. Yates, 5 B. & Ad. 215 ; Bloxam v. Sanders, 4 B. & C. 941'; 313 ; McEwan v. Smith, 2 H. L. Cas. 309 ; Miles V. Gorton, 2 Cr. & M. 504 ; Town- Griffiths v. Perry, 1 E. & E. 680. ley V. Crump, 4 Ad. & E. 58; Craven v. (i) Stoveld v. Hughes, 14 East, 308; Ryder, 6 Taunt. 433 ; Dodsley v. Varley, Pearson a. Dawson, E., B. & E. 448 ; 27 12 Ad. & E. 632 ; Valpy v. Oakeley, 16 L. J. Q. B. 248. Q. B. 941; 20L. J.Q.B. 380; Griffiths w. (t') [See Farmeloe v. Bain, 1 C. P. Perry, 1 E. & E. 680; 28 L. J. Q. B. 204. Div. 445 ; Keeler «. Goodwin, 111 Mass. (?) McEwan «. Smith, 2 H. L. Cas. 490.] 49 770 BREACH OF THE CONTRACT. [book V. the notes appended to the case of Doe v. Oliver, (k') in Mr. Smith's Principle '^^'^7 valuable book. The principle was thus stated by on which Lord Denman in Pickard v. Sears: CO " Where one by estoppel _ ^ ^ •' rests. his words or conduct wilfully causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." But in Freeman v. Cooke (w) Parke B. said, — and this dictum was approved by Chelmsford L. C. in Clarke v. Hart (6 H. L. Cas. 633-656), — that " in most cases the doctrine in Pickard v. Sears is not to be applied unless the representation is such as to amount to the con- tract or license of the party making it." (w) § 781. In Stonard v. Dunkin (o) the defendant, a warehouse- man, gave a written acknowledgment that he held a parcel of malt for the plaintiff, who had advanced money on a pledge of it to one Knight. Knight became bankrupt, and the defendant attempted to show that the malt had not been measured, and that the property in it therefore passed to Knight's assignees ; but Lord Ellen- borough said: "Whatever the rule may be between buyer and seller, it is clear that the defendants cannot say to the plaintiff the malt is not yours, after acknowl- edging to hold it on his account. By so doing they attorned to him, and I should entirely overset the security of mercantile deal- Hawes v. ings were I now to suffer them to contest his title." Watson. rpj^j^g ^^^ ^^g followed by Hawes v. Watson (jo) in Gosling «. _ '' . . the king's bench in 1821, and by Gosling v. Birnie (g) Stonard v. Dunkin. Ware- housemen estopped from set- ting up the rights of unpaid vendor, af- ter attorn- ing to pur- chaser as sub-ven- dee. Birnie. (k) 2 Smith's L. C. 768 et seq. (I) 6 Ad. & E. 474. (m) 2 Ex. 654. (n) [Drew v. Kimball, 43 N. H. 282, in which the doctrine of estoppel is very fully treated and the cases reviewed ; Fall River Nat. Bank v. Buffington, 97 Mass. 498, .^00, 501 ; Andrews v. Lyons, 11 Allen, 349 ; Langdon v. Doud, 10 lb. 437 ; Plumer u. Lord, 9 lb. 455 ; Audendried V. Betteley, 5 lb. 384 ; Erie County Sav- ings Bank u. Roop, 48 N. Y. 292, 298 ; Montpelier & Wells River R. R. v. Lang- don, 45 Vt. 137; 2 Sugden V. & P. (Sth Am. ed.) 743, note (u) and numerous cases there cited ; Copeland v. Copeland, 28 Me. 528 ; Wooley v. Chamberlain, 24 Vt. 270-276 ; Spiller v. Scribner, 36 lb. 245 ; Halloran v. Whitcomb, 43 lb. 306, 312 ; Kinney v. Farnsworth, 17 Conn. 355 ; Whitaker v. Williams, 20 lb. 98 ; Maple V. Kussart, 53 Penn. St. 348; Brookman v. Metcalf, 4 Rob. (N. Y.) 568; Hicks v. Cram, 17 Vt. 448-455; Storrs t). Barker, 6 John. Ch, 166; Mar- shall V. Pierce, 12 N. H. 133; Roe v. Je- rome, 18 Conn. 138; Noyes .). Ward, 19 lb. 250.] (o) 2 Camp. 344 ; [Chapman v. Searle, 3 Pick. 38.] (p) 2B. &C. 540. (?) 7 Bing. 339. PART I.] REMEDIES AGAINST THE GOODS. 771 in the common pleas in 1831, the assent of the wharfinger in the latter case being by parol. Tindal C. J. said : " The defendant is estopped by his own admissions, for unless they amount to an estoppel the word may as well be blotted from the law." (g^) The rule has since been applied in very many cases, among which may be cited Gillett v. Hill, (r) Holl v. Griffin, («) Lucas v. Dor- rien, (<) and Woodley v. Coventry ; (m) and it was recognized in Swanwick v. Sothern, (2;) in the elaborate judgment delivered by Blackburn J. in the queen's bench, in Biddle v. Bond, (2/) and in Knights V. Wi£Een. (z) {q^) [It has been held in Nova Scotia, liability of that where a warehouseman ™™';°'?'" receives the delivery order of man to ven- .' dee. a vendor, and keeps it for over a month in his possession without notifying the vendee who sent the order to him that the property is not the prop- erty of the party by whom the order was made, he is liable to the vendee for the goods mentioned in such order. Twining V. Oxley, 2 Thompson, 18 ; Davis v. Browne, 9 U. C. Q. B. 193; Holton u. Sanson, 11 U. C. C. P. 606; Hegau u. The Fredericton Boom Co. 2 Pugsley & Barbridge (N. B.), 165.] (r) 2 C. & M. 536. (s) 10 Bing. 246. {t) 7 Taunt. 278. (u) 2 H. & C. 164, and 32 L. J. Ex. 187. (x) 9 Ad. & E. 895. (y) 6 B. & S. 225, and 34 L. J. Q. B. 137. See the same principle applied in other cases ; as in delivering certificates of shares. In re Bahia & San Francisco Ry. Co. L. R. 3 Q. B. 584 ; Hart v. Frontino Gold Mining Co. L. R. 5 Ex. Ill ; or in issue of debentures, Webb u. Heme Bay Commiss'rs, L. R. 5 Q. B. 642. (z) L. R. 5 Q. B. 660 ; ante, § 778. CHAPTER in. BEMEDIES AGAINST THE GOODS. — EESALE. Section May vendor resell if buyer continues lndefault.1 782 Law as stated in Blackburn on Sales 782 Review of authorities . . . 783 Right cannot exist after tender of price by buyer .... 783 Nor before buyer's default . . . 783 Purchaser in default cannot maintain trover . .... 785 A resale in pursuance of right re- served by the terms of original sale is a rescission of the sale . . 787 A buyer's rights different when resale is made under express reservation of that power and when there has been no such reservation . .787 Section Modern cases decide that vendor has no right of resale on buyer's de- fault, and is always liable for at least nominal damages . . . 787 Law in America is different on this point .... 788 Where unpaid vendor tortiously re- takes goods sold after delivery . 789 Where vendor tortiously resells before delivery 792 Damage in trover not always the full value of the goods converted . . 793 Summary of the rules of law on re- sale by vendor . . . .79* May ven- dor resell if buyer continues in default ? § 782. We have seen that the vendor has no right to rescind the sale when the buyer is in default for the payment of the price, (a) and this suggests at once other important questions. What is a vendor to do if the buyer, after notice to take the goods and pay the price, remains in default ? Must he keep them until he can obtain judgment against the buyer and sell them on execution ? What if the goods are perishable, like a cargo of fruit ; or expensive to keep, as cattle or horses ? May the vendor resell ? And if so, under what circum- stances and with what legal effect ? Before attempting to give an answer to these questions, let us see how the law stood when Blackburn on Sales was published, in 1845. The following is the Law as statement of the learned author : " Assuming therefore Bkckbura what seems pretty well established, that the vendor's rights exceed a lien, and are greater than can be attrib- (a) Ante, § 764. on Sales. PART I.] REMEDIES AGAINST THE GOODS. — RESALE. 773 uted to the assent of the purchaser under the contract of sale, the question arises, how much greater than a li-en are they ? and this is a question that iii the present state of the law no one will ven- ture to answer positively, but, as has already been said, the better opinion seems to be that in no case do they amount to a complete resumption of the right of. property, or in other words, to a right to rescind the contract af sale, but perhaps come nearer to the rights of a pawnee with a power of sale, than to any other common law rights. At all events, it seems that a resale by the vendor, while the purchaser continues in default, is not so wrongful as to au- thorize the purchaser to consider the contract rescinded, so as to entitle him to recover back any deposit of the price, or to resist paying any balance of it still due ; nor yet so tortious as to de- stroy the vendor's right to retain, and so entitle the purchaser to sue in trover." (5) § 783. There has been a great deal of authority on the point since the publication of Blackburn on Sales, and it will Review of be convenient first to refer succinctly to the decisions E"Jgh°"can'- cited by that learned author. Martindale v. Smith (c) °f°4?ten- may be at once distinguished from all the other cases aer of pries by cited, by the circumstance that the resale in that case buyer, was made after the buyer had tendered the price, a proceeding to which no countenance has been given by any dictum or Nor before any decided case. To the latter case of Chinery v. deffuit. Viall, (c?) to be examined post, the same remark applies, the ven- dor having resold before the buyer was in default. In i,^^^^art Langfort v. Tiler, (e) Holt C. J. ruled, in 1705, that «■ ^iier. " after earnest given, the vendor cannot sell the goods to another without default in the vendee, and therefore if the vendee does not come and pay and take the goods, the vendor ought to go and request him, and then if he does not come and pay, and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." (/) We have already seen that by the law as now settled the agreement (b) Blackburn on Sales, 325. (/) [See Neil v. Cheves, 1 Bailey (S. C), (c) 1 Q. B. 395. 537 ; 2 Kent, 495 ; Girard v. Taggart, 5 (d) 5 H. & N. 288; 29 L. J. Ex. 180. Serg. & R. 19; Dibble u. Corbett, 5 Bosw. (e) 1 Salk. 113, cited by Lord Ellen- (N. Y.) 202; Newhall * '^"^ , sale by the vendor on default of the purchaser rescinds rules or ^ ^ •^ ^ ^ law reia- the original sale, when the right of resale was expressly sales by reserved in the original sale ; (^j) but not in the absence of such express reservation, (g) Secondly. The ven- dor's remedy, after a resale under an express reservation of that right against a purchaser in default, is a special action for dam- ages for the loss of price and expenses of the resale, (r) If the goods fetch a profit on the resale, the buyer derives no benefit from it, except as showing, by way of defence, that his default has caused no damage to the vendor, (s) Thirdly. The vendor's remedy, after a resale made in the absence of an express reser- vation of that right, is assumpsit on the original contract, which was not rescinded by the resale. And in this action he may either recover as damages the actual loss on the resale composed of the difference in price and expenses, (f) or he may refuse to give credit for the proceeds of the resale, and recover that whole price, leaving the buyer to a cross-action for damages for the resale. («) And this rule prevails even in cases where the vendor has tor- (n) L. R, 3 Ex. 299. (,) Lamond v. Dayall, 9 Q. B. 1030. (o) L. R. 1 P. C. App. 127 ; 3 Moore (s) Sugd. on Vendors, 39. P. C. N. S. 499. (() Maclean V.Dunn, 4 Bing. 722; [New- (p) Lamond v. Davall, 9 Q. B. 1030. hall v. Vargas, 15 Maine, 314.] (q) Maclean v. Dunn, 4 Bing. 722 ; (u) Stephens v. Wilkinson, 2 B. & Ad- Stephens V. Wilkinson, 2 B. & Ad. 320; 320, and Page v. Cowasjee, L. R. 1 P. C. Gillard v. Brittan, 8 M. & W. 575 ; Page 127. V. Cowasjee, L. R. 1 P. C. App. 127; 3 Moore P. C. N. S. 499. PAKT I.] REMEDIES AGAINST THE GOODS. — RESALE. 783 tiously retaken' and resold the goods after their delivery to the purchaser, (a;) Fourthly. In the case of resale, a buyer in default cannot maintain trover against the vendor, being deprived by his default of that right of possession without which trover will not lie. (?/) Fifthly. A buyer, even if not in default, has no right to treat the sale as rescinded by reason of the vendor's tortious re- sale ; and cannot get back any part of the price paid, nor refuse to pay the remainder when due. His only remedy is a cross ac- tion in damages. (2) Sixthly. A buyer not in default may main- tain trover against a vendor who has tor tiously resold, and the vendor cannot have the unpaid price deducted from the damages, but must bring his cross-action ; (a) but if the vendor is unable to maintain a cross-action for the price, then the buyer's recov- ery in trover will be limited to the actual damage suffered, namely, the difference between the market value of his goods which have been resold and the unpaid price. (6) Seventhly. An unpaid vendor, with the goods in bis possession, has more than a mere lien on them ; he has a special property analogous to that of a pawnee. But it is a breach of his contract to resell the goods, even on the buyer's default, for which damages may be recovered against him ; but only the actual damage suffered, that is, the difference between the contract price and the market value on the resale ; and if there be no proof of such difference, the re- covery will be for nominal damages only, (c) § 795. Where there has been a resale, the title of the second purchaser depends on the fact whether the first buyer Title of was in default, for if not, we have seen that he may pu™haser maintain trover. The subject was touched on in Gos- °°- ''^^*'^- ling V. Birnie, (cZ) which went off on the point of estoppel, so that nothing was decided on it. (x) Stephens v. "Wilkinson, 2 B. & Ad. (5) Cliinery v. Viall, 5 H. & N. 288 ; 320, and Page v. Cowasjee, L. E. 1 P. C. 29 L. J. Ex. 180. 127. (c) Valpy v. Oakeley, 16 Q. B. 941 ; 20 (y) Milgate v. Kebble, 3 M. & G. 100. L. J. Q. B. 380; Griffiths v. Perry, 1 E. & (2) Martindale v. Smith, 1 Q. B. 395; E. 680 ; 28 L. J. Q. B. 204. [See Ogg v. Stephens v. Wilkinson, 2 B. & Ad. 320 ; Shuter, 1 C. P. Div. 47, cited ante, § 399, Page V, Cowasjee, L. E. 1 P. C. App. 127 ; note {h).] 3 Moore P. C. N. S. 449. (d) 7 Bing. 339. (a) Gillard v. Brittan, 8 M. & W. 575. CHAPTER IV. BEMBDIES AGAINST THE GOODS. — LIEN. Lien defined Extends only to price, not charges, &e Law in America the same May be waived when contract formed Or abandoned afterwards Waived by sale on credit, unless special agreement to contrary Or proof of usage in the particular trade . And parol evidence of this usage ad missible even when the contract is in writing Waived by taking bill of exchange or other security . Abandoned by delivery of the goods to buyer Delivery to divest lien, not same as to satisfy 17th sect, of statute of frauds Where goods are already in posses- sion of the buyer .... Where goods were in possession of bailee of vendor .... Where goods were in possession of vendor at time of sale . Delivery to common carrier divests lien Delivery of part, when delivery of whole Always question of fact as to inten- tion No ease where delivery of what re- mains in vendor's own custody has been held to be effected by previous delivery of part Section . 796 796 796 797 797 797 797 798 798 799 801 802 803 803 804 805 805 806 Section Effect of marking goods, putting them in packages, &c. . . . 807 Buyer may be let into possession as bailee of vendor . . . .807 Conditional delivery . ■. . 808 Transfer of documents of title . 809 Factors acts . . . .809 Legal quays in London act . 811 Sufferance wharves act . .811 Bills of lading act . . . 812 Bills of lading, their nature and effect 813 Delivery orders, their effect . 814 Dock warrants, warehouse war- rants, and certificates . . 815 Law as stated in Blackburn on Sales . . . . . 8l'5 His views confirmed by subse- , quent cases .... 816 Remarks on the opposite con- struction of courts and law-J givers . . . . ".' 816 Factor's transfer of documents of title binds true owner, even when obtained through fraud 819 Warehouseman may demand sur- render of his warrant, promis- ing to deliver goods " on pres- entation," before delivering the goods ...... 821 Bills of lading represent goods even after lading, till replaced by wharf- inger's warrant .... Effect of transferring parts of one set of bills of lading to different persons .... 822 822 PART I.] REMEDIES AGAINST THE GOODS. — LIEN. 785 Section Indorsement and delivery o£ dock warrants and other like documents of title do not divest lien . . 823 Qucere, whether proof of usage to the contrary would avail . . 823 Vendor's lien not lost by delivery on a vessel f. u. b. if he take re- ceipt in his own name . . . 824 Unless the vessel belong to the purchaser of the goods . . 824 Section Lien revives in case of goods sold on credit, if possession remains in vendor at expiration of credit . 825 Tender of price by purchaser divests lien 826 Loss of lien where vendor permits buyer to exercise acts of owner- ship on goods lying on the prem- ises of a third person not bailee of vendor 827 § 796. A LIEN in general may be defined to be a right of re- taining property until a debt due to the person retaining ^iea de it has been satisfied ; (a) and as the rule of law is, that '^°"*'J- (a) Hammonds v. Barclay, 2 East, 235 ; [Shaw C. J. in Arnold v. Delano, 4 Cush. 38; Meany v. Head, 1 Mason, 319 ; Ne- vius o. Schofield, 2 Pugsley v. Burbridge (N. B.), 435. In Arnold v. Delano, 4 Cush. 33, Shaw C. J. said : " There is mani- festly a marked distinction between those acts, which, as between the vendor and vendee upon a contract of sale, go to make a constructive delivery, and to vest the property in the vendee, and that actual delivery by the vendor to the vendee which puts an end to the right of the vendor to lien, nat- hold the goods as security for ""■^"f- the price. When goods are sold, and there is no stipulation for credit or time allowed for payment, the vendor has by the common law a lien for the price ; in other words, he is not bound actually to part with the possession of the goods without being paid for them. The term lien imports that by the contract of sale and a formal symbolical, or constructive delivery, the property has vested in the vendee, because no man can have alien on his own goods. The very definition of lien is a right to hold goods, the property of another, in security for some debt, duty, or other obligation. If the holder is the owner, the right to retain is a right inci- dent to the right of property ; if he have had a lien, it is merged in the general property. A lien for the price is incident to the contract of sale, when there is no stipulation therein to the contrary, be- 50 cause a man is not required to part with his goods until he is paid for them. But conventio legem vincet; and wheu a, credit is given by agreement, the vendee has a right to the custody and actual posses- sion on a promise to pay at a future time. He may then take the goods away, and into his own actual possession; and if he does so, the lien of the vendor is gone, it being a right incident to the possession. But the law in holding that a vendor, who has thus given credit for goods, waives his lien for the price, does so on one implied condition, which is, that the vendee shall keep his credit good. If, therefore, before payment the vendee become bankrupt or insolvent, and the vendor still retains the custody of the goods, or any part of them, or if the goods are in the hands of a car- rier or middleman, on their way to the vendee, and have not yet got into his actual possession, and the vendor, before they do so, can regain his actual posses- sion by a stoppage in transitu, then his lien is restored and he may hold the goods as security for the price." In Douglas v. Shumway, 13 Gray, 498, Bigelow J. said : " The evidence offered in support of the defendant's claim to a lien as vendor of the wood was rightly rejected. The con- tract of sale contemplated that the ven- dee should expend labor and money in felling the trees and preparing the wood for market, and the case finds change of that the wood had been cut character of 786 BREACH OF THE CONTRACT. [BOOK V. in a sale of goods, where nothing is specified as to delivery or pay- ment, the vendor has the right to retain the goodfe until payment of the price, (5) he has in all cases at least a lien, unless he has waived it. But this lien extends only to the price. If only to by reason of the vendee's default the goods are kept in price, not •' . n • i • to charges, warehouse, or other charges are incurred m detaunng them, the lien does not extend to such claim, and the The Brit- vendor's rem.edy, if any, is personal against the buyer. Shipping"* In Somes V. The British Empire Shipping Company, (c) Company, ^j. ^^^ held, by the unanimous judgment of the queen's bench, the exchequer chamber, and the House of Lords, that a shipwright who kept a ship in his dock after repairing her, in order to preserve his lien, had no claim at all for dock charges against the owner of the ship for the time that elapsed between the comple- tion of the repairs and the delivery of the ship, notwithstanding the owner's default in payment. Cockburn C. J. in Cam. Scacc. (d~) said: " It is not for us sitting here judicially to attach to the right of lien which a vendoi' or bailee has in certain cases a new right, which it is now sought to enforce for the first time." In the House of Lords, Lord Wensleydale said : " The first point is, whether if a person who has a lien on any chattel chooses to keep it for the purpose of enforcing his lien, he can make any claim against the proprietor of that chattel for so keeping it I am clearly of opinion that no person has by law a right to add to his lien upon a chattel, a charge for keeping it till the debt is paid ; that is in truth a charge for keeping it for his own benefit, not for the benefit of the person whose chattel is in his possession." Lord Cranworth, who concurred, said, however, that he gave no property ty by the vendee, and a portion (6) Miles v, Gorton, 2 C. & M. 504; fectsof. thereof sold by him and [Clarlc .;. Draper, 19 N. H. 419, 421; hauled off the land. We think these facts Barr v. Logan, 5 Barring. 52 ; Wilde J. are inconsistent with an existing right of in Parks v. Hall, 2 Pick. 212; Barrett v. lien in the vendor for the purchase-money. I'ritcliard, lb. 515 ; Cornwall (/ Haight, We know of no case where such a right 8 Barb. 328 ; Bowen v. Burk, 13 Penn. has been recognized after the vendee has, St. 146; Milliken v. Warren, 57 Maine, at his own expense, in pursuance of the 46 ; Carlisle v. Kinney, 66 Barb. 363.] contract of sale, changed the character of (c) E., B. & E. 353 ; 27 L. J. Q. B. the property, and by his own labor and 397 ; in Cam. Scacc. E., B. & E. 367 ; money added to its value. By these acts 28 L. J. Q. B. 220 ; in Dom. Proc. 8'H. the vendor must be deemed to have parted L. Cas. 338 ; 30 L. J. Q. B. 229. with his possession and control of the (d) 28 L. J. Q. B. 221. property."] PART I.] REMEDIES AGAINST THK GOODS. — LIEN. 787 opinion " as to what would have been the right of Messrs. Somes, if they had claimed no lien, but had said to the owners of the ship, when the repairs were completed, ' Your ship is fit to be taken away ; it encumbers our dock, and you must take it away immediately.' If after that the ship-owners had not taken it away but had left it an unreasonable time, namely, twenty-seven days, occupying the dock, neither the court of queen's bench, nor the court of exchequer chamber, has expressed an opinion as to whether there might not have been, by natural inference, an obli- gation on the part of the owners of the ship to pay a reasonable sum for the use of the dock, for the time it was so improperly left there, (e) But the short question is only this, whether Messrs. Somes, retaining the ship, not for the benefit of the owners of the ship, hut for their own benefit, in order the better to enforce the payment of their demand, could then sajs ' We will add our de- mand for the use of the dock during that time to our lien for the repairs.' The two courts held, and I think correctly held, that they had no such right." In the case of Crommelin v. j^ f^^^^_ The New York & Harlem R. Co., (/) the court of ap- '<=*• peals of New York held, in like manner, that a railway f .^^j^^^'J company had no lien for a claim in respect of the delay ^°*^^ ^ of a consignee in taking away goods, which therefore Co. remained in their cars for a considerable time ; that the hen was for freight only, and the claim for demurrage was only personal, and could not be enforced by a detection of the goods. § 797. The vendor's lien may of course be waived expressly. It may also be waived by implication at the time of the ^''^^^yli formation of the contract, when the terms show that it when con- 111 • tract IS was not contemplated that the vendor should retain pos- formed, session till payment ; and it may be abandoned during o^^^^an-^^ the performance of the contract, by the vendor's actually terwards. parting with the goods before payment. (/^ The lien is waived by examination, when time is given for payment, and Lien nothing is said as to delivery ; in other words, when goods ™™^ ""^ are sold on credit. (^) It is of course competent for the <='^''" "P- other are the interpretations put on these documents by structior the courts and the law-givers. In the decided cases be- and™aw-' tween vendor and vendee the judges construe these doc- S'vers. uments as mere " tokens of authority to receive possession ; " as mere " offers " by the warehouseman to hold the goods for an indorsee of the warrant, inchoate and incomplete, till the vendee has obtained the warehouseman's assent to attorn to him. § 817. The legislature, on the other hand, bases its enactments on the assumption that " dock warrants, warehouse keeper's cer- tificates, warrants, or orders for the delivery of goods," are " in- struments used in the ordinary course of business as proof of the possession or control of goods" and as "authorizing the possessor of such document to transfer goods thereby represented " (4th sec- tion of factors act) ; and on the further assumption that a wharf- inger's warrant for the delivery of goods is equivalent in effect to an accepted delivery order. (Legal quays act, and sufferance wharves act.) In a word, the legislature deals with these docu- ments, in the acts above referred to, as symbols of the goods. It is no matter for surprise, when the ratio decidendi of the courts on the one hand, and the ratio legis ferendce of the legislature on the other, are so much at variance in regard to the meaning of these instruments, that the law should be in an anomalous and unsatisfactory state. It is perhaps to be regretted that the courts did not give to these papers originally the same meaning as the law-giver attached to them ; a meaning which might have been given without doing violence to their language. No doubt a ware- houseman or wharfinger in possession of goods is the bailee of the owner alone from whom he received them, and cannot be forced to become the bailee of any one else without his own consent. But what is there in the law to prevent this assent from being given in advance ? (p) or to prohibit the bailee from giving au- (o) [See 1 Chitty Contr. (11th Am. ed.) and Wood v. Manley, cited ante, § 679, in 555, and note {y) and cases cited.] the former of which cases Tindal C. J. ip) See the cases of Salter v. Woollams said that Jackson had, in advance, " at- torned to the sale." 806 BREACH OF THE CONTRACT. [BOOK V. thority to the owner of the goods to assent in the bailee's behalf to a change in the bailment? If a warehouseman give a written paper to the owner, saying, " I hold ten hogsheads of sugar be- longing to you. I authorize you to assent in my behalf that I will be bailee of any one else to whom you may sell these goods, and your indorsement on this paper shall be accepted by me as full proof that you have given this assent for me, and shall be taken as my assent ; " it is submitted that there is no principle of law which would prevent this paper from taking effect according to its import. But, in truth, special juries of London merchants have repeatedlj'' volunteered statements that this is what they un- derstand the paper to mean ; that it is not a mere offer or token of authority to receive jjossession, but is meant by the parties to be an actual transfer of possession. In Lucas v. Dorrien (7 Taunt. 278), Dallas C. J. said, in relation to a West India Dock war- rant, " I have been several times stopped by a special jury, they being satisfied that the goods pass from hand to hand by the in- dorsement of these instruments. All special juries cry out with one voice that the practice is that the produce lodged in the docks is transferred by indorsing over the certificates and dock war- rants." And at nisi prius it was directly decided by Park J. in one case, (q') and by Dallas C. J. in another, (r) that such was the true construction of these mercantile " documents of title." But the law is now settled in opposition to this construction, for the cases above referred to and others were all before the court when Farina v. Home was decided, and were reviewed by the learned author of the Treatise on Sales, when he reached the con- clusion above quoted. The reader's attention must therefore be directed to the subsequent decisions, and to the anomalous results that follow from them ; results for which the judges, in the recent case of Puentes v. Montis, (s) declared there was now no remedy save further legislation. § 818. By the decision under the factors acts already referred Vendee not ''°' '^^^ ^^ ^^ "°^ Settled that the words "an agent in- inciudedin trusted with goods or documents of title " do not include the terms of the fac- a vendee, because he holds in his own right, and not as agent, (m) The singular anomaly thus exists, that if a iq) Zwinger D. Samuda, 7 Taunt. 265. (u) Jenkyns w. Usborne, 7 M. & G. (?■) Keyser v. Suze, Gow, 58. 678; Van Casteel v. Booker, 2 Ex. 691 ; (s) L. K. 3 C. P. 268. Fuentes v. Montis, supra, {t) Ante, §§ 19, 20. PART I.] REMEDIES AGAINST THE GOODS. — LIEN. 807 merchant, buying goods and paying the price, receives a transfer of the dock warrant, he will be safe if his vendor is not owner, but only agent of the assignor of the warrant, and will not be safe if the vendor is owner, because the price may remain unpaid to the assignor of the warrant ; and this is the necessary result of the conflicting interpretations put on the dock warrant by the legis- lature and the courts. The original owner is held by the statute to have abandoned his actual possession by giving the document of title to his agent, although he retain ownership and right of possession : he is held by the courts to have retained his actual possession when he gives the document to a purchaser, although he has abandoned both ownership and right of possession. § 819. The safety of the man who buys goods from a. factor is not affected by the fact that the document of title only factor's came into the factor's hands in consequence of his false '™nsfer of ^ document and fraudulent representations to the owner, if it ap- of title , I, . -111. 1 • valid in pear that the owner really intrusted the factor or his favor of agent with the document ; (a) but if a person gets pos- purciiaser, session of a document of title by fraud, without having obtdnfd been intrusted with it as agent of the owner, or as ven- ^y f™ud. dee, he has no title at all, either as principal or agent, and can convey none to anybody else. («/) This was really the point de- cided by the exchequer chamber in Kingsford v. Mer- Ki„gsford 17' (2/) ^ case which created some excitement among the «'• Merry, city merchants, who did not at first understand its true import. § 820. In Baines v. Swainson (s) Blackburn J. first pointed attention to the clause at the end of the 4th section of jj^j^^^ ^ the factors act, " unless the contrary can be shown in Swainson. evidence," and attributed to it the effect of enabling the owner to set aside a sale, if he could succeed in disproving the ostensible in- trusting. This view was deliberately adopted by Willes F^^ntes v. J. in delivering the opinion in Fuentes v. Montis, (a) Montis. which decides the very important point, that a secret revocation of the agent's power will defeat the rights of bond fide pledgees (and it would seem of purchasers), although the goods remained in the hands of the agent. The language of the learned judge is {x) Sheppard v. The Union Bank of 25 L. J. Ex. 166, and in Cam. Scacc. 1 London, 7 H. & N. 661 ; 31 L. J. Ex. H. & N. 503 ; 26 L. J. Ex. 83. 154 ; Baines v. Swainson, 4 B. & S. 270; (z) 4 B. & S. 270 ; 32 L. J. Q. B. 281. 32 L. J. Q. B. 281. (a) L. E. 3 C. P. 268, and in error, (y) Kingsford v. Merry, 11 Ex. 577; L. R. 4 C. P. 93. 808 BREACH OF THE CONTRACT. [BOOK V. as follows : " In the case of an agent for sale, whose general busi- ness it is to sell, intrusted for a purpose other than sale, as, for instance, if he were intrusted upon an advance against the goods, but with directions not to sell, being a mere lender, and upon his pledge of them ; or, if he happen to have a warehouse, though his general business was that of a factor, and not that of a ware- houseman, and on the particular occasion the goods were put in his warehouse at a rent, in both cases he would be a person who, primd facie, would be justified in dealing with goods under the factors act ; and yet there is an express provision with respect to such a person — because one cannot doubt that the judges in the case of Baines v. Swainson were right in so expounding the sec- tion — there is an express provision, as it appeared to them, and as it appears to me, that with respect to such a person, he should only be primd facie in the situation of being able to deal with the principal's goods more generally than the principal had authorized him ; tJiat the princi]?cd, on proving the true nature of the trans- action betiveen them, should he able to rebut the presumption of his enlarged authority under the factors acts, and should be entitled to call for a better account from a third person dealing ivith his goods- without his authority, than that they loere obtained from an agent, and that the factors act applied. That provision is the last in the 4th section of 5 & 6 Vict. c. 39 : ' An agent in possession as afore- said of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith by the owner thereof, unless the contrai-y can be shown in evidence.' I believe that that provision in the 4th section has been applied to that extent in the judgment of my brother Blackburn in the case in 4 B. & S. 285, where he expressed an opinion that it was sufficient for the person making the advance upon the goods to show that the agent who was in apparent possession of them was an agent whose gen- eral business was one that would bring him within the operation of the factors act, and thereby to throw upon the principal the btir- den of proving that, in the particular transaction, with respect to the goods in question, the agent ivas not such agent. I should, therefore, but for that statement, have been rather disposed to read that last clause (the 4th section) as applicable to the cases expressly provided for in the previous act, and say that by this act a factor or agent is held to become intrusted with the posses- sion of documents which he has been enabled to obtain by reason PART I.] REMEDIES AGAINST THE GOODS. — LIEN. 809 of having been intrusted with the possession of other documents which led to the former being obtained, entirely, as it were, as a key to them. But I will not criticise the judgment of my brother Blackburn, and the other judges in that case, but adopt it for the purpose of the present. Here is a case in which an agent whose general business has been within the act, being in possession of goods, is supposed to have pledged them. What is the result ? Is it that the person who dealt with such agent is by reason of his general employment, and by reason of his having been a bond fide agent, the principal being innocent of the transaction, to take ad- vantage of the apparent ownership of the agent in a sale in mar- ket overt, or be entitled to take advantage of the sale, or is it open to after claim or proof, if the principal can make out that there was no real intrusting within the meaning of the act ? Let the act speak for itself. ' An agent in possession as aforesaid of such goods or documents shall be taken, for the purposes of this act, to have been intrusted therewith by the owner thereof, unless the contrary can be shown in evidence.' The inevitable conclu- sion is, that if the contrary be shown in evidence, ' an agent in possession as aforesaid of such goods or documents ' is not to be taken to have been ' intrusted therewith by the owner thereof.' I draw my conclusions from that state of the law of which I have endeavored to give a summary, not dwelling upon the precise lan- guage of the act for the present, but dwelling upon the construc- tion which has been put upon the acts with a view to see whether that construction comes, in reality, to a decision of this case. The conclusion to which the course of decisions compels me to arrive is that expressed by Blackburn J. in the case in 4 B. & S., namely, that the authority given ly the factors acts, quoad third persons, is an authority superadded and accessary to the ordinary authority given hy a principal to his factor ; or to such authority given by the principal to his agent as would fall within the pro- visions of the factors acts. It is not intended by these acts of par- hament to provide a remedy for those hardships which have ac- crued to innocent persons by dealing with people in the apparent ownership of goods as if they were the real owners ; but the in- tention of the legislature was only to deal with cases in which in- nocent persons had been taken in in such dealings ly the agents of the owners of the goods — the agents ' intrusted and in possession.' Much argument was bestowed, and properly, upon those words, 810 BREACH OF THE CONTRACT. [BOOK V. ' intrusted and in possession ; ' but it appears to me that before you can deal with either the state of being ' intrusted,' or the state of being ' in possession,' you must first get hold of your substan- tive, namely, ' agent ' ; the person who is to give the title as against the principal must be an agent, and if he is not an agent he is not a person to whom the provisions of the acts apply." But this decision seems not to have met the approval of Lord Westbury, whose remarks on it in Vickers v. Hertz (6) have been referred to ante, § 20. § 821. The recent cases in which this question has been referred Ware- to, independently of the factors acts, will now be pre- may X-^" sented. It was held, in Bartlett v. Holmes, (c) that a mandsur- delivery order, bv which a warehouseman acknowledged render of '^ " '' "^ his warrant to hold goods deliverable to A., "on the presentation of promising ,.t ii-n ii ??ti i* to deliver this document duly mdorsed by you, did not authorize presenta-°° the indorsee to claim the goods by merely shoiving the /l°"giT-" order, but that he must deliver it up to the warehouse- ingthe \\-\2i,n before, the latter could be required to part with the goods. ^ ^ ^ ^ \ T, .1 .. ffoods. The reasoning of the court in this case would Bartlett j). & o Holmes. seem to cover all " documents of title." The grounds given by Jervis C. J., and concurred in by Williams and Cresswell JJ., were two : 1st. That confidence must be placed by one of the parties in the other, where the article is bulky, and the exchange of the goods for the document cannot possibly be simultanepus. 2dly. That if the party having the goods were to make the deliv- ery before receiving the document, he would expose himself to the Johnson ''**^ '^f ^^^ document'' s being transferred to third persons V. stear. j^ ^ second Sale. In Johnson v. Stear (^d) the action was trover by the assignee of one Gumming, who had pledged goods to defendant by delivering him the dock warrant, with au- thority to sell the goods, if the loan for which they were pledged was not repaid on the 29th January. In the middle of January, Gumming became bankrupt, and the defendant, Stear, sold the goods on the ^8th, and handed over the dock warrant to the ven- dee on the ^9th, and the latter took the goods on the 30th. The court held this a conversion by Stear, the defendant ; Erie C. J. saying, that " by delivering over the dock warrant to the vendee .... he interfered with the right which Gumming had, of tak- (6) L. R. 2 Sc. App. 113. (d) 1.5 C. B. N. S. 330 ; 33 L. J. C. P. (c) 13 C. B. 630 ; 22 L. J. C. P. 182. 130. PART I.] REMEDIES AGAINST THE GOODS. — LIEN. 811 ing possession on the 29th if he repaid the loan, for which purpose the dock warrant would have been an important instrument." Williams J. said : " The handing over of the dock warrant to the vendee, before the time had arrived at which the brandies could be properly sold, according to the terms on which they were pledged, constituted a conversion, inasmuch as it was tantamount to a delivery. Not that the warrant is to be considered in the light of a symbol, but because, according to the doctrines applied in donations mortis causa, it is the means of coming into possession of a thing, which will not admit of corporal delivery." § 822. In 1870 the case of Meyerstein v. Barber (e) was de- cided by the House of Lords, and the point determined bjh ^f lad. excited great interest in the city. The consignee of cer- ggntg^foo^s tain cotton, which arrived on the 31st January, 1865, "/««'' being 1-1 iiTiw landed at entered it at the custom-house, to be landed at a suffer- London ance wharf, with a stop for freight, under the sufferance until re- wharves act ; (/) and the cotton was so landed. On ^harfin-'^ the 4th March, the consignee obtained an advance from serj^s war- the plaintiff on the pledge of the bills of lading, but gave jje^grstein up only two of the bills ; the. plaintiff, who did not know '"• Barber, that the vessel had arrived, believing that the third was in the captain's hands. The consignee fraudulently pledged the third bill on the 6th March to the defendant for advances, and on that day the stop for freight was removed ; and the defendant ob- tained the wharfinger's warrant, and sold the cotton and received the proceeds. The action was for money had and received, and in trover. It was contended on behalf of the defendant, that goods are not represented by bills of lading after they have been landed, and the master has performed his contract ; that the bill of lading ceases to be negotiable after this is done : and upon this contention the case turned. The judges in the lower courts had however held unanimously that the bills of lading continued to represent the goods at the sufferance wharf, until replaced by the wharfinger's warrant; and that the plaintiff was therefore entitled to maintain his verdict. Martin B., in delivering the judgment of the exchequer chamber, said : " For many years past there have been two symbols of property in goods imported : the one the bill (c) L. R. 4 Eng. & Ir. App. 317 ; L. R. (/) Ante, § 811. 2 C. P. 38, 361 ; [Blanchard v. Page, 8 Gray, 281, 298.] 812 BREACH OF THE CONTRACT. [BOOK V. of lading ; the other the wharfinger s certificate or wa7-rant. Until the latter is issued hy the wharfinger, the former remains the onli/ symbol of property in the goods." These dicta, however, which would seem, at least so far as the London quays and sufferance wharves are concerned, to be in opposition to the ruling in Farina V. Home, in relation to the effect of documents of title, must be taken in connection with the fact that Blackburn J., who was a member of the court, is reported to have said, when the passage from the Treatise on Sales, (g~) above quoted (§ 815), was cited in argument: " That was published twenty-two years ago, and I have not changed my opinion." In the House of Lords the judg- ment was also unanimous in affirmance of that given in the ex- Effect of chequer chamber, and it was pointed out that, 1st. The ring^ parts psrson who first gets one bill of lading out of the set of "f bl'i ^"f ^^''^^ (the usual number) gets the property which it rep- lading to resents, and needs do nothing further to assure his title, different . . ° . persons. which is Complete, and to which any subsequent deal- ings with the other bills of the set are subordinate ; (^i) and 2d. That though the ship-owner or wharfinger, if ignorant of the transfer of one bill of the set, may be excused for delivery, so the holder of another bill of the set acquired subsequently, that fact will not affect the legal ownership of the goods as between the holders of the two bills of lading. Indorse- § 823. It Is to be inferred from the foregoing au- deh"very of thorities that by the law as now settled the indorsement rantelnd ^^'^ transfer of a dock warrant, warehouse certificate, other like or other like document of title, by a vendor to a vendee, documents . _ , . . , of title by IS not suoh a delivery of possession as divests the ven- vendee dor s lien. (Ji) Whether this result would be affected by di'vest Men. P^'oo^ of usage in the particular trade, that the delivery (g) Blackhurn on Sales, pp. 297, 298. signee no greater rights than those of the (jii) [In Skillings o. Bollman, 6 Mo. indorser or assignor; but such rights as App. 76, Bakewell J. said : " The person the indorser has in the goods pass with who first gets one bill of lading out of a the bill of lading, and nothing further set of three gets the property it repre- need be done to insure the title of the as- sents, and need do nothing more to se- signee, which is then complete, and to cure his title. It is a symbolical delivery, which any subsequent dealing with the and has the effect of an actual delivery of other bills of the set is subordinate." the property, neither less nor more. Un- Glyn v. East & West India Dock Co. 5 Q. less where the bill of lading is made ne- B. Div. 129.] gotiable by statute, the indorsement and (h) [See per Shaw C. J. in Arnold n. transfer can convey to the indorsee or as- Delano, 4 Cush. 38, 40.] PART I.] REMEDIES AGAINST THE GOODS. — LIEN. 813 of such documents is intended by both parties to con- Q««»-e, stitute a delivery of actual possession, is a point that proof'of does not seem to have arisen since the decision in Fa- tw'^^^ '° til 6 CO n^ rina v. Home, and may perhaps be deemed still an open ''"^ ^ would question. avail. § 823 a. [In Gunn v. Bolckow, L. R. 10 Ch. App. 491, the Aberdare Iron Company entered into a contract with Bolckow for the manufacture of 2,000 tons of rails. The Bolckow. contract contained the following stipulation : " Payment to be made by buyer's acceptance of seller's draft at six months' date against inspector's certificate of approval and wharfinger's certifi- cate of each 500 tons being stacked ready for shipment." Under this contract Bolckow commenced to manufacture iron rails, which when made were approved and stacked at the works of Bolckow, and the wharfinger's certificates, with the certificates of the inspec- tor attached, of each 500 tons ready for shipment, were given at different dates in November and January. The wharfinger's cer- tificate was as follows : " I hereby certify that there are lying at the works of Messrs. Bolckow 500 tons of iron rails which are ready for shipment, and which have been rolled under contract dated November 20, 1874 W. Roe, wharfinger." These certificates, with the inspector's certificate attached, were, as they were signed, delivered to the Aberdare Co. in exchange for ac- ceptances by the company of drafts by Bolckow at six months, date. In February, 1875, the Aberdare Company entered into an agreement with one Jones that he should advance them 21,000Z., and signed a memorandum as follows : " It having been arranged to-day that you advance us 21,000L against warrants of about 3,000 tons of Russian rails, .... by your accepting our drafts with about four months to run, we herewith inclose warrants dated 28th Dec, 4th and 26th Jany., with inspector's certificate at- tached, and our drafts as follows," &c. With this memorandum the Aberdare Company handed to Jones three of the wharfinger's certificates of the rails which were referred to as warrants, and Jones accepted the drafts. Jones died on the 15th of March, 1875, and the plaintiff in the suit was his administrator. On the 22d of May the plaintiff notified Bolckow that he claimed a lien on the iron rails for which he held warrants issued by him. Bolckow replied that he had issued no warrants and he should not recognize the plaintiff's claim. On the fifth of June, the Aberdare Com- 814 BREACH OF THE CONTRACT. [BOOK V. pany filed a liquidation petition. Two of the bills accepted by them had become due and had been dishonored. The plaintiff in his bill claimed a lien on the rails mentioned in the certificates, and prajred an injunction to restrain Bolckow from parting with the rails without first satisfying his lien. Sir G. Mellish L. J. said: " The next point is as to the wharfinger's certificate. It is perfectly plain upon the contract, and on reading the certificate, what the certificate is It professes simply to be what it is, a certificate that those tons are ready for shipment. It is merely a security to the buyer that such things are actually there The wharfinger certifies that those rails have been actually brought down, and are actually ready for shipment. It is utterly impos- sible, in my opinion, to make that out to be a document of title. A document of title is something which represents the goods, and from which either immediately or at some future time the posses- sion of the goods may be obtained It is perfectly plain that the certificate was never intended to represent the goods, and the goods could never have been obtained by it, because by the contract and by the certificate itself the goods were to be shipped for Cronstadt and were to be delivered at Cronstadt Then it is said there is a custom of trade to treat these certificates as warrants. That these certificates are often pledged, and that as between the party who pledges them and the party who advances money they would be evidence of an equitable charge, is, I think, very probable. The iron trade we know is a very speculative trade. I dare say those who are engaged in it raise money in that way. If the custom were proved, I cannot understand how any practice of raising money in that way can affect the vendor's right. The vendor having agreed by his contract that he would give the wharfinger's certificate in order that the purchaser may have evi- dence that the goods have been actually made, and now are act- ually ready to be shipped, cannot help giving the certificate, and how the fact of his giving that certificate, which does not profess to be negotiable, and does not profess to require the delivery of the goods to order or to bearer, can affect his lien as vendor, merely because the purchaser chooses to borrow money on the faith of it, I am at a loss to conceive."] Vendor's § ^24. The vendor's lien is not lost by sending goods lol" by'de- °^^ board of a vessel in accordance with the buyer's in- livering structions, eveu though by the contract the goods are I'ART I.] REMEDIES AGAINST THE GOODS. — LIEN. 815 to be delivered free on board to the buyer, if the ven- b. on a dor on delivering the goods takes (i) or demands (^) LkfrJ-''^ a receipt for them in his own name, for this is evidence P^'P' '° ■*■ ' nis owa that he has not yet parted with his control ; the posses- i'^'"^; sion of the receipt entitles him to the bill of lading; and the goods, represented by their symbol the bill of lading, are still in his possession, which can only be divested by his parting with the bill of lading. But if the vessel belonged to vessel be- the purchaser, the delivery would be complete under the%r-° such circumstances, and the lien lost. Q) chaser. § 825. When goods have been sold on credit, and the purchaser permits them to remain in the vendor's possession till Lienre- the credit has expired, the vendor's lien, which was ^'ivesin . , case of waived by the grant of credit, revives upon the expira- goods sold tion of the term, even though the buyer may not be in- solvent. The point was directly decided at nisi prius by Bayley J. in New v. Swain, (m) and by Littledale J. in expiration Bunney v. Poyntz, (w) and has ever since been treated °' credit. as settled law, though there has been no case decided in banc. Among the numerous dicta where the law is assumed to be un- doubted on this point are those of Lord Campbell, aiite, § 776 ; of Parke B. in Dixon v. Yates (o) of the court, in Martindale v. Smith, (^) of the barons of the exchequer, in Castle v. Swor- der, (g') and in Miles v. Gorton ; (r) and of the judges of the queen's bench, in Valpy v. Oakeley. (s) § 826. As the vendor's lien is a right granted to him by law solely for the purpose of enabling him to obtain payment Tender of of the price, it follows that a tender of the price puts an veste alien. end to the lien, even if the vendor decline to receive the money ; and this was the decision in Martindale v. Smith, (t) § 827. Where the vendor allows the purchaser to mark, or spend money upon the goods sold, which are lying at a j(°^^°l^^.^ public wharf, or on the premises of a third person, 7iot goods are the bailee of the vendor, and to take away part of the premises of sion re- mains in vendor at («') Craven v. Eyder, 6 Taunt. 433. (o) 5 B. & Ad. 341. {k} Ruck V. Hatfield, !> B. & Aid. 632. (p) 1 Q. B. 395. (/) Cowasjee v. Thompson, 5 Moore P. (?) 5 H. & N. 281 ; 29 L. J. Ex. 235 C. C. 165. ()■). 2 C. &M. 510. (m) Danson & L. 193. (s) 16 Q. B. 941 ; 20 L. J. Q. B. 380. (ri) 4B. &Ad. 568. (<) I Q. 13-389. 816 BREACH OF THE CONTRACT. [BOOK V. a third per- goods, this is SO complete a delivery of possession as to baUee'of divest the lien, although the vendor might, under the vendor. game circumstances, have had the right to retain the goods, if they had been on his own premises, (m) (u) Tansley v. Turner, 2 Bing. N. C. L. J. Ex. 161 ; [See French u. Freeman, 151; Cooper v. Bill, 3 H. & C. 722; 34 43 Vt. 93, 97.] CHAPTER V. BEMEDIES AGAINST THE GOODS. — STOPPAGE TS TKANSITXT. Section A right which arises on the insolvency of buyer 828 History is given by Lord Abinger . 829 SECTION 1. — WHO MAT EXERCISE THE KIOHT ■? Persons in position of vendors . Consignor who has bought with his own money or credit Agent of vendor to whom bill of lad- ing is transferred .... Vendor of an interest in an executory contract . . .... May surety exercise the right by vir- tue of the 5th section of mercantile law amendment act f Persons possessing liens other than that of vendor not entitled to this remedy Principal consigning goods may exer- cise right, even though factor has made advances on the goods or has a joint interest in them . When agents without authority stop goods, subsequent ratification too late after transitus has ended . But not when letter of ratification was written before transit ended, although not reaching agent till after the transit had ended Vendor's right not impaired by par- tial receipt of price Nor by conditional payment But the right is gone if he has re- ceived securities in absolute pay ment . . . . ■ Consignor may stop goods although an account current is running with 52 830 830 830 831 831 832 833 833 834 835 835 835 Section consignee and the balance is un- certain . Consignor who ships goods in pay- ment of unmatured acceptances can- not stop in transitu on the insol- vency of consignee — Qucere? Vertue v. Jewell questioned Vendor's right of stoppage is para mount to the carrier's lien for gen eral balance .... And to the claim of an attaching creditor . . . , And in certain cases to demand for freight 835 835 835 836 836 836 SECTION II. — AGAINST WHOM MAT IT BE EXERCISED? Only against an insolvent buyer . 837 Meaning of "insolvency " . . . 837 Vendor stops at his peril in advance of buyer's insolvency . . . 838 SECTION III. — M'lIEN DOES THE TRAN- SITUS BEGIN ; AND END ? Duration of the transitus . . . 839 General principles as stated by Parke B. in James v. Griffin . . . 840 Goods may be stopped as long as they remain in possession of carrier — qud, carrier .... 841 But delivery of goods to buyer's ser- vant on his own cart or vessel puts an end to transit . • .841 Vendor may restrain the effect of de- livering goods on the buyer's own vessel by the terms of the bill of lading 842 And it makes no difference whether 818 BREACH OF THE CONTRACT. [book V. Section the vessel was sent by the buyer ex- pressly for the goods or not When a vessel chartered by the buyer is to be considered his own vessel . Eight does not extend to insurance money due to purchaser Before bill of lading taken vendor re- serves his lien by taking ship's re- ceipts for the goods in his own name, so as to entitle himself to the bill of lading .... But not if the vessel were the pur- chaser's own vessel and nothing were contained in the receipts to show that vendor reserved his rights Goods are still in transit while lying in a warehouse if at an intermedi- ate point in the transit . Test question for determining whether transit is ended Cases selected as examples of transit ended Cases selected as illustrations of tran- sit not ended Cases in which goods are at destina- tion, but still in hands of carrier, or carrier's agent Both buyer and carrier must agree before carrier ceases to possess qua carrier, and becomes bailee to keep the goods for the buyer . Carrier may be converted into bailee to keep goods for buyer while re- taining his own lien Buyer may anticipate end of transitus, and thus put an end to right of stoppage Buyer's right of possession not af- fected by the carrier's tortious re- fusal to deliver goods, and the right of stoppage is ended though goods remain iu carrier's custody Vendor's right of stoppage not ended by arrival of the goods at ultimate destination till buyer takes posses- sion What is such possession 1 . Whether delivery of part amounts to delivery of the whole . . .857 842 843 . 844 845 845 846 846 847 848 849 849 853 854 855 856 856 Section Delivery of goods into buyer's ware- house after his bankruptcy or de- livery to his assignees defeats the right 858 Buyer, on becoming insolvent, may agree to rescind the sale while the goods are still liable to stoppage . 858 Or may refuse to take possession in order to leave them liable to stop- page .... 858 SECTION IT. — HOW IS THE EIGHT EXERCISED 1 No particular mode of stoppage re- quired . .... 859 Usually effected by simple notice to carrier forbidding delivery to ven- dee 859 The notice must be given to the per- son in possession . . . 860 Or to the employer in time to enable him to send notice to his servant not to deliver . 860 Vendor need not inform master of vessel that the bill of lading is still in possession of the buyer . . 861 blaster's duty is to deliver goods to vendor, not simply to retain them till conflicting claims have been set- tled 861 Master, as bailee, delivers at his peril, and if indemnity is refused, may file a bill of interpleader in equity . 861 Stoppage must be made in behalf of vendor in assertion of his para- mount right to the goods . . 861 SECTION V. — HOW MAT IT BE DEFEATED 1 Vendor's right defeasible only by transfer of bill of lading to bond fide indorsee for value . . 862 By common law, consignee could only defeat vendor's rights by resale of the goods . . . . 863 But now, by factors acts, by pledge also . . . .863 The transfer of the bill of lading is now an assignment of the contract 863 Bill of lading not negotiable like a bill of exchange . . . .864 PART I.J STOPPAGE IN TRANSITU. 819 Section Transferee has no better title than the indorser 864 But n bona fide indorsee will hold goods against a vendor ■who has been defrauded into a transfer of the bill of lad- ing ..... 864 Where holder of bill of lading proves that the transfer to him was for value, this is prima facie proof of ownership of goods, without show- ing that prior indorsemeots were meant to transfer ownership . . 864 Where consignor gets back bill of lading pledged for advances, his original rights revive • . . 865 Vendor's right of stoppage exists where vendee has pledged bill of Section lading, for surplus after pledgee is satisfied 865 And he may force pledgee to marshal the assets Transfer of bill of lading defeats ven- dor's rights even where indorsee knows goods are not paid 'for, if transaction is honest But not where transfer is made for an antecedent debt . . 865 866 866 SECTION VI. — WHAT IS THE EFFECT OF A STOPPAGE IN TRANSITU 1 Effect is to restore the goods to ven- dor's possession, not to rescind the sale 867 This is settled by the equity decis- ions 868 § 828. The last remedy which an unpaid vendor has againsb the goods is stoppage in transitu. This is a right which ^^^.^ ^.^^^^ arises solely upon the insolvency of the buyer, and is ^"^^'^t^^ °°'y based on the plain reason of justice and equity that one buyer is man's goods shall not be applied to the payment of another man's debts, (a) If, therefore, after the vendor has de- livered the goods out of his own possession, and put them in the hands of a carrier for delivery to the buyer (6) (which, as we have seen in the preceding chapter, is such a constructive de- livery as divests the vendor's lien) — he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to other people. (Ji) § 829. The history of the law of stoppage in transitu is given (a) Per Lord Northington C. in D'- Aquila V. Lambert, 2 Eden, 77. [The right of the vendor to stop in transitu is, in its nature, adverse to the purchaser. Abbott Ship. (6th Am. ed.) 514; Nay- lor V. Dennie, 8 Pick. 1 98. And the doc- trine on that subject does not apply to a case where the vendor and purchaser are agreed that the property shall be re- claimed ; for it is then a question of re- scission or reconveyance. Ash v. Put- nam, 1 Hill (N. Y.), 302. See post, § 858, note.] (6) [" Stoppage in transitu can only take place where there is a vendor, vendee, and a middleman, such as a carrier. If the goods come Into the actual or con- structive possession of the vendee, the vendor's right over them is gone." Cooper V. Bill, 3 H. & C. 722, 727.] (61) [See Keeler v. Goodwin, 111 Mass. 490, 492.] 820 BREACH OF THE CONTRACT. [BOOK V. very fully by Lord Abinger, in Gibson v. Carruthers, (c) to which History tbe reader is referred. It now prevails almost univer- L'TcTAb- sally among commercial nations, and may best be con- inger. J sidered by dividing the inquiry into the following sec- tions : 1. Who may exei-cise the right ? 2. Against whom may it be exercised ? 3. When does the transit begin ? When does it end ? 4. How is the vendor to exercise the right ? 6. How may the right be defeated when the goods are represented by a bill of lading ? 6. What is the legal effect of the exercise of the right ? SECTION I. — WHO MAY EXERCISE THE EIGHT ? § 830. Stoppage in transitu is so highly favored, on account of Persons in its intrinsic justice, that it has been extended by the slmliar^to courts to quasi-veiidors : to persons in a position similar vendors, as (. ^-^^^ ^f vendors. In Feise v. Wray (c^) Lord Ellen- consignors, j \ y &c. may borough and the other judges of the king's bench held Consignor *'^® right to exist in favor of a consignor who had who has bought goods, on account and by order of his principal, with his on the factor's own credit, in a foreign port, and had own money . or credit, shipped the goods to London, drawing bills on tlie mer- chant here, who had ordered the goods and become bankrupt dur- ing the transit. The bankrupt's assignee contended that the fac- tor was but an agent with a lien ; but the court held that he might be considered as a vendor who had first bought the goods, and then sold them to his correspondent at cost, plus his commission. Agent of '^'^^ principle of this case has been recognized in numer- vendorto ous subsequent decisions, (e) The transfer of the bill whom the ^ ^ ^ latter has of ladiuec bv the vendor to his aeent vests a sufficient indorsed . , ^^ . ° the bill of special property m the latter to entitle him to stop in stop"m"wf transitu in his own name. This was held to be the law, own name. ^^^^ ^^^^^^ ^.j^^ ^^^^ ^f j^^- ^^^ ^^^_ ^y-^ (c) 8M. &W. 337. (/) Morisou o. Gray, 2 Bing. 260; {. Vargas, 13 Maine, Schepeler, 5 Daly (N. Y.), 476.] 93, 103 ; Seymour i.. Newton, 105 Mass. 272, 275.] PART I.] STOPPAGE IN TRANSITU. 821 § 831. The vendor of an interest in an executory agreement may also stop the goods, as if he were owner of them. In Jenkyns v. Usborne (^) the plaintiff was agent of a P inteixst foreign house, which had shipped a cargo of beans to mor" con-" London ; a portion of the cargo had been ordered by stop the''''' Hunter & Co. of London, but only one bill of lading ^°°'^^' had been taken for the whole cargo, and this was given uTborne"" to Hunter & Co., they giving to the plaintiff a letter, acknowl- edging that 1,442 sacks of the beans were his property, together with a delivery order, addressed to the master of the vessel re- questing him to deUver to bearer 1,442 sacks out of the cargo on board. Before the arrival of the vessel, plaintiff sold these 1,442 sacks, on credit, to one Thomas, giving him the letter and deliv- ery order of Hunter & Co. Thomas obtained an advance from the defendant on this delivery order and letter, together with other securities. Thomas stopped payment before the arrival of the vessel, and before paying for the goods, and the plaintiff gave notice to the master, on the arrival of the goods, not to deliver them. Held, that although at the time of the stoppage the prop- erty in the 1,442 sacks had not vested in the plaintiff, but only the right to take them after being separated from the portion of the cargo belonging to Hunter & Co., yet the interest of the plain- tiff in the goods was sufficient to entitle him to exercise the ven- dor's rights of stoppage. It was said by Lord EUenborough, in Siffken v. Wray, (Ji) that a mere surety for the buyer jiay had no right to stop in transitu : but if a surety for an ereTsTthT insolvent buyer should pay the vendor, it would seem "ght? that he would now have the right of stoppage in transitu, if not in his own name, at all events in the name of the vendor, by vir- tue of the provisions of the 5th section of the mercantile law amendment act (19 & 20 Vict. c. 97), which provides that " every person, who being surety for the debt or duty of another, or being hable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall he iff) 7 M. & G. 678; 8 Scott N. B. 505. (h) 6 East, 371. 822 BREACH OF THE CONTRACT. [book V. Parties other hens than that of vendor cannot stop. entitled to stand in the place of the creditor, and to use all the remedies, and if need be, and upon a proper indemnity, to use the name of the creditor in any action or other proceeding at law or in equity, in order to obtain from the principal debtor or any co- surety, co-contractor, or co-debtor, as the case may be, indemnifi- cation for the advances made and loss sustained by the person who shall have so paid such debt or performed such duty," &c. : but no case has yet been presented for decision on this point, (i) § 832. The right of stoppage in transitu does not depend on the fact that the vendor, having had a lien and parted with it, may get it back again if he can stop the goods in transit, but is a right arising out of his relation to the goods, qua vendor, which is greater than a lien. Other persons, therefore, entitled to liens, as factors, (Ic) full- ers (/) who have fulled cloths, have no right to stop in transitu before obtaining or after having lost possession. § 833. A principal consigning goods to a factor has the right of Consignor stojDpage in transitu, on the latter becoming insolvent, CTenTfT' 6ven if the factor have made advances on the faith of factor have the Consignment, (m') or have a ioint interest with the made ad- . & ' V ^ . , consignor, (n) An agent of the vendor may make a stoppage in behalf of his principal, (o) but attempts have been made occasionally by persons who have no authority, and whose acts were subsequently ratified, and the cases establish certain distinctions. Where the stoppage in transitu is effected in behalf of the vendor by one who has at no time had any authority to act for him, a subsequent ratification of the vendor will be too late if made after the transit is ended. In Bird V. Brown (p) the holder of some bills of exchange cv for ven- drawn by the vendor on the purchaser, for the price of vances or have a joint inter- est in the goods. Agent of vendor. §834. Eatifica- tion after stoppa^^e where part3' has never had any agen- Bird V. Brown. the goods, assumed to act in behalf of the vendor in stopping the goods in transitu, and the assignees of the 4 Brown's P. C. (i) The only decisions met with as to the construction of this section are Lock- hart V. Reilly, 1 De G. & J. 464 ; 27 L. J. Ch. 54 ; Batchelor v. Lawrence, 9 C. B. N. S. 543 ; 30 L. J. C. P. 39 ; De Wolf V. Lindsell, L. R. 5 Eq. 209 ; Phillips v. Dickson, 8 C. B. N. S. 391 ; 29 L. J. C. P. 223. (k) Kinloch v. Craig, 3 T. R. 119 ; and in Dom. Proc. lb. 786 ; 47. (I) Sweet V. Pym, 1 East, 4. (m) Kinloch v. Craig, 3 T. R. 119. (n) Newsom v. Thornton, 6 East, 17. (o) Whitehead v. Anderson, 9 M. & W. 518. (p) 4 Ex. 786. PART I.] STOPPAGE IN TRANSITU. 823 bankrupt buyer also demanded the goods. After this demand by the assignee, the vendor adopted and ratified the stoppage made in his behalf by the holder of the bills of exchange, but the court held that the property in the goods had vested in the assignees, by their demand of delivery, and this ownership could not be al- tered retrospectively by the vendor's subsequent ratifica- Ratifica- tion. (^1) But in Hutchings v. Nunes (q} the stoppage ''™ "'•^^^ was made by the defendant, who had previously done giving au- business for the vendor as his agent. The defendant had no° "eLhed written to the vendor, informing him of the insolvency She of the buyer, on the 26 th March, and the vendor, on the toTcu"^ 16th April, inclosed to the defendant a power of attor- Hatchings ney to act for him. The defendant, before receiving "• N^^^s. this power, to wit, on the 21st April, assumed to act for the ven- dor, and effected the stoppage. Held, by the privy council, dis- tinguishing this case from Bird v. Brown, that the power actually dispatched on the 16th April was a sufficient ratification of the agent's act done on the 21st, although the agent was not then aware of the existence of the authority, (r) § 835. The vendor's right exists, notwithstanding partial pay- ment of the price ; (s) and it is not lost by his having received conditional payment by bills of exchange or right not other securities, (i) even though he may have negotiated partial the bills so that they are outstanding in third hands, P^^"""^ • unmatured, (u) It has already been shown, however, («) conditLnai that a vendor is not unpaid, if he have taken bills or se- vv^^^t- (?') [Davis V. McWhirter, 40 U. C. Q. B. 598.] (q) 1 Moore P. C. N. S. 243; [Durgy Cement and Umber Company v. O'Brien, 123 Mass. 12.] (r) [In Reynolds v. Boston & Maine Railroad, 43 N. H. 589, Bell C. J. having noticed without disapproval the case of Bird V, Brown, added : " Yet we regard it Stoppage by ^s settled that any agent who "*"'''• has power to act for the con- signor, either generally or for the purposes of the consignment in question, may stop goods in transitu without any authority specially directed to that end, or empower- ing him to adopt that particular measure." Bell V. Moss, 5 Whart. 189; Newhall v. Vargas, 13 Maine, 93.] (s) Hodgson V. Loy, 7 T. R. 440 ; Feise a. Wray, 3 East, 93 ; Edwards u. Brewer, 2 M. & W. 375 ; Van Casteel v. Booker, 2 Ex. 702 ; [Newhall v. Vargas, 13 Maine, 93.] (t) Dixon V. Yates, 5 B. & Ad. 345 ; Eeise v. Wray, supra; Edwards v. Brewer, supra, {u} Feise v. Wray, supra ; Patten u, Thompson, 5 M. & S. 350; Edwards o. Brewer, 2 M. & W. 375 ; Miles v. Gorton, 2 C. & M. 504 ; [Newhall u. Vargas, 13 Maine, 93; Bell v. Moss, 5 Whart. 189; Donath v. Broomhead, 7 Penn. St. 301 ; Hays V. Mouille, 14 lb. 48 ; Stubbs u. Lund, 7 Mass. 453 ; Arnold o. Delano, 4 Cush. 33 ; Lewis v. Mason, 36 U. C. Q. B. 590.] (z) Ante, § 732. 824 BREACH OF THE CONTRACT. [book V. But vendor Qiu'ities in absolute payment. He must, in such cases, who has - . . , . c T . 1 received seek liis remedy on the securities, having no turther right securities , i x \ in absolute on the gOOdS. {i/ ) payment cannot stop. Consignor may stop although the ac- count cur- rent "vvith consignee is unad- justed and balance uncertain. "Wood V. Jones. A con- signor who In Wood V. Jones (a) it was held that the consignor, whose bill drawn against a cargo had been dishonored by an insolvent consignee, was not de- prived of the right of stoppage because he had in his own hands goods belonging to his consignee unaccounted for, and the account current between them had not been adjusted, and the balance was uncertain. But in Ver- tue V. Jewell (a) it was held by Lord Ellenborough, and confirmed by the court in banc, that a consignor who was indebted to the consignee on a balance of accounts, in which were included acceptances of the consignee outstanding and unmatured, and who, under these cir- shlps goods cumstances, shipped a parcel of barley on account of that in payment i-i-i,. i-i of unma- balance, had no right ot stoppage on the insolvency ot ceptances the Consignee, although the acceptances were afterwards ?«"mLS dishonored. Lord Ellenborough said that " the circum- on learning stance of Bloom (the consignor) being indebted to them the int^nl- ^ O ^ o on the balance of accounts divested him of all control over the barley from the moment of the shipment. The non-payment of the bills of exchange cannot be taken into consideration." The court held, in banc, that un- der these circumstances the consignees were to be considered as Vertuev. purchasers for a valuable consideration. The case has questioned, never been overruled, but if correctly reported is very questionable law. Blackburn J. in his Treatise on Sales (p. 220), suggests an explanation, that the position of the consignor was not such as to allow him to be considered as a vendor, and that the case would therefore be an authority for the proposition that the right of stoppage is peculiar to a vendor. But it happens, unfortunately for this explanation, that the report states in express terms that the ground of the decision in banc was, that the consignees " were to be considered the purchasers of the goods for a valuable con- sideration;" a ground which would prove the right of stoppage to exist ; for it had already been held by the same court, in Feise V. Wray, (J) that a vendor's right of stoppage was not taken away by the fact that he had received acceptances for the price of the insol vency of the ac- ceptor — qumre ? Vertue v, Jewell. iy) [Eaton v. Cook, 32 Vt. 58.' z) 7 D. & R. 126. (a) 4 Camp. 31. (6) 3 East, 93. PART I.J STOPPAGE IN TRANSITU. 825 the goods, which were outstanding and unmatured at the time of the stoppage. When this case was pressed on the court p^^^^^ ^_ by the counsel in Patten v. Thompson, (e) Lord Ellen- Thompson. borough did not suggest that it was good law as reported, but said : " / have looked also into that case of Vertue v. Jewell, and find that there the bill of lading was indorsed and sent by the con- signor on account of a balance due from him, including several acceptances then running ; so that it ivas the case of a pledge to cover these acceptances^ There was an interval of only two years between the cases, and this explanation scarcely renders Vertue v. Jewell more intelligible ; for it was recognized as settled law in Patten v. Thompson that a consignor may stop the specific goods on which his consignee has made advances, on learning the con- signee's insolvency ; (c^) and it is very hard to understand how a consignor's right of stoppage can be greater against the very goods on the faith of which an advance has been made to him, than against goods on which the consignee has made no special advance, but which are sent to him to meet unmatured acceptances given in general account ; or why the latter is a pledge, and not the former, (e) § 836. The unpaid vendor's right of stoppage is higher in its nature than a carrier's lien for a general balance, (/) vendor's though not for the special charges on the goods sold : "tgpp"*^ and he may also maintain his claim as paramount to that P"™™' of a creditor of the buyer who has attached the goods lien of car- "^ J „ rier, and to while in transit, by process out of the mayor s court or attach- the City of London. (^) In the case of The Mercantile '"^%^" "" and Exchange Bank v. Gladstone (A) it was held that And in the consignor's right of stoppage was paramount to a cIsesTo de- demand for freight under the following circumstances, ^^j^'j,/'"' The goods were ordered by Fernie & Co. of Liverpool ji^^cantile from the defendant's house in Calcutta, and were shipped and^Ex- on board of Fernie & Go's own vessel, the master sign- Bank );. . Gladstone. ing bills of lading " freight for the said goods tree on (c) 5 M. & S. 350. (/) Oppenheim „. Russell, 3 B. & P. (d) This had been settled in Kinloch v. 42. Craig, in Dom. Proc. [ante, § 832) 3 T. {g) Smith v. Goss, 1 Camp. 282 ; [Clark R. 786. V. Lynch, 4 Daly (N. Y.), 83.] (e) [See Wood v. Eoach, 1 Yeates, 177 ; (h) L. R. 3 Ex. 233. 2 Dall. 180; Clark v. Mauran, 3 Paige, 373.1 826 BREACH OF THE CONTRACT. [book V. owner's account." This bill of lading was such as the master had authority from the owners to sign, but before it was signed in Calcutta the owners in Liverpool had transferred the vessel with " all the profits and all the losses, as the case might be," though this transfer was unknown to the consignors or to the captain when the bills of lading were signed. It was held, under these circumstances, that the consignor's right of stopping the goods " free of freight " could not be affected by the sale in England, which was unknown to him. Kelly C. B. expressed the opinion also, that the master of a vessel in distant seas retains all the au- thority given to him by the owner who appointed him, notwith- standing an intervening transfer, until such transfer is made known to him ; and on that ground also held that the transferee of the ship was bound by the terms of the bill of lading. SECTION II. — AGAINST "WHOM MAY IT BE EXERCISED ? § 837. The vendor can only exercise this right against an in- solvent or bankrupt buyer. By the word " insolvency " is meant a general inability to pay one's debts ; (i) and of this inability the failure to pay one just and admitted debt would probably be sufficient evidence, (k') And in a number of the cases, the fact that the buyer or con- signee had " stopped payment " has been considered, as Only against bankrupt or insol- vent ven- dee. What is insolvency (i) Parker v. Gossage, 2 C., M. & R. 617 ; Biddlecombe v. Bond, 4 Ad. & E. 3.32 ; [Durgy Cement Co. y. O'Brien, 123 Mass. 12.] (7c) Smith's Merc. Law, note, p. 549 ; [Thompson v. Thompson, 4 Cush. 127, 134 ; Lee u. Kilburn, 3 Gray, 594, 600 ; Herrick v. Borst, 4 Hill, 650 ; Chandler v. Fulton, 10 Texas, 2 ; Benedict v. Schaettle, 12 Ohio St. 515; Blum v. Marks, 21 La. An. 268. The mere issuing of an attach- ment against the vendee is not evidence of insolvency. Gustine u. Phillips, 38 Mich. 674. Insolvency includes not only taking Insolvency 'he benefit of an insolvent law, meaning of. tut also n stoppage of pay- ment, and a failure in one's circumstances, as evidenced by some overt act. Rogers V. Thomas, 20 Conn. 54. In this last ,_, . , cited case it was held that the When insol- vency mast requisite insolvency must oc- °''°™' cur between the time of the sale and the exercise of the right ; that if the insolvency exists at the time of the sale the vendor cannot stop the goods on that ground, although he was ignorant of the fact of insolvency. But this decision is at variance with Benedict v. Schaettle, 12 Ohio St. 515, in which it was held that the vendor may stop the goods upon a subsequent discovery of insolvency existing at the time of the sale, as well as upon a subsequent insolvency, although he could not if he knew it when he ^old. It was disapproved of in Reynolds o. Boston & Maine Railroad, 43 N. H. 589. See, also, Naylor v. Dennie, 8 Pick. 198, 205; Conyers v. Ennis, 2 Mason, 236 ; Buck- ley V. Furniss, 15 Wend. 137; S. C. 17 Wend. 504 ; Biggs u. Barry, 2 Curtis, 259 ; Stevens u. Wheeler, 27 Barb. 663. In the above case of BL-nedict v. Schaettle, 12 Ohio St. 515, 521, Gholson J. said: "If the true principle of the right of PART I.J STOPPAGE IN TRANSITU. 827 a matter of course, to be such an insolvency as justified stoppage in transitu. (J) § 838. If the vendor stop in transitu where the vendee has not yet become insolvent, he does so at his peril. If on the vendor arrival of the goods at destination the vendee is then his'^^Hi insolvent, the premature stoppage will avail for the pro- '" advance tection of the vendor ; but if the vendee remain solvent, insolvency, the vendor would be bound to deliver the goods, with an indem- nification for expenses incurred, (m) In The Tigress, (w) Dr. Lushington, in delivering judgment, said : " Whether the vendee is insolvent may not transpire till afterwards («. e. after the stop- page), when the bill of exchange for the goods becomes due ; for it is, as I conceive, clear law that the right to stop does not re- quire the vendee to have been found insolvent." But this was a case between the vendor and the owners of the vessel, not between vendor and vendee, and will be more fully referred to post. SECTIOK in. — WHEN DOES THE TEANSIT BEGIN : AND END ? § 839. The transit is held to continue from the time the vendor parts with the possession until the purchaser acquires it ; How long that is to say, from the time when the vendor has so far continues. made delivery that his right of retaining the goods and his right of lien, as described in the antecedent chapters, are gone, to the time when the goods have reached the actual possession of the buyer. § 840. And here the reader must be reminded that the vendor's stoppage in transitu be found in that about to complete delivery and abandon certainly just rule of mutual contract, by or lose his proprietary lien, the question which either party may withhold perform- is, can the vendee perform the contract on ance on the other becoming unable to his part ; has he from insolvency become perform on his part, if the foundation of unable to pay the price f "] the rule be a just lien on the goods for the [l) Vertue v. Jewell, 4 Camp. 31 ; New- price, until delivered, an equitable lien som v. Thornton, 6 East, 17; Dixon v. adopted for the purposes of substantial Yates, 5 B. & Ad. 313 ; Bird v. Brown, 4 justice, then it is the ability to perform Ex. 786. And see a discussion by Willes the contract — to pay the price — which J. as to meaning of " insolvency " in The is the material consideration. If there be Queen v. The Saddlers' Co. 10 H. L. Cas. a want of ability, it can make no difference 404, 425. in justice or good sense whether it was (m) Per Lord Stowell, in The Constan- produced by causes, or shown by acts, at tia, 6 Rob. Ad. R. 321. a period before or after the contract of (n) 32 L. J. Adm. 97 sale. Substantially, to the vendor who is 82S BREACH OF THE CONTRACT. [BOOK V. rigbt in the goods is very frequently not ended on their arrival The right at their ultimate destination, because of his having re- existence tained the frojjerty in them. The mode by which the doHia?"" vendor may guard himself against the buyer's insolvency ""ith^titie through the reservation of the jus dispo7iendl of the and right ^j^^e to the goods has been treated ante, book II. ch. vi. of posses- ^ ^ sion and The stoppage in transitu is called into existence for the session. vendor's benefit after the buyer has acquired title, and right of possession, and even constructive possession, but not yet actual possession, (w^) In James v. Grriffin, (^) which was twice General before the exchequer of pleas, Parke B., in giving his principles opinion on the second occasion, thus stated the general by Parke principles: " Of the law on this subject to a certain ex- . tent, and sufficient for the decision of this case, there is James v. ' ' Griffin. ^q doubt. The delivery by the vendor of goods sold to a carrier of any description, either expressly or by implication named by the vendee, and who is to carry on his account, is a constructive delivery to the vendee ; but the vendor has a right if unpaid, and if the vendee be insolvent, to retake the goods, — before they are actually delivered to the vendee, or some one whom he means to be his agent to take possession of and keep the goods for him, — and thereby to replace the vendor in the same situa- tion as if he had not parted with the actual possession The actual delivery to the vendee or his agent, which puts an end to the transitus, or state of passage, may be at the vendee's own warehouse, or at a place which he uses as his own, though be- longing to another, for the deposit of goods ; Scott v. Pettit (3 B. & B. 460) ; Rowe v. Pickford (8 Taunt. 83) ; or at a place where he means the goods to remain, until a fresh destination is commu- nicated to them by orders from himself ; Dixon v. Baldwin (5 East, 175) ; (g) or it may be by the vendee's taking possession by himself or agent at some point short of the original intended place of destination." (r) It is obvious from this clear statement of the law that each case must be determined according to its own fill) [Keeler v. Goodwin, 111 Mass. bell, 30 Penn. St. 234 ; Harris u. Pratt, 490, 492 ; Treadwell u. Aydlett, 9 lieis- 17 N. Y. 249 ; Pottinger v. Hecksher, 2 kell (Tenn.), 388.] Grant, 309 ; Rowley y. Bigelow, 12 Pick. {p) 1 M. & W. 20 ; 2 M. & W. 633. 307 ; Guilford v. Smith, 30 Vt. 49.) (?) [See Sawyer v. Joslin, 20 Vt. 172 ; (r) [See per Morton J. in Mohr v. Bos- Hays V. Mouille, 14 Penn. St. 48 ; Biggs ton & Albany Railroad Co. 106 Mass. 67, V. Barry, 2 Curtis, 259 ; Cabeen w. Camp- 72; cited pos«, § 854, note (s).] PART I.j STOPPAGE IN TRANSITU. 829 circumstances, the inquiry being whether at the time of the stop- page the transit of the goods had or had not determined. An attempt will be made to classify the cases, so as to afford exam- ples of the controversies most frequently arising in the business of merchants. § 841. Goods are liable to stoppage as long as they remain in possession of the carrier, qud carrier (s) (a qualification Goods may to be kept in view, for, as we shall presently see, he MhS"^ may become bailee for the buyer as warehouseman or "^ '=*''"^''' wharfinger, after his duties as carrier have been dis- though charged), and it makes no difference that the carrier has pureLser. been named or appointed by the vendee, (t) But when Goods in the owner sends his own servant for the goods, the de- fheTifye^a livery to the servant is a delivery into the actual posses- ^vessel sion of the master. If, therefore, the buyer send his ?,w„" own cart or his own vessel for the goods, they have reached the buyer's actual possession as soon as the vendor has delivered them into the cart or vessel, (m) § 842. But if the vendor desire to restrain the effect of a de- livery of goods on board the vendee's own vessel, he may do so, by taking bills of lading so expressed as to indi- cate that the delivery is to the master of the vessel as an agent for carriage, not an agent to receive possession for the purchaser. This point was decided in Turner v. Liverpool Docks Trustees, (a;) the facts of which are '^'•'"S' fully reported ante, § 392, and that case was recognized as settled law in Schotsman v. Lancashire & Yorkshire Railway schotsman Company, («/) decided by the full court of chancery ap- peals. Lord Cairns, then lord justice, said: " The Lon- do's was the ship of Cunliffe, and indicated as such for judgment of the court in Bohtlingk v. In- glis, 3 East, 397 ; Berndtson v. Strang, L. R. 4 Eq. 481 ; 36 L. J. Ch. 879. (u) Blackburn on Sales, 242 ; Ogle v. Atkinson, 5 Taunt. 759 ; per Cur. in Tur- ner 0. Liverpool Docks Company, 6 Ex. 543; 20 L. J. Ex. 394; Van Casteel «. Booker, 2 Ex. 691 ; [Carrick v. Atkinson, 5 Allen (N. B.), 515.] (x) See preceding note. (y) L. R. 2 Ch. App. 332 ; 36 L, J. Ch. 361. Vendor may re- strain the effect of delivery on the buyer's vessel by he bill of V. Lanca- shire & Yorkshire Railway Company. (s) Mills V. Ball, 2 B. & P. 457 ; James V. Griffin, 2 M. & W. 633 ; Lickbarrow v. Mason, 1 Sm. L. C. 699, and notes, and the cases on Stoppage, passim ; [Bell C. J. in Reynolds v. Boston & Maine Railroad, 43 N. H. .591 ; Atkins v. Colby, 20 lb. 154; White v. Mitchell, 38 Mich. 390.] (t) Hoist V. Pownall, 1 Esp. 240; Northey v. Field, 2 Esp. 613 ; Hodgson v. Loy, 7 T. R. 440 ; Jackson v. Nicholl, 5 Bing. N. C. 508; per BuUer J. in Ellis v. Hunt, 3 T. R. 466 ; Stokes «. La Riviere, reported by Lawrence J. in giving the 830 BREACH OF THE CONTRACT. [BOOK V. the delivery of the goods. The master was his servant. No spe- cial contract was entered into by the master to carry the goods for or to deliver them to any person other than Cunliffe, the pur- chaser. In point of fact no contract of affreightment was en- tered into, for the person to sue on such a contract would be Cunliffe, in whom was vested the property in the goods, and the person to be sued would be the same Cunliffe as owner of the Londos. The essential feature of a stoppage in transitu., as has been remarked in many of the cases, is that the goods should he at the time in the possession of a middleman, or of some pierson intervening between the vendor who has parted with, and the pur- chaser who has not yet received them. It was suggested here that the master of the ship was a person filling this character, but the master of the ship is the servant of the owner : and if the master would be liable because of the delivery of the goods to hira, the same delivery would be a delivery to the owner, because delivery to the agent is delivery to the principal." Lord Chelmsford G. gave an opinion to the same effect, and pointed out that if the vendor had desired to restrain the effect of the delivery, he should No distinc- have taken a bill of lading with the proper indorsement, effect of ^ ^^ '^'is established in Turner v. Liverpool Docks Trus- buyl"s^ °° *®^^- ^° ^^^ foregoing case it was further held by both ship sent the learned lords, reversing Lord Romilly's iudgment at expressly ° ■ i rv for the the rolls, (z) that there was no difference in the effect on his' gen- of the delivery, whether the buyer's ship was expressly wi'thout^ sent for the goods, or whether it was a general ship be- arrange- longing to the buyer, and the goods were put on board ment. without any previous special arrangement. § 843. Whether a vessel chartered by the buyer is to be consid- vvhere the ^^^^ liis Own ship depends on the nature of the charter- delivery is party. If the charterer is, in the language of the law- on board J. .^ ' t> o ^ a vessel merchant, owner for the voyage, that is, if the ship has chartered , n • , , . -, f , / -, , ^ • hy the been demised to him, and he has employed the captain, so that the captain is his servant, then a delivery on board of such a chartered ship would be a delivery to the buyer ; but if the owner of the vessel has his own captain and men on board, so that the captain is the servant of the owner, and the effect of the charter is merely to secure to the charterer the exclu- sive use and employment of the vessel, then a delivery by the (2) L. R. 1 Eq. 349. PART I.J STOPPAGE IN TRANSITU. 831 vendor of goods on board is not a delivery to the buyer, but to an agent for carriage. It is a pure question of intention in every case, to be determined by the terms of the charter-party, (a) § 844. In Berndtson v. Strang (6) the subject was elaborately discussed, and all the cases reviewed by Lord Hatherley Bemdtson (then vice chancellor). The buyer had sent a vessel «■ Strang. for the goods (the original contract, however, having provided that the seller was to send them on a vessel, delivered f. o. b.), and the vendor took a bill of lading, deliverable to " order or as- signs," and indorsed the bill of lading to the buyer in exchange for the buyer's acceptances for the price. It was held that the effect of taking the bill of lading in that form, from the master of the chartered ship, was to interpose him, as a carrier, between the vendor and the vendee, and to preserve the right of stop- page to the former. The following instructive passages are ex- tracted from the opinion of the learned lord : " Now there are two criteria, as it appears to me, with respect to the stoppage in transitu, viz. whether there is a transitus at all ? and if so, where it is to end ? If a man sends his own ship, and orders the goods to be delivered on board of his own ship, and the contract is to deliver them free on board, then the ship is the place of de- livery, and the transitus is at an end just as much (as was said in Van Casteel v. Booker, 2 Ex. 691) as if the purchaser had sent his own cart, as distinguished from having the goods put into the cart of a carrier. Of course there is no further transitus after the goods are in the purchaser's own cart. There they are at home in the hands of the purchaser, and the whole delivery is at an end. The next thing to be looked to is, whether there is any intermedi- ate person interposed between the vendor and the purchaser. Cases may no doubt arise where the transitus may be at an end, al- though some person may intervene between the period of actual delivery of the goods and the purchaser's acquisition of them. (a) Blackburn on Sales, 242; Fowler 105-108; Ilsley w. Stubbs, 9 Mass. 72, 73 ; V. McTaggart, cited 7 T. E. 442, and 10 Aguirre c. Parmelee, 22 Conn. 473. East, 522 ; Inglis v. Usherwood, 1 Bast, Where the purchaser is owner or charterer 515; Bohtlingk v. Inglis, 3 East, 381. See of the ship, he is entitled to receive pay- the cases collected in Maude & Poll, on ment of the freight and charges on the Shipping, 296-298, 2d ed. ; and a further goods reclaimed, and has a lien on them discussion of the subject in the case of therefor. Newhall v. Vargas, 15 Me. Saudeman v. Scurr, L. R. 2 Q. B. 86; 314.] 36 L. J. Q. B. 58 ; [Stubbs v. Lund, 7 (6) L. E. 4 Eq. 481 ; 36 L. J. Ch. 879. Mass. 453; Newhall v. Vargas, 13 Me. 832 BREACH OF THE CONTRACT. [BOOK V. The purchaser, for instance, may require the goods to be placed on board a ship chartered by himself, and about to sail on a rov- ing voyage. In that case, when the goods are on board the ship, everything is done, for the goods have been put in the place indi- cated by the purchaser, and there is an end of the transitus. (c) But here, where the goods are to be delivered in London, the plaintiff, for greater security, takes the bill of lading in his own name, and being content to part with the property in the goods, subject or not, as the case may be, to this right of stoppage in transitu, he hands over the bill of lading in exchange for the bill of exchange. In that ordinary case of chartering it aj)pears to me that the master is a person interposed between vendor and purchaser, in such a way that the transitus is not at an end, and that the goods will not be parted with, and the consignee will not receive them into his possession until the voyage is termi- nated and the freight paid, according to the arrangement in the charter-party The whole case here appears to me to turn upon whether or not it is the man's own ship that receives the goods, or whether he lias contracted with some one else, qua car- rier, to deliver the goods, so that according to the ordinary rule as laid down in Bohtlingk v. Inglis, 3 East, 381, and continually referred to as settled law upon the subject, the transitus is only at an end when the carrier has arrived at the place of destination and has delivered the goods." (^d) On the appeal in this case (e) Right of ^^ ^*® affirmed on the point argued before the lower stoppage court, but the decree was varied on a new point which does not i extend to had passed sub silentio in that court. The goods were insurance . . ' . . . money due injured m transit, and were also made to contribute to a chaser for general average, and for these two claims the purchaser to anf*^ was entitled to indemnity from underwriters under pol- goods. icies effected by him. The vendor claimed a right of stoppage as to the insurance money thus accruing to the pur- chaser, which had been brought into court, but Lord Cairns C. held the pretension to be utterly untenable. (c) ["Where goods are shipped on Vargas, 13 Me. 105; Noble t'. Adams, 7 board a vessel, appointed by the vendee, Taunt. 59 ; Stubbs v. Lund, 7 Mass. 453; to be transported, not to his residence or Rowley v. Bigelow, 12 Pick. 307.] to be received by him, but to otlier mar- (d) [See Stubbs v. Lund, 7 Mass. 453,] kets, there is a termination of the transit, (e) L. R. 3 Ch. Ap. 639. See, also, and the right of stoppage by the vendor Fraser v. Witt, L. R. 7 Eq. 64. ceases." Weston C. J. in Newhall ;;. PART I.J • STOPPAGE IN TRANSITU. 833 § 845. Before a bill of lading is taken the vendor preserves his lien, and is not driven to the exercise of his right of „,. ° Where stoppage it he has taken or demanded the receipts for ^"idor the goods in his own name: though this state of facts ceipYfor^ is sometimes treated as giving ground for the exercise hi's"oVrf of the right of stoppage. (/) If, however, the vessel notTos't!'" were the purchaser's own vessel, and the receipts con- un,es3 the tained nothing to show that a bill of kding was to be ,^<=^»«ibe- ^ ^ o ^ longed to delivered by which the vendor's control over the goods piirehaser. was to be retained, the principle in Schotsman v. Lancashire & Yorkshire Railway Company (g) would be applied, and the de- hvery would be held complete so as to divest both lien and right of stoppage. (A) § 846. Goods may be still in transit, though lying in a ware- house to which they have been sent by the vendor on Trandtus the purchaser's orders. Goods sold in Manchester to a tin goods merchant in New York may be still in transit while S?imate^"^ lying in a warehouse in Liverpool. The question, and di-^'""!- the sole question, for determining whether the transitu^ r^^^^ is ended, is. In what capacity the goods are held by him ''™ *'"" ''^- i- -i ^ ■) tennining who has the custody ? Is he the buyer's agent to keep whether the goods, or the buyer's agent to forward them to the ended. destination intended at the time the goods were put in transit ? If, in the case supposed, the goods in the Liverpool warehouse are there awaiting shipment to New York, in pursuance of the pur- chaser's original order to send him the goods to New York, they are still in transit, even though the parties in possession in Liver- pool may be the general agents of the New York merchant for selling as well as forwarding goods. But if the buyer ordered his goods to Liverpool only, and they are kept there awaiting his further instructions, they are no longer in transit. They are in his own possession, being in possession of his agent, and may be sold in Liverpool or shipped to the East or disposed of at the will and pleasure of the buyer. And it is well observed in the Trea- tise on Sales, (z) that " it then becomes a question depending upon what was done, and what was the intention with which it was (/) Craven v. Ryder, 6 Taunt. 433; (A) Cowasjee v. Thompson, 5 Moore Ruck V. Hatfield, 5 B. & A. 632. P, C. C. 16.5. ig) L. R. 2 Ch. App. 332 ; 26 L. J. Ch. (i) Blackburn on Sales, 224. 361. 53 834 BEEACH OF THE CONTRACT. ■ [BOOK V. done ; and as the acts are often imperfectly proved, and in them- selves equivocal, and the intention often not clearly known to the parties themselves, it is not surprising that there should be much litigation upon the point ; " and " that the acts accompanying the transport of goods are less equivocal, less susceptible of two inter- pretations as to the character in which they are done, than are those accompanying a deposit of goods. The question, however, is still the same, Has the person who has the custody of the goods got possession as an agent to forward from the vendor to the buyer, or as an agent to hold for the buyer? " (Jc) § 847. A few of the cases offering the most striking illustrations Cases se- '^^ ^^'^ distinction will now be presented. In Leeds v. lecteJ as "Wright (1 ) the London agent of a Paris firm had in examples. o v .' ^ o J- , the jjacker's hands in London goods sent there by the Wright. vendor from Manchester, under the agent's orders ; but it appeared that the goods were, at the agent's discretion, to be sent where he pleased, and not for forwarding to Paris ; and it was Q ,. held that the traiisitus was ended. In Scott v. Pet- Pettit. tit Qni) the goods were sent to the house of the defend- ant, a packer, who received all of the buyer's goods, the buyer having no warehouse of his own ; and there was no ulterior des- tination. Lleld, that the packer's warehouse was the buyer's ware- house, the packer having no agency except to hold the goods sub- Dixon r ^^'^^ ^'^ ^^® buyer's orders. In Dixon v. Baldwin (n) Baldwin. f]^Q facts were, that Battier & Son of London ordered goods of the defendant at Manchester, to be forwarded " to Met- calfe & Co. at Hull, to be shipped for Hamburg as usual ; " the course of dealing of the Battlers being to ship such goods to Ham- burg. Part of the goods were ordered in j\Iarch and part in May, and were sent to Hull as directed. The Battlers became bankrupt in July, and the vendors stopped the goods at Hull, including four bales actually shipped for Hamburg, which were relanded on the vendor's application, they giving an indemnity to Metcalfe. The latter, as witness, said " that at the time of the stoppage he held the goods for the Battlers, and at their disposal ; that he accounted with the Battlers for the charges. The witness described his busi- ness to be merely an cxpeditor agreeable to the directions of the Battlers, — ajStcv/c and tnere instrument between buyer and seller; {k} Blackburn on Sales, 244. (m) 3 B. & P. 469. [l] 3 B. & P. 320. {n) 5 East, 175. PART I.J STOPPAGE IN TRANSITU. 835 that he had no authority to sell the goods, and frequently shipped them without seeing them ; that the bales in question were to re- main at his warehouse for the orders of Battier & Son, and he had no other authority than to forward them ; that at the time the goods were stopped, he was waiting for the orders of the Battlers ; that he had shipped the four bales, expecting to receive such orders, and relanded them because none had arrived." Lord Ellenborough held, on these facts, "that the goods had so far gotten to the end of their journey, that they ivaited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination ; and that without such orders they woidd continue stationary. Lawrence and Le Blanc JJ. con- curred, but Grose J. dissented on this point. In Valpy v. Gib- son, (o) which was a case very similar to the foregoing, y^, „ the goods were ordered of the Manchester vendor, and Gibson, sent to a forwarding house in Liverpool by order of the buyer, to be forwarded to Valparaiso ; but the Liverpool house had no au- thority to forward till receiving orders from the buyer. The buyer ordered the goods to be relanded after they had been put on board, and sent them back to the vendor, with orders to repack them into eight packages instead of four ; and the vendors accepted the in- structions, writing, " We are now repacking them in conformity with your wishes." Held, that the right of stoppage was lost ; that the transitus was at an end ; and that the redelivery to the vendor for a new purpose could give him no lien. See, also, Wentworth v. Outhwaite, (p) Dodson v. Wentworth, {q) Cooper V. Bill, (r) Smith v. Hudson, (s) and Rowe v. Pickford. (t) (o) 4 C. B. 837; [Biggs v. Barry, 2 am unable to come to any other conclusion Curtis, 259, 262; Covell u. Hitchcock, 23 than that it was such a delivery. Under Wend. 611.] the charge of the court the jury must have [p) 10 M. & W. 436. found that all the duties and responsibili- (q) 4 M. & G. 1080. tses of the transportation line, in regard (r) 3 H. & C. 722 ; 34 L. J. Ex. 151. to the goods, had ceased; that no duty or (s) 6 B. & S. 431 ; 34 L. J. Q. B. 145. responsibility was cast upon Chapman, the [t) 8 Taunt. 83. [In Sawyer v. Joslin, wharfinger, by the landing of the goods 20 Vt. 172, 179, Hall J. said : " The ques- on his wharf; that the goods lay on the tion in this case is whether the landing wharf, subject to the control and direction of the goods upon the wharf of no other person than Preston ; and goods "at is to be considered as an act- that they would remain there in that pre- TditytJ^' "''1 o-- constructive delivery cise position until Preston saw fit to re- iogcaaton of them to Preston (the pur- move them. It is difficult to conceive of a ^.harflnger. ^^^^^^^^ ^.^j^.^ ^^^ ^^^^^i^^ „,„,.g effectual delivery of the goods than of the adjudged cases on this subject. I this, short of their coming to the corporal 836 BREACH OF THE CONTRACT. [BOOK V. § 848. Reference will now be made to some of the cases in Q which tlie transitus was considered not at an end, where where ^ijg croods had reached the custody of the buyer's agent, tranattus ° ^ ^ j o ^ was held the agent's duty being merely to forward them. In „ . , ' Smith V. Goss 0') the buyer at Newcastle wrote to the Smith V. . Goss. vendor at Birmingham to send him the goods by way of London or Gainsborougli ; " if they are sent to London, address them to the care of J. W. Goss, with directions to send them by the first vessel for Newcastle." Lord EUenborough said that " the goods were merely at a stage upon their transit ; " and the ven- Coates r dor's right of stoppage remained, (a;) In Coates v. Rail- Eailton. ^^ ^^y^ Q^^ \^ appeared that the course of business was that Railton at Manchester should purchase goods on account of But- ler of London, and forward them to a branch of Butler's house in Lisbon, by whom the goods were ordered through tlie London house ; neither of the Butler firms had any warehouse at Man- chester ; and the vendor was told that the goods were to be sent to Lisbon as on former occasions. The goods were delivered at the warehouse of Railton, who had tliem calendered and made up, and was then to forward them to Liverpool for shipment to Lisbon. Held, that the tranxifns was not ended by the delivery to Railton. Bayley .J. said : " It is a general rule that where goods are sold to be sent to a particular destination named hy the vendee, the right of the vendor to stop them continues until they arrive at that place of destination." After reviewing all the previous cases, the learned judge said : " The principle deduced from tliese cases is, that the transitus is not at nn end until the ijooda hiue reached the Ijlaee nomed hij the buyer to the seller as the plaee of destina- touch of the vendee. The special prop- place to which they were directed by the erty of the carriers had ceased, the wharf- vendor."] inger had nothing to do with the goods, (h) 1 Camp. 282. and unless they are to be considered as (.r) [See Smith Merc. Law (Am. ed. having been in the possession of the ven- 1874), o'rl, 553 ; Walworth Ch. in Covell dee, uo person whatever had any pos- v. Hitchcock, 23 Wend. 613; Bronson J. session of them — they were absolutely in Mottrara u. Heyer, 1 Dcnio, 487; Hays abandoned by all persons. It will not be r. Mouille, 14 Penn. St. 48; Harris o. pretended they had assumed the character Pratt, 17 N. Y. 249 (a case in which this of lost goods. They must therefore have point is much discussed) ; Cabecn d. Camp- come to the possession of Preston. It be- bell, 30 Penn St. 254; Guilford v. Smith, ing the custom of Preston to receive goods 30 Vt. 49.] thus consigned to him on the wharf of {>/] 6 B. & C. 422. Chapman, that must be considered as the PART I.] STOPPAGE IN TRANSITU. 837 tion." (s) In this case it ■will be from the beginning was to buy (z) [See Ex parte Golding Davis & Co. 13 Ch. Div. 628, stated § 848 a, post. See Stoppage in Transitu, 69 Law Times (May8, 1880), p. 21; Treadwell u. Aydlett, 9 Heiskell (Tenn.), 388. See Cabeen v. Campbell, 30 Penn. St. 254; Oovell v. Hitchcock, 23 Wend. 611. Mohr v. Bos- Mobr ti. ton & Albany Railroad Co. Altan" * 1*'^ ^^^^- 67, was an action E. R. Co. of replevin of fifty barrels of whiskey. It appeared that the plaintiffs sold to one Dewey in Boston two hundred and fifty barrels of whiskey, then in a gov- ernment bonded warehouse in Indiana, and Dewey gave his acceptances for the price. The government storekeeper gave his certificate for the whiskey, as the prop- erty of Dewey ; and this certificate was sent by the plaintiffs to Dewey. It was Sale of goods P^""' °^ ''^^ terms of sale that in govern- the plaintiffs should from time ment ware- house; cer- to time, as Dewey should re- siSjper q-^^^'. ^hip the whiskey to Bos- being given ton, and pay the storehouse for gootla a.^ , , ' ■, . property of charges, taxes, and msurance, vendee; Ten- drawing on Dewey for the dor to for- ° _, , . .„ , ward to an- amounts. The plamtifts hav- other place. ;„g shipped most of the whis- key to Dewey in this manner, and having received an order to ship the remaining barrels, being those in controversy, the warehouseman, by the plaintiffs' direction, as had been the practice with the previous shipments, caused the whiskey to be re- gauged in order to ascertain the taxes due, paid the taxes, and drew on the plaintiffs for the amount so paid and the warehouse charges, The whiskey could not be taken out of the warehouse until it was thus re- gauged and the taxes paid. The plaintiffs sent the bill of lading, and also the bill of the warehouseman to Dewey, and drew on him for the amount thereof. The barrels were delivered to a railroad company for transportation to Dewey at Boston. While they were in the hands of Ihe company and on their passage Dewey became insolvent. On the same day the goods arrived at the depot in Boston; and while still at the I'emarked that Railton's agency and forward to Lisbon to the depot were taken on this process. It was held that the plaintiffs' right of stoppage in transitu was not lost. Morton J. said : " The principle is, that the transitus is not at an end until the goods have reached the place contemplated by the contract be- tween the buyer and the seller as the place of their destination. In the case at bar something remained to be done by the vendors, under the contract of sale, before the goods would come into the possession of the vendee at the place of destination. The contract contemplated that they were to forward them to Boston. If the goods had been and remained in their actual pos- session, as vendors, until they forwarded them on the order of Dewey, their right of stoppage in transitu would have been unquestionable. Arnold v. Delano, 4 Cush. 33. The result is the same though they remained stored in a government ware- house, unless the transfer to Dewey upon the records at the warehouse is to be treated as the termination of the transit. But, as we have seen, the terms of the sale provided that the plaintiffs should forward the goods to Boston as tjieir place of desti- nation, and the storage in the warehouse was preliminary to their transit, and not the termination of it. It is no answer to this view to say that there was a construc- tive delivery of the whiskey to Dewey which vested the property in him, and that he bad the right to take possession of it and withdraw it from the warehouse. In all cases of delivery of goods to a com- mon carrier for the purpose of transit, the vendee, acting in good faith, has the right to intercept the goods before they reach their destination, and by taking actual possession of them, to defeat the vendor's lien. But unless he does so, the lien con- tinues till they reach the end of the tran- sit. Dewey did not take possession of these goods at the warehouse, but left them to be forwarded by the plaintiffs under the contract. We arc of opinion, upon the facts of this case, that when the plaintiffs obtained possession of the whis- 838 BREACH OF THE CONTRACT. [BOOK V. vendee ; and the goods were not to be held by him to await or- , , ders, or any otlier disposal of them. So, in Jackson v. Jackson v. ^ ^ ^ Niclioi. Nichol, ((<) where the goods were placed by the vendors, at Newcastle, at tlie disposal of Crawhall, an agent of the buyers, by a delivery order. Crawhall was a general agent of the buy- ers, who had been in the habit of receiving goods for them, and awaiting their orders, but in this particular instance had received instructions to forward the goods to the buyers in London hefore the goods left the vendor's pusxasion ; and on receiving the deliv- ery order he at once indorsed it to a wharfinger, " to go on board the IJ>' '"=- T .11 • T 1 . come agent lien upon tnem tor carriage or other charges is satis- to keep fied. (Z) Nothing prevents an agreement by the master buyei- of a vessel or other carrier to hold the goods after arrival Jli'ning^hig at destination as agent of the buyer, though he may at """^ ''''°- the same time say, " I shall not let you take them till my freight is paid." The question is one of intention ; and in Whitehead v. Anderson (m) the captain vv^as held not to have intended such an agreement by telling the assignee that he would deliver him the cargo when he was satisfied about the freight ; Parke B. saying, "There is no 'proof of such a contract. A promise by the cap- tain to the agent of the assignee is stated, but it is no more than a. promise without a new consideration to fulfil the original con- tract, and deliver in due course to the consignee on' payment of freight, which leaves the captain in the same situation as before. After the agreement he remained a mere agent for expediting the cargo to its original destination." (n) § 854. The question whether the vendee may anticipate the end of the transitus, and thus put an end to the vendor's gayer may right of stoppage in transitu, was treated by most of the anticipate books Co') as settled in the affirmative, on the authority tiie transi- . . fus and of the cases in the note, (^) and in opposition to the thus put an ruling of Lord Kenyon and the king's bench in Hoist li'ghToi ^ V. Pownall. (pi) And in Whitehead v. Anderson, (q) stoppage. in which the judgment was prepared after advisement, Parke B. expressed no doubt upon the subject. He said: "The law is clearly settled that the unpaid vendor has a right to retake the goods before they have arrived at the destination originally con- {l) Allan ... Gripper, 2 Cr. & J. 218; 5 Ham. (Ohio) 89; Wood d. Yeatman, 15 but see Crawshay v. Eades, 1 B. & C. 181 ; B. Mon. 270.] post, § 856. ip) Mills V. Ball, 2 Bos. & P. 457 ; (m) 9 M. & W. 518. Wright v. Lawes, 4 Esp. 82; Oppenheim (n) [See Calahan v. Babcock, 21 Ohio v. Russell, 3 B. & P. 42 ; Jackson v. Nichol, St. 281 ; Guilford v. Smith, 30 Vt. 4S, 71, 5 Bing. N. C. 508; Whitehead v. Andur- 72; Sawyer v. Joslin, 20 lb. 192; Buck- son, 9 M. &W. 518; Foster u. Frampton, ejv. Furniss, 15 Wend. 137.] 6 B. & C. 107; James v. Griffin, 2 M. & (o) 1 Smith's L. C. 755 ; Tudor's L. C. W. 633. [See Secomb v. Nutt, 14 B. Mer Law. 664, 665 ; Houston on Stop, in Mon. 324, 327.] Tran. 130 et seq. ; 1 Grif. & Holmes on (pi) 1 Esp. 240. Bank. 353 ; [2 Kent, 547 ; Jordan v. James, (?) See ante, § 851. 846 BREACH OF THE CONTRACT. [BOOK V. templated by the purchaser, (r) unless in the mean time they came to the actual or constructive possession of the vendee. If the ven- dee take them out of the possession of the carrier, tvith or without the consent of the carrier, there seems to be no doubt that the transit would be at an end, though in the case of the absence of the carrier's consent it may be a wrong to him, for which he would have a right of action." (s) There was, however, no direct de- cision on the point, and it rested on dictn till the recent case of London & The London and North Western Railway Company v. Western Bartlett, (i) in which the exchequer of pleas held that Railway (-[^g carrier and consignee might agree together for the Company o o o o V. Bartlett. delivery of goods at any place they pleased, and Bram- well B. said it would " probably create a laugh anywhere except in a court of law, if it was said a carrier could not deliver to the consignee short of the particular place specified by the consignor." § S.j.'i. In* Blackburn on Sales (k) the learned author does not yield assent to that passage in the opinion of Parke B. above quoted, in which it is intimated that " the vendee can improve his position by a tortious taking of actual possession against the Biivn's will of the carrier," in cases where the carrier has a right possession to refusc to allow the vendee to take possession, (a;) The fectedby doubt thus Suggested seems to be justified by the deci- T"tiousn- ^^'^^^ ^"^ 15ird V. Brown, («/) which is just the converse of fusai to de- ^he case supposed of a tortious taking of possession by liver, and ^ ^ _ o i j the right of the purchaser from the carrier. In that case the carrier at an end. tortiously refused possession to the purchaser when the goods had arrived at destination ; and the exchequer court held, after advisement and in very decided language, that the purchas- er's rights could not be impaired by the carrier's wrongful refusal (r) [See Mohr v. Busicin & Albany their destination, and, by taking actual Eaili'oad Co. 106 Mass. 67 ; Atkins u. possession of them, to defeat the vendor's Colby, 20 N. II. l.'J4, 156 ; Hif^gs v. IJarry, lien." Sec 2 Kent, 547 ; Jordan v. James, 2 Curtis, 259; Cabeen v. Campbell, 30 5 Ohio, S'J ; Wood ti. Yeatman, 15 B. Mon. Penn. St. 254; Covell u. Hitcheoek, 23 270; Dingy Cement Co. v. O'Brien, 123 Wend. 611; Aguirre c. Tarmelee, 22 Mass. 12.] Conn. 473.] (t\ 7 H. & N. 400; 31. L. J. Ex. 92. (s) [In Mohr v. Boston & Albany Rail- («) P. 259. road Co. 106 Mass. 67, 72, Morton J. said : (x) See the civil law texts : Dig. Ulpian, "In all oases of delivery of goods to a com- I. 134, § 1, M. Edict, lib. xxi. ; Broom's mon carrier for the purpose of transit, the Legal Maxims, 275 ; Phill. on Jurisp. 224. vendee, acting in jjood faith, has the right {y) 4 Ex. 786. to intercept the goods before they reach PART I.J STOPPAGE IN TRANSITU. 847 to deliver ; that the transitus was at an end ; and the right of stoppage gone. § 856. Of course the mere arrival of the goods at destination will not sufBce to defeat the vendor's risrhts. The ven- „. , , , ° Right of dee must take actual, if he has not obtained construe- stoppage continues tive, possession. (2) What will amount to taking act- after ar- ual possession is a question in relation to which much of aestination the law already referred to, in connection with actual aee'tak™' receipt, under the statute of frauds, (a) and delivery suf- possession. ficient to divest lien, (b~) will be found applicable. In Whitehead V. Anderson (c) it was held, as we have seen, that going What is on board the vessel and touching the timber was not session?^" taking it into possession ; and per Cur. : " It appears to us very doubtful whether an act of marking, or taking samples, or the like, without any removal from the possession of the carrier, though done with the intention to take possession, would amount to a constructive possession, unless accompanied by such circumstances as to denote that the carrier was intended to keep and assented to keep the goods in the nature of an agent for custody." cr^wshay In Crawshay v. Eades (cZ) the carrier having reached the "■ Eades. consignee's premises began unloading, and put a part of the goods on his wharf, but hearing that the consignee had absconded and was bankrupt, took them back again on board the barge ; and it was held that the right of stoppage remained, and that there had been no delivery of any part of the goods. § 857. Whether delivery of part, when not retracted under the peculiar circumstances shown in Crawshay v. Eades, Delivery of amounts to delivery of the whole, is always a question delivery of of intention, as shown ante, §§ 805 et seq., where the ^n^eTs'^ube cases mentioned in the note (e) have been reviewed ; ^j*"^™ *^' and the general rule was there deduced, that a delivery intended. (s) [See Buckley v. Furniss, 15 Wend, tute delivery to him in any particular case. 137 ; Sawyer v. Joslin, 20 Vt. 172; Hays Seymour v. Newton, 105 Mass. 275.] V. Mouille, 14 Penn. St. 48; Naylor v. (a) Ante, %^ 172 et seq. Dennie, 8 Pick. 198; Allen u. Mercier, 1 (6) Ante, §§ 799 et seq. Ash. 103 ; Aguirre v.' Parmelee, 22 Conn. (c) 9 M. & W. 518. 473; Levy v. TurnbuU, 1 Low. Can. 21. (d] 1 B. & C. 181. The fact that the goods have arrived at (e) Dixon v. Yates, 5 B. & A. 313; the place of destination, where the pur- Belts u. Gibbins, 2 Ad. & E. 73; Tanner chaser has been in the habit of receiving v. Scovell, 14 M. & W. 28; Slubey <;. merchandise sent to him, does not consti- Heyward, 2 H. Bl. 504 ; Hammond a. 848 BREACH OF THE CONTRACT. [book V. of part is not a delivery of the whole, unless the circumstances show that it was intended so to operate. § 858. The bankruptcy of the buyer not being in law a rescis- sion of the contract, and the assignees being vested with all his rights, the delivery of the goods into the buyer's warehouse after his bankruptcy, or an actual possession of them taken by his assignees, will suffice to put an end to the tt-ffiisitnf;, and to determine the right of stop- page. (* stoppage o must be employer opportunity, by using reasonable diligence, to sj^^i '» send the necessary orders to his servant, (g^) In White- in posses- head V. Anderson (r) the vendor attempted to effect a stoppage of a cargo of timber while on its voyage from Quebec to Port Fleetwood in Lancashire, by giving notice to the ship-owner in Montrose, who thereupon sent a letter to await his captain's arrival at Fleetwood. Parke B., delivering the judgment, said : " The next question is whether the notice to the ship- or if to the owner, living at Montrose, is such a [valid] stoppage of iiTt'ime to the cargo, then being on the high seas, on its passage to t" gend nT Fletwood. We think it was not : for to make a notice '"^^ *" /"^ , servant not effective as a stoppage in transitu it must be given to '» deliver, the person who has the immediate custody of the goods ; (s) or if given to the principal, whose servant has the custody, it must be given as it was in the case of Litt v. Cowley, at such a time and under such circumstances that the principal, by the exercise of rea- sonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee ; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servants to the vendee, when it was impossible from the distance and want of means of communication to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use (9*) [Croker v. Lawder, 9 Ir. L. K. 21.] (r) 9 M. & W. 518. iq^) [Ex parte Falk, 14 Ch. Div. 446 ; (s) [Mottram v. Heyer, 5 Denio, 629.] Ascher v. The Grand Trunk Ry. 36 U. C. Q. B. 609.1 854 BREACH OF THE CONTRACT. [book V. reasonable diligence to prevent the delivery, and in the present case such diligence was used." (i) § 861. The mode of exercising the right of stoppage underwent careful investigation in the admiralty court in the case of The Tigress, (m) It was there determined by Dr. Lushington : First. That a vendor's notice to stop made it the duty of the master of the vessel to refuse delivery to the vendee to whom a bill of lading had been indorsed, and was suf- ficient without any representation that the bill of lading had not been transferred by the vendee. Secondly. That the master's refusal to acquiesce in the vendor's claim of stoppage was a hreach of duty, giving jurisdiction to the Master's admiralty court. Thirdly. That the vendor's right in- cluded the right of demanding delivery to himself, and that the carrier has no right to say that he will retain the goods for delivery to the true owner after the con- flicting claims have been settled. Fourthly. That the stoppage is at the vendor's peril, and it is incumbent on the master to give effect to a claim as soon as he is sat- isfied that it is made by the vendor, unless he is mvare of a legal I'll feasance of the vendor's claim ; but it is not a matter ordinarily within his cognizance, whether or not the buyer has indorsed over a bill of lading to a third person. Fifthly. That if bills of lading are presented to the master by two different holders " he is not concerned to examine the best right in the different bills ; all he has to do is to deliver upon one of the bills." (x) This last proposition was said by the learned judge to be unnecessary :\(aster as ^° *^® decision. It was stated on the authority of Fearon bailee de- y^ Bowers, reported in the notes to Lickbarrow v. Ma- liversathis ' ^ peril, and son, (?/) but is very doubtful law ; for it is well settled nity is re- that a bailee delivers at his peril, that he is bound to de- file a bill of cide between conflicting claimants to goods in his jDosses- er hl'^chan- ^i^n, that he is liable in trover if he delivers to the wrong eery. persou, Qy^') and that his only mode of protecting him- Vendor need not inform the master of vessel that the bill of lading is still in pos- session of buyer. duty is to deliver goods to vendor, not simply to retain them till claims have been settled. (t) [Mottram r. Heyer, 5 Denio, 629.] («) 32 L. J. xVdm. 97. (x) See iintf, § 822, as to effect of trans- ferring parts of one set of bills of lading to different holders. (y) 1 H. Bl. 364 ; 1 Sm. L. C. 723 (6th ed.). (i/i ) [It has been held in Canada that the vendor cannot maintain trover against the carrier who wrongfully deliv- j„ oaoada ers the goods to the vendee after notice from the vendor to hold the goods. The plaintiffs sold goods to Henderson, living at Meaford, and shipped them by the Grand Trunk Railway to Toronto, and Teodor ean- Qot luaintain trOTer against car- rier after notice of PART I.J STOPPAGE IN TRANSITU. 855 self is to take an indemnity, and if that be refused, to file a bill of interpleader in chancery. (2) This is clearly the opinion of Blackburn J., for in the Treatise on Sales he adverts to it as un- questionable law, in these words : " As the carrier obeys the stoppage in transitu at his peril, if .the consignee be in fact sol- vent, it would seem no unreasonable rule to require tlrat, at the time the consignee was refused the goods, he should have evi- denced his insolvency by some overt act." (a) In the opinion delivered in The Tigress this suggestion is rejected, the judge saying distinctly, that the proof of the conditions on which the vendor's rights depend would always be difficult, often impossible at the time of their exercise ; " for instance, whether the vendee is insolvent may not transpire till afterwards, when the bill of ex- change given for the goods becomes due ; for it is as I conceive clear law, that the right to stop does not require the ven- stoppage dee to have been found insolvent." And see the de- "j,ha\f''o£°'' cision of the House of Lords in Meyerstein v. Barber, vendor, in ^ assertion of as stated ante, § 822. The stoppage to be effectual his para- must be on behalf of the vendor, in the assertion of his rigiittothe rights as paramount to the rights of the buyer." (5) ^°° *' SECTION V. — HOW MAY IT BE DEFEATED? § 862. The vendor's right of defeasible in one way only, (e) thence by defendants' railway to Colling- wood. While the goods were at the latter place the defendants received notice from the plaintiffs to stop the goods, but the defendants disregarded the notice and de- livered the goods to Henderson, who was found by the jury to have been insolvent at the time the notice was given. The plaintiffs sued the company in trover. Draper C. J. said: "But this right of the vendor to withhold the goods from his vendee, who by payment would have an immediate right to the possession as being already the owner by sale and delivery to the carrier, is a very different thing from the right of property and of possession whiqh is asserted in the action of trover, which in my humble judgment will not lie upon the facts in evidence. We must not be nnderatood as giving any support to stoppage in transitu is ^"^j"^;^! and that is when the feasible the notion that the defendants were right in delivering these goods to Henderson. If he, tendering the freight, had demanded the goods, threatening a suit, we have no doubt the defendants might have got an interpleader issue.'' Childs v. The North- ern Railway of Canada, 25 II. C. Q. B. 165.] (z) Wilson V. Anderton, 1 B. & Ad. 450; Batut v. Hartley, L. B. 7 Q. B. 594 ; [Campbell v. Jones, 9 Low. Can. 10.] {a] P. 266. (6) lb; Skiffken v. Wray, 6 East, 371 ; Mills V. Ball, 2 B. & P. 457. (c) [An attachment of the goods on their passage to the consignee, as Attachment the property of the consignee, "^ J'^''^'*,.'^^. does not defeat the right of feat vendor's the consignor to stop them in '"*'''■ transitu; Naylor v. Dennie, 8 Pick. 198; 856 BREACH OF THE CONTRACT. •[book V. only by goods are represented by a bill of lading, which is a o£ bill of symbol of property, and when the vendee, being in pos- bonafide session of the bill of lading with the vendor's assent, for va?ue. transfers it to a third person, who lond fide gives value for it. {d) § 863. The bills of lading act, 18 & 19 Vict. c. Ill (referred to ante, § 812), and the factors act Qante, §§ 809 et seq.), have largely extended the effects of these mercantile instruments, and By com- the rights of the holders of them. By the common law, consignee as established in Lickbarrow v. Mason, (e) and the num- defeatven- berless cases since decided on the authority of that cele- dor's rights ^^i-^j-ed case, the right to stop m transitu was defeasible but now, by ti^e transfer of the bill of lading to a bond fide in- by the fac- ■' ... i j- tors act, dorsee ; but if the indorsement was by a factor or con- also, signee, it was only valid in case of sale, not of pledge : and even when by the vendor himself, the transfer operated as a conveyance of the property in the goods, (/) but not as an assign- Buckley V. Furniss, 15 Wend. 137 ; Durgy Cement Co. i^. O'Brien, 12.3 Mass. 12; Clark V. Lynch, 4 Daly (N. Y.), 83 ; Dick- man o. Williams, 50 Miss. 500 ; Morris u. Shryock, lb. 590 ; Hause v. Jiidson, 4 Dana, 13; Wood v. Yeatman, 15 B. Mon. 270; Newhall u. Vargas, 15 Maine, 314 ; Seymour v. Newton, 105 Mass. 272; Hays D. Mouille, UPenn. St. 48; O'Brien V. Norris, 16 Md. 122; Calahan u. Bab- cock, 21 Ohio St. 281 ; nor When sale will defeat will a sale of the goods by the purchaser before the termina- tion of the transit, if such sale is not made by a hondjide transfer of the bill of lading. See Ilsley v. Stubbs, 9 M.ass. 65 ; Stanton V. Eager, 16 Pick. 473 ; Gardner v. How- land, 2 lb. 599; Miles v. Gorton, 2 C. & M. 504; Dixon v. Yates, 5 B. & Ad. 339 ; Chapman C. J. in Seymour v. New- ton, 105 Mass. 275; Secomb v. Nutt, 14 B. Mon. 324; Atkins v. Colby, 20 N. H. 154; .Sawyer v. Joslin, 20 Vt. 172 ; Covell V. Hitchcock, 23 Wend. 611 ; Harris v. Hart, 6 Duer, 606; Kitchen v. Spear, 30 Vt. 545; O'Brien u. Norris, 16 Md. 122; Hays V. Mouille, 14 Penn. St. 48; Rosen- thal V. Dessau, 11 Hun, 49.] (d) [Rawls u. Deshler, 4 Abb. (N. Y.) App. Dec. 12 ; Stanton v. Eager, 16 Pick. 476; ante, § 813; Lee v. Kimball, 45 Maine, 172 ; Dows v. Greene, 24 N. Y. 638; Blanchard v. Page, 8 Gray, 281, 298 ; Walter v. Ross, 2 Wash. C. C. 283; 2 Kent, 549; 1 Chitty Contr. (11th Am. ed.) 608, and note (('), and cases cited; Conard v. Atlantic Ins. Co. 1 Peters, 445 ; Winslow V. Norton, 29 M.aine, 421 ; Dows V. Perrin, 16 N. Y. 325 ; Pratt v. Park- man, 24 Pick. 42 ; Clark r. Chipman, 2 Eng. 197; Gardner v. Howland, 2 Pick. 599 ; Lackington v. Atherton, 1 U. C. Q. B. (0. S.) 87 ; S. C. 7 M. & G. 360; Clementson v. The Grand Trunk Ry. Co. 42 U. C. Q. B. 263 ; Audenreid v. Randall, 3 Cliff. 99 ; Kemp v. Canavan, 15 Ir. C. L. R. 216. As between the orig- Effect otre- inal parties to a bill of lading, "X^X the receipt of it by the pur- yendee. chaser or consignee merely establishes the vesting of the property in liim. Of course it does not defeat the right of stoppage in transitu, but rather gives occasion for its exercise. Stanton r. Eager, 16 Pick. 474; Addison Contr. (Am. ed. 1857) 261, 262.] (e) 1 Smith's L. C. 199 (6th ed.) ; [Bramwell L. J. 2 Q. B. Div. 381, 382.] (/) [See Barber v. Mejerstein, L. R. 4 PART I.J STOPPAGE IN TRANSITU. 867 ment of the contract so that the indorsee was not empowered to bring suit on the bill of lading. (^) But now, by the j effect of the factors acts, the indorsement of a bill of bill of ,,..-. . . T . , . lading is lading by factors or consignees, intrusted with it as now an agents of the owners, is as effective as that of the vendor of tle™™- ■would be in giving validity to " any contract or agree- '™'^'' ment by way of pledge, lien, or security bond fide made by any person with such agent so intrusted as aforesaid, as well for any original loan, advance, or payment made upon the security of such goods or documents [including bills of lading] , as also for any further or continuing advance in respect thereof, and such contract or agreement shall be binding upon and good against the owner of such goods, and all other persons interested therein, notwithstanding the person claiming such pledge or lien may have had notice that the person with whom such contract or agree- ment is made is only an agent." So that, as regards the effect of the transfer of the bill of lading, it now makes no difference whether the consignor was vendor or merely consigning goods for sale, his rights of stoppage will be defeated by the assignment of the bill of lading, even to a person not a vendee, but from whom money has been borrowed on the faith of it. And by the bills of lading act, all rights of action and liabilities upon the bill of lad- ing are to vest in and bind the consignee or indorsee, to whom the property in the goods shall pass. For decisions upon the legal effect of the words just quoted in italics, reference may be made to the cases quoted in the note. (K) § 864. It is not within the province of this treatise to examine the general law in relation to bills of lading, for which the au- thorities are collected in the notes to Lickbarrow v. Mason, Qi) but only the effect of transferring these documents in defeating the right of stoppage. The first point to be noticed is. Bill of lad- that a bill of lading is not negotiable in the same sense gofiabie"''" H. L. 317 ; L. R. 2 C. P. 38, 661 ; Blanch- (h) Fox v. Nott, 6 H. & N. 630 ; The ard U.Page, 8 Gray, 281, 298 ; Winslow Figlia Maggiore, L. R. 2 Adm. 106 ; The ". Norton, 29 Maine, 421 ; Tilden v. Minor, Nepoter, L. R. 2 Adm. 375 ; The Freedom, 45Vt. 196; DavisK. Bradley, 28 lb. 118; L. R. 3 P. C. C. 594; Draeachi v. The Davis V. Bradley, 24 lb. 55.] Anglo-Egyptian Navigation Co. L. R. 3 (g) Thompson v. Dominy, 14 M. & W. C. P. 190; Short v. Simpson, L. R. 1 C. «3; Howard v. Shepherd, 9 C. B. 296; P. 248, 252. [per Shaw C. J. in Blanchard v. Page, 8 (i) 1 Sm. L. C. 699 (5th ed.). Gray, 297, 298.1 858 BREACH OF THE CONTRACT. [book V. like a bill ^s a bill of exchange, (k~) and that therefore the mere of ex- . / ciiange. hooest possesswn of a bill of lading indorsed in blank, or in which the goods are made deliverable to the bearer, is not such a title to the goods as the like possession of a bill of exchange would be to the money promised to be paid by the acceptor. J rRHSiGrcG 7 17 ^ -7 • • has no bet- The indorsement of a bill of lading gives no better right t6r title than in- to the goods than the indorser himself had (except in ^'^^^'^' cases where an agent intrusted ivith it may transfer it to a bond fide holder under the factors act), so that if the owner should lose or have stolen, from him a bill of lading indorsed in blank, the finder or the thief could confer no title upon an inno- Bnt bond Cent third person. (/) But the title of bond fide third fide ™^°^- persons will prevail against the vendor who has actually (h) [Rowley v. Bigelow, 12 Pick. 307, 314 ; Marine Bank of Buffalo v. Fiske, 71 N. Y. 353; Stanton v. Eager, 16 Pick. 467, 474 ; Saltus v. Everett, 20 Wend. 268. See per Morton .J. in Pratt u. Park- man, 24 Pick. 42, 48 ; Winslow v. Nor- ton, 29 Maine, 414, 421 ; Gray G. J. in StoUenwerck u. Thacher, 115 Mass. 226, 227.] (I) Gurney v. Behrend, 3 E. & B. 622; 23 L. J. Q. B. 265 ; and see Coventry v. Gladstone, L. R. 6 Eq. 44 ; Blackburn on Sales, p. 279, and cases there cited. [Tison u. Howard, 57 Ga. 410 ; Mechanics' & Traders' Bank u. Earmers' & Mechanics' Bank, 60 N. Y. 40 ; Farmers' & Mechanics' Bank v. Erie Ry. Co. 72 lb. 188 ; Bank v. Shaw, 1 L. &Eq. Reporter (Boston), 591. " A bill of lading, even when in terms running to order or assigns, is not negoti- able like a bill of exchange, but is a sym- bol or representative of the goods them- selves ; and the rights arising out of the transfer of a bill of lading correspond, not to those arising out of the indorsement of a negotiable promise for the payment of money, but to those arising out of the delivery of the property itself under simi- As to Degoti- lar circumstances. If the bill of bins o"'* "^ lading is once assigned or lading, indorsed generally by the orig- inal holder, upon or with a view to a sale of the property, any subsequent transfer thereof to a bond fide purchaser may in- deed give him a good title as against the original owner. But so long as the bill of lading remains in the hands of the original party, or of an agent intrusted with it for a special purpose, and not authorized to sell or pledge the goods, a person who gets possession of it without the authority of the owner, although with the assent of the agent, acquires no title as against the principal." Gray C. J. in StoUenwerck v. Thacher, 115 Mass, 224, 227, and cases cited; National Bank of Green Bay v. Dearborn, lb, 219, When a bill of lad- ing is negotiated, its negotiation is reg- ulated by the law of the state in which it is negotiated, not by the law of the state in which it is made. Bank v. Shaw, 1 L, & Eq. Reporter (Boston), 591. When a draft is drawn by the shipper of goods on the consignee, and a bill of lading by which the goods are deliverable to the order of the shipper, and which is indorsed to the consignee, is attached to jhe draft and delivered to the bank discounting the draft, as collateral security for the money advanced, such delivery transfers a special property in the goods to the bank, and gives it a right of immediate possession sufficient to enable it to maintain replevin against the shipper and any one attaching the goods as his property. Fifth National Bank in Cliicago u. Bayley, 115 Mass. 228; Hathaway v. Haynes, 124 lb. 311; Libby i;. lugalls, lb. 503; The Royal PART I.] STOPPAGE IN TRANSITU. 859 transferred the bill of lading to the vendee, although hoia goods he may have been induced by the vendee's fraud to do vendor so, (to) because, as we have seen, (w) a transfer obtained beende- by fraud is only voidable, not void. In Dracachi v. The *™"'l'*'^- Anglo-Egyptian Navigation Company (o) the plaintiff ofiatogU proved that the consignor had indorsed the bill of lad- ^avlbeen ing to A., and that A. had indorsed it to the plaintiff for in'|<;rsed to ° . -^ holder for value so as to pass the property ; and it was objected by yaiue, tjiis defendant that there was no proof that the first indorse- fade evi- ment was for value so as to pass the property under the ownership, 1st section of the bills of lading act ; but the court held ""'"i?"*^ t3 ' proving that the transfer by the consignor was strong primd facie ^^t p™- •' ° . . vious in- evidence that the property had passed, sufBcient to jus- dorsement tify the jury in finding that the property in the goods value, was in the plaintiff. § 865. If the consignor or vendor transfers the bill of lading as security for advances, and the bill of lading is then -^yhere transferred back on the repayment of the advances, the 0°"^^^^^°^ rights of the original consignor or vendor return to him, gets back , . ° ° . , . . , hill of lad- and he is remitted to all his remedies under the origmal ing after contract. (^) But the vendor's rights of stoppage in hisorigi'nai transitu may be defeated in part only, for the bill of "^^^ ^^' lading may be transferred as a pledge or security for ^^ere bill the debt, and then in general the property in the goods ^*^g*^een remains in the vendee ; but even if by agreement the indorsed as . ,, , " pledge, property in the goods has been assigned as well as the vendor's .7 i_ 1 J. * J.T, right of possession, it is only a special property that is tnus stoppage transferred, and the general property remains in the surpTra vendee. On these grounds, therefore, the vendor's right pf^^^^^g j^ of stoppage will remain so far as to entitle him to any satisfied ; surplus proceeds after satisfying the creditor to whom the bill of lading was transferred as security ; and the vendor will have the further equitable right of insisting on marshal- may force ling the assets ; that is to say, of forcing the creditor to marshal exhaust any other securities held by him towards satis- Canadian Bank a. Carruthers, 29 U. C. (m) Pease v. Gloaheo, L. R. 1 P. C. Q. B. 283. See, as to the duty of a bank App. 219. to whom a bill of exchange is sent for col- (n) Ante, §§ 433 et seq. lection together with the bill of lading of (o) L. B. 3 C. P. 190 ; 37 L. J. C. P. 71. certain goods, The Wis. Mar. & Fire Ins. (p) Short v. Simpson, L. E. 1 C. P. Co. Bank v. The Bank of British N. Am. 248 ; 35 L. J. C. P. 147. 21 D. C. Q. B. 284.] 860 BEEACH OF THE CONTRACT. [book V. fying his claim before proceeding on the goods of the unpaid ven- dor. ((f) § 866. The transfer of the bill of lading, in order to affect the Transfer of Vendor's right of stoppage in transitu, must be, both by ingwiiUe- ^'^^ statute and the common law, to a bond fide third featven- person. This means, iiot v^ithout notice that the goods rights, have not been paid for, because a man may be perfectly even when -i t r -i ./ i ^ indorsee honest in dealing for goods that he knows not to have goods have been paid for, (V) but without notice of such circum- pai'd for if stances as render the bill of lading not fairly and Jion- the trans- ggfiy assignalU. (s) Thus, in Vertue v. Jewell, (f) action is honest. vyhere Lord Ellenborough held that the vendor had no right of stoppage, he said expressly that if such a right had existed against the consignee, he would have enforced it against Ayres, the indorsee of the bill of lading, because Ayres took the Transfer assignment of the bill of lading with a knoivledge of the drat debt' insolvency of the consignee, (m) On this principle it defeat'tiie ^^® decided by the judicial committee of the privy coun- right. cil, (x) that the forbearance or release of an antecedent claim is not a good consideration for the transfer of a bill of lad- ing so as to defeat the right of stoppage in transitu. § 866 a. [In Ex parte Golding Davis & Co. 13 Ch. Div. 628, Eemarits Cottoii L. J. said : " Now, I take it, the principle is this, that the vendor cannot exercise his right to stop during the transit, if the interests or rights of any other per- sons, which they have acquired for value, will be defeated by his so doing. Except so far as it is necessary to give of Cotton L. J. on rights of vendor against third per- sons. (?) In re Westzinthus, 5 B. & Ad. 817; Spalding v. Ruding, 6 Beav. 376; S. C. on App. 15 L. J. Ch. 374, and in the note to Berndtson v. Strang, L. R. 4 Eq. 486. See, as to marshalling assets in equity, Aldrich v. Cooper, and notes, 2 Tudor's L. C. in Eq. 80 et seq. (t) Cuming o. Brown, 9 East, 506 ; [Stanton v. Eager, 16 Pick. 467, 476; Chandler v. Fulton, 10 Texas, 2 ; Dows V. Perrin, 16 N. Y. 325.] (s) lb.; Salomons u. Nissen, 2 T. E. 681. (t) 4 Camp. 31. See, also, Wright v. Campbell, 4 Burr. 2046. [And see the remarks of Bramwell L. J. upon Vertue V. Jewell, in Leask v. Scott, 2 Q. B. Div. 380, 381.] (u) [See Stanton u. Eager, 16 Pick. 476, 477.| (x) Rodger v. The Comptoir d'Escompte, L. R. 2 P. C. C. 393. [This case was dis- sented from, in Leask u. Scott, 2 Q. B. Div. 376, where it was held that the trans- fer of a bill of lading for valuable consid- eration to a bona fide transferee defeats the right of stoppage in transitu of the un- paid vendor of the goods, although the consideration was past and not given at the time the bill of lading was handed to the transferee by the lawful holder.] PART I.] STOPPAGE IN TRANSITU. 861 effect to interests which other persons have acquired for value, the vendor can exercise his right to stop in transitu. It has been decided that he can do so when the original purchaser has dealt with the goods by way of pledge. Here we have rather the con- verse of that case. There has been an absolute sale of the goods by the original purchaser, but the purchase money has not been paid. Can the vendor make effectual his right of stoppage in transitu without defeating in any way the interest of the sub- purchaser ? In my opinion he can. He can say, I claim a right to retain ray vendor's lien. I will not defeat the right of the sub-purchaser ; but what I claim is to defeat the right of the pur- chaser from me, that is, to intercept the purchase-money which he will get, so far as it is necessary to pay me. That, in my opinion, he is entitled to do, not in any way thereby interfering with the rights of the sub-purchaser, but only, as against his own vendee, asserting his right to resume his vendor's lien and to obtain pay- ment by an exercise of that right." (a;^)] SECTION VI. — WHAT IS THE EFFECT OF A STOPPAGE IN TRANSITU. § 867. There can no longer be a reasonable doubt that the true nature and effect of this remedy of the vendor is simply Effect is to to restore the goods to his possession, so as to enable goo^g t^ him to exercise his rights as an unpaid vendor, not to poss^egg-on^ rescind the sale. The point has never been directly de- not to re- cided, because the circumstances are rarely such as to sale, raise the question ; but if there should be a considerable advance in the price of the goods sold, it is obvious that the subject would acquire a practical importance. The series of cases in which the question has been examined may be found cited in 1 Smith's Leading Cases, 748 ; and in Wentworth v. Outhwaite, (y) Went- where the point was raised and elaborately argued. Outhwaite. Parke B. gave the judgment, in 1842, in which he declared that in his own opinion and that of his brethren, with the exception of Lord Abinger, who dissented, the effect of the stoppage was " to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods till the price (a;') [See the statement of this case an(e, {y) 10 M. & W. 436. § 848 a. Sec, also, Ex parte Falk, 14 Ch. Div. 446.1 862 BREACH OF THE CONTRACT. [BOOK V. is paid down." In Martindale v. Smith, (3) however, as we have Martindaie ^6611, where the point was raised and determined after V. Smith. consideration by the queen's bench, whether the ven- dor had a right to reinvest the property in himself by reason of the vendee's faikire to pay the price at the appointed time, the court conclude the expression of a very decided opinion in the neg- ative by the statement, " The vendor's right, therefore, to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, not a right to rescind the bargain." (z^) Vainv V ^^ ^'ilpy ^* Oakeley, (a) where the assignees of the bank- Oakeiey. rupt sued the defendant in assumpsit for non-delivery of goods brought by the bankrupt, of which the defendants stopped delivery after the bankrupt had become insolvent, although they had received from him acceptances for the price, the court held that when the bills were dishonored, the parties were in the same position as if bills had never been given at all. It did not hold the contract rescinded, but decided that the assignees were enti- tled to recover the value of the goods less the unpaid price, that is, merely nominal damages unless the market has risen. And Griffiths ^^^® ^^^^ ^^^ followed by the same court in Griffiths v. V. Perry. Perry, (by in which, under similar circumstances, it was held that the vendor's right was a right similar to that of stop- page in transitu (that is to say, that the vendor need not go through the idle form of putting the goods into a cart and then taking them out, but had the right to retain them by a quasi stoppage in ti-ansitii), and the court gave to the assignees of the bankrupt nominal damages for the vendor's stoppage of the de- livery ; a judgment only possible on the theory that the contract had not been rescinded. § 868. But the strongest ground for holding the question to be This is set- now at rest is, that courts of equity have assumed regu- equityde'^- lar jurisdiction of bills filed by vendors to assert their cisioiis. right of stoppage in transitu, — a jurisdiction totally in- compatible with the theoi'y of a rescission of the contract ; for if the contract was rescinded, there would be no privity in a court of equity between the parties. This was pointed out by Lord Cairns, in Schotsman v. The Lancashire & Yorkshire Railway Com- (z) 1 Q. B. 389. (a) 16 Q. B. 941 ; 20 L. J. Q. B. 380. (zi) [Rucker v. Donovan, 13 Kansas, (b) 1 E. & E. 680; 28 L. J. Q. B. 204. 251.] PART I.] STOPPAGE IN TRANSITU. 863 pany ; (c) and in that case both his lordship and Lord Chehnsford declared that they entertained no doubt of the jurisdiction of a court of equity, in the case of a bill filed, to enforce the vendor's right of stoppage. In the United States it has also been j^a in decided that the legal effect of the stoppage in transitu America, is to entitle the vendor to enforce his right to be paid the price, not to give him the power to rescind the sale, (c?) » ,,.,,. market price not be obtained at the time and at place of place of delivery, and that no delivery. PART II.] REMEDIES OF THE BUYER. 867 Special damages must be and allows not only general damages, that is, such as are the nec- essary and immediate result of the breach, (c) but special dam- ages, which are such as are a natural and proximate consequence of the breach, although not in general following as its immediate effect, (d) It is by reason of this distinction that damages of the latter class are not recoverable, unless stated in the dec- laration with sufficient particularity to enable the de- fendant to prepare himself with evidence to meet the statedTn demand at the trial, while those of the former case are ^'^ 3™''"°- sufficiently particularized by the very statement of the breach, (e) § 871. The rule on the subject of the measure of damages on breach of contract was thus laid down in Hadley v. Ruie in Baxendale : (/) " Where two parties have made a con- gaxen- "' tract which one of them has broken, the damages which ' *" • default in procuring the letters the meas- ure of B's damage is the amount which he was compelled to pay to parties to take up his notes and not the value of the letters patent. Serviss v. Stockstill, 30 Oh. St. 418.] (c) Boorman v. Nash, 9 B. & C. 145. (d) Crouch v. Great Northern Railway Company, U Ex. 742 ; 25 L. J. Ex. 137 ; Hoey «. Felton, 11 C. B. N. S. 143 ; 31 L. J. C. P. 105. (e) Smith v. Thomas, 2 Bing. N. C. 372 ; 1 Wms. Saunders, 243 d, note (5) ; [M'Daniel v. Terrell, 1 Nott & McC. 343 ; Brown v. Gibson, lb. 326 ; Stevens v. Ly- ford, 7 N. H. 360 ; Williamson v. Dillon, 1 H. & Gill, 444; Furlong !;. Polleys, 30 Maine, 493 ; Dickinson v. Boyle, 17 Pick. 78 ; Palmer v. York Bank, 18 Maine, 166.] (/) 9 Ex. 341-354 ; 23 L. J. Ex. 179. 868 BREACH OF THE CONTRACT. [book V. tract should be such as may fairly and reasonably be considered either as arising naturally, i. e. according to the usual course of things, from such breach of contract itself ; or such as may reason- ably be supposed to have been in contemplation of both parties at the time they made the contract, as the probable result of tlie breach of it. Now if the special circumstances under which tlie contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract which they would reasonably contemplate would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances, so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract. (^) ig) [Wolcott !'. Mount, 38 N. J. (Law) 496 ; Pa. R. R. Co. v. Titusville &c. Co. 71 Penn. St. 350 ; Peehan t/. Hallinan, 13 U. C. Q. B. 440 ; Watrons i-. Bates, 5 U. C. C. P. 366 : The Mihills Manuf. Co. v. Day, 50 Iowa, 250 ; McCorniick v. Va- natta, 43 lb. 389 ; Booth v. Spiiyten Duyvil Rollin- Co. 60 N. Y. 487 ; White 0. Miller, 71 lb. 118; Clark r. Tioper, 2 Alb. L. J. 393 ; Reily v. Howai-d, 6 lb. 307; Laird v. Townsend, 5 Hun, 107; Schutt u. Baker, 9 lb. 556 ; Hydraulic Eugiueering Co. u. McHaffie, L. R. 4 Q. B. D. 670; Scott (/. Kittanning Coal Co. 19 Am. L. Reg. N. S. 410; Hopkins o. Sanford, 41 Mich. 243 ; Lulor v. Burrows, 18 U. C. C. P. 321. The rule laid down in Hadley v. Baxtndale has been applied Actions in analogous cases. Inactions r?eraTfaiLe '^g"'"^' ^'-"'^''^ f"'^ *e non- to deliver. delivery of goods, it may be assumed, in general, to be within their contemplation that goods sent may be in- tended for sale, and accordingly they are a fall in the market is recoverable as dam ayes, without any special notice to the car- rier that the goods were intended for sale. Collard o. South Eastern Railway Co. 7 H. & N. 79 ; Wilson u Lancashire & York- shire Railway Co. 9 C. B. N. S. 632 ; Rice V. Baxendale, 7 H. &. N. 96 ; O'Hanlan v. Great Western Railway Co. 6 B. & S. 484; Deming v. Grand Trunk Railroad Co. 48 N. H. 455; Cutting u. Grand Trunk Railroad Co. 13 Allen, 381 ; Sisson V. Cleveland & Toledo Railroad, 14 Mich. 489 ; Scoville v. Griffith, 2 Kernan, 509, 358; Yorke u\ Ver Plank, 65 Barb. 316; Farwell u. Davis, 66 lb. 73; The Compta, 5 Sawyer (Circ. Ct.), 137. But the carrier is not, in general, responsible for the failure of any particular pm-pose for which the goods are intended, of which he has uo notice. Wilson u. Lancashire & Yorkshire Railway Co. supra; Great Western Railway Co. u. Redmayne, L. R. 1 C. P. 329. Thus, in an action against a carrier for delay in delivering bales of held responsible for the market value of cotton sent by him, it was held that the the goods at the time and place at which plaintiff was not entitled to recover, as they ought to have been delivered ; so the natural consequence of such delay, ihe that in case of delay the loss sustained by loss arising from the stoppage of his mill PART II.] REMEDIES OF THE BUYER. 869 § 872. Although this rule has generally been accepted as sound, it is not universally true that the mere communication This rule of the special circumstances of the case made by one sally true." party to the other would impose on the latter an obligation to indemnify the former for all the damages that would ordinarily follow from the breach : and to produce such a result, it would re- quire proof of an assent by the latter to assume such a responsi- bility, in many cases which might be suggested, in which the ap- plication of the rule now criticised would otherwise be productive of startling injustice. (Ji) The courts have accordingly departed from this rule in many instances where the special circumstances required its modification in order to do justice between the parties. Some of the cases affording illustrations of the mode in which the courts deal with this difficult question will be given ; but for a full discussion of the principles on which damages are measured, the reader must be referred to Mr. Luraly Smith's second edition of Mayne on Damages for the law of England, and to the treatise of Mr. Sedgwick on the same subject for the law prevalent in the United States. In Loder v. Keku^ (i) the buyer had where paid in advance for the goods to be supplied, and they hfs"own ^ were found on delivery to be of inferior quality, and ™"j^"^^g were rejected, so that the amount of the damages ought the dam- to have been fixed with reference to the market price Loder » on that day ; and the buyer did not resell the goods till Kekuie. some time afterwards, when the market price had fallen ; but the court being of opinion that it was the vendor who by his con- duct had delayed the sale, and the jury having found that the re- sale was within a reasonable time, the buyer recovered as damages the full difference between the market value at the date of the breach and the price subsequently obtained on the re- sale. So, in Ogle v. Earl Vane, (^) decided in Hilary repurchase Term, 1868, where the defendant failed to make deliv- layedat forwantof cotton to work. Gee w. Lanca- See, also, Vicars v. Willcocks, and the shire & Yorkshire Railway Co. 6 H. & N. notes to that case, 2 Sm. Lead. C. 487 ; 211. See Copper Company v. Copper and the important case of Home v. Mid- Mining Company, 33 Vt. 92.] land Railway Co. in the exchequer cham- [h] See the observations of Willes J. on ber, L. R. 8 C. P. 131 ; post, § 875. this point in the British Columbia Saw- (i) 3 C. B. N. S. 128; 27 L. J. C. P. 27. mill Co. V. Nettleship, L. R. 3 C. P. 499; (k) L. R. 3 Q. B. 272; 37 L. J. Q. B. mt, § 874, and the cases collected in the in Cam. Scacc. ; S. C. L. R. 2 Q. B. 275. 2d ed. of Mayne on Damages, 10-20. 870 BREACH OF THE CONTRACT. [BOOK V. Tendor'3 gj.„ ^f 50Q ^Qjjg Qf Jjqj, according to contract, owinff to request, ^ _ ^ 'to and for an accident to his furnaces, the general rule was not ap- his benefit. 1 - r ■ • Offiei) plied, because the court and jury were of opinion that Earl Vane, ^jjg plaintiff's delay in buying other iron, to replace that not delivered, had taken place at the defendant's request and for his benefit. (A') The plaintiff was therefore entitled to claim the largely increased damages caused by a rise in price in the market during the delay. (F) It was further held that the buyer's con- sent to wait at the vendor's request was no new contract which required to be proved under the statute of frauds, because the buyer retained the power of suing at any moment he pleased for breach of the original contract, but was an independent fact bear- ing only on the question of damages, and justifying an exception from the general rule. In Fletcher v. Tayleur (?) the plaintiff Probable claimed special damages for the non-delivery of a ship profits of a ^i-,jqJ, ^\-^q defendant had agreed to construct for him, voyafre, as ° _ ' damaRes and it was proved that the ship was intended for a pas- for delay iiri i* in deliver- senger-ship toAustraha; that the defendant knew this ; ing a s ip. ^ .^ ^^^ ^1^. j^^^ been delivered according to contract Fletcher v. '^ ° Tayleur. the plaintiffs would have made a profit of 7,0O0Z. on the voyage, but that, in consequence of the fall in freight, they made only 4,280?. on the voyage when the vessel was delivered. The jury gave the plaintiff 2,750?. damages. Crowder J. read to the jury as the rule the passage above quoted (p. 728) from the opinion in Hadley v. Baxendale. (»n) On motion for new trial, Hugh Hill insisted that the probable profits of a voyage were too vague a criterion by which to measure damages ; but the court refused to interfere on the ground that both parties had agreed that the question for the jury was. What was the loss sustained by the non-delivery of the ship at the time stipulated for by the contract ? and that the question was properly left to them by Crowder J. In the course of the trial, Jervis C. J. suggested that " it would be convenient if some general rule were established as to the measure of damages in all cases of breach of contract. {k^) [In Tyers v. Eosedale & Ferryhill dee.'' S. C. in exchequer chamber, L. E. Iron Co. L. R. 8 Ex. 318, Martin B., in 10 Ex. 195.] his dissenting opinion, said : "It is impos- (4^) [See Tyers i'. Rosedale and Ferry- sible to distinguish the case of the applica- hill Iron Co. L. R. 8 Ex. 305 ; reversed in tion for postponement coming from the the exchequer chamber, L. R. 10 Ex. 195.] vendors, and one coming from the ven- (1) 17 C. B. 21 ; 25 L. J. C. P. 65. (m) 9 Ex. 341 ; 23 L. J. Ex. 179. PART II.] REMEDIES OF THE BUYER. 871 Would not an average percentage of mercantile profits be the fair measure of damages for a breach of mercantile contract ? That is very much the result of the decision in Hadley v. Baxendale." This suggestion met the concurrence of Willes J., but no further notice was taken of it, on the ground that the question had not been raised at the trial. § 873. In the case of The Columbus (n) will be found a dis- cussion by Dr. Lushington of the admiralty rules which ^he Co- govern the allowance of freight as damages in cases of '"mbus. coUision. Cory v. Thames Iron Woi-ks Company, (o) xhamts decided by the queen's bench in Hilary Term, 1868, was l^orks very similar in its features with Fletcher v. Tayleur, but Company, the decision was different, because the defendants were not made aware of the special purpose which the buyer had in view. The plaintiff claimed damages for the non-delivery, at the specified time, of the hull of a floating boom derrick, which they intended to use for working machinery in the discharge of coals ; but the defendants were not aware of this, and believed that the hull was wanted for the storage of coals. It was contended for the de- fendant that no damages were due, because the two parties had not in contemplation the same results from the breach, but the court held this an inadmissible construction of the rule in Hadley V. Baxendale ; ( p} that the true rule is, that the vendor vendor is always bound for such damages as result from the bo^nd for buyer's being deprived of the ordinary use of the chat- ^gesarS- tel; but is not bound for the further special damage suit from that the buyer may suffer by being debarred from using being de- it for some special and unusual purpose, not made known the'ordi- to the vendor, when he contracted for the delivery. In "heS^tel the case of In re The Trent & Humber Company, (9) in re The where damages were claimed for the breach of a con- number tract to repair a ship within an agreed period. Cairns L. "■ C. held the measure of damages to be primd facie the sum which would have been earned in the ordinary course of employment of the ship during the delay. § 874. In Brady v. Oastler (r) the barons of the exchequer de- cided (Martin B. diss.), that in an action for damages Parol evi- f 11. .,> 1 • J dence not lor non-delivery of goods at a specified time, under a allowed, (n) 3 Wm. Eobinson, I.'JS. ( p) 9 Ex. 341 ; 23 L. J. Ex. 179. (0) L, E. 3 Q. B. 181 ; 37 L. J. Q. B. (?) L. R. 6 Eq. 396; 4 Ch. App. 112. 68. (r) 3 H. &C. 112; 33 L.J. Ex. 300. 872 BREACH OF THE CONTRACT. [BOOK V. where con- written Contract, parol evidence was inadmissible to in writing, show, With a view to estimate the damages, that the special price fixed in the contract had been enhanced above the stan"crs'ia market value, in consideration of the vendor's being al- orrter to lowed an unusually short time for the manufacture and enhance -^ damages, delivery of the articles. In Smeed v. Foord (s) the olsUer"' defendant had contracted to furnish a steam threshing Damage to engine on a day fixed, vrhich was wanted, as he knew, Svm foi" tlie purpose of threshing the plaintiff's wheat in the delivering {\q\a go that it could be sent at once to market. He threshing ' engine. failed to deliver the engine in time, and the plaintiff loord*^ "• was obliged to carry the wheat home and stack it. The wheat was injured by the weather, and it was necessary to kiln-dry a part of it, and its market value was deteriorated. Held, that the defendant was responsible for these damages. (<) In the case of the British Columbia Saw Mill Company v. Nettle- British c ship, (m) the plaintiff sued for damages for breach of lumhia contract for the carriage to Vancouver's Island of several Saw Mill • 1 1 I- 1 • J! Co. V. Net- cases of maclnnery intended tor the erection of a saw- '''' mill ; one of the cases which contained parts of the machinery, without which the mill could not be erected, was miss- ing when the vessel arrived at destination. The defendant knew that the cases contained machinery. The plaintiff was obliged to send to England to replace the missing parts, and was de- layed twelve months in the erection of his mill. Held, that the measure of damages was the cost of the missing parts, including freight and interest for the twelve months, but that the plaintiff could not recover anything for the loss of the use of the saw-mill for twelve months, as the defendant had not been apprised that the cases contained such machinery as could not be replaced at Vancouver's Island, nor that all the cases actually delivered would be useless unless the missing part could be supplied. And, semhle, that even with knowledge of these facts, the defendant would not (s) 1 E, & E. 602 ; 28 L. J. Q. B. 178. the use of the machinery whose operation {t) [In GriiRn v. Colver, 16 N. Y. 489, was suspended for want of the steam-en- it was held that, upon the breach of aeon- gine may be recovered as damages. See, tract to deliver at a certain day a steam- also, Freeman v. Chite, 3 Barb. 424 ; engine, built and purchased for the pur- Blanchard v. Ely, 21 Wend. 342.] pose of driving » planing-mill and other (w) L. K. 3 C. P. 499 ; 37 L. J. C. P. definite machinery, the ordinary rent or 235. hire which could have been obtained for PART 11.] REMEDIES OF THE BUYER. 873 have been liable without some proof that he assented to become responsible for these consequences, when he contracted to carry the goods. § 875. In the case of Home v. Midland Railway Company (a;) this question of the measure of damages for a breach of jjo^ne v. a carrier's duty to deliver in time Cand in most but not JJiciiand •^ ^ ^ Kaihvay all cases the vendor's breach of duty to deliver would be Company, governed by the same rules) was fully discussed under the follow- ing circumstances : The plaintiffs were under contract for the de- livery of a quantity of shoes at an unusually high price, to be delivered in London by the 3d February, 1871, and the goods were delivered to the defendant* for carriage in time for reaching London in the usual course on the afternoon of the 3d, and the company had notice of the contract of the plaintiffs, and that the goods would be rejected and thrown on their hands if not delivered on the day fixed, but the defendants were not informed that the goods had been sold at an exceptionally high price and not at the market rate. The goods were not tendered for delivery till the 4th, and were rejected on that ground ; and the question was, whether the damages payable by the defendants were to be meas- ured with reference to the price at which the plaintiffs would have been paid for them if delivered in time, or to the market price. It was held in the common pleas by Willes and Keating JJ. that the latter was the true measure of damages, the defend- ants not having been notified of the exceptional price contracted for ; and Willes J. repeated his opinion previously expressed in British Columbia Saw Mill Company v. Nettleship, ante, § 874, by which the rule in Hadley v. Baxendale was to be taken with this qualification, that " the knowledge must be brought home to the party sought to be charged under such circumstances that he must know that the person he contracts with reasonably be- lieves that he accepts the contract with the special condition at- tached to it." (?/) The judgment was afiirmed in the exchequer chamber by Kelly C. B., Blackburn and Mellor JJ., and Martin and Cleasby BB. (^diss. Lush J. and Pigott B.) ; and Martin and Cleasby BB. and Blackburn and Lush JJ. intimated in pretty distinct language their concurrence with Willes J. in the dictum above quoted, while none of the judges expressed dissent. In W L. R. 7 C. P. 583 ; 8 C. P. 131. (y) [See cases ante, § 729, note (a) ; Wol- cott V. Mount, 7 Vroom, 262.] 874 BREACH OF THE CONTRACT. [BOOK V. this case reference will be found to all the antecedent authori- ties upon the subject under discussion. § 876. France v. Gaudet (z) was an action for conversion, but p the considered opinion of the court, delivered by Mellor Gaudet. j^ contains dicta having an important bearing on the rules governing the measure of damages. In that case the plain- tiff had sold cases of champagne at a profit of 10s. per case, and was prevented by the defendant from making delivery, and no similar goods were procurable in the market, so that he lost the benefit of the resale. The question was, whether the damages were to be measured by reference to a fair usual market profit of 4s. per case, or to the exceptional profit of 10s. Held, that the true rule is to ascertain in cases of tort the actual value of the goods at the time of conversion, and that the plaintiff having made an actual sale at the profit of 10s., the goods had acquired that special value under the circumstances, and he was entitled to recover on that basis ; but the learned judge pointed out that there was no analogy between the case and that of a contract be- tween two parties for the sale and delivery of a chattel, " where the vendee gives notice to the vendor of the precise object of the Rule of purchase." In Borries v. Hutchinson (a) the plaintiff damapes ^ . notappiica- had bought from defendant seventy-five tons of caustic there is no soda, deliverable in three equal parts, in June, Jul}', and ""goods."^ August. The vendor knew that the soda was bought Borries v. for sale On the Continent, and was to be shipped from son. Hull, and also knew before the end of August that it was to be shipped to Russia ; but there was no evidence that the vendor knew this last fact at the time of making the contract. The buyer, at the time when he contracted for the purchase, made a like contract for resale, at a profit, to a St. Petersburg merchant. The latter, in his turn, made a sub-sale, at a profit, in St. Peters- burg. None of the soda was delivered till between the 16th Sep- tember and 26th October, when a portion of it was received by the plaintiff in Hull, and shipped to St. Petersburg, at which sea- son the rates of freight and insurance are always raised, so that plaintiff was put to increased cost in making delivery. The soda was an article manufactured by the vendor, and there was no (z) L. R. 6 Q. B. 199. Yorkshire Railway Company, 9 C. B. N. (a) 18 C. B. N. S. 445 ; 34 L. J. C. P. S. 632 ; 30 L. J. C. P. 232. 169. See, also, Wilson v. Lancashire & PART II.J REMEDIES OF THE BUYER. 875 market in which the buyer could have supplied himself at the date of the breach, so as to be able to perform his contract of resale. The plaintiff had paid 1691. to his vendee in St. Petersburg as damages for non-delivery to him, and for his loss of profit on his sub-sale. Held, that the buyer was entitled to recover as dam- ages his lost profits on the resale, and all his additional expenses for freight and insurance, but not the damages paid to his vendee for the latter's loss on the sub-sale, those being too remote. (6) The ground on which the measure of damages in this case was held to form an exception to the general rule was, that there was no market in which the buyer could have replaced the soda at the time fixed for the delivery, so as to bring it within the principle on which the rule is based, namely, that the disappointed buyer can go into the market with the money which he had prepared for paying the first vendor, and replace the goods, subject only to damages arising out of the difference in price, (c) § 876 a. [In Hinde v. Liddell, L. U. 10 Q. B. 265, it appeared that the defendant contracted to supply to the plaintiff 2,000 pieces of gray shirtings, to be delivered on the 20th of October, certain, at so much per piece. The defendant was informed that the goods were for shipment. Shortly before the 20th of October, the defendant informed the plaintiff that he would be unable to complete his contract by the time specified, on which the jii„^g ^. plaintiff endeavored to obtain the shirtings elsewhere > Liddeii. but, there being no market in England for them, that kind of shirtings could only be procured by a previous order to manu- facture them. The plaintiff, therefore, in order to ship accord- ing to his contract with his sub-vendee, procured 2,000 pieces of other shirtings of a somewhat superior quality, at an increase of price, which the sub-vendee accepted, but paid no advance in price to the plaintiff. The plaintiff sought to recover against the defendant for the breach of the contract, the difference between what he paid for the substituted shirtings and the defendant's contract price. It was admitted, at the trial, that the shirtings which plaintiff bought were the nearest in price and quality that (M [See Wolcott v. Mount, 7 Vroom, [Furlong v. Polleys, 30 Maine, 493, 494, 262, 270, 271 ; S. C. 9 lb. 496.] cited ante, § 870, note (6) ; McHose v. Ful- (c) See, on this point, O'Hanlan v. raer, 73 Penn. St. 365 ; Hopkinson J. in Great Western Railway Company, 6 B. & Blydenburg v. Welsh, Bald. Rep. 331; S. 484; 34 L. J. Q. B. 154 ; Rice v. Bax- Kountz v. Kirkpatrick, 72 Penn. St. 376.] " e, 7 H. & N. 96 ; 30 L. J. Ex. 371 ; 876 BREACH OF THE CONTRACT. [BOOK V. could be got by the 20th of October, and the jury rendered a verdict for the amount claimed ; and upon this it was held, that, there being no market for the article contracted for, the measure of damages was the value of it at the time of the breach, and that the plaintiff, having done the best he could, was entitled to recover the difference in the price. Cockburn C. J. said : " The question is whether, when one person orders and another undertakes to supply goods which are not to be had ready made in the market, but have to be fii'st manufactured, the latter may break his con- tract at the risk of having to pay nominal damages only, or whether he must pa}'' such damages as usually arise in mercantile transactions of the kind, where he neglects to fulfil his contract on the given day. Here the defendants inform the plaintiff that they will be unable to supply and deliver the shirtings ; the plain- tiff immediately goes over INIanchester and tries, but cannot get shirtings like those he ordered, but he gets the nearest to them that he can, and so avoids what would otherwise have been the consequence of his not fulfilling his contract of shipment. In so doing he incurs a loss by having to pay a larger price with no advance from his vendee. The course the plaintiff pursued was right and reasonable ; he would have had to pay larger dam- ages had he not fulfilled his contract, and so by giving this ad- vance of price he did what was best for all parties. He is, therefore, entitled to the damages he claimed." Blackburn J. said : " Borries v. Hutchinson, 18 C. B. N. S. 4-i5, 465, is directly in point. How does this differ from the case of a carrier who fails to carry a passenger to a given place, in which case the passenger has been held over and over again to be entitled to take the best substitute in the shape of a conveyance he can get, no matter that it costs much more than the fare ? The carrier con- tracts to supply the conveyance, and fails by not carrying his pas- senger." (c^)] § 877. But in Williams v. Reynolds ((^) it was held that the ^rofit°^o buyer could not recover as damages the profit that he sub-sale. would have gained by delivering the goods under a re- Wiiiiamst). Sale made by him before the time appointed for the per- Eeynoids. formance of his vendor's contract ; and that the dam- (ci) [See Bridge i>. Wain, 1 Stark. 504.] pany u. Redmayne, L. K. 1 C. P. 329 ; {d) 6 B. & S. 495 ; :U L. J. Q. B. 221 ; Portman v. Middleton, 4 C. B. N. S. 322 ; and see Gee v. Lancashire & Yorl. gins, (/) where it was decided that the purchaser might ^'SS'^^- recover as damages any profit that he would have made on a resale, ■without reference to the market value at the time of the breach, the decision went exclusivel}' on the Scotch authorities as showing what was the law of Scotland, where the contract was made, and the case is not an authority on the English law, although the rule of the English courts was mentioned with severe disapproval by Lord Cottenham. (^) In Mossmere v. The New York Shot & Lead Co. (A) it was decided that if the vendor know the Law in purchase is made in order to enable the buyer to fulfil ^"'^"'=*- an existing contract for resale at a profit, the latter may recover as damages this profit, if lost by the vendor's default, (i) § 878. If the contract which has been broken provided for the delivery of the goods to the buyer on request, it is a Where condition precedent to the buyer's right of action that deUveraWe he should make this request either personally or by let- ^?Jj,"-],'^J ter, unless there has been a waiver of compliance with quest." this condition, resulting from the vendor's having incapacitated himself from complying with the request by consuming, or resell- ing, or otherwise so disposing of the goods as to render a request («) E., B. &E. 84; 27 L. J. Q. B. 266. 13 How. (U. S.) 307; Western Gravel (/) 1 H. L. Cas. 381. Eoad Co. u. Cox, 39 Intl. 260 ; 2 Chitty (g) See the remarks on this case in Contr. (11th Am. ed.) 1325, note (A); Mayne on Damages, 31, 32, quoted and Wolcott v. Mount, 7 Vroom, 262; S. C. approved by the judges in Williams v. 9 lb. 496. Upon a breach of contract Keynolds, supra. for the delivery of merchandise, the plain- (A) 40 N. Y. 422. tiff cannot recover damages for his trouble (i) [See Bridges v. Stickney, 38 Maine, and expenses in procuring the contract to 361 ; Fox !). Harding, 7 Cush. 516 ; Mas- be made. Stevens v. Lyford, 7 N. H. terton v. Mayor of Brooklyn, 7 Hill, 61 ; 360.] Philadelphia &c. Railroad Co. o. Howard, 878 BREACH OF THE CONTRACT. [BOOK V. idle and useless, (/c) as heretofore explained in the chapter on Conditions. (I) 5 879. If the buyer is unable to prove the existence of any „,, actual damage resulting from the non-delivery, he will damasea nevertheless be entitled to recover nominal damages, (w) nominal on the general principle that every breach of contract Temvfi- imports some damage in law. It must not be forgotten ^^^''' that even after the goods have been sent to the buyer, in the performance of an executory contract, his right of rejecting them is unaffected by the actual delivery to him, until he has had a reasonable opportunity of inspection and examination, as shown ante, § 701, in the chapter on Acceptance. Several cases have been recently decided as to the effect -. , of a breach of contract of sale where the goods are to Measure of _ _ ° damages be delivered in futuro by instalments. It has already in contracts rr\^ i • i i i r i for future been shown, ante, g oyo, that a partial breach ot the in i'nstat Contract, by a refusal to accept or to deliver any par- ments. ticular parcel of the goods, was decided by the queen's bench, in Simpson v. Crippin, (n) not to give to the aggrieved party the right to rescind the whole contract, but only to a com- pensation in damages for the partial breach ; and this decision was treated as settling the law on this point in Roper v. Johnson, infra. § 881. The measure of damages to which the buyer is entitled on the breach of such a contract has been determined in two cases, — one in which the action was brought after the time fixed for the final delivery, and the other where the action was brought after partial breach but before the time fixed for the last delivery. In Brown v. Brown V. MuUer (o) the contract was for the delivery MuUer. of 500 tons of iron in about equal proportions in Sep- tember, October, and November, 1871, and action was brought in December by the buyer. The defendant had given notice soon after the contract that he " considered the matter off," and that he regarded the contract as cancelled, and had expunged the order (k) Bach V. Owen, 5 T. R. 409 ; Rad- E. 680; 28 L. J. Q. B. 204 ; [Putt v. Dun- ford V. Smith, 3 M. & W. 254 ; Bowdell can, 2 Bradwcll (111.), 461 ; Coekcroft v. N. V. Parsons, 10 East, 359 ; Amory v. Brod- Y. & Hnrlcm R. R. Co. 69 N. Y. 201. J rick, 5 B. & A. 712. (n) L. R. 8 Q. B, 14. [See Brandt v. [l) Ante, § 567. Lawrence, 1 Q. B. Div. 344.] (m) Valpy v. Oakeley, 16 Q. B. 941; 20 (o) L. R. 7 Ex. 319. L. J. Q. B. 380 ; Griffiths v. Perry, 1 E. & PART 11.] EEMEDIES OF THE BUYER. 879 from his books. It was held that the proper measure of damages was the sum of the difference between the contract and the market prices of one third of 500 tons on the 30th of September, the 31st October, and the 30th November respectively. In this case the plaintiff had not elected to consider the defendant's repudiation of the contract as a breach, which he was at liberty to do under the decisions in Hochester v. De la Tour (p) and Frost v. Knight (g) (ante, § 569), but had insisted on the execution of the contract after that repudiation. § 882. In Roper v. Johnson (r) the defendants had contracted to sell to the plaintiffs 300 tons of coal, " to be taken yiowt v during the months of May, June, July, and August ; " Johnson, and the plaintiffs having taken no coals in May, the defendants on the 31st of that month wrote to the plaintiffs to consider the con- tract cancelled. The plaintiffs on the next day replied, refusing to assent to this, and sent to take coal under the contract on the 10th June, when the defendants positively refused delivery, and the action was commenced on the 3d July. It was held, 1st, that on the authority of Simpson v. Crippin, supra, the defendants had no right to rescind the contract by reason of the plaintiff's default in not sending to take the May delivery ; and, 2dly, that the plain- tiffs had elected to treat the positive refusal of the defendants on the 10th June as a breach of the contract on that day, under the doctrine of the cases of Hochester v. De la Tour and Frost v. Knight ; but although that was the date of the breach, it was also held, 3dly, that in the absence of any evidence on the part of the defendants that the plaintiffs could have gone into the market and obtained another similar contract on such terms as would mitigate their loss, the measure of damages was the sum of the differences between the contract price and the market price at the several periods for delivery, although the last period fixed for delivery had not arrived when the action was brought, or the cause tried. The jury were to estimate, as best they could, the probable difference in respect of the future deliveries, (s) (p) 2 E. & B. 678 ; 22 L. J. Q. B. 455. large quantity of coal to the plaintiffs at (?) L. R. 7 Ex. Ul. a fixed price, in equal monthly portions, (>■) L. E. 8 C. P. 167. [See Bergheim v. during a certain time, to be transported by Blaeaavon Iron Co. L. R. 10 Q. B. 319.] ship and rail to the plaintiffs' factory at (s) [In Merrimack Manuf. Co. u. Quin- their expense ; and the plaintiff's agreed to Merrimack 'ard, 107 Mass. 127, it ap- receive the coal if the first cargo should Xfntoi. P^^''^'^ '>>»' 'he defendant con- prove satisfactory. The action was brought traded to sell and deliver a to recover for a breach of the contract in 880 BREACH OF THE CONTRACT. [BOOK V. SECTION II. — WHERE THE PROPERTY HAS PASSED. S 888. Where the contract which has been broken by the ven- dor is one in which the property has passed to the buyer, there arise in favor of tlie latter the rights of an owner ; of one who has not only the property in the goods, but the right of possession, defeasible only on his own default in complying with his duty of Buyer had accepting and paying for them. A buyer in this condi- no "other ^ion has of course the right of action for damages for remc-dv at ° t • , t common breach of the contract, discussed m the preceding sec- tion for' tion ; for that is a right common to all parties to con- damages. ^jg^g(.g Qf every kind, and was formerly the only remedy at common law for such breach. § 884. In equity, however, the courts would in certain cases But equity Compel the vendor to deliver the specific chattel sold, I^midmes ^^^^ ^^^^ cases on the subject are collected in the first enforce volume of White and Tudor's Leading Cases in specific ° perform- Equity, (<:) where the rule as deduced from the au- „ , '. thorities is stated in these words : " The question in all Rule m ^ equity. cases is this. Will damages at law afford an adequate compensation for breach of the agreement? If they will, there is no occasion for the interference of equity ; the remedy at law delivering coal of an inferior quality, and have been foreseen, at the time of making in failing to deliver it until after the con- the contract. To ascertain what these tract time, and it was held that the nieas- were, resort must be had to the terms of ure of damages for delivering coal of an the contract for its meaning, as applied to inferior quality was the difference between the subject-matter, and as interpreted by the value at the factory of the coal called the general and known usages of the busi- for by the contract and that of the coal ness to which it refers. • . The differ- delivered, and the measure of damages for ence in market value of the coal between the failure to deliver in time was not the the time of actual delivery and the time it difference in the market value, but the should have been delivered, as a rule of difference between the actual charge for damages, is not applicable. The plaintiffs freight and insurance and the average received all the coal called for by the con- rates during the time covered by the con- tract, at the contract price, and do not tract, especially in the absence of evidence claim damages for any deficiency in quan- / that the average rates were higher than tity. They are entitled to the benefit of the rates at the end of the contract period, their contract, although the market value Colt J. said : " As to the rule of damages, had increased by the delay.'' Tyers v. the plaintiffs are entitled to recover for Rosedale & Ferryhill Iron Co. L. R. 10 such losses as were the direct and natural Ex. 195, 198, 199.] consequence of the defendants' failure to {() In notes to Cuddce v. Rutter, 715, perform, and also for such as were fore- 3d ed. seen, or may reasonably be supposed to PART II.] REMEDIES OF THE BUYER. 881 is complete : if they will not, specific performance of the agree- ment will be enforced." (w) § 885. But now, by the mercantile law amendment act, 1856 (19 & 20 Vict. c. 97, s. 2), it is provided, that " in all g ^^.^^ actions for breach of contract to deliver specific goods perform- (. . , . ance now for a price m money, on application of the plaintiff, and allowed by leave of the judge before whom the cause is tried, by mercan- tile jury shall, if they find the plaintiff entitled to re- amend^ cover, find by their verdict what are the goods in respect "'*°' ^'^'• of the non-delivery of which the plaintiff is entitled to recover, and which remain undelivered ; what, if any, is the sum the plaintiff would have been liable to pay for the delivery thereof ; what damages, if any, the plaintiff would have sustained if the goods should be delivered under execution as thereinafter men- tioned, and what damages if not so delivered ; and thereupon, if judgment shall be given for the plaintiff, the court, or any judge thereof, at their or his discretion, on the application of the plain- tiff, shall have power to order execution to issue for the delivery — on payment of such sum, if any, as shall have been found to be payable by the plaintiff as aforesaid — of the said goods, with- out giving the defendant the option of retaining the same upon paying the damages assessed." § 886. The buyer to whom the property has passed may, if not in default, maintain an action in trover for damages ^"y^"" "}^y . " also main- lor the conversion, on the vendor's refusal to deliver, as tain trover, well as an action on the contract ; but he cannot recover greater damages by thus suing in tort than by suing on the contract. If, therefore, the vendor's conversion was before delivery, so g^ig ^f that he cannot maintain an action for the price, as if he damages J^ ' for conver- has resold the goods to a third person, the damages re- sion by ,, ,f, , , Tpn , r vendor be- coverabie would be only the difference between the con- fore deiiv- tract price and the market value, (a;) But if the ven- ^'^^' dor's right of action for the recovery of the price were not thus lost, as if he had delivered the goods and afterwards tortiously re- (") See, also, opinion of Kindersley V. [This subject is considered in 2 Chitty C. in Falcke v. Gray, 4 Drew. 658 ; 29 L. Contr. (11th Am. ed.) 1425-1427, and the J. Ch. 28, in which he held that a contract American cases are cited in the notes ; and for the purchase of articles of unusual in 2 Kent, 487, note (rf).] beauty, rarity, and distinction, such as ob- (x) Chinery v. Viall, 5 H. & N. 288 ; 29 jects of virtu, will be specifically enforced. L. J. Ex. 180. 66 882 BREACH OF THE CONTRACT. [book V. taken and converted them, the buyer's right of recovery in trover ., , would be for the whole value, and the vendor would be After de- • ^ n rrx, u livery. driven to his cross action for the price, (y) ihe sub- ject has already been discussed, in the examination of the ven- dor's right of resale, in part I. ch. iii. boot V. § 887. After the property in the specific chattel has passed to the buyer, it may happen that he discovers the goods right to re- bought to be different in kind or quality from that goods of- which he had a right to expect according to the agree- ^'^^^' ment. In such case it is necessary to distinguish whether the defect be one in the performance of a condition or of a war- ranty. In the former case he may refuse to accept the goods and reject the contract, but not in the latter. (2) The reason for this difference is, that in the one case the contract itself de- pends on the performance of the condition precedent incumbent on the vendor, while in the other the principal contract has been performed, and the breach is only of the collateral undertaking of warranty. § 888. If the goods sold are not of the description which the buyer agreed to purchase, he may reject them, as ex- plained ante, §§ 600 et seq., in the chapter on Con- ditions, where the cases are cited and reviewed. But where the property in the goods has passed to the buyer 7(neoiiditioiiaUij, the law gives him no right to rescind the contract in the absence of an express stipulation to that effect, and the property therefore remaining in him, he is bound to pay the price even if he rejects the goods, which still remain his. (a) His proper remedy, therefore, is to 354, Wells J. said: "In strictness, both warranty and rescission import tliat tlie subject is within tlie contract, and passed He may refuse the goods if not of the description agreed on. He cannot reject them for breach of war- ranty of quality. (ij) Gillard v. Brittan, 8 M. & W. 575. (z) [In Massachusetts and some other states the purchaser may reject or return the goods in either of these cases. See note (a) below.] (a) Street i: Blay, 2 B. & Ad. 456 ; Gompertz v. Denton, 1 C. & M. 205 ; Poulton V. Lattimore, 9 B. & C. 259 ; Parsons v. Sexton, 4 C. B. 899 ; DaAvson V. Collis, 10 C. B. 530 ; Cutter v. Powell, in notes, 2 Sm. L. C. 26 ; [Hinchcliffe v. Barwick, 5 Ex. Div. 177.] Lord Eldon's decision to the contrary, in Curtis v. Han- nay, 3 Esp. 83, is overruled by the later cases. [In Mansfield v. Trigg, 113 Mass. to the purchaser by its operation. The rejection and return of articles of a differ- ent liind or description, not answering to the terms of the contract, does not stand upon the ground of rescission ; nor does the right to return them depend upon the existence of a warranty.'' See Osborn 0. Gantz, 60 N. Y. 540. In some ^^^^^ to of the American courts the f'"'^'' S°°?' for breach of right to return the goods for warranty: a breach of warranty is Urn- ™ America, ited to cases of fraud, or of express PART II.] REMEDIES OP THE BUYER. 883 receive the goods, and to exercise the rights explained in the next chapter. agreement to that effect between the par- ties. See Thornton v. Wynn, 12 Wheat. 183; Withers v. Greene, 9 How. (U. S.) 213; Lyon v. Bertram, 20 lb. 149 ; Voor- hees V. Earl, 2 Hill, 288; Gary v. Gru- man, 4 lb. 626 ; Comstock J. in MuUer 1). Eno, 14 N. Y. 601 ; Lattin v. Davis, Hill & Denio, 9, 16 ; Ease v. John, 10 Watts, 109 ; Freyman v. Kneeht, 78 Penn. St. 141 ; Lightburn v. Cooper, 1 Dana, 273; Allen v. Anderson, 3 Humph. 581; Williams v. Hurt, 2 lb. 68 ; West v. Cut- ting, 19 Vt. 536 ; Mayer v. Dwinell, 29 lb. 298; Day v. Poo], 52 N. Y. 416, 419 ; .Fuentes v, Caballero, 1 La. An. 27 ; Eust V. Eckler, 41 N. Y. 488 ; Matteson v. Holt, 45 Tt. 336 ; Hoadley v. House, 32 lb. 180; Milton v. Rowland, 11 Ala. 732; Bunce v. Beck, 43 IHo. 279 ; Cable v. Ellis, 86 111. 525; Marsh v. Low, 55 Ind. 271 ; Walls V. Gates, 6 Mo. App 242 ; Kimball Manfg. Co. v. Vroman, 35 Mich. 310. But in Massachusetts and some other states the Massachu- purchaser has a right to re- ""'■ scind the contract and return the goods in all cases of a breach of war- ranty express or implied. The same rule has been adopted in Iowa, Rogers o. Hanson, 35 Iowa, 283. See Aultman v. Theirer, 34 lb. niinoij ^^^' In Illinois. Sparling w. Marks, 86 111. 125. In Per. ley V. Balch, 23 Pick. 283, which was an action on a promissory note given for the price of an ox sold to the defendant, it was adjudged that the jury were rightly instructed that if, on the sale of the ox, there was fraud, or an express warranty md a breach of it, the defendant might avoid the contract by returning the ox within a reasonable time, and that this would be a defence to the action. See Conner v. Henderson, 15 Mass. 319 ; Kim- MMsMhu- '"'ii "• Cunningham, 4 lb. 502 ; ■ettB a«i. Carter v. Walker, 2 Rich. 40. bhaw C. J. m Dorr v. Fisher, 1 Cush. 271, 274, said : " A warranty is not strictly a condition, for it neither sus- lowa. penda nor defeats the completion of the sale, the vesting of the thing sold in the vendee, nor the right to the purchase- money in the vendor. And, notwithstand- ing such warranty, or any breach of it, the vendee may hold the goods and have a remedy for his damages by action. But to avoid circuity of action, a warranty may be treated as a condition subsequent, at the election of the vendee, who may, upon a breach thereof, rescind the contract, and recover back the amount of his purchase- money, as in case of fraud." Foster J. in Morse v. Brackett, 98 Mass. 209 ; and in Boardman v. Spooner, 13 Allen, 361. But if the purchaser does this, he must first return tlie property sold, or do every- thing in his power requisite to a complete restoration of the property to the vendor, and without this he cannot recover. Shaw C. J. in Dorr v. Fisher, 1 Cush. 274 ; Conner «. Henderson, 15 Mass. 319 ; Kim- ball V. Cunningham, 4 lb. 502 ; Perley v. Balch, 23 Pick. 283. He must rescind the entire contract and restore the whole of the property sold. Bigelow C. J. in Morse V. Brackett, 98 Mass. 207. Such a restora- tion of the goods, and of all other benefits derived from the sale, is a direct condition, without a compliance with which the ven- dee cannot rescind the contract and recover back the money or other property paid or delivered on the contract. Shaw C. J. in Dorr V. Fisher, 1 Cush. 274 ; Bartlett u. Drake, 100 Mass. 176; Huut v. Sackett, 31 Mich. 18. In Bryant v. Isburgh, 13 Gray, 607, it was decided that a breach of an express warranty of soundness upon the sale of a horse authorizes the pur- chaser to rescind the contract and re- turn the horse, although there was no express agreement to that effect, and no fraud. Mr. Justice Metculf, giving the opinion of the court in this case, stated that the principle of this decision had been understood and practised upon as the law of Massachusetts for more than forty years; and that until 1831, when a 884 BREACH OF THE CONTRACT. [book V. accept goods even in an ex- ecutory contract, although BOtequalto, warranty. ■In the recent case of Heywortli v. Hutchinson (S) the Heyworth buyer was held bound to accept the goods, although the inson. ' property had not passed to him, although he had not had Buyer held an opportunity of inspection iefore purchase, and al- though the goods were much inferior in quality to the war- ranty in the written contract. The case turned on the naeaning of the written contract ; but the dicta of the judges would seem to imply that the same decision would be given in the case of any contract for the sale of spe- cific goods. The defendant bought a quantity of wool, " 413 bales greasy Entre Rios, at \^\d. per pound, to arrive ex Stige, or any vessel they may be transshipped in, and subject to the wool not being sold in New York, before advice reaches the con- signees to send the wool forward here. The wool to be guaran- tied about similar to samples in Perkin's and Robinson's posses- sion, and if any dispute arises it shall he decided by the selling brokers, whose decision shall be final," &c. On arrival it was found by the brokers that 180 bales were not as good as the orig- contrary opinion was expressed by the court of king's bench, in Street v. Blay, 8 B. & Ad. 461, the law of England upon the point had been supposed to be the same. In Maryland, the purchaser may either sue for a breach of warranty, without return- ing the goods, or he may rescind the con- Maryland tract by returning or offering rule. to return them within a rea- sonable time, and sue for and recover back the purchase-money. This reason- able time for rescinding the sale by re- turning or offering to return the goods is to be computed from the time the un- soundness is discovered, and not from the date of the contract. Taymon v. Mitchell, 1 Md. Ch. 496 ; Hyatt u. Boyle, 5 Gill & J. 110; Franklin i/. Long, 7 lb. 407, 419 ; Rutter v. Blake, 2 Harr. & J. 353; Horn r. Buck, 48 Md. 358. See Matteson V. Holt, 45 Vt. 341 ; Gates v. Bliss, 43 lb. 299. The rule in Maine is similar. Marston u. Knight, 29 Maine, 341. The purchaser must use proper diligence in rescinding the sale. Cutler V. Gilbreth, 53 Maine, 176. If upon a sale with a warranty, or if by the special terms of the contract, the purchaser is at liberty to return the article sold, an offer to return it is equivalent to an offer accepted by the vendor, and, in that case, the con- tract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchase-money, or to enable the purchaser to maintain an action for money had and received, in case the purchase-money has been paid. The con- sequences are the same where the sale is absolute, and the vendor afterwards con- sents, unconditionally, to take back the property, because in both the contract is re- scinded by the agreement of the parties, and the purchaser is well entitled to retain the purchase-money in the one case, or to recover it back in the other. Washington J. in Thornton v. Wynn, 12 Wheat. 183, 193. H the goods have been returned, after payment of the price, the purchaser will be entitled to recover back the whole price paid. See Conner v. Henderson, 15 Mass. 319; Kimball u. Cunningham, 4 lb. 502; Perley v. Balch, 23 Pick. 283; Taymon v. Mitchell, 1 Md. Ch. 496.] (b) L. E. 2 Q. B. 447 ; 36 L. J. Q. B. 270. PART II.J REMEDIES OF THE BUYER. 885 inal samples by 2d. a pound ; 201 bales not as good by l\d. a pound ; and thirty-two bales not as good by \d. per pound. The buyer on inspecting the wool refused to take it, and after due no- tice to, and under protest from him, the brokers awarded that he should take it at the above allowances. The second count of the declaration alleged this decision of the brokers as an award after due arbitration. One of the brokers deposed at the trial that the wool was not "about similar to samples," and that was the reason for making the allowances. The defendant was held bound to accept under the award. Among the dicta, however, were the following, some of which, if taken literally, go farther, it is sub- mitted, than has yet been determined by any direct authority. Cockburn C. J. said : " This contract is for the sale of specific wools to arrive by a particular ship ; they are ear-marked so as to prevent the contract applying to any other wools ; and they are guarantied as about similar to samples. If the matter stood there, this being a sale of specific goods, though with a warranty, there would not be any right or power on the part of the buyer to reject ike goods on the ground of their not being conformable to the sam- ples; but the buyer's remedy would be either by a cross action on the warranty, or by giving the inferiority in evidence in reduc- tion of damages." Blackburn J. put his judgment on the ground of the written contract, and said as to the clause of warranty : " Now such a clause may be a simple guaranty or warranty, or it may be a condition. Generally speaking, when the contract is as to any goods, such a clause is a condition going to the essence of the contract; but when the contract is as to specific goods, the clause is only collateral to the contract, and is the subject of a cross action, or matter in reduction of damages." Lush J. said : "This was not a contract to supply any goods answering the de- scription, but a contract to sell specific goods, with a warranty of their being about similar to sample ; and clearly by the general law there was no power in the buyer to reject them, because they did not answer the description." When Heyworth v. Hutchinson was cited in Az^mar v. Casella, (c) Blackburn J. said that the de- cision was quite consistent with the judgment in the latter case, because " the wool which arrived was of the same kind or char- acter as that contracted for, but inferior only in quality." § 890. It is very difficult to understand the reason for the dis- (c) L. R. 2 C. P. 677, in Cam. Scacc. ; 36 L. J. C. P. 263. BREACH OF THE CONTRACT. [BOOK V. tinction suggested in the above dicta of the eminent judges of Remarks the queen's bench if intended to apply to cases where the rfff/a'in specific chattels have never been in a condition to be in- this case, spected by the buyer, and where the property has not passed to Mm. The cases in which it has been held that on the sale of a specific chattel the buyer's remedy is confined to a cross action or to a defence by way of reduction of the price, are all cases of the hargain and sale of a special chattel unconditionally, where, consequently, the property had become vested in the buyer ; but no similar case of an executory contract has been found ; no case in which the buyer has been held bound to accept goods which required to be weighed before delivery, and in which, therefore, the property remained in the vendor, if they were not equal in quality to the sample by which they were bought. In justice and principle there seems to be no difference between a vendor's saying, " I will sell you 100 bales of wool at 10c?. a pound warranted equal to this sample," and his saying, " I will sell you 100 bales of wool marked with my name, which I hd,ve on board the ship Stiije, now at sea, at 10c?. a pound, warranted equal to this sample." Why should the vendor have the right to reject the goods, if inferior in quality to the sample, in the former case, and not in the latter ? In neither instance has he an opportunity to inspect, and in neither does the reason exist on which the opin- ion rested in Street v. Blay, () See, also, Rigge v. Burbidge, 15 M. ^ W, 598; Cutter v. Powell, 2 Sm. L. C. notes, p. 26 ; [Cook v. Castner, 9 Cush. 266 ; Starr Glass Co. v. Morey, 108 Mass. 570, 573 ; McKnight v. Devlin, 52 N. Y. 402 ; Beall v. Brown, 12 Md. 550 ; Barker V. Cleveland, 19 Mich. 230. But in Bur- nett V. Smith, 4 Gray, 50, it pleading was held that if in an action f'^'^i "^ suit on promis- against the purchaser, on a sory note : promissory note given in pay- '^'"^ ''^• ment for goods, he has pleaded want of consideration, by reason of false represen- tations of the vendor concerning the value of the goods, and the vendor, being plain- tifi^, has recovered judgment for a part only of the note, the purchaser is barred of his action for the false representations. See O'Connor v. Varney, 10 Gray, 231 ; Fabbrizcotti v. Lannita, 3 Sandf. 743. In O'Conner v. Varney, 10 Gray, 231, Shaw C. J. said : " A party against wiiom an action is brought on a contract has two modes of defending himself. He may al- lege specific breaches of the contract de- clared upon, and rely on them Vendee in defence. Butif he intends "'^^^fj^ to claim, by way of damages excess of r e i- ^u .plaintiff's for non-performance oi the claim, what contract, more than the he mast do. amount for which he is sued, he must not rely on the contract in defence, but must bring a cross action, and apply to the court to have the cases continued, so that the executions may be set off. He cannot use the same defence, first as a shield and then as a sword." The correctness of the decision in Burnett o. Smith, supra, was recognized in Bodurtha v. Phelon, 13 Gray, 413. But this last case was an ac- 894 BREACH OF THE CONTRACT. [BOOK V. § 898 a. [In Abell v. Church, (m^) there had been a sale of a ,, „ water wheel, which the vendor warranted should an- Abell V. ' Church. swer a certain purpose. The wheel did not answer the purpose, and the vendee brought an action for breach of war- ranty, and recovered damages. The vendee's declaration contained three counts, all of them charging a warranty in different terms, „, . and alleging as ground of damages for the breach that rule where the plaintiff thereby incurred expense in removing the vendee ^ ... . . ^. , , , , sues for wheel, m repairmg it and putting in another wheel, and warranty Suffered damages from the stopping of his mill. There dor°sues^"" '^^^ ^^^'^ ^ money count. There was a general verdict tor price? jf^j, ^jjg plaintiff, and he had judgment and satisfaction. From the postea it appeared that the vendee recovered damages for the breach of the warranty of fitness. The vendor subse- quently brought suit for the price of the wheel, and it was held that the vendee could not introduce evidence tending to show that the wheel was worthless. Patterson J. said :...." The precise point of law here raised has not been directly decided by any case in England or here, although I think there is no difficulty in ap- plying to it the principles settled by the cases to which I have re- ferred [having referred to Mondel w. Steel among others] I rest my decision on two grounds : First, that the defendant has in fact received satisfaction for all the damages to which the breach of warranty entitled him, which I take to be the conclusive effect of the judgment recovered and satisfied ; and, secondly, that the right of action on the warranty being gone, there is no inde- tion brought before a justice of the peace, for the price of the cotton, by the present on a note given for the price of a horse, in defendant, in another state, and then he which the defendant relied on a breach of afterwards suffered judgment to go against warranty, and judgment was given for a him by default in that suit, offering no portion of the note, from which the plain- evidence in support of bis plea, it was held tiff appealed to the court of common that he was not estopped by the record and pleas, and the defendant was there de- proceedings in the other state from main- faulted. It was held that the former taining the present action. In an action judgment was no bar to an action on the for the price of property sold where the warranty. A similar case was Bascom v. defendant set up a breach of warranty in Manning, 52 N. H. 132, in which the plain- defence and succeeded, it was held in Vir- tiff brought an action to recover damages ginia that he could not afterwards sue for for a breach of warranty in the sale of a other damages and expenses incurred by lot of cotton, and it appeared that the him on account of the breach of warranty, plaintiff had pleaded the facts upon which Huff u. Broyles, 26 Grattan, 283.] his right of action depended in defence, {m^) [26 U. C. C. P. 338.] pro tanto, of a suit brought against him piRT II.] KEMEDIES OF THE BUYER. 895 pendent rigbt to recover damages by way of deduction from the price." But on appeal this decision was reversed. In Church v. Abell, 1 Can. Supr. Ct. 442, Richards C. J. said : " The fitting de- duction from the language used and principles laid down in the cases of Mondel v. Steel and Davis v. Hedges .... is to hold that when the purchaser brings his action upon the warranty before making payment, and I should add to this when the payment is due, he shall be restricted to the recovery of any special damages he has sustained, and shall not be permitted to recover for inferi- ority of value ; for the simple reason, that if he is afterwards sued for the price, the law affords him full protection by enabling him to assert the inferiority as a ground of defence."] § 899. In Davis v Hedges (n) the queen's bench followed Mondel v. Steel, and further held that the buyer has the Davis v. option of setting up the defective quality as a defence, or of maintaining a separate action. In Poulton v. Lat' Lattimore. timore (o) the buyer's defence in an action for the price ^^yl^^l^g,^ was successful for the whole amount of the price. The payingany . -, part of the vendor sued to recover the price of seed, warranted to pvice. be good new growing seed, part of which the buyer had sowed himself, and the remainder was sold to two other persons, who proved that the seed was worthless ; that it had turned out to be wholly unproductive ; and that they had neither paid, _ •I r ' .7 r ' Buyer may nor would pay for it. (p) It was further held in this defend or case that the buyer might insist on his defence with- tionfor out returning, or offering to return, the seed, (g) And warranty (n) L. R. 6 Q. B. 687. Myers v. Conway, 62 Ind. 474 ; Vincent v. (o) 9 B. & C. 259. Berry, 46 Iowa, 571 ; Earl v. Pecli, 64 N. (p) [It is not a defence to a note given Y. 596.] Wheienote '°'' ^^e price of an article that (q) [Shepherd ». Temple, 3 N. H. 455 ; tobEen it tarns out to be of no value, Bliss v. Negus, 8 Mass. 46; Perley v. mmotie '" " <^^s where there is no Balch, 23 Pick. 283; Stone v. Frost, 6 Era'" warranty and no fraud in the Lansing, 440. See Evans u. Gale, 21 N. sale. Bryant v. Pember, 45 H. 245 ; Mooklar v. Lewis, 40 Ind. 1 ; Day Vt. 487; Boit v. Maybin, 52 Ala. 252 ; v. Pool, 52 N. Y. 420 ; Bounce v. Dow, 57 Preston v. Dunham, lb. 217. See Kicks lb. 16, 22 ; Dill u. O'Ferrell, 45 Ind. 268. ». Dillahunty, 8 Porter, 133 ; Johnson v. But if the goods are of any value, such Titus, 2 Hill (N. Y.), 606 ; Conner u. defence cannot be made without a return. Henderson, 15 Mass. 319 ; Perley v. Balch, Perley v. Balch, 23 Pick. 283. See Kin- 23 Picli. 283, 286 ; Wright u. Hart, 18 ney v. Kiernan, 49 N. Y. 164. In Cook v. Wead. 454; Mooklar v. Lewis, 40 Ind. 1 ; Oilman, 34 N. H. 556, it was held that a McKnight v. Devlin, 52 N. Y. 399, 402; party wishing to rescind a con- „ . . oapona Iron Co. v. Holt, 64 N. C. 335 ; tract on the ground of fraud 896 BREACH OF THE CONTRACT. [book V. •without re- \\iq cases Cited in the note are authorities to the effect, good's, or that not only may the breach of warranty be so used in ficelo "° defence, but that a direct action by the buyer may be vendor. maintained for damages for the breach, without notice to the vendor, (r) § 900. It has been said, however, by eminent judges, and the jury at the trial would no doubt be told, that the failure either to return the goods, or to notify the vendor of the defect in quality, raises a strong presump- tion that the complaint of defective quality is not well founded, (s) In Adam v. Richards (<) the common pleas held that where a horse had been sold with ex- press warranty and an agreement to take him back if found faulty, it was incumbent on the purchaser to re- turn the horse as soon as the faults were discovered, un- less the seller by subsequent misrepresentation induced the purchaser to prolong, the trial, (u) But the right to return a horse for breach of warranty was held by the But his failure to do so raises a presump- tion against him. Adam v. Kichards. "Where vendor has agreed to take back the chattel if found faulty, it must be returned as soon as defect is found. must restore what he has received. If the subject-matter received is the note of the third person, and it is not returned, it will not be admissible to show that the maker was insolvent and the note worthless, as a ground of rescinding the contract. Dixon V. Paul. 4 U. C. Q. B. (0. S.) 327; Hall i;. Coleman, 3 lb. 39 ; McCoUum v. Church, lb. 355 ; Gittings i,. Carter, 49 Iowa, 338; Hess v. Young, 59 Ind. 379. See Brewster v. Burnett, 125 Mass. 68.] (r) Fielder v. Starkin, 1 H. Bl. 17; Pateshall v. Tranter, 3 Ad. & E. 103; Bu- chanan V. Parnshaw, 2 T. R. 745; [Vin- cent . Cameron, 7 Rich. 114; Hodgskins v. Moulton, 100 Mass. 310, 311. In Cantrall u. Fawcett, 2 BradwcU (111.) 569, it was held that even where a PART II.J REMEDIES OF THE BUYER. 899 case of the vendor's breacli of his obligation to deliver. <>" breach Ante, § 871. In Dingle v. Hare, (6) cited ante, § 624, it ranT"" was held that the jury had properly allowed the pur- giigie"- chaser the difference of value between the article delivered and the article as warranted. And in Jones v. Just, (c) cited ante, § 657, the same rule was applied, and the J^^t. plaintiff recovered as damages 756L, although by reason of a rise in the market the inferior article sold for nearly as much as the price given in the original sale, (c^) In Lewis v. Peake j^ewis v (e) the buyer of a horse, relying on a warranty, resold Peake. Jones V. second note had been given, the first hav- ing been surrendered, and there was a warranty at time of sale, it was for the jury to say whether the contract of war- ranty still remained or was adjusted when the second note was given. Aultman v. Wheeler, 49 Iowa, 647. If the note has passed into the bands of an innocent holder for value before maturity, the pay- ment of the note to such holder does not bar the vendee's claim for damages against the vendor. Creighton v. Comstock, 27 0. St. 548.] (6) 7C. B. N. S. 145; 29 L. J. C. P. 144. (c) L.E. 3Q.E. 197; 37 L. J. Q. B. {d] [A warranty binds the party en- WhatTendor tering into it, upon breach teacK '"^ tbereof, to repay the differ- TOrrattty. ence between the actual value of the article sold and that of an article such as the article sold was represented to be at the time and place of delivery. Morse v. Hutchins, 102 Mass. 439, 440; Stiles V. White, 11 Met. 356; Tuttle v. Brown, 4 Gray, 457 ; Keggio v. Braggiotti, 7 Cush. 166 ; Goodwin v. Morse, 9 Met. 278 ; Whitmore v. South Boston Iron Co. 2 Allen, 52 ; Cothers v. Keever, 4 Barr, 168; Page v. Parker, 40 N. H. 47; Fisk V. Hicks, 31 lb. 535 ; Edwards v. CoUson, 5 Lansing, 324 ; Woodward o. Thacher, 21 Vt. 580; Houghton v. Carpenter, 40 lb. 688; Qverbay v. Lighty, 27 Ind. 27; Street v. Chapman, 29 lb. 142 ; Booher "• Goldsborough, 44 lb. 490 ; McClure v. Williams, 65 111. 390; MuUer ... Eno, 4 Kernan, 597 ; Sherwood v. Sutton, 5 Ma- son, 1; Wells V. Selwood, 61 Barb. 238; Sharon v. Mosher, 17 lb. 5!8; Thornton V. Thompson, 4 Grattan, 120; Moulton v. Scruton, 39 Maine, 287 ; Wright v. Roach, 57 lb. 600; Bartlett u. Blauchard, 13 Gray, 429 ; Grose v. Hennessey, 13 Allen, 389; Brown v. Bigelow, 10 lb. 242; Worthy w. Patterson, 20 Ala. 172; Wol- cott u. Mount, 7 Vroom, 262; S. C. 9 lb. 496; Cliue u. Myers, 64 Ind. 304; Ferguson v. Hosier, 58 lb. 438 ; Horn v. Buck, 48 Md. 358; Zuller h. llogers, 7 Hun, 540 ; Van Wyck v. Allen, 69 N. Y. 61 ; Wyeth c,. Morris, 13 Hun, 338 ; White V. Brockway, 40 Mich, 209 ; Wing V. Chapman, 49 Vt. 33; The Aultman Co. u. Hetherington, 42 Wis. 622 ; Drake V. Sears, 8 Oreg. 209; Smith v. Green, 1 C. P. Div. 92. The rule of damages is the same in an action for deceit in the sale. Stiles v. White, 11 Met. 356; Morse v. Hutchins, 102 Mass. 439, 440. Strictly within the rule, and a strong illustration and •application of it, was the case of Murray v. Jennings, Murray v. 42 Conn. 9, in which it ap- Jennings, peared that the plaintiff exchanged with the defendant a yoke of oxen for a horse. The defendant fraudulently represented the horse as sound when it was not so. The plaintiff was guilty of no fraud, and would not have made the exchange but for the defendant's representation. The action was brought for the deceit in the (e) 7 Taunt. 153. 900 BREACH OF THE CONTRACT. [book V. the aniraal with warranty, and being sued by his vendee, informed Buyer may ijis vendor of the action, and offered him the option of recover the defending it, to which offer he received no answer, and The corn- costs of de- againsthia thereupon defended it himself, and failed. fnc'ertairf'' mon pleas held that the costs so incurred were recover- cases. sale. The evidence showed that the oxen were worth a hundred dollars ; and that the horse was worth a hundred and twenty- five dollars, unsound as he was ; but that, if sound, he would have been worth two hundred and twenty-five dollars. The court ruled that the plaintiff was entitled to recover the difference between the actual value of the horse and its value if sound ; and that the question was not affected by the lact that its value as unsound was greater than that of the oxen. Phelps J. said : " In one sense the plaintiff would seem to have suffered no damage, but the law gives her the benefit of the contract, and places her, with respect to it and to all her rights under it, in the same position as if no fraud had been practised upon her, and as if the horse was as sound and valu- able as she had a right, from the defend- ant's representations to her, to believe it was." The purchaser is not entitled to recover anything on the ground of the loss of profits on the warranted article. Lattin v. Davis, Hill & Denio, 9 ; Blanch- ard „. Ely, 21 Wend. 342; Gifi'ord v. Betts, 64 N. C. 62. If the article sold proves to be wholly worthless, then the purchaser shall recover what would have been its value at the time of the warranty, had it been, in fact, what it was warranted ^ to be. " Prima facie, the price first paid for the article is good evidence of its value in one sense. But the value is not the same to both parties ; and no merchant would make a purchase unless the goods bought were worth more to him than the amount he pays for them. In this country, the established rule in relation to damages in such actions is, that the plaintiff may recover what he can show that he has act- ually lost. A subsequent sale by the vendee of the article warranted is evidence of its value to him." Shaw C. J. in Eeggio v- Braggiotti, 7 Cush. 166, 169. "To allow to the plaintiff only the difference between the real value of the property and the price which he was induced to pay for it, would be to make any advantage lawfully secured to the innocent purchaser in the original bargain inure to the benefit of the wrong-doer, and, in proportion as the orig- inal price was low, would afford a protec- tion to the party who had broken, at the expense of the party who was ready to abide by, the terms of the contract." Gray J. in Morse u. Hutchins, 102 Mass. 440 ; Tuttle V. Brown, 4 Gray, 4.57. See Thorn- ton i. Thompson, 4 Grattan, 121 ; Gary v. Grurnan, 4 Hill, 625'; Comstock v. Hutch- inson, 10 Barb. 211 ; Glover v. Hutson, 2 McJIullan, 109; Seibles v. Blackwell, 1 lb. 56; Texada u. Camp, Walker, 150; Wright V. Roach, 57 Maine, 600 ; Booher o. Goldshorough, 44 Ind. 490 ; Thome o. McVe.igh, 75 111. 81. Interest is not to be added to the amount of that differ- ence. IMoulton V. Scruton, 39 Maine, 287. Where there has been a Nomioal breach of warranty, nominal ^'^""/„''„ damages are recoverable in an real injury, action thereon, although the plaintiff, the purchaser, acquired a profit on the resale of the goods. Per Parke J. in Street v. Blay, 2 B. & Ad. 456, 458 ; Brown i/. Bigelow, 10 Allen, 242 ; Medbury v. Wat- son, 6 Met. 246; Milton y. Rowland, 11 Ala. 732. The purchaser may recover for a breach of warranty, although he has re- sold the goods, and no claim has been made on him, and he is liable to none on account of the alleged defect ; and in such an action he is not required to prove the price at which he resold the goods to en- title him to recover. MuUcr o. Eno, 4 Kernan, 597. See Burt v. Dewey, 40 N. Y. 283.] PART 11.] REMEDIES OF THE BUYER. 901 able as special damages against the first vendor. (/) In Randall V. Raper (Fort, i Blackf. 293 ; Massie v. Crawford, 3 Mon- 108. But if an action be brought for fraud in the sale by representations which the vendor knew to be false, the knowledge of the defect or bad quality of the goods must be brought home to the vendor. Bartholomew v. Bushnell, 20 Conn. 271 ; Vail V. Strong, 10 Vt. 457; Kingsbury i>. Taylor, 29 Maine, 508. Where the repre- sentations of the vendor amount to a war- ranty of the goods sold, and he knew the representations to be untrue, the purchaser may sue him either in an action of tort or in contract on the warranty. See Hillman D. AVilcox, 30 Maine, 170; Kingsbury v. Taylor, 29 lb. 508 ; Salem India Rubber Co. V. Adams, 23 Pick. 256 ; Lassiter v. Ward, 11 Ired. 443 ; Mahurin v. Harding, 28 N. H. 128; Pierce u. Carey, 37 Wis. 232. In Kingsbury v. Taj-lor, 29 Me. 508, it was held, that where winter rye was sold for seed sprinrj rye, and the purchaser thereby lost his crop, an action of deceit would not lie, unless the vendor knew it to be winter rye. See Salem India Rubber Co. V. Adams, 23 Pick. 256; Stone <,. Denny, 4 Met. 151 ; Emerson k. Brigham, 10 Mass. 197 ; Randall ;;. Newson, 2*Q. B. Div. 102, cited and stated ante, § 657, in note (F).] INDEX. Figures refer to Sections. "ABOUT," such a quantity — meaning of the words, 691, 692. ACCEPTANCE OE GOODS, Under statute of frauds, 138. acceptance defined, 139, 142. distinct from receipt, 139, 156. acceptance of sample is sufficient under statute, when sample is part of bulk, 141, 143, n. (I). but not, if not received as part of bulk, 143, and n. (I). whether specimen, or part of bulk, is for the jury, 143, n. (Z). may be constructive, 144. need not be by vendee personally, 144, n. (p). agent of both parties cannot make valid acceptance, 144, n. (p). must be in pursuance of previous agreement, 159, n. (?/). implies delivery, 187, n. (a). whether buyer has accepted, is fact for the jury, 144, and n. (j)« when buyer does an act of ownership, 142, and n. (g), 145, and ns. (ji), (s), and 0'), 150, n. (d^). acceptance may be effected by dealing with the bills of lading, 148. acceptance may take place without the buyer's examining the goods, 149. acceptance informing the contract must be distinguished from accept- ance in performing it, 149, 150, and n. (d^). vendee does not accept till he has had the means of exercising the right of rejection, 152-156, 152, n. (F), 154, n. (m), 155, n. (o). examples, 155, n. (o). how in case of specific articles, 155, n. (o). no act of vendor will satisfy statute, 142, n. (g). acts of buyer must concur, 142, n. (ff), 187, n. (a). mere words not sufficient, 142, n. (g). mere delivery not sufficient, 142, n. (g). mere possession by vendee not enough, 150, n. (rf^). acceptance may precede receipt, 157. 904 INDEX. Figures refer to Sections. ACCEPTANCE OF GOODS— Cnnluvjed. there may be an acceptance o£ goods still in possession of the seller, 186, u. (0). how when seller refuses to deliver goods sold, claiming a lien for the price, 187, n. (c). how when goods delivered, but title not to pass until payment, 188, n. (/). is not sufficient after action brought, 159. acceptance and receipt following contract of sale, 143, n. (i). when acceptance may precede delivery, 155, n. (o). mere delivery without acceptance, 142, u. (g}. test is, whether acceptance and receipt are in pursuance of previous agreement, 159. n. (y). and with intent to perform the whole contract, 170, n. (q). by carrier, is not acceptance under the statute, 160, and u. (a). cases in which court has set aside verdict because not sufficient evi- dence of acceptance, 161. by agent, 144, n. (p). receipt by carrier, after acceptance, sufficient, 160, n. (a). acceptance may be inferred from silence and delay, 162 et sei]. marking the goods with buyer's name, by his consent, is acceptance, but not delivery, 166, and n. (h). acceptance of part suffices under the statute to prove the whole con- tract, even where part of the goods are not yet manufactured, 167, 170, n. (q). or where the goods are of diiferent kinds, 168. or where the bargain is for resale also, on certain conditions, 169, and , n- (P)- acceptance and receipt prove the contract, though some of its terms may be in dispute, 170. acceptance and receipt of part of the goods take the case out of stat- ute, although they take place after the rest of the goods are de- stroyed while in the hands of the seller, 91, n. (/). acceptance and receipt sufficient, though they occur after oral contract of sale, 143, n. (i). (See Memoranduji.) acceptance too late after vendor has disaffirmed contract, 156, 171. under conditional contract as to title, 188, n. (/). In performance of Ihe contract, 699. buyer must fetch goods bought, 699. what plaintiff must show in an action for goods sold and delivered, 699, n. (a). within a reasonable time, or he will be responsible for default, 700. what is reasonable time, question of fact for jury, 700. where contract is for delivery "as required," 700. buyer has right to inspect before acceptance, 701, and n. {(P). where goods are sold by the yard, right to measure, 702. mere receipt is not acceptance, 703, 704, n. (5). INDEX. 905 Figures refer to Sections. ACCEPTANCE OF GOODS— Continued. but, becomes so,, by delay in rejecting, or by act of ownership, 703. See 704, n. (7). and may be retracted, if samples false, 650, 667, 705. must be of all or none, of an entire lot, 426, and n. (m). by purchaser, need not be shown in action for price of goods sold and delivered, when seller has made delivery at place agreed, 699, n. {a). ACCEPTANCE OF OFFER, force of, 39, n. (c). before retraction of offer completes contract, 41, n. (g). time within which may be made, 41, n. (<;). what constitutes, 41, and n. ((f). must meet and correspond with offer, 39, n. (c). by whom may be made, 41, n. (j). various forms of, 44, n. (a). ACCEPTANCE OF PROPOSAL. (See Assent.) ACCOUNT CURRENT, rule of appropriation of payments in accounts current, 749. a set-off in an ordinary account current is not equivalent to payment, as in an account stated, 711. ACCOUNT STATED, set-off in account stated is equivalent to payment, 711. ACT OF GOD, when an excuse for non-performance of contract, 570, n. (a). ACTIONS, PERSO^fAL AGAINST THE BUYER, 758. Where property has not passed, sole action of vendor is for damages for non-acceptance, 758. reason of the law, 758. date of the breach, 759. not changed by buyer's bankruptcy, 759. effect of buyer's bankruptcy after partial delivery, 759, 759 a. vendor may maintain action without completing contract, if buyer gives notice that he will not receive any more goods, 760. measure of damages, 761. (See Damages.) vendor may sometimes have the right to rescind a contract partly ex- ecuted, and recover the value of goods delivered, 763. WJiere property has passed, 764. vendor has only a personal action if the buyer has received actual possession, 764. the action is for the price, 764, 765, and n. (x). and not for rescission of the contract for default in payment, 764. nature of his personal action, 764. cannot rescind because of buyer's bankruptcy, 759, 764. where the property has passed, vendor may recover on the common counts, 765. 906 INDEX. Figures refer to Sections. ACTIONS — Continued. but declaration must be special for not accepting, where property has not passed, 765. also where the payment is to be made wholly or partially by bills, and the term of credit has not expired, 765. form of remedy where vendee obtains the goods by fraud and the term of credit has not expired, 433, n. (A^), 765, n. (z). vendor who has received conditional payment in a bill must account for it in suing for the price, 733, 765. Personal action against the vendor. (See Avoidance of the Contract; Remedies of the Buyer.) AGENT. (See Principal and Agent.) AGREEMENT, for sale. (See Executory Agreement.) distinction between " agreement " and " bargain " under statute of frauds, 24.5. ALIEN ENEMY, sale to, illegal, 510. " ALL FAULTS," sale with, 477, 477 a, 602, and n. (fi). ALTERATION, of written contract by subsequent parol agreement, at common law, 216. of memorandum under statute of frauds, by subsequent parol agree- ment, 216, and n. ((/). ordered by buyer in chattels made for him, 217. of bought and sold notes, 306. AMERICAN LAW, AND DECISIONS UPON, when offer is left open, 64-67. criticisms on Cooke v. Oxley, 64, 65, and n. (i'), 66. assent by correspondence, 68, 69, 75. executory agreement, when property is afterwards acquired, 83. contr.ncts under statute of frauds — distinction between "sales" and " work and labor and materials," 109, and n. (y). acceptance and receipt of goods under statute, 140, 179, 181. memorandum in writing, 254. as to sales of specific chattels conditionally, 318-351, and notes, effect of delivery to carrier in passing the property, 362. action for deceit, 432. effect of fraud on vendor, in respect of passing the property, 451. fraud of vendor in sale of a horse, 482. fraud against creditors by sales without delivery, 502. illegal sales, 556. as to sales on Sunday, 55 7, 558. as to impossibility as an excuse, 570. as to waiver of condition precedent, 569. implied warranty of title, 641. INDEX. 907 Figures refer to Sections. AMERICAN LAW, AND DECISIONS UPON — Continued. sales by sample, 653, 654. payment by bill or notes, 752. resale on purchaser's default, 788. lien non-existent for charges, &o. 796. stoppage in transitu — its legal effect, 868, and n. (rf). APPROPRIATION OF GOODS, in executory agreements for sale, 854, n. (o), 358 et seq. (See Prop- erty IN Goods.) APPROPRIATION OF PAYMENTS, buyer has the right to make appropriation, on payment, 746. and if money be received by seller for his accounf without his knowl- edge, he is entitled to an opportunity of election, 746. his election may be shown by circumstances, 747, and u. («■'), 748, n. (.). , rule of appropriation where account current is kept, 748, n. («), 749. creditor may appropriate, if debtor has not done so, 749. creditor may appropriate to a debt not recoverable by action, 748, and n. {x). but he cannot appropriate to a debt created by a prohibited contract, 748, n. {x). effect of appropriation by creditor, 748, n. (x). but it must be an existing debt, and due, 747, n. (n^), 750. there must be more than one existing debt to permit election, 749. creditor's election not determined till communicated to debtor, 749. pro rata appropriation where gross sum is paid to the agent of two principals without specific appropriation, 750. law in France, 753. APPROVAL, sales on, 595. APPROVED BILLS, meaning of, 740. ARRIVAL, meaning of, 578, n. (K). sale " on arrival " or " to arrive," 578. (See Conditions.) ARRIVE, sale of goods "to arrive," 578, and n. (fc). "AS REQUIRED " delivery, 700. "AS SOON AS POSSIBLE." (See Time.) ASSENT, to sale may be implied from acts, or conduct, or silence, 38. only from acts or expressions which are communicated between the par- ties, 55, n. (i). must be mutual and unconditional, 39. must meet and correspond with offer, 39, n. (c). nothing must be left for future arrangement, 39, n. (c). must be clear accession on both sides to same set of terms, 39, n. (c). 908 INDEX. Figures refer to Sections. ASSENT — Continued. binding agreement, when mutual assent to certain terms, is evidenced in manner to satisfy statute of frauds, altliough more formal agree- ment is to be executed, 39, n. (c). mere compliance with proposal of one party by another, efiect of, 39, ... (c). offer of reward acted on, 39, n. (c). examples in decided Qases, 40. counter proposal by other party, 39, 40. letter of inquiry is not rejection of offer, 40. loose conversation or banter, not intended as an agreement, intent for jury, 39, n. (/). proposer may withdraw offer before acceptance, 41. promise to leave offer open for acceptance not binding if without con- sideration, 41, and n. ( of transportation, 694, n. (y>). vendor is bound to give an opportunity to inspect the bulk on delivery, 695. symbolical delivery, 696, and ns. {z), (V), and (c). of ponderous articles, 696, n. (b). indorsement and transfer of documents of title are a good delivery in performance of the contract, 696, and n. (c), 697. effect of transfer of carriers' receipt, 697, n. (e). vendor not entitled to charge buyer the cost of labor in putting the bulk into the buyer's packages where sale is by weight, and the goods are weighed in the packages, 698. parol evidence admissible to show usage to deliver in sacks, grain sold by the bushel, 698. delivery which divests lien. (See Lien.) delivery at place agreed by seller is sufficient in an action by him for goods sold and delivered without proof of acceptance by purchaser, 699, n. (a). 924 INDEX. Figures refer to Sections. DELIVERY ORDER, effect of, 814. delivery order by vendor, if transferred to sub- vendee, gives the latter no greater rights than the original purchaser had, unless bailee has at- torned to the sub-vendee, 773, 814. unless vendor recognizes it and thereby estops himself, 778. (See Doc- UMEXTs OF Title ; Liex; Remedies for Breach of Contract.) DELIVERY WARRANTS. (See Docu.mexts of Title.) DESCRIPTION, words of, when a warranty, 600, and n. {p), 645. sale by, involves condition precedent, 600, 645. " DIRECTLY." (See Time.) DISAFFIRMANCE, of contract by infant, whether must restore consideration, 27, n. (r). where property used, wasted, &o. 27, n. (r). may be e.xercised against bona fide purchaser, 2 7, n. (r). DISEASE, warranty as to, in sale of animals, 6 71, u. (u), 904. DISTANCE, how measured, 522. DOCK WARRANTS, (See Documents of Title.) DOCUMENTS OF TITLE, effect of sale by a person holding, 19, and n. (x^). possession of, with apparent right to sell, 19, n. (a:^). delivery by transfer of, 696, and n. (c), 809. defined by 4th section of factors act, 809. include India warrants, dock warrants, warehousemen's certificates or warrants, as well as bills of, lading, 809. powers granted hy factors act to agents intrusted with dooumenlj^ of title, 809-810. indorsement and delivery of these documents do not suffice to divest vendor's possession nor lien, 814, 815, and n. ()«), 823. remarks on the different construction put on these instruments by courts and law-givers, 816, 817, 822, S23. quare as to effect of usage, 823, and 823 a. warehouseman may demand surrender of his warrant, promising to de- liver goods " on presentation," before giving the goods, 821. DRUNKARD, not competent to contract when incapable of understanding what he is doing, 30. but is liable for necessaries sold to him when in this state, 30. EARNEST, distinct from part payment, 189, n. (a). either will bind the bargain, 190. something of value must be actually given to constitute it, 189, n. (c), 191. INDEX. 925 Figures refer to Sections. EARNEST — Continued. not enough for purchaser to offer or tender or agree to give something in earnest or part payment, 190, n. (g), 191. given to agent, 190, n. (). RECOUPMENT, when allowable, 894, n. (a), 902 n. (a). on a contract of sale not fully performed by vendor, 47, n. (I). REGRATING, 514. REJECTION, of goods found not equal to sample, what purchaser is bound to do, 652, 652 a. REMEDIES FOR BREACH OF CONTRACT, Of the Vendor, Personal actions, 758. (See Actions.) Against the goods — general principles, 766. where goods have reached actual possession of buyer, all remedies against them are gone, 766. if they have been put in transit the right of the vendor is known as that of stoppage m transitu, 766. unpaid vendor has at least a lien on the goods while they remain in his possession, 767. but what are his rights if he has waived his lien and vendor has become insolvent ? 76 7. ' INDEX. 959 Figures refer to Sections. REMEDIES FOR BREACH OP CONTRACT— Cona'nuerf. or if the term of credit has ended, and vendor is in default with- out having become insolvent ? 767. meaning of the word " delivery " in this connection, 768. peculiar law of unpaid vendors, 767, 769. nature and extent of the claim, as expounded in Bloxam v. San- ders, 769. bankrupt's assignee cannot maintain trover against unpaid vendor in possession, 769. and other cases, 769, 770. unpaid vendor does not lose his claim on the goods by agreeing to hold them as bailee of the buyer, 770. his right may continue to exist by special contract after actual pos- session taken by the buyer, 771. where bills given to vendor have been dishonored, he may retain goods undelivered, 772. and will be responsible only for difference between market price and contract price, 772. and for nominal damages if there be no difference, 773. and this whether the sale be of specific goods or of goods to be supplied, 773. and the indorsement of a delivery order given by the vendor, on a resale by the buyer, confers no greater right than buyer had, 773-775. but unpaid vendor may be estopped from contesting rights of sub- vendee, 774. if he assent to the sub-sale, 774. but not otherwise, 774. effect of delivery order, 776. vendor may even estop himself from denying that the property had passed to his vendee, 778. if he assent to sale to sub-vendee, 778. ■ propositions deduced from the authorities, 779. (See Lien; Re- sale; Stoppage in Transitu.) Of the Buyer. Before possession. Where the contract is executory — only remedy is personal action for breach, 870. what damages buyer may recover, 870, and n. (a), 876, 876 a. ' eii'ect when market price of an article is unnaturally in- flated by unlawful means, 870, n. (a), market price not always the only evidence of true value, 870, n. (a), when there is no market price at place of delivery, 870, n. (V). damages general or special, 870. special damages must be stated in declaration, 870. rule in Hadley v. Baxendale, 871, and n. {g). 960 INDEX. Figures refer to Sections. REMEDIES FOR BREACH OF CONTRACT — Continued. rule not universally true, 872. measure where vendee has paid the purchase-money, 870, n. (J), rule where vendee has been compelled to take up his note in third parties' hands, the goods not having been delivered, 870, n. (b). where vendor by his own conduct enhances the damages, 872. probable profits of a voyage as damages for non-delivery of a ship, 872. where repurchase delayed at vendor's request and for his benefit, 872. vendor always responsible for such damage as results from buyer's being deprived of ordinary use of the chattel, 873. parol evidence not allowed where sale is in writing to show special terms by way of enhancing damages, 874. recent decisions as to rule in Hadley v. Baxendale, in respect of measure of damages, 874-876, 876 a. general rule of damages not applicable where there is no market for the goods, 870, n. (6), 876. loss of profits on sub-sale, 876, 876 a, 877. where, in case of non-delivery, purchaser cannot find other goods like those contracted for and is obliged to substitute another kind, 876 a. where goods are deliverable to buyer " on request," 878. where no damages proved, nominal damages recoverable, 879. damages in contracts for future delivery by instalments, 880-882, and n. (s). Where the property has passed — buyer, at common law, had no remedy but action for .damages, 883. but equity would sometimes enforce specific performance, 884. specific performance now allowed at law by mercantile law amend- ment act, 885. buyer may maintain trover, 886. rule of damages in such case, 876, 886. buyer may refuse goods offered if not of the description bought, 887. but not for defect in quality, 875, 888. otherwise in some of the American States, 888, n. (a). case where buyer was held bound to accept goods not equal to war- ranty in an executory contract, 889. remarks on it, 890. After receiving possession — breach of warranty of title, 893. breach of warranty of quality, 651, 653, 894. first remedy, right to reject the goods, 895. second remedy, right to damages after accepting them, 894, 897. INDEX. 961 Figures refer to Sections. REMEDIES FOR BREACH OF CONTRACT— ConftTOerf. third remedy, right to plead breach of warranty in diminution of price, 894, 898. buyer must bring cross action, if he demand special damages, 898. so where he intends to claim more damages than the amount he is sued for, 898, n. (m). cross action not barred by buyer's having previously pleaded breach of warranty in defence, 898 ; but see 898, u. (m). what is rule where vendee sues for breach of warranty before ven- dor sues for price, 898 a. practice as to verdicts in cross actions where one is for price of goods and the other for fraud or warranty in sale, 898, n. (l). pleading fraud in suit on promissory note, efi'ect of, 898, u. (m). where note has been given, what cannot be pleaded in defence, 899, n. (p), 902, n. (a), buyer has option of alleging defective quality in defence, or bringing action, 899. buyer may avail himself of breach of warranty for action or defence without returning the goods or giving notice to vendor, 899. must return a chattel as soon as defect is discovered, if vendor has agreed to take it back in case it is faulty, 900. held otherwise in Massachusetts, 900, n. («). buyer loses no remedy, except the right to return the goods, by ac- cepting them, although inferior to warranty, 901. measure of damages on breach of warranty, 903, and n. (d). when deceit can also be proved, 904. may include cost of defence against sub-vendee in some cases, 903, and n. (/). not counsel fees, 903, and n. (/). or special damages claimed by sub-vendee, 903. or aggravated damages in case of frauds, 904. or damages for personal injury from use of goods of deleterious quality, 904, and ns. (Jc) and (n). as to loss of profits, 903, n. (d). when goods prove wholly worthless, 903, n. (d). how value of goods ascertained and calculated, 903, n. (d). interest, 903, q. (d). nominal damages, 773, 879, 903, u. (d). no defence to note given for price of goods sold that they are of no value, unless fraud or warranty, 899, n. (p). defence of fraud, 452, and n. (a). , breach of warranty or fraud, by way of partial defence to action on bill or note, where goods of some value and not returned, 902, n. (a), remedies for fraud, 452, and ns. 61 962 INDEX. Figures refer to Sections. REPKESENTATIONS, innocent, causing mistake, 420, 421, and n. (r). fraudulent or not, 454 et seq., 610. (See Feaxjd.) as distinguished from conditions and warranties, 561 et seq., 610. (See Conditions.) when it amounts to warranty, 690, 613, 644. (See Misrepresenta- tion; Warkanty.) RESALE, may vendor resell if buyer continues in default? 782. law as stated in Blackburn on Sales, 782. review of authorities, 783 ei seq. right cannot exist after tender of the price by vendee, 783. nor before buyer's default, 783. buyer in default cannot maintain trover, 785. a resale, in pursuance of a right expressly reserved, rescinds original contract, 786. buyer is in duriori casu when he has consented to a resale in case of default, by the terms of his purchase, 787. modern cases decide that vendor has no right of resale on buyer's de- fault, 787. and is always liable for nominal damages if he resells, 787. American law different, 788, and n. (e). duty of the vendor when he resells, 788, n. (e). no particular mode of resale, 788, n. (e). where vendor tortiously retakes possession after delivery, legal effect, 789-791. where vendor tortiously resells before delivery, 792. damages in trover not always the full value of goods converted, 793. summary of the rules of law relative to resales by vendors, 794, 788, n. (e). title of second purchaser on resale, 795. RESCISSION, buyer's default in payment does not justify action for rescission, 764. the bankruptcy of the buyer does not rescind the contract, 759. and the assignees may claim the goods on tender of the price, 759. a resale in accordance with right expressly reserved rescinds sale, 786. vendor's tortious resale cannot be treated by the buyer as a rescission, even if buyer not in default, 789, 790, 794. buyer cannot rescind for breach of warranty of quality, 888 ; but see 888, II. (a). otherwise in some of the American States, 888, n. (a). for fraud, 452, n. (a). rights of, must be exercised at earliest moment, 452, ns. (d) and (e). restoration must be made of what party has received, 452, n. (a), 888, n. (a), 899, n. (q). when not necessary, 899. INDEX. 963 Fibres refer to Sections. ' RESCISSION — Continued. must rescind entire contract, and restore all the property, 416, n. (c), 426, n. (m), 452, n. (a), 888, n. (o). where many different articles are bought at the same time by sample for distinct prices, 652 a. offer to return, 888, n. (a). cannot be rescinded as to one party, and not as to other, ^52, n. (a). must be in toto, 452, n. (a). formalities necessary upon rescission of hand, fide sale, 675, n. (d). (See Failure of Consideration ; Fraud ; Illegality ; Mistake.) RESERVATION OF THE JUS DISPONENDI, 381. (See Jus Dis- PONENDl.) RESTRAINT OF TRADE, 520. (See Illegality.) RETURN of property on rescission of contract, 415, n. (c). when property worthless, 415, n. (c), 899, n. {q). " sale or return," 597, and n. {g). REWARD, offer of, 39, n. (c). RIGHT AND REMEDIES FOR BREACH OF CONTRACT. (See Remedies.) RISK, in actual sale, property and risk pass to purchaser, 78, 314, 315, and n. (/)• in agreement to sell, risk remains with vendor, 78. how, under civil law, 410. SALE, generally, 1, 2. definitions of, 1, and n. (a). formalities in, at common law, 3. contract of, executed and executory, 3, 78, 92. subject of sale, 76. (See Thing Sold.) " or return," 2, and n. (i), 597, and n. {g), 598. (See Conditions.) distinction between option to purchase and to return, 597, n. {g). "all faults," sale, 477. " to arrive," 578, and n. {k). (See Conditions.) " on approval," 595. (See Conditions.) " on trial," 595. (See Conditions.) " of cargo as it stands," 585. " of a cargo," 589. " of cargo by bill of lading," 591. (See Bargain and Sale ; Civil Law ; Conditions ; Execu- tory Agreement ; Illegality ; Property in Goods.) of goods " to arrive." (See Conditions.) cross sales, 592. 964 INDEX. Figures refer to Sections. SALE — Continued. of securities, implied that they are genuine, 60 7, andn. (e). according to prospectus, 607. price, must be money, 2. distinction between sale and exchange or barter, 2, and n. (e) sale and gift, 2, n. (/). gift, nature of delivery required, 2, n. (/). sale and bailment, 2, u. (/). and consignment, 2, n. (i), 598. with right of repurchase, 2, n. (i), 320, n. {fl). by description. (See Coxditions.) contract for sale, and contract for manufacture, 94-109, and n. (y). by owner, of goods in tortious possession of a third person, 6, n. (a). of goods stolen, vendee not knowing they were stolen, 6, and n. (5). in market overt, 8. by one having documents of title or indicia of ownership, 19, and n. (x^). merely colorable, 39, n. (/). of goods for a specific purpose, implied warranty, 661, andn. (j). where the goods are present and subject to examination, 661, n. (u). of goods on land of seller, 679, n. (s). license to enter and take, 679, n. (s). who may make, 6 el seq. implied contract of, 47, and n. (I). implied contract of sale enforced against fraudulent third persons, 48. implied, in recovery in trover and satisfaction of judgment, 49. formalities necessary upon rescission of bond fide sale, 675, n. QT). SALE AND RESALE, bargain for, whether within statute of frauds, 169, andn. {p). SAMPLE. (See Warranty.) may be accepted as part of the bulk to satisfy statute of frauds, 141- 143, 143, n. (0- whether so taken, for jury, 143, n. Q). vendee's taking sample at carrier's warehouse at end of transit defeats right of stoppage in transitu, 143. sale by, is conditional that buyer shall have opportunity to compare bulk, 594. sale by sample implies warranty that quality of bulk is equal to sample, 648, and n. {z). (See Warraxty.) all sales where samples are shown are not sales by sample, 649. examples of this, 648-650. (See Remedies op the Buyer; War- ranty.) proof of custom or usage as to sale by sample of berries in bags, 654, a. (;i), 655, n. (a). what necessary to constitute sale by, 648, n. (z), 649. implied warranty in sales by, 648, and n. (z). INDEX. 965 Figures refer to Sections. SAMPLE — Continued. where samples are deceptive by reason of secret defects, 650, 655, u. (o), 667, 705. difference between English and Scotch law in sales by sample, 413. American law, 648, n. (z), 653. average sample, 654. mode of rejection of goods found not to be equal to sample, 652 o. what purchaser rejecting is bound to do, 652 a. whether any implied warranty of merchantable quality of bulk in sale by, 667. sale by, not a sale in market overt, 10. " SAY ABOUT " such a quantity, 691. SCOTCH LAW, effect of sale under, 413. sale by sample under, 413. SECURITIES NEGOTIABLE. (See Negotiable Securities.) warranty or condition in sale of, 607, and n. (e). forged, purchase of, 423. SELF DECEPTION, of vendee, knowledge of vendor of, not fraud, 481. SEPARATION, when necessary to pass title, 352 et seq., 352, n. (b). different doctrines as to, 352, et seq., 352, n. (b). SERVICES, PERSONAL, excuse for not performing, 570, n. (a). SET-OFF, in account stated, same as payment, 711. SHARES, purchase of in a projected company, 424. SHERIFF, effect of writ in his hands, 7. has power to sell goods seized, 17. conveys a good title, even if writ be afterwards set aside, 17. but not, if goods not property of debtor, 17, n. (p). liability for seizure of goods included in bill of sale, 490. nature of his possession necessary to make valid sale, 17, n. (p), 486. cannot buy at his own sale, 17, n. (^). title of purchaser at sale by, 17, n. ( p). as to right to sell goods on defendant's premises, 679, u. (s). SHIP, price of to be paid by instalments during progress of construction, 336- 339. (See Property nsr Goods.) sale of, at sea, 651, 696, n. (c). entire contract to make and repair machinery for, ship lost before com- pleted, 339 a. contract to manufacture, force of payment in instalments, and oversee- ing work, 351, n. (m). 966 INDEX. Figures refer to Sections. SIGNATURE — under statute of frauds — only required by the party to be charged, 255. so that contract is valid or not at election of bim who has not signed, 255. signature is not the same as subscribing name, 256. mark sufficient, or pen held, while another signs the name, 256. description instead of signature insufficient, 257. initials sufficient, if intended to operate as a signature by party who writes them, 257, 258. may be in print, or in the body of the paper, or at beginning or end, 259, and ns. (p) and (?), 260, and u. ((), 261 et seq. in bill of parcels, 259, u. (p)- at the end, when statute requires memorandum to be " subscribed," 259, n. (q). by agent, 260, n. (t). may be referred from signed to unsigned paper, but not the reverse, 264. in acceptance, 264. of agent duly authorized to sign, 265. (See Principal and Agent.) SILENCE, and delay as proof of acceptance under statute of frauds, 162 et seq. and of goods delivered under contract, 703. when it amounts to fraud, 430, and n. (t). (See Fkaxid.) SMUGGLING, 510. (See Illegality.) SOUNDNESS. (See Warranty.) SPECIFIC CHATTEL, what constitutes acceptance under statute of frauds in sale of, 155, n. (o). when property passes in sale of, 313 et seq. fact that vendor agrees to do something in relation to it does not neces- sarily prevent title passing, 315, n. (/), 319, n. (c), 334, n. ((). presumption in such case, 318, 319, and n. (c), 321 et seq. title to may pass though mingled with other goods, 317, n. (l). sale of conditionally, when title passes, 318, 319 et seq., and 319, n. (c). when buyer assumes risk of delivery, he must pay price even if property does not pass, if goods destroyed before delivery, 328. how price ascertained when goods destroyed, 328, n. (c). when title in sale of passes where vendor is to do something after deliv- ery, 331. where something is to be done to goods by buyer, 332. actual delivery, force of, in passage of title, 331, n. (A), 334, n. (t). where the chattel is unfinished, when title passes, 335, and n. (x). STATUTE OF FRAUDS, history of the statute, 90, and n. (V). purpose of the statute, 91, n. (/). requires evidence additional to oral contract, 91, n (/). does not prohibit the oral contract, 91, n. (/). only affects the mode of proof, as to all contracts within it, 91, n. (/) 208, n. (g). INDEX. 967 Figures refer to Sections. STATUTE OF FRAUDS — Continued. affects the remedy only and not the validity of the contract, 91, n. (/). defence of, can only be made by parties or privies, 91, n. (/). subsequent modification of writing of contract within, 216, n. (d). subsequent purchaser, with knowledge of contract, invalid under stat- ute, 187, n. (a). What contracts are embraced within it, 92, 95, n. ((), 526, n. (c). Lord Tenterden's act, passed to extend it to executory contracts, 93, and n. (g). contract not to be performed within a year, 526, n. (c). goods need not be capable of delivery, 95, n. (f). or in existence, 93, and n. (jr). where materials furnished by employer, former rule as to, 105. where work is essence of the contract, former English rule, 106. how, in some of the states, 106, n. (s), 109, n. (?/). when warranty must be in writing, 611, n. (/^). Distinction between contracts of sale, and contracts for work and labor done, and materials, 94, 109, and n. (y). review of the authorities, 94-109, and n. (y). remarks on the cases — rule deduced from them, 103-107. different tests suggested by different judges prior to Lee v. Grif- fin, 104-106. test suggested by Lord Ellenborough, by Abbott, C. J. , and Lord Loughborough, 104. test suggested by Bayley J., 105. Pollock C. B., 106. Martin B., 106. contract for a chattel to be affixed to a freehold is not a sale of goods, 108. in America, tests suggested, 109, and n. (y). examination of prominent American decisions on this subject, 109, 11. (?/). rules in the different states, 109, n. Q/). auction sales are within the statute, 110. so are sales made in a foreign country, 113, n. (l). What are "goods, wares, and merchandise," 111. choses in actions, shares, stocks, not within statute. 111, and n. (a), in some of the American States, sales of notes, and stock, and bank bills, are held to be within their statutes of frauds. 111, 11. (a), interest in an invention before letters patent are obtained, 111, n. (a), title to personal property depends upon the law of state where it is, 113, n. (0- 968 INDEX. Figures refer to Sectious. STATUTE OF FRAUDS — Continued. interests in land are under 4th section, 113. stamp act as to sales of goods, 113. difference between 4th and 17th sections, 114. what is an interest in land under 4th section, 115. general principles, by Blackburn J., 116, 117. first rule, where things are severed from the soil before property passes, 17th section applies, 118. second rule, where property passes before severance, distinction to be made, 120. if fructus naturales, 4th section applies, 120, and n. (/), 126, and n. (y). if fructus industriales, 17th section applies, 121. general proposition as to growing crops, 126. axe fructus industriales " goods, &c." while growing, 127. sales of growing timber, 118, n. (s), 126, n. (if). title vests in purchaser, when severed, 126, n. (jj). intermediate crops, producing no fruit the first year, or a succes- sion of crops, 128. crops not yet sown, 131. crops when mere accessories to the land, 132. What is the price or value of 101., 134. where several articles are sold atone time, 134. where several lots are bought at auction, 135, and n. (rf). where the thing sold is of uncertain value, 136. where there is one consideration for several contracts, 137, and -(9)- price or value to bring contract within statute not alike in all states, 91, n. (e). What is acceptance, 139. acceptance of sample as part, 141. acceptance may be constructive, 144. fact for the jury whether buyer accepted, 144. an act of ownership is acceptance, 145. acceptance may suffice for formation of contract, and not for performance, 149, 150. whether it is necessary that buyer should have had an opportu- nity of rejection, 152-158. acceptance may precede receipt, 157. acceptance insufficient after action brought, 159. carrier has no authority to accept for buyer, 160, 181. silence and delay as proof of acceptance, 162. marking the goods, 166, and n. (Ji). where some of the goods are not yet in existence, 167. where the goods are of different kinds, 168. where the bargain is for sale and resale, 169, and n. (p). INDEX. 969 Figures refer to Sections. STATUTE OF FRAXJBS — Continued. effect of proving acceptance and receipt, 1 70. acceptance after disaffirmance of contract by vendor, 171. What is actual receipt, 172. (See Receipt.) ■what is earnest, 189. (See Earnest.) what is part payment, 189. (See Payment.) memorandum or note in writing, 201. (See Evidence ; Memoran- dum.) signature of the party, 255. (See Signature.) signature of agent duly authorized to sign, 265. (See Principal and Agent.) broker's authority to sign, 273. (See Broker.) auctioneer's authority to sign, 268. (See Auctioneer.) bought and sold notes, 275. (See Bought and Sold Notes.) distinction between 4th and 17th sections of statute, 224, 246. STOCKS AND SECURITIES, sale of. (See Negotiable Securities.) what is a good delivery in sale of stock, as to third persons, 675, n. (^rj). STOLEN GOODS. (See Market Overt.) auctioneer, or other person selling or using, liable to owner, though ignorant of the fact that goods had been stolen, 6, and n. (b). in case of mere naked bailee of, 6, n. (6). STOPPAGE IN TRANSITU, is a right which exists only when buyer is insolvent, and after the goods have been delivered out of vendor's possession, 767, 828, and n. (5). its history, 829. an extension of the right of lien upon the goods, for the price, 868, n. (d). a right adverse to the purchaser, 828, n. (a), there must be a seller, purchaser, and a middleman, 828, n. (i). Who may exercise the right — persons in position of vendors, 830. consignor who has bought with his own money or credit, 830. agent of vendor, who is indorsee on bill of lading, 830. agent who has power to act for consignor, 834, n. (r). person who pays price of goods for the purchaser, and takes assignment of bill of lading, 830, n. (/). vendor of an interest in an executory contract, 831. qucere — can surety, 831. parties having liens other than that of vendor cannot, 832. consignor may stop, even where factor has made advances, 833. agent without authority : stoppage good, if ratified before end of transit, but not otherwise, 834, and n. (r). ratification where a letter giving authority had not reached agent when he assumed to act, 834. 970 INDEX. Figures refer to Sections. STOPPAGE IN TRANSITU— Continued. vendor's right not affected by partial or conditional payment, 835. but lost, if he has received securities as absolute payment, 835. consignor may stop, although account current with consignee is unad- justed, and the balance uncertain, 835. consignor who ships goods to meet unmatured acceptances in general account cannot stop {qucere), 835. vendor's right is par.imount to carrier's lien for general balance, 836. or to attaching creditor's, 836. and in certain cases to claim for freight, 836. Against whom may it he exercised — only against insolvent vendee, 837. what is meant by insolvency, 837, and n. (k). vendor stops at his peril in advance of buyer's insolvency, 838. when insolvency must occur, to be available as a ground of stoppage, 837, „. (/,■). When does the transit begin : and end — duration of the transit, 839. the right comes into existence after vendor has parted with title and right ot possession, and actual possession, 840. general principles stated by Parke B. in James v. Griffin, 840. goods may be stopped in hands of carrier, 841, 849, n. (b). even though named by purchaser, 841. but goods delivered on buyer's own cart or vessel are not in transitu, 841. vendor may restrain the effect of delivery on buyer's vessel, by the terms of the bill of lading, 842. and the effect of the delivery on the buyer's own ship is the same whether it be a general ship or one sent expressly for the goods, 842. where the vessel is chartered by the buyer, 843. right does not extend to insurance money due to purchaser, 844. where vendor takes receipt in his own name for goods put on board, his right not lost, 845. unless the vessel belonged to buyer of goods, and vendor fails to qual- ify the language of the receipt, 845. transit not ended till goods reach ultimate destination, 846, 847, n. ((), 848, 1,. (^j. test for determining this, 846. cases illustrating the principle, 847 et seq., 848 a. force of landing goods at usual wharf, no duty being cast on wharfinger, 847, u. {t). where goods have reached their destination, but are still in carrier's possession, 849, and u. (V). both buyer and carrier must agree before carrier can become bailee to keep the goods for buyer, 849 et seq. INDEX. 971 Figures refer to Sections. STOPPAGE IN TRANSITU— Continued. carrier may become bailee for buyer while retaining his own lien, 853. buyer may anticipate the end of transiius, and thus put an end to the right of stoppage, 854, and n. (s). transit ended where goods are placed on board ship appointed by pur- chaser, to be transported not to him, but to other markets, 844, n. (c). But see 848 a. buyer's right of possession not affected by carrier's tortious refusal to deliver, and right of stoppage is at an end, 855. right of stoppage continues after arrival of goods at destination, until vendee takes possession, 856, and n. (z). what is such possession, 856. whether delivery of part is, 857, and n. (e). delivery even after buyer's bankruptcy, into his warehouse or to his as- signee's, ends the transit, 858. but insolvent buyer may aid his vendor, by refusing acceptance and rescinding contract, 858, and n. (A). or declining to take possession, 858. assent of vendor to rescission may be made after goods are attached, 858, n. (A). sale of goods which are in government warehouse ; certificate of store- keeper being given for goods as property of vendee, vendor to forward to another place, when right to stop lost, 848 n. (z). mere fact that purchaser has resold goods, and that bill of lading has been made out in name of sub-purchaser, does not destroy the right, 848 a. effect of entry of goods in the custom house, 859, and n. (5), 859 a. How is the right exercised — no particular mode required, 859. simple notice to carrier is the usual mode, 859, and n. (fl). the notice must be to the person in possession, 860. or to the employer, in time to enable him to notify his servant not to de- liver, 860. it is not necessary to inform carrier that buyer has not parted with the bill of lading, 861. duty of master of vessel is to deliver goods to vendor, not to retain them till conflicting claims are settled, 861. but he delivers at his peril, and may require indemnity, 861. and if refused, may protect himself by bill of interpleader, 861. whether if he delivers to wrong person he is liable in trover, 861, and the stoppage must be on behalf of vendor in assertion of his paramount right to the goods, 861. How it may be defeated — not by an attachment of the goods as property of consignee, 862, n. (c). 972 INDEX. Figures refer to Sections. STOPPAGE IN TRANSITU— Continued. nor by sale of the jroods unless made by transfer of bill of lading, 862, n. (c). right is only defeasible when a bill of lading representing the goods has been transferred to bona fide indorsee for value, 862, and n. (e). effect of receipt of bill of lading by vendee, 862, n. (d). by common law the right could only be defeated by the transfer of the bill of lading on sale of the goods, 863. but now by factors acts, by pledge of the bill, 863. and the transfer of the bill of lading is now an assignment of the contract as well as a transfer of the goods, 863. but the bill of lading is not negotiable like a bill of exchange, and the transferee gets only such title as the transferor had, 864. but bona fide holder will prevail against true owner who has transferred the bill, even though induced to do so by fraud, 864. indorsement of bill of lading, when prima facie proof that it was for value, 864. where consignor gets back bill of lading after parting with it, 865. where bill of lading has been transferred as a pledge, right of stoppage exists for the surplus, 865. and vendor may force pledgee to marshal the assets, 865. vendor's right of stoppage is defeated by the transfer of the bill of lad- ing, even when transferee knows that the goods have not been paid for, if the transaction is honest, 866. whether transfer for antecedent debt will defeat the right, 866, and n. {x). remarks of Cotton L. J. as to rights of vendor against third persons, 866 a. What is the effect of a stoppage — the effect is to restore the goods to the vendor's possession, not to re- scind the sale, 867, 868, and n. {d). this is also the law in America, 868, and n. (d). "STRIKING BARGAIN," what, 191. SUBJECT OF SALE. (See Thing Sold.) SUBSEQUENT APPROPRIATION, 358 et seq. converts executory contract into bargain and sale, 358, and n. (V). when vendor is to appropriate the goods, what constitutes the appropria- tion, 358 et seq., 360, n. (rf). rule to determine election, 359. point of time at which property passes, 360. authorities reviewed, 361 et seq. delivery to carrier by order of vendee, effect of, 362. where vendor pays for the carriage, 363. vendor to load coal and deliver at vendee's wharf ; effect of loading alone, 363, n. (i). INDEX. 973 Figures refer to Sections. SUBSEQUENT APPROPRIATION — Con&«ed. conditional appropriation, 369. vendee may assent prior to appropriation by vendor, 371, and n. (2), 375, n. (/). election by vendor must be in conformity with contract, 376, and n. (0- cannot elect more than contract requires, 376. of chattel to be manufactured, 377. during manufacture, 380. discounting bills attached to bills of lading, force of, 378, n. (n^). buyer must assent to appropriation by vendor, 379 a, 371, and n. (z). SUBSEQUENT PURCHASER, with knowledge of contract invalid under statute of frauds, 187, n. (a). SUNDAY, sales on, 552-558, 554, n. (q), 557, n. (,s), 558, u. (A). (See Illegality.) warranty or deceit in sales on, 553, n. (k). note given for property sold on, 557, n. (m). sale made on, and delivery on secular day, 557, u. (x). delivery on, in pursuance of sale made on secular day, 557, u. (r). ratification of sale made on, 557, n. (x), 558, n. (h). effect of date of contract of sale made on, 568, n. (A). SYMBOLICAL DELIVERY, what is, 696, ns. (V) and (c). delivery of key of shop or storehouse, 696, n. (6). of property under attachment and in hands of officer, 7, and n. (d), 696 I,. (6). or in custody of third party claiming it, 696, n. (J). of part for the whole, 696, n. (b). by delivery of common carrier's receipt, 697, n. (e). TELEGRAM, signed by a clerk, sufficient signature under statute of frauds, 271. contract may be made and proved by, 44, n. (a). same rules apply as to correspondence by letter, 44, n. (a). TENANT IN COMMON, sale by one good, and no defence to purchaser that co-tenant forbids payment to the one selling, 6, n. (a). TENDER, valid at any time before writ issued, 708. equivalent to payment, 712. requisites of valid tender, 713. buyer must produce money equal to the debt, 713. waiver of production of money may be implied, but the courts are rig- orous in requiring proof of such waiver, 713, and u. (y). examples of sufficient waivers, 714, and n. (/). tender must be so made as to enable creditor to examine and count the money, 715. 974 INDEX. Figures refer to Sections. TENDER, — Continued. debtor is not bound to count the money, 715, u. (n). in what coin tender must be made, 715, 716, 720, n. (I). as to the legal tender acts of the United States, 715, u. (9). bank bills, 716, n. (s). tender of, good unless objected to, 716, u. (.). waiver of objection to the quality or kind of money offered, readily im- plied, 716. tender of more than is due is good, 717. but not with demand for change, 718. tender of part of an entire debt not valid, 719. of balance due after set-off not allowable, 720. tender must be unconditional, 721, and n. (m). debtor cannot demand admission that no more is due, 722-724. but may e.tclude presumption that he admits more to be due, 722, and n. 0). tender with protest that the amount is not due is good, 725. whether at common law debtor could demand receipt, on making ten- der, 726. now he can by statute, 727. tender is a bar to the action, not merely to damages, 728. tender under French law, 754. of goods manufactured to order, 335, n. (x), TENTERDEN'S, LORD, ACT, in addition to statute of frauds, 93. THING SOLD, where thing has ceased to exist, sale void, 76. reason of this, 77. things not yet in existence, two classes, 78. things having potential existence may be sold, 78. things not yet in existence actual or potential, or not yet belonging to vendor, may be the subject of an executory agreement, not of sale, 78, 79, n. (/.■). goods that may thereafter be purchased and placed in a particular store, 79, u. (i). subsequent effect may be given to the executory agreement, 80, and n. (0. rule in equity different from that at law, 81, and n. (m). not belonging to the vendor, 82. stocks in Massachusetts, 82, 11. (s). American decisions and rules in different states, 79, n. (k), 81, n. (m), 83, and n. (t). whether executory contract to sell goods not owned by vendor is a wager contract, 82, 542, 542 a. INDEX. 975 Figures refer to Sections. THING SOLD — Continued. sale of a hope dependent upon a chance, the venditio spei of the civil- ians, 84, and n. (?/). goods at sea, 78, n. (g). invoice of outward cargo, after sailing of vessel, 78, u. (g). of fish, afterwards to be caught, 84, n. (y). existence of thing sold not an implied warranty, but a condition, 669. TIMBER, GROWING, sales of, 126, n. {y). when and to what extent within the statute of frauds, 126, n. (y). effect of severance from soil, 126, n. (?/). effect of revocation of license to enter and cut, 126, n. (y). when severance is to take place before property is transferred, 118, 126, n. (y). to be cut as soon as possible, 126, n. (?/). test whether parties looked to trees deriving a benefit from the land, or merely intended land should be in the nature of a ware- house, 126, n. (j/). TIME, time, if of the essence of the contract of sale, forms a condition prece- dent, 593. where time for delivery not expressed, a reasonable time is allowed, 683. and this is determined according to the facts and circumstances of the sale, of which parol evidence may be given, even if sale be written, 683, and n. (c). where the time is expressed the question is one of law for the court, 684. last day included in calculation, 684, and n. (T). meaning of "month," 684, and n. (/). "days," how counted, 684. " hour," up to which vendor may deliver, 685, 686, n. (^^). rules established by the decision in Hartup v. McDonald, 685, 686. meaning of "directly," "as soon as possible," " reasonable time," "forthwith," 687, 700, 709. day of an act from which time runs is to be excluded, 684, n. (I). "between two days," excludes both, 684, n. (I). so from one day to another, 684, n. (I). " until " is exclusive, 684, n. (l). TIME BARGAINS. (See Illegality.) TIPPLING ACTS, 543. TITLE. (See Pkopekty in Goods.) implied warranty of, 621 et seq., 627 and n. (i). (See Warranty.) exception to rule that only owner can transfer, 8 et seq., 15, 16, 18, 19, and notes. TOMBSTONE, agreement to manufacture, within 17th section of statute of frauds, 102, n. (0. 976 INDEX. Figures refer to Sections. TRIAL, sales " on trial," 595. TROVER, innocent buyer, reselling goods bought from one not owner, liable in trover to true owner, 6. maintainable, even though evidence in support o£ it shows a case of felony in defendant, 13. effect of sales in market overt, as a defence in trover, 8-14. (See JIarket Overt.) broker's responsibility in trover, discussed in Fowler v. HoUins, 243. recovery in trover and satisfaction of the judgment operates as a sale by the plaintiff to the defendant, 49, and n. (r). bankrupt's assignee cannot maintain trover against unpaid vendor in possession, 769. lies against vendor, even where property has not passed, if vendor is debarred by estoppel from showing that fact, 778. vendee in default cannot maintain trover, 785, 794. damages in trover not always the full value of goods converted, 793. proper rule in such cases, 876. buyer cannot obtain greater damages by suing in trover than by suing on the contract for the breach, 793, 886 et seq. TRUST, parol declarations of as to personalty, 2, n. (/). declarations of in bill of sale, 491. USAGE. (See Evidence.) what, and effect of, 215, n. (ft), is matter of fact, not of opinion, 215, u. (6). how proved, 215, n. (b). actual knowledge of not required, 215, n. (b). use to be made of it when proved, 215, n. (i). cannot be allowed to control express intention of the parties, 215, n. (J), nor to engraft on a contract of a sale a stipulation inconsistent with the common law, 215, n. (h), 655, n. (a), understanding of a community or class as to a legal effect, or an im- plication of law, not a vahd usage, 215, n. (i), 655, u. (n). inadniissible to contradict terms of express contract, 215, n. (6). to engraft an implied warranty on sale, 655, n. (a), whale fishery; usage in, 215, n. (b). VALUATION, 87. (See Conditions; Peice.) VALUE, uncertain, whether statute of frauds applies, 136. VENDEE, rights acquired by in purchase from one not owner, 6, and n. (a), 8. INDEX. Qfj^ Figures refer to Sections. VENDOR, who may be, 6 el seq. not necessary that goods should be in actual possession of, 6, n (a) VOID AND VOIDABLE ACTS, distinction between, 26, n. (^). in reference to contracts of infants or lunatics, 26, n. (p). WAGER, when illegal, 541, 542, and n. (o), 542 a. WAIVER OF CONDITIONS, 566 et seq. (See Conditions.) WAREHOUSEMAN, 780, 781. (See Estoppel.) WARRANTS, DOCK OR WAREHOUSE. (See Documents or Title ) WARRANTY. (See Damages.) Express, sale by description involves condition, not warranty, 600-606, 610. otherwise, in some American States, 600, n. (j>). definition and nature of warranty, 600, 610. distinction between and antecedent representations, 610. ground of recovery when warranty is laid with scienter, 617, u. (i). distinction between warranty and condition, 561, 610 et seq. a representation, in order to constitute a warranty, must be made during the course of the dealing, and must enter into the bargain, 610. warranty, after sale completed, requires new consideration, 611, and n.(c). warranty of quality is not implied by mere fact of sale, 611. caveat emptor is the rule : but subject to many exceptions, 611. warranty of title, 612. no special form of words needed to create warranty, 613, and n. (Jc). test for determining whether representation amounts to warranty, 613. it is fact for the jury, whether warranty was intended, 613, and n. (m). interpretation of express warranties, and examples of decided cases, 613-615, and ns. it) and (j/). general warranty does not extend to defects visible on simple inspec- tion, unless so worded as specially to protect buyer from them, 616, and ns. (e) and (/), 618, ji. Q). unless art used to conceal defects, 616, n. (e). meaning of " soundness " in warranty of horses, 616, n. (e), 619, 620. list of various defects which have been held to constitute unsound- ness, 620, and n. (/\). conditions for return of horses not answering warranty, 599 a, and n. (oi). parol evidence inadmissible to prove or extend warranty in written, sale, 621, and n. (m). 62 978 INDEX. Figures refer to Sections. WARRANTr— Continued. admissible to explain and show warranty, not contained in informal receipt or bill of parcels, 622, and n. {p), warranty of future soundness, 623. warranties by agents — general rule, 624. agents for sale may give warranty, if usual, in order to effect a sale, 624, and n. (a), but a servant of a private owner, intrusted to sell and deliver a horse on one particular occasion, has no implied authority to warrant, 625. Implied, of Title, exists in executory agreement, 627, 630, and n. (/>). affirmation by vendor that the chattel is his, implies warranty of title, 627. this affirmation may be implied from conduct as well as expressed in words, 627 et seq., 634 a. as to the time at which vendee can show a breach of warranty of title, 627, n. (i). right of vendee to remove lien on the goods, 627, u. (i). if vendor knows he has no title, it is a fraud to sell, if he conceal that fact from buyer, 627, and n. (i). the one controverted question is, whether in the sale of a chattel an innocent vendor, by the mere act of sale, asserts that he is owner, 628. discussion of the subject and review of the authorities, 628-638. submitted that the rule is now chan!,'ed from that laid'down in the • text-books, 639. to whom vendee liable when his vendor was not true owner, 628, 640, 640 a. in America, warranty of title said to be implied only when the sale is of goods in possession of the vendor, 641, and n. (/). of title, in exchanges of property, 641, n. (i). possession of vendor equivalent to an affirmation of title, 641, n. (i). possession by agent at time of sale or exchange, 641, u. ((). " possession," what it means, 641, n. ((). by civil law vendor's obligation of warranty, 406-409. by the civil law, warranty against eviction by paramount title is al- ways implied, 642. French Code on the subject, 643. Implied, op Quality, in sale of specific chattel, already existing, and inspected by the buyer, the rule caveat emptor admits of no exception by implied warranty of quality, 618, n. (i), 644, 661, n. («). warranty of quality implied in sale of chattel to be made or supplied, 645. sale of specific chattel by description, a condition precedent that it shall answer to the description, 645. See 600, n. (/>). INDEX. Figures refer to Sections. 979 WARRANTY — Coniwiufrf. sale by sample implies warranty that bulk equals sample, 648, and n. (z). all sales where samples are shown are not sales " by sample," 649. examples in illustration of this, 648-651. to constitute sale by sample contract must be made solely with reference to sample, 648, n. (z), 649. ^sample shown by manufacturer deemed to be free from secret defects, 648, u. {z), 651-654. how when shown by one not a manufacturer, 648, n. (z). buyer's rights of inspection and rejection if goods not equal to sample, 651-653. American law on this subject, 653, 654. average sample, 654. whether in sale by sample there is any implied warranty of merchantable character, 667. warranty of quality may be implied from usage, 655, and n. (a), subject to certain limitations, 655, n. (a). stipulation as to quality may amount to warranty, 644, n. (n). in sale of goods by description, not inspected by buyer, there is an implied warranty of quality that the goods are salable or mercbanta- able, 656. See 656, n. (/i), 657, n. (I). statement that the article sold is of same quality as article previously sold, 644, u. (n). in sale of securities, promissory notes, &c. 607, and n. (e). as to sales of packed cotton, 656, n. (/). where goods are ordered of manufacturer, 657, and n. (I). article ordered of manufacturer by purchaser who tells the purpose for which he orders it, 657. where manufacturer contracts to supply an article for particular pur- pose, 657. where manufacturer engages to supply goods manufactured by himself or in which he deals, but which the purchaser has no opportunity for inspecting, 657, and n. (k^). warranty does not extend to a depreciation of quality necessarily result- ing from transit, 659. See 659, n. (o). does not extend to the packages in which the goods are contained, 660. implied warranty where goods are bought for a special purpose made known to vendor, on whose skill buyer relies, 657, and ns. (k^} and (I), 661, and n. (q). rule when goods are present and subject to examination , 661, n. (m). whether goods are sold for a particular purpose is a question for jury, 657, n. (F). implied warranty is excluded where express warranty has been given 666. 980 INDEX. Figures refer to Sections. WARRANTY — Continued. warranty not implied in favor of a third person no party to the contract, 668. existence of thing sold properly a condition, not an implied warranty, 669. is there an implied warranty of quality in sales of provisions? 670, and n. (r), 671, and n. (u), 672, n. (si), submitted that there is not, 6 72, and n. (r^). ^ «J^ implied warranty from marks on packages, 673. remedies of the buyer on breach of warranty, 893 et seq. (See Reme- dies.) remedies of vendee for breach when negotiable securities given, 902. in some states treated as a condition subM-'quent, to avoid circuity of action, 888, u. (a). WEIGHING of goods, effect on passage of title, 319, and n. (c). WHALE, property in when harpooned, 215, n. (b). WHARVES, sufferance wharves in London, ,sil. WORK AND LABOR, &c. how distinguished from a contract of sale, 94-109, and n. (y). (See Statute of Fr.\dds.) WRIT, effect of outstanding writ of execution on the sale of goods by the owner, 9. WRITTEN CONTRACT, presumed to contain the entire agreement of the parties, to the exclusion of previous conversations not incorporated into it, 202. n. (n^). AVRONG-DOER, sale by owner, of goods withheld by, 6, u. (o). KF 915 Bt^6 1881 Author Vol. Benjamin, Judah Philip Title Copy A Treatise on the law of tho oalo of popoonaJ. proper Borrower's Name ■ J 1 s ! : t